author: GRIFFIS, P.J., FOR THE COURT: CARLTON, J., DISSENTING:

text:
    Keith BOWDRY, Lakeisha Bowdry and Mississippi Municipal Workers' Comp Group, Appellants v. T. MART, INC. d/b/a T. Mart Convenience Store and Tommy Brooks Oil Company d/b/a Texaco Gas Station, Appellees
    NO. 2016-CA-01603-COA
    Court of Appeals of Mississippi.
    March 6, 2018
    ATTORNEYS FOR APPELLANTS: EDWARD BLACKMON, BRADFORD JEROME BLACKMON, MARCUS AMIR WILLIAMS, SHEA SCOTT
    ATTORNEYS FOR APPELLEES: WILLIAM G. ARMISTEAD, JOHN D. BRADY
    EN BANC.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Lakeisha and Keith Bowdry appeal the circuit court's dismissal of their negligence claims based on discovery violations. This case considers whether the dismissal was appropriate under Mississippi Rule of Civil Procedure 37 and Pierce v. Heritage Properties, Inc. , 688 So.2d 1385 (Miss. 1997). We find reversible error and remand for further proceedings.

FACTS

¶ 2. On April 15, 2011, Keith was on duty as a Tupelo police officer. He was pulling out of a Texaco gas station when his vehicle collided with another vehicle traveling on South Gloster Street in Tupelo, Mississippi. As a result of the accident, Keith was taken to North Mississippi Medical Center where he was treated for complaints of pain in his head, neck, left knee, and lower back.

¶ 3. Keith and his wife Lakeisha filed a complaint against T. Mart Inc. and Tommy Brooks Oil Company (collectively "T. Mart"), the owners of the Texaco gas station. The complaint alleged that the shrubbery on T. Mart's property negligently inhibited the sight line of an exiting vehicle. Keith sought to recover damages from the accident, and Lakeisha sought damages for loss of consortium.

¶ 4. Keith was served with interrogatories related to his prior medical history and treatment. He was asked whether he ever had been involved in any other accident or incident or if he had any illness or sickness of any kind of any type or severity that required or resulted in him being seen or treated by any medical professional. In response, Keith disclosed a motor-vehicle accident that occurred on August 25, 2005, in a Tupelo Walmart parking lot. Keith's response did not provide information as to any injuries that resulted from the accident. But, the response stated that Keith saw two separate medical providers and a physical therapist following the incident.

¶ 5. Keith later was deposed by T. Mart. Keith was asked whether he ever had experienced prior neck problems, and he responded that he had not. Keith also was asked about lower-back issues, and he responded-"[n]ot lower back." After the deposition, T. Mart obtained Keith's prior medical records. The records revealed that he had received medical treatment for his neck and lower back after the 2005 accident.

¶ 6. T. Mart believed Keith's discovery responses were false. T. Mart then filed a motion to dismiss the complaint pursuant to Rule 37(b)(2) and 37(e). After a hearing, the trial court granted the motion to dismiss with prejudice. The trial court concluded that, under the circumstances, no sanction less than dismissal would be appropriate to satisfy the deterrent value of Rule 37. Also, because Lakeisha's claim was derivative in nature, it too was dismissed with prejudice.

STANDARD OF REVIEW

¶ 7. "A trial court's dismissal of a cause of action as a sanction for discovery abuse is reviewed for abuse of discretion." Avare v. Gulfside Casino P'ship , 178 So.3d 796, 798 (¶ 4) (Miss. Ct. App. 2013). "When [an appellate court] reviews a decision that is within the trial court's discretion, it first asks if the court below applied the correct legal standard." Pierce, 688 So.2d at 1388. "If the trial court applied the right standard, then [the c]ourt considers whether the decision was one of several reasonable ones [that] could have been made." Id. Thus, "[a]n appellate court will affirm a trial court's dismissal of a cause of action as a sanction 'unless there is a definite and firm conviction that the trial court committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.' " Avare , 178 So.3d at 798 (¶ 4) (quoting Pierce , 688 So.2d at 1388 ). "We will, however, review issues of law de novo." Id.

¶ 8. "We recognize that the exercise of dismissal power should be limited to 'the most extreme circumstances.' " Id. (quoting Gilbert v. Wal-Mart Stores Inc. , 749 So.2d 361, 364 (¶ 6) (Miss. Ct. App. 1999) ). We further recognize that "[an appellate c]ourt's duty is to decide not whether it would have dismissed the action as an original matter, but whether the [trial] court abused its discretion in so doing." Pierce , 688 So.2d at 1388-89.

ANALYSIS

¶ 9. The question here is whether the circuit court committed reversible error in the decision to dismiss the Bowdrys' complaint under Rule 37 and Pierce.

¶ 10. In Pierce , the plaintiff was injured when a ceiling fan in her apartment fell onto her. Id. at 1387. During discovery and at trial, she concealed the fact that another person had been present in the room when the ceiling fan fell. Id. at 1387-88. On numerous occasions, through extensive discovery, and in response to interrogation at the first trial, she maintained that she had been alone when the accident occurred. Id. at 1387. After a new trial was granted for other reasons, it was discovered that she had lied. Id. at 1388. The circuit court found that such a blatant lie was a reason to dismiss her case, even though there was no prejudice to the defendants. Id.

¶ 11. The supreme court's analysis in Pierce provides us with the framework we must consider in this appeal:

Pierce contends that the circuit court erred and abused its discretion by imposing the sanction of dismissal with prejudice, thereby barring her from any recovery for injuries caused when the ceiling fan fell on her. Specifically, the appellant argues that the trial court misapplied Mississippi Rule of Civil Procedure 37(b)(2) by imposing the "death penalty" and dismissing her lawsuit.
The decision to impose sanctions for discovery abuse is vested in the trial court's discretion. The provisions for imposing sanctions are designed to give the court great latitude. The power to dismiss is inherent in any court of law or equity, being a means necessary to orderly expedition of justice and the court's control of its own docket. Nevertheless, the trial court should dismiss a cause of action for failure to comply with discovery only under the most extreme circumstances.

Pierce , 688 So.2d at 1388 (internal citations and quotation marks omitted). It is very important to note the supreme court's express word of caution and admonition: "Nevertheless, the trial court should dismiss a cause of action for failure to comply with discovery only under the most extreme circumstances ." Id. (emphasis added).

¶ 12. In his response to interrogatories, Keith provided the following information:

INTERROGATORY NUMBER 9: Before or after the date of the occurrence [that] is the subject of this action, had you ever been involved in any other accident or incident or had any illness or sickness of any kind and of any type or severity [that] required you to be seen or resulted in your being seen or treated by any doctor, hospital[,] or other medical provider? If so, please state in detail the following:
(a) The date and place of the accident, incident, illness[,] or sickness;
(b) A description of the accident, incident, illness[,] or sickness;
(c) Names, addresses[,] and phone numbers of witnesses to the accident, incident, illness[,] or sickness;
(d) The name of the defendant (or person or entity against whom you made your claim), if lawsuit, action[,] or claim was made on your behalf;
(e) The court or other tribunal where any action or claim was filed, together with any identifying action number;
(f) The names, addresses[,] and phone numbers of all medical doctors, any other medical personnel, hospitals, or other medical facilities or medical providers wherein you received treatment as a result of the accident, incident, illness[,] or sickness[ ] identified above.
RESPONSE: Plaintiff, Keith Bowdry was involved in an automobile accident in 2005 on the Wal-Mart parking lot in Tupelo, Mississippi, when [his] vehicle was struck by a vehicle being driven the wrong way by an employee of Lencare Medical Supply. [Keith] does not recall the name of the driver. [Keith] was seen by a doctor at Semmes Murphy Neurologic and Spine Institute[,] ... Debra Hill, NP, and Reenea Willis, PT, of Rehab Solutions, PLLC. No lawsuit was filed[;] however, [Keith] was compensated for damages by the insurance company for Lencare Medical Supply.
INTERROGATORY NUMBER 10: Please identify the names, addresses[,] and phone numbers of your regular family doctor and the names, addresses[,] and phone numbers of any other medical doctors or any other medical personnel not previously listed, who have treated you or given you any medical advice for the past ten years.
RESPONSE: Dr. Norris Crump-898 Lynden Blvd., Tupelo, MS 38801[;] and Debra Hill, NP-Plantersville Clinic, 2489 Main St., Plantersville, MS 38862[.]

¶ 13. In his deposition, Keith responded to the following questions about his prior neck or lower-back issues:

Q: Before this accident, had you ever had any prior problems with your neck?
A: No, sir.
Q: [Had] you ever had to have any medical treatment for your neck before the accident?
A: When I was a kid, I had a cyst on the back of my neck .... I was like, maybe, 12 or 13, something like that. That's the only problem I had.
Q: Did you ever have any prior problems with headaches before the accident?
A: No, sir.
Q: What about your lower back?
A: Not lower back.

¶ 14. T. Mart obtained Keith's medical records. The records included the following information about Keith's medical care for injuries he received in the accident:

1. On April 4, 2005, Keith was treated at Plantersville Clinic for low back pain that had started a few days prior. The Plantersville Clinic record shows that Keith had "low back pain, started Saturday."
2. In August 2005, Keith was involved in an automobile accident and was treated at North Mississippi Medical Center. His chief complaint was characterized as "MVA THIS A.M. C/O LOW BACK PAIN[;] UNRESTRAINED DRIVER."
3. On August 31, 2005, Keith was at Plantersville Clinic due to continued pain from the accident. The record shows that Keith "had MVA last Thursday, hurts from neck all the way down back" and "leg weakness and burning sense [after] MVA-hurting at night in back and legs."
4. The injury was severe enough to necessitate MRIs of the lumbar spine, thoracic spine[,] and cervical spine. On each of the MRI reports, the indication was "neck and back pain." The MRI of the cervical spine showed "mild reversal of the normal lordotic curvature of the cervical spine" and "mild disc osteophyte complex mainly at the C3-C4 and C4-C5 levels but borderline to mild spinal stenosis as described."
5. Also, Keith was at North Mississippi Medical Center on September 10, 2005, due to "neck and back problems, wreck 8/25/05."
6. Further, in October 2005, Keith was at Plantersville Clinic due to "L shoulder pain-hurts to raise arm, low back pain, neck pain, needs excuse for light duty[,]" and, "burns down into buttock. Lumbar back." He was diagnosed with shoulder strain and lumbar strain.
7. Five days later, Keith was a patient at Semmes Murphey Neurologic & Spine Institute. He complained of "left shoulder, neck[,] and back pain, without radicular symptomatology" and "severe pain in his back." A physical examination was performed[,] which showed "cervical range of motion is limited on forward flexion, hyperextension[,] and lateral bending[.] He also has some myofascial trigger points in the lumbar area with a restricted range of motion in the lumbar spine on forward flexion and hypertension." He was diagnosed with "cervical and lumbar spasms," and physical therapy was prescribed due to "cerv/LB pain."
8. He returned to Semmes Murphey Clinic in November 2005 due to "lumbar myofascial pain" as well as shoulder pain. Keith was again noted to have "cervical myofascial spasms" and "lumbar myofascial spasms." He was prescribed "aggressive physical therapy for myofascial release of the cervical and lumbar areas[.]"

¶ 15. From this evidence, the trial judge granted the motion to dismiss and ruled:

A comparison of Keith Bowdry's answers to interrogatories and deposition testimony with his pre-accident medical records show that he intentionally and deceitfully misrepresented his pre-existing medical condition with respect to his neck and back. Mississippi's appellate courts have consistently found this type of concealment of facts to be willful and in bad faith.

¶ 16. This Court must review the trial court's decision under an abuse of discretion standard. Pierce , 688 So.2d at 1388. This requires that we may only reverse when there is a "definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors." Id.

¶ 17. In Kinzie v. Belk Department Stores L.P. , 164 So.3d 974, 977-80 (¶¶ 6-13) (Miss. 2015) (internal citations and quotations omitted), the supreme court ruled:

In Pierce, this Court held that dismissal was appropriate because the plaintiff had flat-out lied under oath about the existence of an eyewitness to the incident that had caused the plaintiff's alleged injuries and had consistently obstructed the progress of the litigation by filing admittedly false responses to various discovery requests and by swearing to false testimony in depositions. This Court determined that dismissal was appropriate because the plaintiff had acted in bad faith, and that any sanction other than dismissal would virtually allow the plaintiff to get away with lying under oath .... The Court noted, however, that it would remain very reluctant to affirm such a harsh sanction, and did so in that case only because it provided the paradigm situation in which the plaintiff knowingly refused to be forthcoming and actively withheld the truth from the court and gave a great deal of perjured testimony.
In other cases in which this Court has affirmed dismissal, the discovery violations were similarly egregious. In Scoggins v. Ellzey Beverages, Inc. , 743 So.2d 990 (Miss. 1999), the plaintiff, who could perfectly recall the details of several aspects of her life for many years, completely failed to disclose several invasive medical procedures and doctors' visits that were relevant to her claim.
The trial court in that case found that the plaintiff made an apparently deliberate attempt to subvert the judicial process, and she presented no credible explanation for the total lack of congruence between her testimony and her medical records. This Court affirmed, again noting that this case presented a rare instance where the conduct of a party is so egregious that no other sanction will meet the demands of justice.
More recently, in Ashmore v. Mississippi Authority on Educational Television , 148 So.3d 977, 985 (Miss. 2014), we affirmed a dismissal where the plaintiff had lied by concealing a right-knee surgery and degenerative joint disease in his right knee. The plaintiff also had hidden the existence of a subsequent left-knee injury or degenerative disc disease in his back, despite medical reports to the contrary. Once again, the discovery violations that justified dismissal were clear and unequivocal falsehoods.
However, where the discovery violation at issue is less extreme and open to potential truthful interpretations, this Court will not hesitate to reverse a trial court's Rule 37 dismissal. In Wood ex rel. Wood v. Biloxi Public School District , 757 So.2d 190, 193 (Miss. 2000), the plaintiff responded to an interrogatory regarding the nature of his injuries by stating, "I no longer am able to enjoy tinkering with automobiles as the stooping, bending, and squatting are painful." After viewing undercover surveillance video of the plaintiff walking normally, squatting, twisting, bending, and generally performing normal daily functions without any indication of impairment or pain, the trial court dismissed the plaintiff's case. This Court reversed, finding that the only discovery response which was contradicted by evidence at the hearing on the motion to dismiss was one ambiguously worded response to one interrogatory question." As the plaintiff's response indicated that he could still perform certain tasks, just with less enjoyment than before, the Court held that the defendants did not establish that the plaintiff knowingly made false statements in discovery and it was certainly not established that the plaintiff had engaged in a pattern of such false responses. The Court held that the alleged untruthfulness in Wood's interrogatories, if any, d[id] not constitute a sufficiently egregious discovery violation such that no other sanction will meet the demands of justice.
We find the discovery violation in this case to be more similar to the alleged discovery violation in Wood than the unequivocally false and misleading discovery violations found in Pierce , Scoggins , and Ashmore . In Wood , the plaintiff stated that he could no longer enjoy certain activities as he could before being injured. Here, Kinzie stated that he could not perform several activities as he could before his injury. He was truthful when it came to his medical record and his medically diagnosed work restrictions. Kinzie indisputably was injured. He went to an emergency room immediately after his accident and, at that time, was diagnosed with central-disc protrusion, disc desiccation, and disc bulging. He underwent an invasive surgical procedure on his spine. The activity observed in the undercover video did not stray outside of his medical work restrictions, and it did not encompass any of the specific activities that he stated he no longer could perform. The trial court found this to be a discovery violation. While the trial court cannot be said to have been manifestly wrong in its determination that there was, in fact, a discovery violation, the severe sanction of dismissal amounts to clear, reversible error amounting to an abuse of discretion.
Kinzie did not blatantly lie about the existence of a witness, as did the plaintiff in Pierce , nor did he completely misrepresent years of medical history and procedures, as did the plaintiff in Scoggins , nor did he hide any other surgeries, as did the plaintiff in Ashmore . The Court finds no "total lack of congruence" between Kinzie's responses and his medical records, as the trial court found in Scoggins . Nor do we find this to be the paradigm situation in which the plaintiff knowingly refused to be forthcoming and actively withheld the truth from the court and gave a great deal of perjured testimony as this Court found in Pierce . Instead, and similar to the plaintiff in Wood , Kinzie answered an interrogatory about the extent of his injuries in a way that the trial court thought was misleading. And here, although the trial court found Kinzie's response to be false, the perceived falsehood arose in an isolated incident, and it certainly has not been established that Kinzie's statements in discovery indicate any kind of pattern of misleading or false responses.
Analogously, this Court has reversed a trial court's dismissal based on Rule of Civil Procedure 41(b) where the trial court failed to consider lesser sanctions, including fines, costs, or damages against plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings. Just as this Court found then, in this case, it is not at all certain that lesser sanctions would have been futile in expediting the proceedings. Although we do not find, as did the Court of Appeals, that the trial court abused its discretion when it determined that Kinzie had committed a discovery violation, we hold that the trial court erred when it dismissed the case completely as a result of that violation while paying mere lip service to the possibility and practicality of lesser sanctions.
Dismissal is appropriate only under the most extreme circumstances and only where lesser sanctions will not suffice. This is not an extreme case, and lesser sanctions can deter misleading responses without dismissing Kinzie's claims altogether. A jury will watch this video, and that may influence its ultimate determination. But a jury ought to make that ultimate determination, not the trial judge. The discovery violation at issue is not sufficiently extreme to justify a full and final dismissal of the case. We therefore affirm that portion of the judgment of the Court of Appeals which held that dismissal with prejudice was not warranted. We reverse the Court of Appeals' finding that the trial court abused its discretion when it determined that Kinzie had committed a discovery violation. We reverse the judgment of the Circuit Court of the First Judicial District of Hinds County dismissing the case with prejudice, and we remand the case for trial.

¶ 18. The supreme court's analysis in Kinzie applies here. Dismissal was simply not a reasonable sanction. T. Mart argues that Keith made intentional and deceitful misrepresentations. However, we find no evidence to support the conclusion that Keith intentionally misled or blatantly lied when he testified that he had not suffered prior neck and lower-back problems. Unlike in Pierce , Keith's interrogatory responses and the reasonably expected discovery efforts of the defendants led to the medical records that may contradict Keith's deposition testimony. Certainly, these medical records may be offered to attack Keith's credibility at trial and to accurately present evidence of his prior medical history and condition. However, under these circumstances, a lesser sanction of attorney's fees and costs associated with obtaining the medical records would be an appropriate sanction. Dismissal is certainly not.

¶ 19. The judicial administration of civil claims is governed by the Mississippi Rules of Civil Procedure. These Rules provide the mechanism for bringing civil claims, to obtain discovery, and to attain a resolution. Mississippi Rule of Civil Procedure 1 provides that "[t]hese rules govern procedure in the circuit courts ... in all suits of a civil nature .... These rules shall be construed to secure the just, speedy, and inexpensive determination of every action." Here, we must construe how the trial court applied Rule 37. Appellate courts often recognize that a litigant " 'is entitled to a fair trial but not a perfect one,' for there are no perfect trials."

Likewise, there are no perfect trials in civil cases.

¶ 20. Yet, the dissent seeks perfection in discovery. At trial, T. Mart will have the ability to cross-examine and impeach Keith about his deposition testimony versus his medical records. The jury will then be able to assess his credibility and reach a fair verdict based on the evidence.

¶ 21. The facts of this case simply do not rise to the level of deception or concealment in Pierce or Eaton v. Frisby , as argued by the dissent. Instead, this is similar, if not identical, to this Court's recent decision in Westfall v. Goggins , 2016-CA-00727-COA, --- So.3d ----, ---- - ----, 2017 WL 4511138, at *7-8 (¶¶ 21-22) (Miss. Ct. App. Oct. 10, 2017). In Westfall , we noted that anytime a defendant asks for dismissal of the action for a discovery violation, the trial judge and this Court must begin with the important admonition in Pierce -dismissal is appropriate "only under the most extreme circumstances" and only where lesser sanctions will not suffice. Id. at ----, 2017 WL 4511138, at *7 (¶ 21) (quoting Pierce , 688 So.2d at 1388-89 ). Just like Westfall , this is simply not an extreme case that requires dismissal.

¶ 22. Therefore, we find a definite and firm conviction that the circuit judge committed a clear error of judgment in the dismissal of this action. We reverse the circuit court's judgment and remand this case for further proceedings consistent with this opinion.

¶ 23. REVERSED AND REMANDED.

LEE, C.J., IRVING, P.J., FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION. BARNES, J., NOT PARTICIPATING.

CARLTON, J., DISSENTING:

¶ 24. I respectfully dissent from the majority's opinion finding that the circuit court reversibly erred in dismissing Keith's negligence claims based on discovery violations. Since I find no error in the circuit court's dismissal, I would affirm.

¶ 25. Keith and his wife Lakeisha filed suit against T. Mart for injuries Keith claimed to have sustained as the result of a motor vehicle accident that occurred as he was exiting a Texaco station. Keith alleged that shrubbery on T. Mart's property negligently inhibited his view when exiting the gas station. Lakeisha filed a claim for loss of consortium-a derivative claim stemming from Keith's injuries.

¶ 26. During the course of pretrial discovery, T. Mart served Keith with interrogatories related to his prior medical history and treatment. Specifically, the interrogatories asked whether Keith ever had been involved in any other accident or incident, or had any illness or sickness of any kind and of any type or severity, which required or resulted in him being seen or treated by any medical professional. Keith responded with information regarding a 2005 accident in a Tupelo Wal-Mart parking lot. However, he failed to provide any information as to any injuries that resulted from the accident. Keith did state that he saw two separate medical providers following the incident.

¶ 27. T. Mart later deposed Keith and further questioned him regarding his medical history. When asked whether he ever had experienced prior neck problems, Keith responded that he had not. When asked whether he ever had experienced prior lower back issues, Keith responded, "Not lower back."

¶ 28. Following Keith's deposition, T. Mart obtained Keith's prior medical records, which revealed that Keith indeed had received extensive medical treatment for his neck and lower back in 2005. In response, T. Mart filed a motion to dismiss Keith's complaint pursuant to Mississippi Rule of Civil Procedure 37(b)(2) and 37(e), claiming that Keith provided "willful, false deposition testimony and grossly evasive, misleading discovery responses." Following a hearing, the circuit court granted the motion to dismiss with prejudice, concluding that under the circumstances, no sanction less than dismissal would be appropriate to satisfy the deterrent value of Rule 37. Because Lakeisha's claim was derivative in nature, it was dismissed with prejudice as well.

¶ 29. We review a trial court's dismissal of a cause of action as a sanction for discovery-abuse for abuse of discretion. Ashmore v. Miss. Auth. on Educ. Television , 148 So.3d 977, 981 (¶ 9) (Miss. 2014) ; see also Scoggins v. Ellzey Beverages, Inc. , 743 So.2d 990, 996 (¶ 27) (Miss. 1999). The Mississippi Supreme Court "has long held that our trial courts have the discretion to impose sanctions for discovery violations [that] result from willful neglect [or] willful disobedience or cause undue advantage and surprise." Eaton Corp. v. Frisby , 133 So.3d 735, 748 (¶ 49) (Miss. 2013). However, the supreme court also has cautioned that a "trial court should dismiss a cause of action for failure to comply with discovery only under the most extreme circumstances." Ashmore , 148 So.3d at 981 (¶ 9).

¶ 30. "When [an appellate court] reviews a decision that is within the trial court's discretion, it first asks if the court below applied the correct legal standard." Id. (citing Pierce v. Heritage Props. Inc. , 688 So.2d 1385, 1388 (Miss. 1997) ). "If the trial court applied the right standard, then [the c]ourt considers whether the decision was one of several reasonable ones which could have been made." Id. We will affirm a trial court's dismissal as a sanction for a discovery violation "unless there is a definite and firm conviction that the trial court committed a clear error of judgment in the conclusion it reached upon weighing [the] relevant factors." Avare v. Gulfside Casino P'ship , 178 So.3d 796, 798 (¶ 4) (Miss. Ct. App. 2013) ; see also Eaton Corp. , 133 So.3d at 747 (¶ 45). Upon appellate review of a trial court's dismissal of a cause of action for failure to comply with discovery, this Court should engage in "measured restraint" and "should not decide whether it would have dismissed the original action but whether dismissal amounted to clear error." Kinzie v. Belk Dep't Stores L.P. , 164 So.3d 974, 977 (¶ 4) (Miss. 2015). "We will, however, review issues of law de novo." Avare , 178 So.3d at 798 (¶ 4).

¶ 31. Keith argues that the circuit court erred in finding that he wilfully misrepresented his medical history during discovery. As stated, Keith's medical records reflect that he received injuries to his neck, lower back, and shoulder as the result of a car accident in 2005. However, during Keith's deposition, T. Mart's counsel asked Keith whether he had any prior problems with his neck and lower back. Keith denied ever suffering any lower back problems, and he mentioned only the removal of a cyst from the back of his neck when he was in eighth grade.

¶ 32. At the hearing before the circuit court, Keith denied that he provided false testimony. In support of his argument, Keith asserted that he had not signed some of the prior medical records. He also claimed that the medical records were not "author[ed]" or authenticated and that the records did not conclusively establish that Keith specifically had complained of prior lower back pain. The circuit court found these arguments without merit.

¶ 33. On appeal, however, Keith now argues that he did not lie about the injuries stemming from the 2005 car accident; rather, Keith asserts that he "merely forgot" that he suffered neck and lower back pain. Keith maintains that the 2005 accident occurred seven years before he was deposed, and his biggest complaint from the accident was his shoulder-not his neck or lower back.

¶ 34. I find this argument wholly unpersuasive and without merit. That is because "[i]t is a long-established rule in this state that a question not raised in the trial court will not be considered on appeal." City of Hattiesburg v. Precision Constr. LLC , 192 So.3d 1089, 1093 (¶ 18) (Miss. Ct. App. 2016) (quoting Adams v. Bd. of Sup'rs of Union Cty. , 177 Miss. 403, 414, 170 So. 684, 685 (1936) ). "The rule is that a trial judge cannot be put in error on a matter which was never presented to him for decision." Id. A review of the record reveals that Keith never presented this argument to the circuit court-therefore, I decline to address the merits of it in this separate opinion. See id.

¶ 35. Keith argues that the circuit court abused its discretion in dismissing his case with prejudice because lesser sanctions would have served the deterrent purpose of Rule 37. I disagree. Rule 37(b)(2)(C) provides:

If a party ... fails to obey an order to provide or permit discovery, including an order made under subsection (a) of this rule, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof , or rendering a judgment by default against the disobedient party[.]

(Emphasis added). Rule 37(e) further provides that "[i]In addition to the application of those sanctions, specified in Rule 26(d) [of the Mississippi Rules of Civil Procedure] and other provisions of this rule, the court may impose upon any party or counsel such sanctions as may be just [.]" (Emphasis added).

¶ 36. Building on Rule 37, I further acknowledge that the supreme court has established the following factors for evaluating the appropriateness of dismissal as a sanction for discovery violations:

[ (1) ] First, dismissal is authorized only when the failure to comply with the court's order results from wilfulness or bad faith, and not from the inability to comply. [ (2) ] Dismissal is proper only in situation[s] where the deterrent value of Rule 37 cannot be substantially achieved by the use of less drastic sanctions. [ (3) ] Another consideration is whether the other party's preparation for trial was substantially prejudiced. [ (4) ] Finally, dismissal may be inappropriate when neglect is plainly attributable to an attorney rather than a blameless client, or when a party's simple negligence is grounded in confusion or sincere misunderstanding of the court's orders.

Pierce , 688 So.2d at 1389 ; see also M.R.C.P. 37(b)(2)(C). "The Pierce court explained that these factors are considerations and not four absolute requirements." Avare , 178 So.3d at 799 (¶ 8) (citing Pierce , 688 So.2d at 1389 ). "The supreme court has further held that willfulness or bad faith may be so clearly evidenced that the four Pierce factors will be irrelevant to the upholding of dismissal."

Id. Furthermore, "[a] finding of willfulness may be based upon either a willful, intentional, and bad faith attempt to conceal evidence[,] or a gross indifference to discovery obligations." Pierce , 688 So.2d at 1390.

¶ 37. In its order dismissing Keith's suit with prejudice, the circuit court herein weighed each of the Pierce factors and ultimately concluded that each factor weighed in favor of dismissal. In applying the Pierce factors, the circuit court also set forth Keith's misrepresentations in detail. I now turn to review the circuit court's application of the Pierce factors.

¶ 38. As to the first factor, the circuit court stated:

A comparison of [Keith's] answers to interrogatories and deposition testimony with his pre-accident medical records show that he intentionally and deceitfully misrepresented his pre-existing medical condition with respect to his neck and back .... A consideration of the facts presented herein ... demonstrates that [Keith]'s misrepresentation regarding his pre-existing medical condition was willful and in bad faith.

The record clearly supports the circuit court's findings as to this factor. Regarding his prior medical history, Keith was specifically asked the following through T. Mart's interrogatories:

INTERROGATORY NUMBER 9 : Before or after the date of the occurrence which is the subject of this action, had you ever been involved in any other accident or incident or had any illness or sickness of any kind and of any type or severity, which required you to be seen or resulted in your being seen or treated by any doctor, hospital[,] or other medical provider? If so, please state in detail the following:
(a) The date and place of the accident, incident, illness[,] or sickness;
(b) A description of the accident, incident, illness[,] or sickness;
(c) Names, addresses and phone numbers of witnesses to the accident, incident, illness[,] or sickness;
(d) The name of the defendant (or person or entity against whom you made your claim), if lawsuit, action[,] or claim was made on your behalf;
(e) The court or other tribunal where any action or claim was filed, together with any identifying action number;
(f) The names, addresses[,] and phone numbers of all medical doctors, any other medical personnel, hospitals, or other medical facilities or medical providers wherein you received treatment as a result of the accident, incident, illness[,] or sickness[ ] identified above.
RESPONSE TO INTERROGATORY NUMBER 9 : [Keith] was involved in an automobile accident in 2005 on the Wal-Mart parking lot in Tupelo, Mississippi, when [Keith's] vehicle was struck by a vehicle being driven the wrong way by an employee of Lencare Medical Supply. [Keith] does not recall the name of the driver. [Keith] was seen by a doctor at Semmes Murphy Neurologic and Spine Institute ...; Debra Hill, NP, and Reenea Willis, PT, of Rehab Solutions, PLLC. No lawsuit was filed, however, [Keith] was compensated for damages by the insurance company for Lencare Medical Supply.
INTERROGATORY NUMBER 10 : Please identify the names, addresses and phone numbers of your regular family doctor and the names, addresses and phone numbers of any other medical doctors or any other medical personnel not previously listed, who have treated you or given you any medical advice for the past ten years.
RESPONSE TO INTERROGATORY NUMBER 10 : Dr. Norris Crump-898 Lynden Blvd., Tupelo, MS 38801[;] and Debra Hill, NP-Plantersville Clinic, 2489 Main St., Plantersville, MS 38862[.]

¶ 39. Keith's subsequent deposition-testimony addressed the medical records reflecting that Keith injured his neck, lower back, and shoulder as the result of a car accident in 2005. During Keith's deposition, T. Mart's counsel asked Keith whether he suffered any problems with his neck, head, or lower back prior to the accident at issue. Keith denied ever suffering any lower back problems or headaches before the accident, and he mentioned only the removal of a cyst from the back of his neck when he was in eighth grade.

¶ 40. Following the information provided by Keith in his sworn answers to interrogatories and deposition testimony, T. Mart obtained Keith's prior medical records, which reflected a vast medical history. T. Mart included Keith's medical records in its motion to dismiss and attached the records for the circuit court to review. The circuit court accordingly dismissed Keith's complaint after finding that he had misrepresented his prior medical history.

¶ 41. A review of Keith's medical records herein reflects that Keith indeed suffered from neck and low back pain beginning in April 2005, six years before the accident at issue in this case. These medical records reveal the following relevant treatment sought by Keith in response to suffering from neck and low back pain:

April 4, 2005 -Keith received treatment at the Plantersville Clinic for low back pain that started two days earlier.
August 25, 2005 -Keith was involved in an automobile accident and received treatment at North Mississippi Medical Center. The record from North Mississippi Medical Center reflects that Keith's chief complaint was "LOW BACK PAIN ."
August 31, 2005 -Keith returned to the Plantersville Clinic for treatment due to continued pain from the accident. The records states that Keith complained that he "hurts from neck all the way down back[,] has burning pain " and had suffered "leg weakness and burning since [the motor vehicle accident]-hurting at night in back and legs ."
September 9, 2005 -Keith received MRIs of the lumbar spine, thoracic spine, and cervical spine. On each of the MRI reports, the indication was "neck and back pain ." The MRI of the cervical spine showed "mild reversal of the normal lordotic curvature of the cervical spine" and "mild disc osteophyte complex mainly at the C3-C4 and C4-C5 levels but borderline to mild spinal stenosis as described."
September 10, 2005 -Keith received treatment at North Mississippi Medical Center due to "neck and back problems " from the August 2005 wreck.
October 14, 2005 -Keith received treatment at the Plantersville Clinic due to "[left] shoulder pain." The record shows that Keith complained that it hurt to "raise [his] arm" and he suffered from "low back pain, neck pain " that "burns down into [his] buttock." The record reflects that Keith stated that physical therapy "does not help" and that he was not taking any medicine. Keith was then diagnosed with "shoulder strain and lumbar strain."
October 19, 2005 -Keith received treatment at Semmes Murphey Neurologic & Spine Institute. There, Keith complained of "left shoulder, neck and back pain , without radicular symptomatology." Keith also complained of "severe pain in his back " when he had to stand for prolonged periods. A doctor performed a physical examination which showed "cervical range of motion is limited on forward flexion, hyperextension[,] and lateral bending.... [Keith] has some myofascial trigger points in the lumbar area with a restricted range of motion in the lumbar spine on forward flexion and hypertension." Keith was diagnosed with "cervical and lumbar spasms " and "left rotator cuff strain." The doctor prescribed physical therapy due to "cerv/LB pain" and "rotator cuff pain."
November 11, 2005 -Keith returned to Semmes Murphey Clinic due to "lumbar myofascial pain " as well as shoulder pain. The record reflects the doctor assessed that Keith suffered from "cervical myofascial spasms" and "lumbar myofascial spasms ." As a result, the doctor prescribed "aggressive physical therapy for myofascial release of the cervical and lumbar areas [.]"

(Emphasis added). As stated, in light of this evidence, the circuit court found that Keith had wilfully and in bad faith misrepresented his prior medical history, thus favoring dismissal of his cause of action.

¶ 42. In Eaton Corp ., 133 So.3d at 752 (¶ 60), the supreme court found "no abuse of discretion in the trial court's decision to impose [a] monetary sanction issued [as the result of serious pretrial discovery misconduct], despite the absence of a motion to compel." The Eaton court held that "gross indifference" or "willful negligence" of a discovery requirement are both are " 'willful' violations and an abuse of the truth-seeking process." Id. at 748 (¶ 49). The supreme court further explained that:

A willful violation of a discovery rule occurs when there is a conscious or intentional failure to comply with the rule's requirements. A finding of willfulness may be based upon either a willful, intentional, and bad faith attempt to conceal evidence or a gross indifference to discovery obligations.

Id. (citing Pierce , 688 So.2d at 1388 ).

¶ 43. In his brief to this Court, Keith admits that he "was wrong when he denied having ever complained of neck and lower back pain prior to the 2011 accident." As such, I find the evidence sufficient to support the circuit court's conclusion. See Conklin v. Boyd Gaming Corp. , 75 So.3d 589, 595 (¶ 19) (Miss. Ct. App. 2011) (finding willfulness where plaintiff knew he had undergone prior treatment for injuries but chose not to admit such during discovery).

¶ 44. As to the second Pierce factor-whether Rule 37's deterrent value could be achieved through less drastic sanctions-the circuit court found dismissal was the only proper remedy. I agree, as "[t]he other sanctions considered by the [trial] court would not achieve the deterrent value of the dismissal.... [A]ny other sanction beside dismissal would virtually allow the plaintiff to get away with lying under oath without a meaningful penalty[.]" Pierce , 688 So.2d at 1391.

¶ 45. Next, regarding the factor of prejudice, the circuit court found that Keith's false representations indeed prejudiced T. Mart, thus weighing in favor of dismissal. Keith, however, argues on appeal that because the misrepresentations were discovered prior to trial, no prejudice resulted. I disagree. First, "there is no requirement that the defendant be substantially prejudiced by the absence of evidence." Id. (holding substantial prejudice is a mere consideration of the court, not a requirement).

Second, there is nothing in the record to illustrate that the circuit court erred in finding Keith's conduct prejudiced T. Mart during trial preparation. As such, I agree with the circuit court as to this factor.

¶ 46. Finally, the circuit court found that Keith's deceptive responses were in no way attributable to his attorneys, nor were the inquiries regarding his prior medical history confusing. To that point, Keith makes no argument on appeal as to confusion or misunderstanding-again, he merely asserts that he "forgot." As that argument is procedurally barred, I find the record-evidence supports the circuit court's finding as to this prong. See Allen v. Nat'l R.R. Passenger Corp ., 934 So.2d 1006, 1012 (¶ 16) (Miss. 2006). This issue is without merit.

¶ 47. In sum, I acknowledge that "[d]ismissal with prejudice is a sanction that should be imposed only in those rare instances where the conduct of a party is so egregious that no other sanction will meet the demands of justice." Scoggins , 743 So.2d at 997 (¶ 36). "Further, where a party has frustrated the orderly judicial process by false or erroneous responses to interrogatories, that party should not be able to argue that its own conduct has removed it beyond the reach of sanctions." Avare , 178 So.3d at 801 (¶ 15). In order "to reverse the trial court's decision, this Court must have a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors." Id. (quoting Pierce , 688 So.2d at 1388 ).

¶ 48. The record reflects that the circuit court weighed the relevant Pierce factors and applied them to the evidence in the record. I can find no error warranting reversal. I thus find that the circuit court did not abuse its discretion when it held that any sanction less than dismissal would not adequately serve Rule 37's deterrent purpose. Accordingly, I would affirm the circuit court's judgment dismissing Keith's claim with prejudice. And because Lakeisha's loss-of-consortium claim is derivative of Keith's, I also would affirm the circuit court's judgment dismissing her claim with prejudice. See J & J Timber Co. v. Broome , 932 So.2d 1, 6 (¶ 19) (Miss. 2006) ("Mississippi law dictates that if the underlying personal injury claim is disposed of, the loss of consortium claim cannot be maintained on its own.").

      Conners v. State , 92 So.3d 676, 688 (¶ 33) (Miss. 2012) (quoting Brown v. United States , 411 U.S. 223, 231-32, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973) ); see also Bruton v. United States , 391 U.S. 123, 135, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

      There were eight medical records the circuit court found relevant, ranging a period of eighteen months, wherein Keith complained of neck and back problems. Each record will be discussed in further detail below.


source: Caselaw Access Project

author: CARLTON, J., FOR THE COURT:

license: Public Domain

text:
    John Frank GAULDEN a/k/a John Gaulden a/k/a John F. Gaulden, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00378-COA
    Court of Appeals of Mississippi.
    March 13, 2018
    ATTORNEY FOR APPELLANT: JOHN FRANK GAULDEN (PRO SE)
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH
    BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. In June 2013, John Frank Gaulden pled guilty to two counts of unlawful possession of a motor vehicle and one count of aggravated assault of a jailer. More than three years after the Amite County Circuit Court entered its sentencing order, Gaulden filed a motion for post-conviction relief (PCR). The circuit court summarily dismissed it because it was time-barred and none of Gaulden's claims were exceptions to the three-year statute of limitations. Gaulden appeals and argues: (1) his PCR motion is not time-barred because he raises errors affecting his fundamental constitutional rights; (2) his guilty pleas were involuntary; (3) he received ineffective assistance of counsel; and (4) the multi-count bill of criminal information against him was improper. We find no error and affirm.

FACTS

¶ 2. In June 2013, Gaulden waived indictment and filed a petition to plead guilty to three charges listed in a bill of information: two counts of unlawful possession of a motor vehicle and one count of aggravated assault of a jailer. Gaulden's guilty-plea hearing occurred on June 12, 2013. After accepting Gaulden's guilty pleas, the circuit court sentenced him to concurrent one-year sentences for each conviction for unlawful possession of a motor vehicle and a consecutive twenty-year sentence for aggravated assault. The circuit court entered its sentencing order on June 12, 2013.

¶ 3. Gaulden filed his PCR motion on November 7, 2016. He attached copies of his guilty-plea petition, the sentencing order, the bill of information, and a printout of the statute that criminalizes simple and aggravated assault. Gaulden also filed a supplemental memorandum of law on January 23, 2017. After reviewing the motion, its exhibits, and the supplemental brief, the circuit court summarily dismissed Gaulden's PCR motion because it was time-barred and no exceptions to the three-year limitations period applied.

¶ 4. Gaulden appeals and argues that: (1) his PCR motion was not time-barred because he raised errors affecting his fundamental constitutional rights; (2) his guilty pleas were involuntary; (3) he received ineffective assistance of counsel; and (4) the multi-count bill of information was improper.

STANDARD OF REVIEW

¶ 5. "When reviewing a circuit court's denial or dismissal of a PCR motion, we will reverse the judgment of the circuit court only if its factual findings are clearly erroneous; however, we review the circuit court's legal conclusions under a de novo standard of review." Berry v. State , 230 So.3d 360, 362 (¶ 3) (Miss. Ct. App. 2017).

DISCUSSION

I. Time-Bar

¶ 6. The circuit court determined that Gaulden's PCR motion was time-barred and he did not raise any issues that were exceptions to the three-year limitations period under Mississippi Code Annotated section 99-39-5(2) (Rev. 2015). We agree.

¶ 7. Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA), a PCR motion following a guilty plea must be filed within three years after the judgment of conviction is entered. Miss. Code Ann. § 99-39-5(2) (Rev. 2015). On June 12, 2013, the circuit court entered its sentencing order. Gaulden did not file his PCR motion until November 7, 2016, nearly five months past the three-year limitations period. On its face, Gaulden's PCR motion was untimely.

¶ 8. Gaulden, as the PCR movant, has the burden of demonstrating that his claims are not time-barred because an exception applies. See McComb v. State , 135 So.3d 928, 932 (¶ 10) (Miss. Ct. App. 2014). In this case Gaulden argues that his PCR motion is not time-barred because he raises errors affecting his fundamental rights. Specifically, he asserts that his guilty plea was involuntary; he received ineffective assistance of counsel; and the multi-count bill of information was defective. "[E]rrors affecting fundamental constitutional rights" also are excepted from the UPCCRA's time-bar.

Rowland v. State , 42 So.3d 503, 507 (¶ 12) (Miss. 2010). "[O]nly four types of 'fundamental rights' have been expressly found to survive PCR procedural bars: (1) the right against double jeopardy; (2) the right to be free from an illegal sentence; (3) the right to due process at sentencing; and (4) the right not to be subject to ex post facto laws." Salter v. State , 184 So.3d 944, 950 (¶ 22) (Miss. Ct. App. 2015).

¶ 9. Gaulden's involuntary-guilty-plea and ineffective-counsel claims are not excepted from the time-bar. "[T]he [Mississippi S]upreme [C]ourt has held that [ineffective-counsel and involuntary-guilty-plea] claims are not excepted from the time-bar; therefore, even though these claims involve fundamental constitutional rights, the procedural bars are applicable." Jones v. State , 174 So.3d 902, 907 (¶ 12) (Miss. Ct. App. 2015) (citing Kirk v. State , 798 So.2d 345, 346 (¶ 6) (Miss. 2000) ). Likewise, Gaulden's claim that the bill of information was defective because it did not meet the multi-count requirements of Rule 7.07 of the Uniform Rules of Circuit and County Court is not excepted from the time-bar. Stokes v. State , 199 So.3d 745, 749 (¶ 13) (Miss. Ct. App. 2016) ("Claims alleging defective indictment are also barred when a [PCR motion] is not filed within the three-year time limitation.").

¶ 10. Gaulden also asserts that the aggravated-assault charge in the bill of information was insufficient because the charge failed to allege that the assault involved the use of a deadly weapon. Gaulden claims this is an essential element under Mississippi Code Annotated section 97-3-7(2) (Rev. 2014). Citing Conerly v. State , 607 So.2d 1153, 1156 (Miss. 1992), Gaulden then asserts that due to this alleged deficiency, the circuit court lacked jurisdiction over the aggravated-assault charge. He reasons that his guilty plea did not waive the failure to charge an essential element of that offense. We find no merit in this argument. As discussed below, the bill of information adequately charged the essential elements of aggravated assault on a jailer.

¶ 11. Time-bar notwithstanding, we also find that Gaulden's claims lack merit for each of the reasons discussed below.

II. Involuntary Guilty Plea

¶ 12. Gaulden asserts that he is bipolar and that he was suffering from untreated scabies when he pled guilty. He claims he had been told by the Amite County sheriff that he would not receive medical treatment while he was at the jail "outside a life-threatening emergency." Gaulden also asserts that his attorney told him that the quickest way to get medical treatment for his scabies would be to waive indictment and plead guilty. According to Gaulden, his desire to obtain proper medical treatment for his scabies induced him to involuntarily plead guilty. Gaulden provides no supporting affidavit from his lawyer or other evidence to corroborate his claim.

¶ 13. In order to be valid, a guilty plea must be entered voluntarily and intelligently, meaning that the defendant is "advised concerning the nature of the charge against him and the consequences of the plea." Holland v. State , 956 So.2d 322, 327 (¶ 11) (Miss. Ct. App. 2007) (citing Wilson v. State , 577 So.2d 394, 396-97 (Miss. 1991) ). Gaulden, as the movant, has the burden of establishing his involuntary-guilty-plea claim. Id. (citing Green v. State , 802 So.2d 181, 184 (¶ 19) (Miss. Ct. App. 2001) ).

¶ 14. The record does not support Gaulden's claim. "Great weight is given to statements made under oath and in open court during sentencing." Berry , 230 So.3d at 364 (¶ 13). Based on the circuit court's personal observation of Gaulden's demeanor, appearance, and manner in answering its questions, the circuit court found that Gaulden pled guilty voluntarily and intelligently. The circuit court determined that Gaulden was competent to understand the nature of the charges against him. Further, the circuit court closely questioned Gaulden at the hearing to determine his mental competency and whether he was induced to plead guilty. Gaulden confirmed at the hearing that: (1) he understood he was giving up his right to have his case go to a grand jury; (2) he was literate and obtained an eleventh grade education and a GED; (3) he was not under the influence of any intoxicating drugs or alcohol; (4) he had talked with his attorney about the charges he was facing and the best thing for him to do in this case; and (5) no one had threatened or induced him to plead guilty.

¶ 15. The circuit court also ensured that Gaulden understood the nature and consequences of his guilty pleas by: (1) discussing the maximum and minimum penalties provided by law; (2) explaining that by pleading guilty Gaulden was giving up the rights to vote, serve on a jury, and have firearms; and (3) informing Gaulden that by pleading guilty he was waiving his constitutional rights to a jury trial, to confront the witnesses against him, and avoid self-incrimination.

¶ 16. The circuit court was likewise careful to ensure that Gaulden understood the factual basis for each of the charges against him. The State described the factual basis for the aggravated-assault charge, explaining that Gaulden attacked a jailer by pushing her, beating her with a sock containing dominoes, and stabbing her with a shank that he made from a toothbrush and a pen. He then got a can of mace and sprayed the jailer's entire body. After hearing the State's description, Gaulden confirmed three times that he was guilty of the charge.

¶ 17. Gaulden was given the opportunity to speak before his sentencing. He apologized for assaulting the jailer and expressed his frustration at being unable to get medical treatment for his scabies. Although he said he wanted to be sent up to the penitentiary as soon as possible to get the scabies treated, he did not indicate in any way that he pled guilty so he could receive treatment. Gaulden answered "[n]o, sir" when expressly asked at his hearing whether anyone had threatened him to get him to plead guilty, or offered him any money or held out any hope or promise of reward to get him to plead guilty. Additionally, Gaulden provided no affidavits or other evidence to support his claims, and he does not explain why he could not provide any supporting affidavits or evidence. Thus, even if this issue was not procedurally barred, it would be meritless.

III. Sufficiency of the Aggravated-Assault Charge

¶ 18. Gaulden argues that the aggravated-assault charge in the bill of information was deficient because the charge did not allege the use of a deadly weapon.

The aggravated-assault charge in the bill of information alleged that "[i]n Amite County, Mississippi, on or about May 24, 2013, ... GAULDEN ... wilfully, unlawfully, feloniously[,] and purposely ... assault[ed] and attempt[ed] to cause serious bodily injury to [a jailer acting in the scope of her duty] by beating her ... against the peace and dignity of the State of Mississippi." On its face, the bill of information sufficiently charged Gaulden with aggravated assault on a jail officer under section 97-3-7(2)(a) and (b). The bill specifically described Gaulden's "attempt to cause serious bodily injury to" a jailer acting in the scope of her duties, as covered under section 97-3-7(14).

¶ 19. Gaulden's assertion that the bill of information had to include an allegation that he used a deadly weapon is not supported by the plain language of section 97-3-7(2). The statute sets out three circumstances in which someone is guilty of aggravated assault. Only one of the circumstances involves the use of a deadly weapon. Even in that situation, the use of a deadly weapon is not always an essential element of the crime. See Miss. Code Ann. § 97-3-7(2)(a)(i)-(iii). In relevant part, section 97-3-7(2)(a) provides:

A person is guilty of aggravated assault if he (i) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly[,] or recklessly under circumstances manifesting extreme indifference to the value of human life; (ii) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (iii) [circumstances not relevant here].

¶ 20. The bill of information described the circumstances contemplated in section 97-3-7(2)(a)(i) : a knowing "attempt[ ] to cause serious bodily injury to another ... under circumstances manifesting extreme indifference to the value of human life." The charge also is encompassed in section 97-3-7(2)(a)(ii), which describes an attempt to cause "bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm ...." (Emphasis added). As such, even in section 97-3-7(2)(a)(ii), the use of a deadly weapon is not an essential element if the "other means" used to injure another is "likely to produce either death or serious bodily harm." Miss. Code Ann. § 97-3-7(2)(a)(ii) ; see Sellers v. State , 108 So.3d 456, 459 (¶ 7) (Miss. Ct. App. 2012) (quoting Jackson v. State , 594 So.2d 20, 24 (Miss. 1992) ). The bill of information expressly described aggravated assault, so this issue is meritless.

IV. Ineffective Assistance of Counsel

¶ 21. Gaulden asserts that he received ineffective assistance of counsel based on the following: (1) he was "ushered through" waiving his indictment, receiving his criminal information, pleading guilty, and being sentenced all in one day; (2) to his knowledge, his lawyer did not request discovery or prepare a defense; (3) his lawyer convinced him the quickest way to get medical attention for his scabies was to waive indictment and plead guilty; and (4) his lawyer failed to determine that Gaulden pled guilty to a defective bill of criminal information.

¶ 22. To prove his ineffective-assistance claim Gaulden must show: "(1) his attorney's performance was deficient, and (2) this deficiency deprived him of a fair trial." Vitela v. State , 183 So.3d 104, 107 (¶ 13) (Miss. Ct. App. 2015) ; see Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "There is a strong presumption that counsel's performance falls within the range of reasonable professional assistance." Thompson v. State , 78 So.3d 939, 941 (¶ 4) (Miss. Ct. App. 2012). In order to overcome this presumption, Gaulden must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. (quoting Madden v. State , 991 So.2d 1231, 1236-37 (¶ 23) (Miss. Ct. App. 2008) ). "Further, the Mississippi Supreme Court has held that where a PCR movant offers only his own affidavit in support of an ineffective-assistance-of-counsel claim, such evidence is insufficient to meet the pleadings requirements of Mississippi Code Annotated section 99-39-9(1)(e) [ (Rev. 2015) ]." Id. at 941 (¶ 5) (citing Brooks v. State , 573 So.2d 1350, 1354 (Miss.1990) ). Further, though a petitioner's obligation to provide affidavits other than his own "may be excused by a showing that the petitioner has good cause for failing to obtain those affidavits" ( Walden v. State , 201 So.3d 1042, 1045 (¶ 14) (Miss. 2016) ), Gaulden made no showing of good cause for his failure to do so here.

¶ 23. Gaulden fails to provide any evidence other than his own affidavit to support his ineffective-assistance claim. He has therefore failed to meet the statutory pleading requirements necessary to demonstrate that his lawyer was ineffective under Strickland . Gaulden, in fact, confirmed under oath that he had talked with his attorney about the charges and the options that were available. Gaulden further affirmed that no one made any promise to induce him to plead guilty. Plus, the bill of information adequately charged Gaulden with aggravated assault, so his lawyer was not ineffective for declining to challenge it. As the Mississippi Supreme Court has observed, "[c]ounsel, of course, cannot be faulted for failing to challenge the validity of valid indictments." Brooks , 573 So.2d at 1354. That same observation applies here.

¶ 24. Finally, Gaulden has not demonstrated that any of his lawyer's alleged deficiencies deprived him of a fair trial. On the contrary, Gaulden affirmed three times at his plea hearing that he was guilty of the aggravated-assault charge, and he apologized for assaulting the jailer. We find nothing in the record to support the proposition that but for his lawyer's alleged deficiencies, Gaulden would have insisted on going to trial instead of pleading guilty. For all the reasons stated, Gaulden's ineffective-assistance-of-counsel claim lacks merit.

V. Multi-Count Bill of Information

¶ 25. Gaulden asserts that the circuit court denied him due process when it admitted the multi-count bill of information, allegedly in violation of Rule 7.07. According to Gaulden, the events that led to the aggravated-assault charge occurred several weeks after the events that led to the two charges for unlawful possession of a motor vehicle. Gaulden reasons that the three charges should not have been listed in the same bill of information because they were not part of a common scheme or plan.

¶ 26. Gaulden is procedurally barred from raising this issue on appeal. By voluntarily and knowingly entering his guilty pleas, he waived all technical and non-jurisdictional issues. See Brooks , 573 So.2d at 1353-54 ; Miller v. State , 973 So.2d 319, 321-22 (¶¶ 8-9) (Miss. Ct. App. 2008) (valid guilty plea waived argument that multi-count indictment was defective by failing to include statutory language equivalent to Rule 7.07 ); McClurg v. State , 758 So.2d 473, 478-79 (¶ 17) (Miss. Ct. App. 2000) (valid guilty plea waived claim that an indictment was defective because it did not comply with Rule 7.07 regarding multi-count indictments); Bell v. State , 754 So.2d 492, 495-96 (¶¶ 8-9) (Miss. Ct. App. 1999) (knowing and voluntary guilty plea waived claim that multi-count indictment was improper because it charged separate crimes occurring several months apart and involving two different victims).

¶ 27. Based upon the foregoing, we affirm the circuit court's summary dismissal.

¶ 28. AFFIRMED.

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

      The record does not contain a copy of Gaulden's guilty-plea petition. Gaulden did not list it in his designation of record. The circuit court, however, stated at the hearing that it had before it Gaulden's sworn petition seeking leave to enter his guilty plea.

      The Uniform Rules of Circuit and County Court no longer govern criminal practice in Mississippi. They have been replaced by the Mississippi Rules of Criminal Procedure since July 1, 2017. Gaulden's PCR motion preceded this change. Rule 7.07 now is encompassed in Rule 14.2 of the Mississippi Rules of Criminal Procedure.

      Gaulden does not claim there was an inadequate factual basis for his guilty pleas to unlawful possession of a motor vehicle.

      Section 97-3-7(14) lists the persons and circumstances covered by section 97-3-7(2)(b), which provides that "a person convicted of aggravated assault upon any of the persons listed in subsection (14) of this section under the circumstances enumerated in subsection (14) shall be punished by a fine of not more ... $5,000.00 or by imprisonment for not more than thirty ... years, or both." Section 97-3-7(14) specifically includes "any county ... jail officer ... when that person is acting within the scope of his duty, office[,] or employment."

      Rule 7.07, which was in effect at the time of Gaulden's plea hearing, provided that "[t]wo or more offenses... may be charged in the same information with a separate count for each offense if: 1) the offenses are based on the same act or transaction; or 2) the offenses are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan."

      Mississippi Code Annotated section 99-39-11(2) (Rev. 2015) provides that "[i]f it plainly appears from the face of the motion, any annexed exhibits[,] and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the petitioner to be notified."


author: WESTBROOKS, J., FOR THE COURT:

text:
    Julius BENDER a/k/a Julius Ladale Bender, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00436-COA
    Court of Appeals of Mississippi.
    March 13, 2018
    OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE McMILLIN, ATTORNEY FOR APPELLANT:
    OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE, ATTORNEY FOR APPELLEE.
    BEFORE IRVING, P.J., FAIR AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. Julius Ladale Bender was indicted in the Circuit Court of the Second Judicial District of Jasper County on one count of possession of a firearm by a convicted felon. After a jury trial, Bender was sentenced as a non-violent habitual offender to ten years in the custody of the Mississippi Department of Corrections. Bender filed for a judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial. The circuit court denied his motion. Bender appeals.

¶ 2. On appeal, Bender's appellate counsel filed a brief in compliance with Lindsey v. State , 939 So.2d 743 (Miss. 2005). Bender filed a supplemental pro se brief asserting several claims. After independently reviewing the record, this Court finds no issues warranting reversal. Therefore, we affirm.

FACTS

¶ 3. On September 3, 1997, Bender pled guilty to the felony crime of possession of a Schedule II controlled substance. Years later, on April 26, 2014, Bender was involved in an altercation on Richards Street; shots were fired, and Officer Eric Winfrey was called to the scene. Although Bender was not under arrest, Winfrey handcuffed him and proceeded to question him about the shooting. Bender stated that he had been jumped by a local gang and they shot at him. At first, Bender denied having a gun but then admitted to having one. Winfrey retrieved the gun and took it into police custody.

¶ 4. In August 2015, Bender was indicted for willfully, unlawfully and feloniously possessing a firearm after being convicted of a felony. During the trial, Bender admitted purchasing a gun from a pawn shop in Laurel in 2007. Bender claims he thought the pawn shop ran a background check on him and that his previous conviction had been expunged.

¶ 5. A jury found Bender guilty of possession of a firearm by a convicted felon, and he was sentenced as a non-violent habitual offender to ten years in the custody of the Mississippi Department of Corrections, without eligibility for reduction, suspension, parole, or probation. Bender filed an unsuccessful motion for a JNOV or a new trial. Bender appeals.

DISCUSSION

¶ 6. The Mississippi Supreme Court outlined a procedure in Lindsey that appellate counsel for an indigent criminal defendant must follow after determining that there are no arguable issues in the record:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(1) -[ (5), (8) ];
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client's appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of the client's right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant's success on appeal.
(5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Lindsey , 939 So.2d at 748 (¶ 18) (internal citations omitted).

¶ 7. Bender's appellate counsel complied with all the requirements of Lindsey . Appellate counsel stated she "diligently searched the procedural and factual history of this criminal action and scoured the record searching for any arguable issues which could be presented to the Court on Mr. Bender's behalf in good faith for appellate review, and upon conclusion, has found none."

¶ 8. Additionally, counsel states she mailed Bender a copy of the brief and informed Bender that she found no arguable issues in the record. Lastly, counsel informed Bender that he had the right to file a pro se brief, and she requested that this Court grant Bender an additional forty days to do so. Bender filed a pro se brief asserting several claims.

I. Ineffective Assistance of Counsel

¶ 9. To prove a claim of ineffective assistance, Bender must show that his trial counsel's performance was "deficient" and "prejudiced his defense." Jones v. State , 203 So.3d 657, 660 (¶ 16) (Miss. Ct. App. 2016). Bender does not point to anything in the record to support this claim, and he does not explain exactly how or why his trial counsel was allegedly ineffective.

¶ 10. Additionally, "ineffective assistance [claims] are most appropriately raised in post-conviction proceedings." Byrd v. State , 158 So.3d 1146, 1150 (¶ 12) (Miss. 2015). "This is because during direct appeals the Court is limited to the trial court record in its review of the claim, and there may be instances in which insufficient evidence exists within the record to address the claim adequately." Id. Bender's vague allegation is impossible to review, so it is dismissed without prejudice. Bender can seek the Supreme Court's leave to raise this issue in a motion for post-conviction relief.

II. Sufficiency of the Evidence

¶ 11. "In appeals from an overruled motion for JNOV, the sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State." Campbell v. State , 125 So.3d 46, 51 (¶ 10) (Miss. 2013) (quoting McClain v. State , 625 So.2d 774, 778 (Miss. 1993) ). "We are authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty." Id. Bender admits to pleading guilty to a felony in 1997 and purchasing a gun in 2007. After a review of the record, we hold that "reasonable and fair-minded jurors" could have found Bender guilty.

III. Weight of the Evidence

¶ 12. This Court has held that "[w]e 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." Baxter v. State , 177 So.3d 423, 446-47 (¶ 78) (Miss. Ct. App. 2014). "The evidence must be viewed in the light most favorable to the verdict." Id. at 447 (¶ 78).

¶ 13. During trial, Bender testified to both pleading guilty to a felony crime in 1997 and to purchasing a gun in 2007. Accordingly, we find that the verdict does not sanction an unconscionable injustice.

IV. Excessive Sentencing and a Possible Misapplication of the Law

¶ 14. "In reviewing sentences, this Court will not engage in analyzing a sentencing order unless it is considered constitutionally disproportionate or not within the statutory limits." Everett v. State , 835 So.2d 118, 123-24 (¶ 21) (Miss. Ct. App. 2003). The statutory limit for a person convicted of a felon and possessing a firearm is "not less than one (1) year nor more than ten (10) years." Miss. Code Ann. § 97-37-5(2) (Rev. 2014). Bender's sentence of ten years is within the statutory limit. Therefore, this issue is without merit.

V. All Exhibits and the Record as a Whole

¶ 15. Bender claims that "the entire trial transcript and the contents of the records" and "all exhibits, whether admitted into evidence or not" support overturning his conviction. However, Bender does not assert any legal authority to support his claim. This "Court has no obligation to address issues in which there is a failure to cite relevant authority." Keller v. State , 138 So.3d 817, 860 (¶ 110) (Miss. 2014). Accordingly, this claim is procedurally barred.

VI. Prosecutorial Misconduct

¶ 16. Bender claims that "possible prosecutorial misconduct" affected the outcome of his trial. However, Bender fails to assert any facts or legal authority to support his claim. See id. Notwithstanding the procedural bar, we find no evidence of prosecutorial misconduct. Therefore, we find no merit to this issue.

VII. The Indictment

¶ 17. Bender challenges the sufficiency of his indictment in support of a JNOV or a new trial. The purpose of an "indictment is to give the defendant fair notice of the crime charged." Nix v. State , 8 So.3d 141, 144 (¶ 6) (Miss. 2009) (citing Bell v. State , 360 So.2d 1206, 1208-09 (Miss. 1978) ). "It must contain the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation." Jackson v. State , 121 So.3d 313, 318 (¶ 7) (Miss. Ct. App. 2013).

¶ 18. Bender does not explain how the indictment was allegedly insufficient. This Court has held that

[a]n appellant cannot give cursory treatment to an issue and expect this Court to uncover a basis for the claims, either in the record or in the law. Simply put, we will not act as an advocate for one party to an appeal. The appellant must affirmatively demonstrate error in the court below, and failure to do so waives an issue on appeal.

Satterfield v. State , 158 So.3d 380, 383 (¶ 6) (Miss. Ct. App. 2015). Further, we find that he was adequately informed of the charges against him. Therefore, this Court finds no error.

CONCLUSION

¶ 19. After reviewing the record, this Court finds there was sufficient evidence to support Bender's conviction. Appellate counsel properly filed a brief under Lindsey . The issues in Bender's pro se brief are procedurally barred and meritless. An independent review of the record reveals no issue warranting reversal or additional briefing. Accordingly, we affirm the circuit court judgment.

¶ 20. AFFIRMED.

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


author: WILSON, J., FOR THE COURT:

text:
    Gary Wayne STACKS a/k/a Gary Wayne Stacks, Jr. a/k/a Gary Stacks a/k/a Gary W. Stacks, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00353-COA
    Court of Appeals of Mississippi.
    March 20, 2018
    ATTORNEY FOR APPELLANT: GARY WAYNE STACKS (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY GERBER
    BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. Gary Wayne Stacks appeals from the denial of his motion for post-conviction relief (PCR). The circuit court terminated Stacks's term of post-release supervision (PRS) and recommitted Stacks to the custody of the Mississippi Department of Corrections (MDOC) after Stacks violated multiple conditions of his PRS. In his PCR motion, Stacks argued that the circuit court lacked authority to recommit him to MDOC custody because his original sentencing order did not expressly impose a suspended sentence to correspond with his term of PRS. This Court rejected the same argument in Anderson v. State , 89 So.3d 645, 649-51 (¶¶ 7-12) (Miss. Ct. App. 2011). Therefore, we affirm the circuit court's order denying Stacks's PCR motion.

¶ 2. In 2007, Stacks pled guilty to manufacturing methamphetamine. Pursuant to a plea agreement, the State recommended a sentence of ten years in MDOC custody followed by five years of PRS and a fine. The State also agreed to retire a second charge to the files. The circuit court accepted Stacks's plea, followed the State's recommendation, and sentenced Stacks to ten years in MDOC custody to be followed by five years of PRS, a $5,000 fine, and court costs. At his plea/sentencing hearing, the court specifically warned Stacks of the consequences of a violation of the conditions of his PRS:

The Court: [Y]ou [are] sentenced to 10 years in the Department of Corrections ... to be followed by 5-years post-release supervision. Pay the minimum fine of $5,000 and all cost of court. The fine and the court cost will be paid as a condition of the 5-years post-release; which means if you do not pay it, you'll have to pick up and serve the other five. Do you understand that?
Stacks: Yes, sir.
....
The Court: Now, there are some other conditions to a post-release sentence. The other conditions are these: You must be a honest law-abiding citizen.
Stacks: Yes, sir.
The Court: You must report to the Department of Corrections as they direct, usually once a month.
Stacks: Yes, sir.
The Court: Each time you report, you're required to pay the State of Mississippi $45 as a supervision fee. But if you don't have the money you still report. You can use no illegal drugs: cocaine, LSD, heroin, marijuana, speed.
Stacks: Yes, sir.
The Court: No alcohol: beer, wine, or whiskey. And they're going to be testing you.
Stacks: Yes, sir.
The Court: Again, if you violate any of these conditions, Mr. Stacks, you have to pick up and serve the other five years.
Stacks: Yes, sir.
The Court: Do you have any questions about the sentence?
Stacks: No.

(Emphasis added).

¶ 3. Stacks completed his ten-year term in MDOC custody in 2016 and was discharged to begin PRS. About six months later, a warrant was issued for his arrest for multiple violations of the conditions of his PRS: he failed to report in July and August 2016, failed to pay his supervision fees, failed to pay his fine and court costs, twice tested positive for amphetamine and methamphetamine, and failed to attend required drug and alcohol treatment. The circuit court held a revocation hearing, found that Stacks had violated the conditions of his PRS, and sentenced him to serve his term of PRS (5 years) in MDOC custody. Stacks subsequently filed a PCR motion challenging his revocation, which the circuit court denied. He then filed a timely notice of appeal.

¶ 4. Stacks argues that the circuit court lacked authority to sentence him to serve five years in MDOC custody for violating the conditions of his PRS. Stacks argues that his entire sentence had expired before he was placed on PRS because the original sentencing order did not impose a suspended sentence to correspond with his five-year term of PRS.

¶ 5. This Court rejected the same basic argument in Anderson , supra . Anderson originally was sentenced to serve five days in MDOC custody, with no suspended sentence and ten years of PRS. Anderson , 89 So.3d at 649 (¶ 7). Anderson subsequently violated the terms of his PRS, and the circuit court revoked eight years of his PRS and sentenced him to serve the same amount of time in MDOC custody. Id. at 648 (¶ 3). In a PCR motion, Anderson argued that because "no portion of his sentence was suspended originally ..., the circuit judge could not order him to serve any more time in jail." Id. at 649 (¶ 7). On appeal, this Court rejected "[t]his assertion [as] clearly erroneous." Id.

¶ 6. We first pointed out that at Anderson's original sentencing hearing, the judge clearly informed him that "he faced up to possibly ten more years in [MDOC] custody" if he violated the conditions of his PRS, and "Anderson answered in the affirmative when asked if he understood." Id. at (¶ 8). Second, we emphasized that Mississippi Code Annotated section 47-7-34 (Rev. 2015), which governs the imposition and termination of PRS, "contains no language that a suspended sentence must be given if the circuit court ... wants to impose PRS" following a term in MDOC custody. Id. at 650 (¶ 9). Thus, we held that even if an offender's original sentence does not expressly include a "suspended sentence," if the offender subsequently violates the conditions of his PRS, the circuit court has the authority to terminate the offender's PRS and recommit the offender to MDOC custody for all or part of the term of PRS. See id. at 650-51 (¶¶ 9-12). As a practical matter, Anderson treats a term of PRS as inclusive of an implied suspended sentence, even if the offender's sentencing order does not expressly reference a suspended sentence.

¶ 7. The result in this case is the same as in Anderson . At Stacks's plea/sentencing hearing, the circuit court clearly informed him that he faced five additional years in MDOC custody if he violated the conditions of his PRS, and Stacks stated that he understood. In addition, as Anderson holds, section 47-7-34 does not require the circuit court to expressly suspend part of the defendant's sentence when the court imposes a term of PRS.

Therefore, the circuit court had the authority to sentence Stacks to serve five years in MDOC custody after Stacks violated multiple conditions of his PRS. Stacks's argument to the contrary "is without merit." Anderson , 89 So.3d at 651 (¶ 12).

¶ 8. In Anderson , we stated, "It is customary procedure for the circuit court to suspend a portion of the sentence when utilizing PRS. For clarity and consistency in sentencing, we encourage such practice." Id. at 650 (¶ 10). We further stated that "the most logical way to utilize PRS is to impose a term of incarceration, suspend a portion of the term, and place the defendant on a period of PRS." Id. at (¶ 11). We again encourage circuit courts to follow this customary practice and to suspend a portion of the offender's sentence when imposing a term of PRS. However, as Anderson holds, a technical deviation from this customary practice does not limit the circuit court's authority to terminate an offender's PRS and order him to be recommitted to MDOC custody if the offender violates the conditions of his PRS.

¶ 9. AFFIRMED.

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

      The maximum sentence for Stacks's offense was thirty years' imprisonment. See Miss. Code Ann. § 41-29-139(b)(1) (Rev. 2005).

      The record in this appeal does not reflect the nature of the charge retired to the files.

      Stacks's PCR motion states that he was paroled in 2009 and served the remainder of his term in MDOC custody on parole. See Sinko v. State , 192 So.3d 1069, 1070-71 (¶ 1) (Miss. Ct. App. 2016) (explaining that for several years MDOC classified persons convicted of manufacturing controlled substances other than marijuana as eligible for parole even though the parole statute then in effect clearly provided that they were not eligible for parole). There is nothing else in the record to confirm this statement, but the State does not dispute it. In any event, an "offender while on parole shall remain in the legal custody of [MDOC]." Miss. Code Ann. § 47-7-17 (Rev. 2015).

      Stacks also argues that the circuit court's order terminating his PRS and recommitting him to MDOC custody exposed him to double jeopardy. However, Anderson rejected this claim as well. Id. at 653 (¶ 24) ("Contrary to Anderson's claims, the circuit judge did not impose an additional sentence; he merely revoked Anderson's PRS and enforced the original sentence imposed."). Stacks also argues that his court-appointed attorney was ineffective because she failed to make a double jeopardy argument at his revocation hearing. This claim also fails for the same reason.