author: BARNES, J.,

text:
    Stanley Lee BRADLEY a/k/a Stanley Bradley, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01234-COA
    Court of Appeals of Mississippi.
    04/25/2017
    Rehearing Denied August 8, 2017

      OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH BRIGGS, ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD, ATTORNEY FOR APPELLEE
    BEFORE LEE, C.J., BARNES AND FAIR,‘JJ.
   BARNES, J.,

FOR THE COURT:

¶ 1. A jury sitting before the Forrest County Circuit Court found Stanley Lee Bradley guilty of aggravated assault. Bradley appeals, claiming the jury’s verdict is contrary to the weight of the evidence. He also claims that the prosecution made an improper “send a message” closing argument. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2, As of mid-February 2014, Bradley and Cassandra Baker had been dating for seven years. Cassandra’s brother, David Baker, had been living with them for approximately one month. On February 15, 2014, a' number of people visited their house to celebrate Cassandra’s birthday. After everyone else left at approximately 9 p.m., Cassandra and David rested on separate couches in the living room. Bradley was not ready to end the evening. Although he had been-drinking, Bradley left to drive around and- visit some friends. Bradley told-Cassandra that he would “be right back.”

¶ 3. Bradley “ended up at [Cassandra’s] sister’s house,” where he continued to drink until he fell asleep on the couch. When he woke up “after two o’ clock,” he had a number of missed calls from Cassandra. Cassandra called him again while he was driving home. Bradley answered and explained that he was on his way home from her sister’s house. Cassandra -hung up. When she called again, he did not answer because he was nearly home. After parking and listening to music for “maybe three to five minutes,” Bradley went inside.

¶4. It is undisputed that Bradley and David got into a fight. It is also undisputed that Bradley stabbed David multiple times with a pocketknife. Other necessary details will be discussed below. David went to the hospital, where he was treated for one stab wound to his lower side and four stab wounds to his upper back. Bradley was arrested and subsequently charged with aggravated assault. At trial, the prosecution called David, Cassandra, and the police officer who responded to Bradley’s 911 call from a neighbor’s house. Bradley chose to testify after the prosecution rested its case-in-chief, Ultimately, the jury found Bradley guilty, and the circuit judge sentenced him to twenty years in the custody of the .Mississippi Department of Corrections. Bradley appeals.

ANALYSIS

I. Whether the verdict is contrary to the weight of the evidence.

¶ 5. Bradley argues that the circuit court erred when it denied his motion for a new trial, because the jury’s verdict is contrary to the overwhelming weight of the evidence. An appellate court “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.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss. 2005). We must “view the evidence in the light most favorable to the verdict,” and we must affirm unless “[t]he trial court ... abusefd] its discretion in denying a new trial[.]” Id. at 844-45 (¶ 19).

¶ 6. To prove aggravated assáult, the State generally has to prove beyond a reasonable doubt that a “defendant (1) attempted to cause or purposely or knowingly caused bodily .injury to another (2) with a deadly weapon.” Duke v. State, 146 So.3d 401, 405 (¶ 16) (Miss. Ct. App. 2014) (citing Miss. Code Ann. § 97-3-7(2)(a)(ii) (Supp. 2013)). It is undisputed that Bradley purposely stabbed David with a pocketknife multiple times. But since Bradley successfully requested a self-defense instruction, the prosecution also had to prove that he did not act in necessary self-defense. Id. at 405-06 (¶ 16).

¶ 7. -The jury heard testimony that Cassandra and Bradley were arguing because he left on her birthday, she was'not able to get in touch with him for hours, and he did not come back home until well after 2, a.m, Bradley testified that while he was in the bedroom, he was saying that Cassandra did not “make [any] motherf--— sense,” and that her concerns were “nonsense” and “dumb s—.” Cassandra testified that she “shut down” and got quiet because Bradley made her feel “intimidated.”

¶ 8. According to David, Bradley was “outraged,” “wild,” and a “loose cannon” that night, and he had never-seen Bradley act that way. David also said that Bradley was “fussing” at Cassandra, and he was “talking loud [and] hollering.” Although Bradley testified that he was not angry when he got home, given the testimony to the contrary and the circuit judge’s instruction that the jurors could “draw such reasonable inferences from the evidence as seem justified in light of [their] own experiences,” the jury could certainly have concluded otherwise.

¶ 9. It is undisputed that David eventually spoke up and injected himself in the situation. The jury could have concluded that Bradley was angry about David’s involvement; especially since* Bradley testified that he told David that he would “say anything [he] want[ed] to in this moth-erf-—,” and told David not to get involved in his relationship. It' is undisputed that the resulting verbal exchange- became physical, and Bradley stabbed David multiple times. Bradley testified that David attacked him first. But David testified that he was still lying on a couch when Bradley suddenly charged from the bedroom and attacked him. Cassandra also testified that Bradley ran into the living room while David was still on the couch.

¶ 10. Bradley’s testimony was inconsistent regarding when he" got out his knife and stabbed David. According to Bradley, David started the fight when he “scooped [Bradley] up” and “drove” him onto one of the couches in the living room. Initially, Bradley testified that he got out his knife and stabbed David only after David .began choking him. But during cross-examination, Bradley testified:* “When [David] took me off my feet,.[and] had me in the air, before we could land on the ■ couch because when I held him [be]cause I’m in the air[,] . [t]hat’s when I pulled my .knife. And by the time I landed, on the couch, that’s how he got the stab in his side.” (Emphasis added). Later during cross-examination, Bradley testified that “[w]hen [David] swooped [him] up off [his] feet, that’s when [he] stabbed” David.

¶ 11. To summarize, the jury could have found that Bradley’s version of events was not credible because he first. said he stabbed David only after being choked, he later said he stabbed David after they landed on the couch but before he was choked, and he finally said he stabbed David before they even landed on the couch. Given David’s and Cassandra’s testimonies that Bradley charged and attacked David first, David’s testimony that Bradley was hiding one of his hands behind his back before their altercation, and Bradley’s inconsistent version of events, the jury could have concluded that Bradley initiated the fight, and that he had armed himself before the fight began.

¶ 12. The circuit court instructed the jurors to “use [their] good common sense and sound honest judgment in considering and weighing the testimony of each witness who ... testified in this case.” “[An appellate court] will not pass upon the credibility of witnesses and, where the evidence justifies a verdict, it must be accepted as having been found worthy of belief.” Jones v. State, 95 So.3d 641, 647 (¶ 20) (Miss. 2012) (citation and internal quotations marks omitted). “[T]he members of the jury act as the finders of fact.” Brown v. State, 764 So.2d 463, 467 (¶ 9) (Miss. Ct. App. 2000). “They are charged to listen to the evidence, observe the demeanor of the witnesses, and decide the issue of the credibility of the witnesses and what weight to give to any particular piece of evidence.” Id.

¶ 13. Bradley notes he left the house and called 911, David was going to chase him out of the house before Cassandra intervened, and he was cooperative when emergency responders arrived. But the jury could have reasonably decided that Bradley’s and David’s behavior after the altercation was outweighed by the evidence that Bradley attacked David first. And the jury’s verdict is not contrary to the weight of the evidence simply because David was confronted with what seemed to be a medical record—the document was not introduced into evidence—reflecting that David had told a medical provider that he “witnessed [Bradley] arguing and fighting with [Cassandra,] and [he] jumped on [Bradley] and choked him.” David testified that he did not remember saying that. Even if David had given a prior inconsistent statement, that would not prevent the jury from deciding that he was more credible than Bradley. See id. at (¶ 10). “The jury’s discretion in choosing whether to accept all or part of a witness’s testimony is unfettered.” McIntosh v. State, 749 So.2d 1235, 1241 (¶ 23) (Miss. Ct. App. 1999).

¶ 14. Viewing the evidence in the light most favorable to the verdict, the jury could have reasonably found Bradley guilty of aggravated assault. Allowing the jury’s verdict to stand does not sanction an unconscionable injustice. It follows that the circuit judge did not abuse his discretion when he denied Bradley’s motion for a new trial. Accordingly, this issue is meritless.

II. Whether the prosecution used a “send a message” closing argument.

¶ 15. According to Bradley, the prosecution made improper “send a message” comments during its closing argument. Out of the remarks that Bradley highlights, the following comments are the only ones that resemble a “send a message” argument:

[When a disagreement] goes beyond [a] normal argument, tussle, fight, or somebody wrestling in the living room, there has to be a level of accountability^ because once we move past that point where there is no level of accountability and a person can be stabbed in the back ... five times, and we can’t evaluate that to determine what the facts are, [then] we’re in a society that would have a significant amount of problems .... [J]ustice ... has to come if we want to live in a society[,] in a town, in a city, in a country that’s fair—that everybody feels safe. ■
That’s that normal family dispute that crosses that line that cannot be okay in a functional society. It simply can’t. Good citizens have to say we’re not going to have that mess in our society.

¶ 16. As a threshold matter, we note that there was no objection to any portion of the prosecution’s initial or rebuttal closing argument. Consequently, this issue is procedurally barred. Jackson v. State, 174 So.3d 232, 238 (¶ 17) (Miss. 2015). An appellate court will only find plain error under circumstances where the comments at issue were “so inflammatory that the trial judge should have objected on his own motion.” McCoy v. State, 147 So.3d 333, 344-45 (¶ 29) (Miss. 2014).

¶ 17. An appellate court “must determine whether the natural and probable effect of the improper argument creates an unjust prejudice against the accused resulting in a decision influenced by the prejudice so created.” Id. at 345 (¶ 29). Guided by jury instructions, jurors must decide whether the prosecution presented evidence that the accused is guilty of a charged crime. Grindle v. State, 134 So.3d 330, 347 (¶ 71) (Miss. Ct. App. 2013). A prosecutor may not encourage jurors to reach a guilty verdict to send a message to the public or other potential criminals, or “reach a verdict for the purpose of meeting public favor.” Id. at 347-48 (¶ 71). Thus, even in the absence of an objection, reversible error may result from a prosecutor’s closing argument that a jury should “[s]end a message to ... older, more mature, criminals ... [that ‘w]e are not going to let you ruin young people’s lives See Payton v. State, 785 So.2d 267, 270-72 (¶¶ 9-15) (Miss. 1999) (citations omitted).

¶ 18. The prosecutor did not urge jurors to use their verdict to send a message to anyone. Instead, the prosecutor argued that the evidence showed Bradley was guilty, his behavior was not merely a family dispute but unacceptable and unreasonable, and the jury should hold him accountable. It was permissible for the prosecutor to reiterate the jury’s duty as set forth in the jury instructions. See Long v. State, 52 So.3d 1188, 1194 (¶ 20) (Miss. 2011). As such, the comments at issue were not improper—much less so inflammatory that the circuit judge should have objected on his own motion. Accordingly, this issue is procedurally barred.

¶ 19. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY A $2,500 FINE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

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

      . David's medical records were not introduced into evidence, but he described a surgical procedure to ensure that his bowels had not been perforated. He remained in the hospital for at least four days.

      . Bradley also testified that he had never had a problem with David before that night.

      . The prosecution introduced Bradley’s knife into evidence, but it was not transmitted with the appellate record. See M.R.A.P. ll(d)(l)(iii) (“[P]hysical exhibits[,] other than documents, shall not be transmitted by the trial court clerk unless the clerk is directed to do so by a party or by the clerk of the [Mississippi] Supreme Court.”). Sold under the brand ”Tac Force,” it was described as a “pocket knife,” Officer Jarrod Smith of the Hattiesburg Police Department testified that he recovered the knife from Bradley’s pocket. It is reasonable to conclude that it would have been necessary for Bradley to unfold or open it before he stabbed David. There was no testimony regarding whether Bradley could have opened the knife with one hand, or whether it would have been necessary for him to use both hands.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    John Paul LONGEST a/k/a John Longest, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KM-00606-COA
    Court of Appeals of Mississippi.
    05/02/2017
    Rehearing Denied August 8, 2017

      ATTORNEY FOR APPELLANT: V.W. CARMODY JR.
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE, BRENTON MATTHEW CARTER

      BEFORE LEE, C.J., ISHEE AND ■ GREENLEE,' JJ.
   ISHEE, J.,

FOR THE COURT:

¶ 1. In January 2015, John Longest was arrested for careless driving, open container in a motor vehicle, and driving under the influence (DUI), Longest pleaded no contest and was convicted by the Municipal Court of Florence. He appealed his convictions to the County Court of Rankin County, wherein a bench trial de novo was held, and Longest was found guilty of careless driving and DUI. Longest moyed for a judgment notwithstanding the verdict (JNOV); which the county court denied. Longest then appealed to the Rankin County Circuit Court, which affirmed. He now seeks relief from this Court. Finding no error, we affirm. ,

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On January 23, 2015, Longest was stopped by Officer Kesha McBay of the Florence Police Department. Initially, McBay came upon Longest’s Ford pickup partially stopped along the shoulder of Er-lich Road in Florence, Mississippi. McBay stated that Longest’s driver-side door was ajar, and as she approached his vehicle, the door closed and the vehicle began traveling toward U.S. Highway 49; Longest then entered onto Highway 49, , going southbound.

¶ 3. McBay testified that after entering Highway 49, Longest “sped up very rapidly [and] swerv[ed] across the fog line to the right several times [and] then crossed the center line several times." After Longest’s continuous swerving and possible endangerment to other vehicles, McBay initiated a traffic stop. After pulling over, Longest then exited his vehicle at the same time that McBay was exiting her patrol vehicle. McBay stated that as Longest exited his truck, he was grasping the door, and then “stumbled out of the vehicle” and into a traffic lane of Highway 49, but did not fall completely. McBay then radioed Sergeant Justin Holifield for assistance. McBay ordered Longest to reenter his vehicle, which he did.

¶4. McBay next approached Longest’s vehicle from the driver side, and instructed Longest to. roll down the window, McBay stated that Longest attempted to. speak through the window, but that she could not understand him. She. further testified that Longest was attempting to reach his wallet when he first exited the vehicle, and was still continuing to try and do so at the time she ordered the window down. After Longest rolled the window down, McBay stated she immediately experienced “a very strong odor of [an] intoxicating beverage.” When asked by McBay, Longest admitted to having three beers over the course of driving back from. Vicksburg, Mississippi. McBay testified that Longest’s speech was extremely slurred,- that she continuously had difficulty understanding him, and that she had to request him to repeat himself. McBay also observed that Longest’s-eyes were bloodshot. When asked by McBay to turn his vehicle off, Longest “kept fumbling and missing the ignition.”

¶ 5. McBay eventually ordered Longest out of his vehicle. When Longest exited the vehicle, his pants were undone, expos*-ing'himself; he told McBay he was unaware his pants were not fastened. McBay then had Longest walk to the back of his truck. In doing so, he held onto the side of the truck for .support. McBay stated she had no trouble with her balance when standing or walking on the same surface and ip; the same direction. When at the rear of his vehicle, McBay again asked how many beers Longest had consumed, to which he replied, “four.” Longest then admitted to McBay that.he knew drinking and driving was illegal and that three beers were enough to charge him with DUI. Longest was instructed to sit at the center of the bumper, which took several requests by McBay before Longest was able to comply, stumbling in the process. Throughout the duration of McBay’s encounter with Longest, she noted his slurred speech.

¶ 6. After Holifield arrived on scene, he initiated field sobriety testing on Longest. Holifield testified that he, too, could smell the odor of intoxicating liquor emanating from Longest’s breath when speaking. Longest also admitted to Holifield he had consumed four beers. Like McBay, Holi-field observed that Longest’s eyes were “glassy and red.” Holifield proceeded to perform the horizontal-gaze-nystagmus (HGN) test, which he testified illustrated the following: “[C]lues of impairment as far as lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation, the onset of nystagmus prior to [fourty-five] degrees, and [Longest] also showed vertical nystagmus.” These conclusions resulted in Longest’s failure of the HGN test. Holifield then had Longest perform the walk-and-turn test. Holifield, however, ended the walk-and-turn test prematurely for fear that Longest would injure himself due to lack of balance. Longest'was then arrested and charged with careless driving, open container in a motor vehicle, and DUI. At the jail where he was taken, Longest took a breathalyzer test, which resulted in an “[ijnsufficient [s]ample.”

¶ 7. At trial, Longest’s wife testified on his behalf. She stated that Longest’s lack of balance was the result of a right-knee injury. She further stated that Longest was “hard of hearing,” which was why McBay and Holifield had to repeat commands. In addition, Longest’s wife testified that Longest worked in the vicinity of petroleum products, which had the effect of causing redness in Longest’s eyes. Lastly, she stated that Longest’s vehicle needed considerable repairs, “drifted everywhere,” and was likely the cause of Longest’s swerving.

¶ 8. The county-court judge viewed McBay’s dash-cam footage, and stated that the video of the traffic stop corroborated the testimony of McBay and Holifield. As a result, the County Court of Rankin County, sitting without a jury, found Longest guilty beyond a reasonable doubt for both careless driving and DUI. Longest then moved for a JNOV, which the county court denied. He appealed his convictions to the Rankin County Circuit Court, which affirmed. Longest now appeals the circuit court’s judgment. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 9. “In a bench trial, the trial judge is ‘the jury for all purposes of resolving issues of fact.” Carlson v. City of Ridgeland, 131 So.3d 1220, 1223 (¶ 13) (Miss. Ct. App. 2013) (quoting Doolie v. State, 856 So.2d 669, 671 (¶ 7) (Miss. Ct. App. 2003)). As such, a “judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” Id. (quotation omitted). In determining whether the judge possessed sufficient evidence upon which to base his judgment, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at (¶ 14) (quoting Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005)).

DISCUSSION

¶ 10. On appeal, Longest asserts that the State failed to provide sufficient evidence of his impairment at the time of his arrest, and therefore, the verdict is against the overwhelming weight of the evidence. We disagree.

¶ 11. “A challenge to the sufficiency of the evidence requires this Court to determine whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed!.]’” Nolan v. State, 182 So.3d 484, 488-89 (¶ 7) (Miss. Ct. App. 2016) (quoting Bush, 895 So.2d at 843 (¶ 16)). Evidence is deemed “insufficient to support the verdict where ‘the facts and inferences ... point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty[.]’ ” Id. The evidence must be viewed in the light most favorable to the State. Id.

¶ 12. Longest was convicted under common-law DUI. Common-law DUI is set forth under Mississippi Code Annotated section 63-ll-30(l)(a) (Supp. 2016), and makes it “unlawful for a person to drive or otherwise operate a vehicle within this state if the person ... [i]s under the influence of intoxicating liquor.” “Common-law DUI is proven when a defendant’s blood[-]alcohol results are unavailable but there is sufficient evidence to [show] that the defendant operated a motor vehicle under circumstances indicating his ability to operate the vehicle was impaired by the consumption of alcohol.” Nolan, 182 So.3d at 488-89 (¶ 8) (quoting Young v. State, 119 So.3d 309, 315 (¶ 19) (Miss. 2013)).

¶ 13. At trial, McBay and Holifield both testified that Longest exhibited many traits of a person experiencing the effects of impairment due to an intoxicating liquor, Again, the following was introduced into evidence by the State through testimony: that Longest was observed swerving between lanes, and over the center lane and fog line; that he stumbled into a traffic lane after exiting his vehicle; he was unaware that his pants were unfastened, exposing himself; he admitted to operating his vehicle while consuming alcohol; he emanated an odor of alcohol; he had glassy, bloodshot eyes and slurred speech; he experienced difficulty turning his vehicle off when instructed; he visibly lacked a sense of balance, resulting in unsteadiness on his feet; he failed the HGN test, and he was discontinued from completing the walk-and-turn test for safety reasons.

¶ 14. In addition to this testimony, the State offered into evidence dash-camera footage of the entire encounter. The county-court judge noted that he had watched the video, and found it to be “very confirmatory” of McBay and Holifield’s statements, rendering their testimony credible and consistent. Longest, however, argues that the State failed to rebut his wife’s testimony regarding the roadworthiness of his vehicle, and furthermore, that the county court failed to take into account any medical issues Longest may have been experiencing with his right knee during the traffic stop. We find these arguments without merit, as the record reveals otherwise.

¶ 15. At trial, the State’s burden required it to prove beyond a reasonable doubt that Longest was operating his vehicle under the influence of an intoxicating liquor, resulting in impairment—not to disprove the vehicle’s alleged lack of roadwor-thiness could result in the mistaken belief of an impaired driver. See Miss. Code Ann. § 63-ll-30(l)(a). And as the State highlights, Longest did not offer any expert testimony regarding the issue of roadwor-thiness; rather, Longest merely relied on his wife’s lay testimony, as well as an invoice of repairs done to his truck. Additionally, Longest did not provide any expert or medical evidence of his alleged knee injury. What is more, at no point during the traffic stop or field sobriety testing did Longest alert McBay or Holi-field of his alleged knee ailment. And for Longest to assert that his wife’s testimony regarding his knee injury was not given proper weight by the county court is misplaced. In fact, the county-court judge stated on the record, “[Hjaving watched the video, even though he may have a problem with his knee, from what I saw, knee problems were not the cause of his problem. Alcohol problems were the cause of his problems.” Moreover, the court noted that, during the instruction phase before the walk-and-turn test, Longest exhibited no issues with his knee. As such, his alleged claim of injury was adequately considered by the county court, though it was found to possess no merit. We find likewise.

¶ 16. Thus, when reviewing the sufficiency of the evidence, this Court must view the evidence in the light most favorable to the State. Bush, 895 So.2d at 843 (¶ 16). In doing so, we find there was substantial, credible, and reasonable evidence to sufficiently support the DUI conviction. Additionally, in Longest’s motion to reconsider, which was treated as a JNOV motion, he did not explicitly move for a new trial— though he asserted the verdict was against the overwhelming weight of the evidence. Nonetheless, this Court “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. at (¶ 18). Viewing the evidence in a light most favorable to the verdict, and based upon our finding regarding the sufficiency of the evidence, we find Longest’s conviction is not so contrary to the weight of the evidence that to allow it to stand would sanction an unconscionable injustice. As such, we affirm the findings of the circuit court.

CONCLUSION

¶ 17. Upon review of the record, we find no merit to any of the issues raised on appeal by Longest. There was evidence sufficient to support his common-law-DUI conviction, and the verdict was not against the overwhelming weight of the evidence. Therefore, we affirm.

¶ 18. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND SENTENCE OF FORTY-EIGHT HOURS IN THE RANKIN COUNTY JAIL, SUSPENDED UPON SPECIFIED CONDITIONS; SIX MONTHS OF UNSUPERVISED PROBATION; AND TO PAY A $750 FINE; AND CONVICTION OF DRIVING CARELESSLY AND SENTENCE TO PAY A FINE OF $50, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: WESTBROOKS, J.,

text:
    Marquez HICKENBOTTOM, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00033-COA
    Court of Appeals of Mississippi.
    06/27/2017

      MARQUEZ HICKENBOTTOM (PRO SE), ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL, BY: ALICIA MARIE AINS-WORTH, JACKSON, ATTORNEY FOR APPELLEE
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   WESTBROOKS, J.,

FOR THE COURT:

¶ 1. Marquez Hickenbottom pleaded guilty to strong-arm robbery in the Circuit Court of Scott County. He was sentenced to fifteen years in the custody of the Mississippi Department of Corrections, followed by five years of probation. Hicken-bottom was also ordered to pay a fine of $1,500. Hickenbottom filed a motion for postconviction relief (PCR). The circuit court “denied and dismissed” his motion by order. Hickenbottom timely appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. In April 2013, Hickenbottom was indicted on one count of armed robbery. The circuit court ordered an independent mental evaluation and hearing to determine Hickenbottom’s competency to stand trial or plead guilty, after Hickenbottom’s trial counsel alerted the court of his client’s possible mental deficiencies. Dr. Mark Webb, a psychiatrist with the State of Mississippi, performed a psychological evaluation on Hickenbottom. He concluded that Hickenbottom was competent to stand trial or plead guilty.

¶ 3. In January 2014, at the competency hearing, the trial court adopted Dr. Webb’s findings, and Hickenbottom entered his plea of guilty of strong-arm robbery. The circuit court accepted Hicken-bottom’s guilty plea and sentenced him to fifteen years in the custody of the Mississippi Department of Corrections, with five years of probation. Hickenbottom was also ordered to pay a fine of $1,500. Further, the court maintained jurisdiction over the matter for a period of one year, reserving the right to vacate the sentence if Hicken-bottom failed to truthfully testify against Anderson if called to do so.

¶4. In December 2015, Hickenbottom filed a PCR motion. He alleged he was not competent to plead guilty, and that he received ineffective assistance of counsel. The trial court entered an order denying and dismissing Hickenbottom’s PCR motion. Hickenbottom timely appeals.

STANDARD OF REVIEW

¶ 5. “We review the dismissal or denial of a PCR motion for abuse of discretion.” Hughes v. State, 106 So.3d 836, 838-39 (¶ 4) (Miss. Ct. App. 2012). “We will only reverse if the trial court’s decision is clearly erroneous.” Id. “When reviewing questions of law, our standard is de novo.” Id. (citations omitted). “This [Cjourt will affirm the summary dismissal of a PCR motion if the movant fails to demonstrate a claim procedurally alive substantially showing the denial of a state or federal right.” Id. at 839 (¶ 4) (citation and quotation marks omitted).

DISCUSSION

I. Guilty Plea

¶ 6. Hickenbottom asserts the trial court’s determination of the facts was unreasonable. He claims his guilty plea was not voluntarily given, because he was not competent to understand the nature of the charges against him or the consequences of his plea. Hickenbottom further asserts that the trial court overlooked the seriousness of his mental state at the time the crime was committed, and the State-appointed psychiatrist did not review all of his medical records to make a determination of competency. Further, Hicken-bottom argues that Dr. Webb failed to support his finding of competency with reliable evidence. We disagree.

¶ 7. In the trial court’s order denying Hickenbottom’s PCR motion, it is noted that the court was made aware through defense counsel that Hickenbottom may have had some mental deficiencies. As a result, the trial judge ordered that Hicken-bottom undergo a mental evaluation. “Under [Uniform Rule of Circuit and County Court] 9.06, the circuit court must order a mental evaluation and conduct a competency hearing if it has reasonable ground to believe that the defendant is incompetent to stand trial.” Watson v. State, 100 So.3d 1034, 1039 (¶ 14) (Miss. Ct. App. 2012) (citation and quotation marks omitted). “What constitutes ‘reasonable ground’ rests largely within the discretion of the trial judge.” Id. “On review, the pertinent question is whether the trial judge received information which, objectively considered, should reasonably have raised a doubt about the defendant’s competence and alerted the judge to the possibility that the defendant could neither understand the proceedings, appreciate their significance, nor rationally aid his attorney in his defense.” Id. (quotation marks omitted).

¶8. The following is an excerpt from Hickenbottom’s guilty plea:

COURT: And you’ve just entered a plea of guilty to the crime that requires that you be sentenced to the penitentiary? Are you aware of that?
HICKENBOTTOM: Yes, sir.
COURT: And do you understand that this is a hearing here to accept your plea?
HICKENBOTTOM: Yes, sir. ■
COURT: Are you under the influence of drugs or alcohol at this time?
HICKENBOTTOM: No, sir.
COURT: Do you know what you’re doing?
HICKENBOTTOM: Yes, sir.
COURT: Do you understand that you are going to be sentenced to the penitentiary?
HICKENBOTTOM: Yes, sir.

¶ 9. “When reviewing the volun-tariness of [a] guilty plea, we will not set aside findings of a trial court sitting without a jury unless such findings are clearly erroneous.” Funchess v. State, 202 So.3d 1286, 1289 (¶ 7) (Miss. Ct. App. 2016) (citations and quotation marks omitted). “Addi-tipnally, the burden of proving that a guilty plea is involuntary is on the defendant and must be proven by a preponderance of the evidence.” Id. (quotation marks omitted). “To determine whether the plea is voluntarily and intelligently given, the trial court must advise the defendant .of his rights, the nature of the .charge against him, as well as the consequences pf the plea.” Id, (citation omitted).

¶ 10. Dr. Webb, a psychiatrist for the State, examined Hickenbottom and determined he was competent to stand 'trial or plead guilty and evaluated his criminal insanity at the time the crime was committed. At the competency hearing, Dr. Webb 'testified he reviewed Hickenbot-tom’s offense reports and the information Hickenbottom brought with him during the examination. Dr. Webb further testified that 'Hickenbottom was very intelligent, and did a great job of explaining to him everything that was .going on regarding the charges he faced. He stated Hick-enbottom was aware that he had been charged with armed robbery, and concluded that Hickenbottom was competent to assist his attorney in his defense. Additionally, Hickenbottom’s trial counsel had the opportunity to cross-examine Dr. Webb during the hearing. The trial court adopted Dr. Webb’s findings.

¶ 11.- Hickenbottom represented to the court that he understood the nature of the charge against him and the consequences of the plea. Hickenbottom asserts that his mental issues dealing with depression made him incompetent to plead guilty. “The constitutibnal right not to be tried or convicted while incompetent is a component of a defendant’s due-process right to a fair trial.” Brasso v. State, 195 So.3d 856, 859 (¶ 9) (Miss. Ct. App. 2016). Despite being advised on Hickenbottom’s past mental-illness history including depression, suicide attempts, and hospitalizations, the trial judge found no evidence at the hearing to support Hickenbottom’s assertion that he is incompetent to stand trial. The trial court was also advised on Hickenbot-tom’s alcohol and drug use. Moreover, the trial court noted that Hickenbottom did not submit any affidavits from doctors regarding his mental-health treatment for review. However, the trial court found that Hickenbottom presented no evidence that his guilty plea was involuntarily given. Accordingly, we find this issue to be without merit.

II. Assistance of Counsel

¶ 12. Hickenbottom asserts that his trial counsel failed to present an insanity defense before the court, and that his trial counsel failed to present any evidence or facts about his extensive mental-health history. As a result of this failure, Hickenbot-tom argues his counsel offered ineffective assistance. We disagree.

¶ 13. “It is well settled that in order for a defendant to prevail on an ineffective assistance of counsel claim, he must show by a preponderance of the evidence. (1) that counsel’s performance was deficient, and (2) that but for the deficiencies, the trial court outcome would have been different.” Funchess, 202 So.3d at 1290 (¶ 9) (citation and quotation marks omitted), “Additionally, under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant must show that counsel’s errors were so serious as to deprive the defendant of a-fair trial.” Funchess, 202 So.3d at 1290 (¶ 9) (quotation marks omitted). “Finally, a presumption exists that the attorney’s conduct was adequate.” Id. (citation and quotation marks omitted).

¶ 14. The record reflects that'Hick-enbottom received effective' assistance of counsel, because his trial counsel made the court aware of his' past history of mental issues. Trial ■ counsel cross-examined'Dr. Webb during the competency hearing; The following is an excerpt from Hickenbot-tom’s guilty plea:

COÚRT: Are you Satisfied with your lawyer? . ,
HICKENBOTTOM: Yes, sir.
COURT: Do you have any complaints about him?
HICKENBOTTOM: No, sir.

Hickenbottom did not object when the court asked whether he was satisfied with his attorney.

¶ 15. The trial court found that Hicken-bottom also failed to argue the second prong needed for an ineffective-assistance-of-counsel claim. As a result, the court found Hickenbottom failed to establish a prima facie case of ineffective assistance of counsel. We agree. Accordingly, we find the trial court did not abuse its discretion by dismissing Hickenbottom’s PCR motion, and we affirm.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF SCOTT COUNTY DISMISSING THE MOTION FOR POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SCOTT COUNTY.

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

      ,, On or about December 2012, Hickenbottom stated he was with Leandre Anderson ("Duke”) when Duke robbed Mack Wiltcher, Emily Morgan Daugherty, and Christy Bell. Cellphones and money were stolen from the victims. A .410 shotgun was also stolen. Duke brandished a firearm during the robbery.

      . The record does not reflect that Hickenbot-tom’s counsel filed a motion for a psychiatric evaluation. However, trial counsel verbally informed the trial court of Hickenbottom’s mental-health history, and the trial judge ordered a psychiatric evaluation.


author: GRIFFIS, P.J.,

text:
    Clonelle SHIELDS a/k/a Clonelle Demarcus Shields a/k/a Clonelle D. Shields, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CA-00923-COA
    Court of Appeals of Mississippi.
    06/27/2017
    See also 78 So.3d 381.

      ATTORNEY FOR APPELLANT: ERICH GREGG JERSCHEID
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT
    BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
   GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. Clonelle Shields appeals the Madison County Circuit Court’s dismissal of his petition for post-conviction collateral relief (PCCR) and the denial of his request for a parole-eligibility hearing. We find no error and affirm the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 24,2010, Shields pled guilty to three counts of business burglary, two counts of simple assault on a law enforcement officer, and possession of cocaine. The circuit judge sentenced Shields as follows:

1. Sentenced to seven years for business burglary, in cause number 2010-0155. However, after serving one day, release and place on five years of post-release supervision.
2. Sentenced to seven years on each count of business burglary, in cause number 2010-0156, Counts' I and II,as a habitual offender, with sentences to run consecutively, for a total of fourteen years.
3. Sentenced to five years on each count of simple assault on a law enforcement officer, in cause number 2010-0494, Counts I and II.
4. Sentenced to four years for possession of more than 0.1 grams but less than 2 grams of cocaine, in cause number 2010-0494, Count III.
5. The simple assault and possession charges, in cause number 2010-0494, Counts I, II, and III[,] shall run concurrently with each other and concurrently with the sentences imposed on the burglary charges,-in causes number 2010-0155 and 2010-0156, Counts I and II.
6. Upon release from MDOC, serve five years of post-release supervision in cause number 2010-0155.

¶ 3. On April 7, 2016, Shields filed a “Petition to Adjudicate Eligibility for Parole Hearing [and] for Leave to Correct/Review Sentence to Comply with Order.” After a hearing on the petition, the circuit judge decided both issues and entered his Judgement of Dismissal and Order Denying Petition. On the first issue, parole eligibility, the circuit judge declined to recommend Shields to the Mississippi Parole Board for an eligibility hearing, pursuant to Mississippi Code Annotated section 47—7—3(l)(g)(iii) (Rev. 2015). This portion of the petition was denied.

¶ 4. With regard to the alleged sentencing conflict, the circuit judge found that the petition did not fall within the exceptions to Mississippi Code Annotated section 99-39-5(2) (Rev. 2015). Thus, this portion of the petition was dismissed as time-barred. The circuit court further found that, notwithstanding the time-bar, it plainly appeared from the face of the petition that Shields was not entitled to any relief. Consequently, the court also dismissed the petition pursuant to Mississippi Code Annotated section 99-39-11(2) (Rev. 2015) of the Uniform Post-conviction Collateral Relief Act.

¶ 5. Shields appeals the circuit court’s denial and dismissal of the requests set forth in his petition.

STANDARD OF REVIEW

¶ 6. “We review the dismissal of a [PCCR] motion under an abuse-of-discretion standard.” Barnett-Phillips v. State, 195 So.3d 226, 228 (¶ 5) (Miss. Ct. App. 2016) (citation omitted). “We will only reverse if the circuit court’s decision was clearly erroneous.” Id. ‘We review questions of law de novo.” Id.

ANALYSIS

I. Denial of Parole Recommendation

¶7. Shields first argues that the circuit court erred when-it denied his request to proceed with a parole-eligibility hearing. He asserts' that- he completed twenty-five percent of his sentence, and therefore, he was entitled to a parole-board determination as a statutory liberty interest. The State of Mississippi contends that., this appeal should be dismissed. The State argues that the circuit court’s denial was not a final judgment from which Shields can appeal.

¶ 8. The first portion of Shields’s petition is essentially a request for a parole recommendation. Section 47—7—3(1)(g)(iii) provides- that “[a]ny offender who' has not committed a crime of violence under section 97-3-2 and has served twenty-five percent ... or more of his sentence may be paroled by the parole board if ... the sentencing judge .., authorizes the offender to be eligible for parole consideration.” (Emphasis added).

¶ 9. In his brief, Shields recites the statutory language of section 47-7-3. He recognizes that a circuit judge must authorize a parole-eligibility hearing, yet he regards the requirement as a mere procedural step. Shields argues that the eligibility determination remains within the province of the parole board. While we agree that the eligibility determination does in fact rest with the parole board, we must note that Shields has skipped the first step in the parole-eligibility process. The parole board may only consider an offender for parole after a circuit judge has authorized him to attend an eligibility hearing before the parole board. Therefore, Shields’s assertion that completion of twenty-five percent of his sentence automatically entitles him to an eligibility hearing is in error. ‘

¶ 10. This Court previously held that the language of section 47-7-3 “unambiguously provides ... [a] circuit court judge [with] discretion to issue a positive or'negative recommendation for parole eligibility.” Barnett-Phillips, 195 So.3d at 230 (¶ 15). The use of “may” rather than “shall” evinces the Mississippi Legislar ture’s intent to vest the circuit judge with discretionary authority over parole recommendations to the parole board. Id.

¶ 11. Here, the circuit judge considered Shields’s extensive criminal history and declined to recommend parole eligibility. During the hearing, the circuit judge pointed out that Shields had five criminal convictions prior to receiving the six convictions now at issue. The circuit judge’s recommendation is the first step. There is no need to consider whether the .parole board would ultimately determine that Shields is eligible for parole—he does not reach this secondary step.

¶ 12. Furthermore, this Court previously held “that the denial of a recommendation to the [p]arole [b]oard for an early release and/or parole, pursuant to section 47-7-3, ‘fails to implicate an ap-pealable judgment.’ ” Id. at (¶ 16) (quoting Gamage v. State, No. 2015-CP-00593-SCT (Miss. Oct. 8, 2015) (en banc order)). Thus, the order denying Shields’s request is not a final judgment -and therefore not an ap-pealable order, This claim is without merit.

II. Petition for PCCR

¶ 13. Shields next challenges the circuit court’s dismissal of his petition for review and correction of his sentencing order. He asserts that the circuit judge erred when he dismissed the petition. The State argues that Shields’s petition was time-barred and therefore the dismissal was proper. We agree.

¶ 14. “Under ... section 99-39-5(2) ..., a movant has three years to file a [PCCR] motion, and failure to file a [PCCR] motion within the three years is a procedural bar.” Wood v. State, 200 So.3d 491, 493 (¶ 6) (Miss. Ct. App. 2016) (citation omitted). Shields pled guilty and was sentenced on June 24, 2010. He did not challenge his sentence until April 7, 2016, more than five years later. The petition is time-barred.

¶ 15. “However, ‘there are several statutory and judicially created exceptions to the legislatively imposed time-bar. Section 99-39-5(2)(a)-(b) exempts from the time-bar cases in which- the movant can demonstrate new evidence [previously] not available at trial, an intervening higher-court decision, or that the movant is being detained on an expired sentence.’ ” Id. at (¶ 7). Also excepted are “errors affecting fundamental constitutional rights." Id. (citing Rowland v. State, 42 So.3d, 503, 507 (¶ 12) (Miss. 2010)) (citation omitted). “The movant bears the burden to prove [that] an exception applies.” Id. (citation and quotation marks omitted).

¶ 16. Here, Shields claims no exception to the procedural time-bar. Instead, in an attempt to advance his' position, he mis-characterizes the holding in Armstead v. State, 503 So.2d 281, 284 (Miss. 1987). He argues that he received multiple punishments under the same sets of operative facts, which he asserts was plain error. Further, he claims that combining the sentences was a violation of Mississippi'Code Annotated section 99-19-21 (Rev. 2015).

¶ 17. In Armstead, the Mississippi Supreme Court held that a defendant could be prosecuted for two separate charges even if the charges “arise out of the same occurrence or sequence of events .... ” Armstead, 503 So.2d at 284. It further held that “upon such convictions, separate and consecutive sentences may be imposed.” Id, Moreover, section 99-19-21 grants the circuit court the discretion to allow subsequent convictions to “commence either at the termination of the imprisonment' for the preceding conviction or [to] run concurrently with the preceding conviction’” Miss. Code Ann. § 99-19-21(1).

¶ 18. Notwithstanding the procedural time-bar, the circuit judge correctly held that the petition was subject to dismissal on its face. In his petition, Shields asserted that his sentencing order was ambiguous. This contention does not fall within the exceptions set forth in section 99-39-5(2). We find no error and affirm the circuit court’s dismissal of Shields’s petition for PCCR.

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

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


text:
    Allen GOUL, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01003-COA
    Court of Appeals of Mississippi.
    06/27/2017

      ATTORNEY FOR APPELLANT: ALLEN GOUL (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BARBARA W. BYRD
    BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
   GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. Alien Goul appeals the denial of his motion for post-conviction collateral relief (PCCR). We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Goul entered a plea of guilty to the charge of murder. On September 1, 1993, Goul was sentenced to life in the custody of the Mississippi Department of Corrections.

¶ 3. On April 18,2016, Goul filed a pro se motion for PCCR and argued his guilty plea was involuntarily entered and- he received ineffective assistance of counsel. The circuit court denied Goul’s motion for PCCR as time-barred. Goul now appeals.

STANDARD OF REVIEW

¶4. We will not disturb a circuit court’s denial of a motion for PCCR unless the factuaT findings are clearly erroneous. Kennedy v. State, 179 So.3d 82, 83 (¶ 5) (Miss. Ct. App. 2015). However, questions of law are reviewed de novo. Id.

ANALYSIS

¶ 5. Pursuant to Mississippi Code Annotated section 99-39-5(2) (Rev. 2009), in case of a guilty plea, a motion for PCCR shall be filed “within three (3) years after entry of the judgment of conviction.” Here, Goul’s judgment of conviction was entered September 1, 1993. Thus, Goul had until September 1, 1996, to move for PCCR. However, Goul did not file his motion for PCCR until April 18, 2016, almost twenty-three years after his conviction. Consequently, Goul’s motion is time-barred.

¶ 6. Goul admits his motion for PCCR is untimely, but argues the severity of his claims warrants this Court’s review. We disagree. Typically, “errors affecting fundamental constitutional rights are excepted from the. procedural bars of the [Uniform Post-Conviction Collateral Relief Act].” Rowland v. State, 42 So.3d 503, 507 (¶ 12) (Miss. 2010). However, claims of an involuntary guilty plea and ineffective assistance of counsel are hot excepted from the time-bar, even though these claims involve fundamental constitutional rights. 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)). In fact, “since Rowland, only four types of ‘fundamental rights’ have been expressly found to survive PC[C]R 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). As Goul’s claims are not excepted from the procedural bar, we find his motion for PCCR is time-barred.

¶ 7. Procedural bar notwithstanding, we find Goul’s claims are meritless. Goul first claims his guilty plea was involuntarily entered. “A guilty plea is voluntarily and intelligently made if the circuit court ‘advise[d] the defendant of his rights, the nature of the charge against him, as well as the consequences of the plea.’” Berryhill v. State, 197 So.3d 938, 940 (¶ 7) (Miss. Ct. App. 2016) (quoting Burrough v. State, 9 So.3d 368, 373 (¶ 11) (Miss. 2009)). “However, a ‘plea of guilty is not voluntary, if induced by .fear, violence, deception or improper inducements.’” Id. at 940-41 (¶ 7) (quoting URCCC 8.04(A)(3)). The petitioner has the burden of proving his plea is invalid. Id. at 941 (¶ 7).

¶ 8. The plea petition and the plea-hearing transcript both show Goul was advised of and understood his constitutional rights, the nature "of the charge against him, the minimum and maximum sentences for the charge, and the consequences of his guilty plea. Goul signed the plea petition and initialed each paragraph of the petition;

¶ 9. Additionally, the plea transcript indicates Goul was advised and understood that the circuit court would determine his sentence, and that the circuit court was not obligated to accept or follow any advice or recommendations made by the State or his defense attorney. Having been so advised, Goul chose to proceed with his plea. Importantly, Goul represented to the circuit'court that his decision to enter a guilty plea was his decision, and was not based on threats, coercion, or any promises made to him. “Solemn declarations in open court carry a strong presumption of verity.” Id. The record shows Goul’s guilty plea was freely, voluntarily, knowingly, and intelligently entered. Thus, Goul’s claim of an involuntary plea fails.

¶10, Goul next claims he received ineffective assistance of counsel. To prove .ineffective assistance of counsel, Goul must show: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced the defense. Liddell v. State, 7 So.3d 217, 219 (¶ 6) (Miss. 2009) (quoting 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 conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, Goul “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

¶ 11. Goul claims his guilty plea was induced by deception, misrepresentation, and mistaken advice of counsel. Specifically, Goul asserts his counsel promised that in exchange for a guilty plea, he “would be brought back after seven years for reconsideration of sentence.” However, the record does not support Goul’s claim of ineffective assistance of counsel.

¶ 12. Both the plea petition and the plea transcript indicate Goul was satisfied with his counsel. Goul was advised and understood" that his sentence, was up to the circuit court regardless of any recommendation by or agreements between the State and defense counsel. As previously noted, Goul- advised the circuit court, under oath, that his guilty "plea was not based on any promises made to him,

¶ 13. Shortly after his conviction, Goul’s counsel filed a motion for reconsideration of sentence. The circuit court did not rule on the motion, but found that “reconsideration of sentence at some future date could serve the interest of justice,” and therefore retained jurisdiction over the matter. However, Goul’s reliance on this order is misplaced, as the order does not mandate reconsideration of Goul’s sentence, nor does it affect the validity of his guilty plea. Even assuming GouJ had been brought back after seven years for reconsideration, the circuit court was not obligated to reconsider his sentence.

¶ 14. The record .shows Goul was advised of the minimum and maximum sentences for the charge and the consequences of pleading guilty. Goul voluntarily entered his guilty plea with, the knowledge and understanding of the same. Simply, because the circuit court- has failed to reconsider his sentence does not amount to ineffective assistance of counsel, nor does it warrant PCCR.

¶ 15. Goul has failed to show that his counsel’s performance was deficient, and that the alleged deficiency prejudiced his defense. Goul has failed to show that, but for counsel’s errors, the result of the proceeding would have been different. Accordingly, Goul’s claim of ineffective assistance of counsel fails.

CONCLUSION

¶ 16. We find Goul’s motion for PCCR is procedurally barred, and no statutory exceptions apply. Accordingly, we affirm the circuit court’s denial of Goul’s motion for PCCR. .

¶ 17. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, DENYING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


author: IRVING, P.J.,

text:
    Kim COLLINS a/k/a Kim Rochelle Collins a/k/a Kim R. Collins, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KM-01598-COA
    Court of Appeals of Mississippi.
    06/27/2017

      ATTORNEY FOR APPELLANT: BRIAN LEE STARLING
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN
    BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ.
   IRVING, P.J.,

FOR THE COURT:

¶ 1. Kim Collins appeals five separate judgments of the Monroe County Circuit Court adjudicating her guilty of five misdemeanor offenses: resisting arrest, disorderly conduct, speeding, public profanity, and disturbing the peace. She submits that the circuit court erred in not dismissing the charges against her because of the absence of probable cause to arrest her. As to the speeding charge, we disagree, but as to the other charges, we agree. Therefore, we affirm the judgment of the circuit court of conviction and sentence for speeding and reverse and render each of the judgments of the circuit court of conviction and sentences for resisting arrest, disorderly conduct, public profanity, and disturbing the peace.

FACTS

¶ 2. On January 21, 2013, Collins was stopped for speeding by Mississippi State Highway Patrol Trooper Matthew Hood in Monroe County, Mississippi. According to the testimony at trial, throughout the traffic stop, Trooper Hood and Collins exchanged comments about the stop, and Collins expressed her disagreement with being stopped. At what appeared to be the conclusion of the stop, Trooper Hood issued Collins a citation for speeding and having no insurance, informed her of her court date, and told her “to slow down and be careful.” He then turned and began walking to his patrol car. Trooper Hood stated that as he reached the front-bumper area of his patrol car, Collins called him a “racist motherf-—r.” However, Collins disputes this allegation and asserts that she only expressed her intent to contact Trooper Hood’s superior officer.

¶ 3. After the alleged remark by Collins while she was driving off, Trooper Hood yelled to her that “you had better go head.” With almost no hesitation after he told her that she “had better go head,” he began approaching the vehicle again and yelled out to Collins to stop her vehicle and to put it in park. Collins complied. Upon reaching the vehicle, he instructed her to step out of her vehicle, without informing her as to why she was being ordered out. Upon her refusal, Trooper Hood opened her door, removed her seat-belt, and physically pulled her from her vehicle. He then attempted to place handcuffs on her by forcefully restraining her against her vehicle, but she resisted; he eventually handcuffed her after forcing her to the ground. After being handcuffed, Collins lay near the roadway until the arrival of a backup trooper. Eventually, an ambulance arrived and transported Collins to the hospital for treatment of what she was describing as a broken leg. According to Trooper Hood’s testimony, he charged Collins with (1) disturbing the peace for calling him a “racist motherf—-r,” (2) disorderly conduct for Collins’s failure to comply with his command to get out of her car, (3) public profanity for cussing in the presence of Trooper Tucker, the EMTs, and “other motorists,” (4) resisting arrest for refusing to allow him to handcuff her, and (5) speeding for driving eighty' miles per hour in a sixty-fíve-mile-per-hour zone. Collins was found guilty in the Justice Court of Monroe County of all counts before appealing to the Circuit Court of Monroe County, which also found her guilty on all counts. In her appeal here, she argues that the circuit court erred in not dismissing the charges.

DISCUSSION

¶4. Collins first argues that the trial court erred in denying her motion to dismiss because Trooper Hood illegally detained her after the initial stop was over. She concedes that the original stop for speeding was lawful, but according to her, “[o]nce Trooper Hood issued the citation, his actions and statements indicated that [she] was free to leave[,]... thus ending the traffic stop and the probable cause associated with it.” More specifically, she argues that because Trooper Hood had no valid basis to stop her a second time—and she had the right to resist an illegal arrest—all charges emanating from the second detention should have been dismissed.

¶ 5. The State responds that whether or not the initial detention was over is of little importance. According to the State, Trooper Hood had probable cause to detain Collins a second time based on her subsequent actions, which constituted disturbing the peace. The State contends that, based on the recording of the traffic stop and Trooper Hood’s testimony, he was “justified, upon observing what he perceived was a breach of the peace, or conduct calculated to provoke a breach of the peace, in detaining Collins a second time.”

¶6, It is clear from Trooper Hood’s testimony that he arrested Collins for disturbing the peace for calling him a “racist motherf-—r.” We quote his trial testimony regarding the disturbing-the-peace charge, as well as the other charges that he made against Collins:

Q. You have also charged her with— Ms. Collins with disturbance of the peace; is that correct?
A. Yes, ma’am.
Q. And that was for what?
A. The comment when I went back up to the car, the racist mother[f-—r] comment.
Q. Okay. And after that comment was made on the video—and you stated during the video, after that comment was made, that’s, when you told her to stop and get out of the car; is that correct?
A. Yes, ma’am.
Q. Now, you also charged her with dis- ' orderly conduct, failure to comply; is that correct?
A. ■ Yes, ma’am. Yes, maam.
Q. And can you tell the Court, was that for when she wouldn’t get out of the vehicle? At what point in time was that?
A. That was for her failing to comply with my order to get out of the car,
Q. And also by the affidavit refusing to put her hands behind her back?
A. Yes, ma’am..
Q. Okay. The public profanity charge, that was for which point in time?
A. It was going to be the point in time when Trooper Tucker and myself were there, also the EMTs, along with other motorists,
Q. And do you recall—and it was audible, the profanity used prior to . .Trooper Tucker and the EMTs ar- . riving on the scene. Do you recall what was said after they arrived on the scene and were in. Ms. Collins’[s] presence?
A. No, ma’am, I do not.
Q. Okay. Do you recall that she used profanity?
A, Yes, ma’am.
Q, You just don’t recall the specific words?
A. That’s correct. .
Q. And then resisting arrest. Can you explain to the Court what you charged her with resisting arrest for?
A.' That was for physically trying to keep me from handcuffing her. I was telling her to put her hands behind her back. She was physically trying to resist it and keep me from handcuffing her. •
Q. And was that the point in time we could see her pulling away from you and waving her hands in the air?
A. Yes, ma’am.

(Emphasis added).

¶ 7. It is clear to us, based on Trooper Hood’s testimony, that the traffic stop had ended before Collins was arrested for disturbing the. peace by allegedly calling Trooper Hood a “racist motherf—-r.” Trooper Hood had given Collins the speeding ticket and had walked away from her vehicle. He did not give any indication that the traffic stop had not been completed; Although he testified that his traffic stops do not end until he returns to his car and drives off, when asked if he would have stopped Collins had she simply driven away as he returned to his car, he replied that he would not have. Therefore, as stated, the initial traffic stop for speeding had been completed, as Trooper Hood had not only given Collins the speeding ticket and had walked away, he had also given her what can only be described as parting instructions: he had told her where to pay the ticket, to have a nice day, to slow down, and to be careful. And even after Collins was leaving while allegedly calling him a “racist motherf-—r,” he even told her she had “better go head.”

18. Collins argues that Trooper Hood violated her First and Fourteenth Amendment rights by stopping her a second-, time simply for her spoken words. According to Collins, “[b]ecause Trooper Hood’s basis of probable cause to arrest was founded on a violation of her First Amendment constitutional right, his probable cause determination was void and illegal.”

19. The State concedes that “Congress shall make no law abridging the freedom of speech.” Brendle v. City of Houston, 759 So.2d 1274, 1278-79 (¶ 16) (Miss. Ct. App. 2000). However, the State argues that “the freedom of speech is not absolute.” Id. The State next cites an excerpt from the trial judge’s decision: “I consider this to be a term that is, particularly in view of today’s circumstance, fighting words or comment. Particularly, too, when they are considered in the context of which they were made.” The State argues that the trial court found that Collins’s speech constituted fighting words and, therefore, was not protected speech.

¶ 10. Despite the State’s arguments, and regardless of whether Collins had uttered fighting words, we find that the circuit court erred, and Trooper Hood’s arrest of Collins for disturbing the peace was illegal, as she had not committed the offense of disturbing the peace when he ordered hér out of her car for calling him a “racist motherf-—r.” Taking Trooper’s Hood’s statement as true, as we must, not only had Collins not committed the offense of disturbing the peace, she had not committed any of the other offenses that Trooper Hood later charged her with.

¶ 11. As we said in Odom, “the United States Supreme Court [has] held that there are definite and narrowly limited classes of speech which may be constitutionally punished. These include the lewd and obscene, the profane, the libelous and insulting, or ‘fighting words which ... tend to incite an immediate breach of the peace.” Odem v. State, 881 So.2d 940, 947 (¶ 23) (Miss. Ct. App. 2004) (quoting Chaplinsky v. State of N.H., 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942)). However, “the Supreme Court has also held that profane words - alone, unaccompanied by any evidence of violent arousal, are not fighting words, and are therefore protected speech.” Id. at 948 (¶ 25). The co.urt went on to state that, “[unfortunately, law enforcement officers must endure verbal abuse.” Id. at (¶ 27). “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Id. .

¶ 12. Trooper Hood testified that the probable cause to arrest Collins was based on her calling him a “racist motherf—-r.” He also testified that the words she used did not incite him to fight and that he did not consider them to be fighting words. Collins asserts that nothing said rose to the level required for probable cause to arrest her for disturbing the peace.

¶ 13. Our disturbance-of-the-peace statute, Mississippi Code Annotated section 97-35-15(1) (Rev. 2014), provides:

Any person who disturbs the public peace, or the peace of others, by violent, or loud, or insulting, or profane,- or indecent, or offensive, or boisterous conduct or language, or by intimidation, or seeking to intimidate any other person or persons, or by conduct either calculated to provoke a breach of the peace, or by conduct which may lead to a breach of the peace, or by any other act, shall be guilty of a misdemeanor.

It is clear from .even a casual reading of the above statute that the statute only prohibits disturbing the public peace or the peace of others. The record is clear that when Trooper Hood ordered Collins to stop her car and get out, only she and he were there on the side of the road. Therefore, when she said what Trooper Hood accused her of saying, she could not have disturbed the public peace, nor could she have disturbed the peace of others, and the statute does not prohibit disturbing the peace of another,.

¶ 14. The State notes that, based on Trooper Hood’s testimony, and the recording of the traffic stop, Collins was argumentative and insulting throughout the stop, asserting that Trooper Hood had pulled her over because it was Martin Luther King Jr. Day and Trooper Hood wanted to “harass black people.” The State further argues that after Collins called Trooper Hood a “racist motherf—-r,” Trooper Hood was justified, upon observing what he perceived was a breach of the peace, or conduct calculated to provoke a breach of the peace, in detaining Collins a second time.

¶ 15. It is sufficient to say, as we already have, Trooper Hood himself did not consider the insult to be fighting words. Therefore, it cannot be legitimately argued that Collins’s words to Trooper Hood were likely to cause a breach of the peace.

¶ 16. We need not address the other charges, as they all stem from Collins’s lawful resistence to her unlawful arrest for disturbing the peace. Therefore, we reverse and render all of the remaining charges except speeding. There was sufficient evidence to support Collins’s conviction for speeding, as Trooper Hood testified that he clocked her on his radar gun traveling eighty miles per hour in a sixty-five-mile-per-hour zone. The evidence was uncontradicted that his radar detector had been properly and timely calibrated. Therefore, we affirm the judgment of the circuit court as to the speeding charge.

¶ 17. THE JUDGMENT OF THE MONROE COUNTY CIRCUIT COURT OF CONVICTION OF SPEEDING AND SENTENCE TO PAY A FINE OF $100 IS AFFIRMED, AND THE SEPARATE JUDGMENTS OF CONVICTION OF DISORDERLY CONDUCT, RESISTING ARREST, PUBLIC PROFANITY, AND DISTURBING THE PEACE ARE REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MONROE COUNTY.

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

      . Trooper Hood admits that Collins said to him that she was going to call his superior officer, but neither that statement nor the disputed statement can be heard on the audio of Trooper Hood’s dash-cam video. In fact, none of the statements that Collins made while inside of her car can be heard on the dash-cam recording.

      . Collins did not suffer a broken leg, as, according to her trial testimony, she suffered a torn ACL, a torn meniscus, and "a lot of just torn ligaments in her knee.”

      . The record does not inform us of Trooper Tucker’s first name.


author: WILSON, J., WESTBROOKS, J.,

text:
    Karanja L. COBBERT a/k/a Karanja Levon Cobbert a/k/a Karanja Cobbert, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00446-COA
    Court of Appeals of Mississippi.
    06/27/2017

      ATTORNEY FOR APPELLANT: KARANJA L. COBBERT (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE
   WILSON, J.,

FOR THE COURT:

¶ 1. Karanja Cobbert argues that the circuit court exceeded its authority by imposing the full remainder of the suspended portion of his sentence after the court revoked his post-release supervision (PRS) for a second time based on “technical violations.” Cobbert argues that because this was only his second revocation, the circuit court lacked authority to impose a period of imprisonment of more than 120 days to be served at a technical violation center (TVC). See Miss. Code Ann. § 47-7-37 (Rev. 2015). Cobbert’s argument confuses the statutory definition of a “technical violation” with a revocation order, which may be based on one or more technical violations. Cobbert had committed four technical violations, so the circuit court was within its authority to impose the full remainder of the suspended portion of his sentence. We therefore affirm the circuit court’s order denying Cobbert’s subsequent motion for post-conviction relief (PCR).

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2008, Cobbert pled guilty in the Lamar County Circuit Court to the charge of commercial burglary. The court sentenced Cobbert to serve seven years in the custody of the Mississippi Department of Corrections (MDOC), with six years suspended and five years of supervised PRS. The sentence was to be served consecutively to another sentence that Cobbert was then serving.

¶3. In December 2014, Cobbert’s PRS was revoked because he had violated three conditions of his PRS: he failed to report to his probation officer, he failed to pay required supervision fees to MDOC, and he failed to pay court costs. The circuit court imposed a period of imprisonment of ninety days to be served at a TVC.

¶ 4. After Cobbert was released from the TVC, he again failed to report to his probation officer. He was also arrested and charged with residential burglary and receiving stolen property. At his subsequent revocation hearing, Cobbert admitted that he failed to report to his probation officer as required by the terms of his PRS. The circuit judge then revoked Cobbert’s PRS based on Cobbert’s admission that he failed to report, which made it unnecessary for the court to consider the new charges against Cobbert. The judge then ordered Cobbert to serve the remainder of his suspended sentence.

¶ 5. In August 2015, Cobbert filed ' a PCR motion, As relevant to this appeal, Cobbert eventually argued that the circuit court lacked authority to impose a period of imprisonment in excess of 120 days at a TVC because his PRS was revoked based on a “technical violation.” See Miss. Code Ann. § 47-7-37(5). The circuit court denied Cobbert’s PCR motion, and Cobbert filed a timely notice of appeal from the final judgment.

DISCUSSION

¶ 6. We affirm because the circuit court was within its authority when it ordered Cobbert to serve the remainder of his suspended sentence. Mississippi Code Annotated section 47-7-37(5)(a) provides in relevant part:

If the court revokes probation for a technical violation, the court shall impose a period of imprisonment to be served in either a technical violation center or a restitution center not to exceed ninety (90) days for the first technical violation and not to exceed one hundred twenty (120) days for the second technical violation. For the third technical violation, the court may impose a period of imprisonment to be served in either a technical violation center or a restitution center for up to one hundred eighty (180) days or the court may impose the remainder, of the suspended portion, of the sentence. For the fourth and any subsequent technical violation, the court may impose up to the remainder of the suspended portion of the sentence.

Id., (emphasis added). A “[tjechnical viola-, tion” is defined as “an act or .omission, by the probationer that violates a condition or conditions of probation placed on the probationer by the court or the probation officer!” Id. § 47-7-2(q).

¶ 7. As described above, Cobbert’s PRS was revoked for his fourth technical violation. At Cobbert’s first revocation hearing)-the State established three technical violations: that Cobbert failed to report to his probation officer, that he failed to pay required fees, and that he failed to pay court costs.- At Cobbert’s second revocation hearing, the State established that Cobbert had failed to report once again, his fourth technical violation. Cobbert thus committed four separate acts or omissions that violated a condition or conditions of his PRS. Therefore, under the plain language of the statute, the circuit court was within its authority to impose the remainder of the suspended portion of Cobbert’s sentence.

¶ 8. In arguing that the circuit court was limited to sending Cobbert to a TVC for 120 days, both Cobbert and the dissent confuse a “technical violation” with a revocation order based on one or more technical violations. The dissent argues that since this was only the second time Cob-bert’s PRS had been revoked because of technical violations, Cobbert could not be imprisoned for more than 120 days. However, that simply is not what the relevant statutes say. In effect, the dissent would rewrite section 47-7-37(5)(a) to read as follows:

If the court revokes probation for a .technical violation, the court shall- impose a period of imprisonment to be served in either a technical violation center or a restitution center not to exceed ninety (90) days for the first [revocation based on the commission of one or more] technical violation[s] and not to exceed one hundred twenty (120) days for the second [revocation based on the commission of one or more] technical violation^]. For the third [revocation based on the commission of one- or more] technical violation[s], the court may impose a period of imprisonment to be served in either a technical violation center or a restitution center for up to one hundred eighty (180) days or the court may impose the remainder of the suspended portion of the sentence. For the fourth and any subsequent [revocation based on the commission of one or more] technical violation^], the court may impose up to the remainder of the suspended portion of the sentence. The period of imprisonment in a technical violation center imposed under this section shall not be reduced in any manner.

Either that, or the dissent would rewrite section 47-7-2(q) as follows:

“Technical violation” means [a. revocation of probation based on one or more violations of] an act or omission by the probationer that violates a condition or conditions of probation' placed on the probationer by the court or the probation officer.

¶ 9. As rewritten by the dissent, a probationer could commit numerous technical violations before the circuit judge would have the authority to impose the remainder of his suspended sentence. This is contrary to the plain language of the relevant statutes, which permit the circuit judge to do so “[f]or the third technical violation.”

¶ 10. When interpreting a statute, “we simply cannot ... ignore [its] plain language.” Bester v. State, 188 So.3d 526, 529 (¶ 10) (Miss. 2016). Regardless of what we might think that the Legislature meant, “[wjhatever the Legislature says in the text of the statute is considered the best evidence of the legislative intent.” Miss. Dep’t of Transp. v. Allred, 928 So.2d 152, 155 (¶ 14) (Miss. 2006) (quoting Pegram v. Bailey, 708 So.2d 1307, 1314 (Miss. 1997)). “If the words of a statute are clear and unambiguous, the Court [simply] applies the plain meaning of the statute Lawson v. Honeywell Int’l Inc., 75 So.3d 1024, 1027 (¶ 7) (Miss. 2011). “We do so because of our ‘constitutional mandate to faithfully apply the provisions of constitutionally enacted legislation.’ ” Bester, 188 So.3d at 529 (¶ 10) (quoting Univ. of Miss. Med. Ctr. v. Easterling, 928 So.2d 815, 820 (¶ 23) (Miss. 2006)). “The function of the Court is not to decide what a statute should provide, but to determine what it does provide.” Lawson, 75 So.3d at 1027 (¶ 7). Under the plain language of the relevant statutes, the circuit court was within its authority when it ordered Cobbert to serve the full remaining portion of his suspended sentence based on his fourth technical violation.

¶ 11. The dissent also emphasizes' that section 47-7-2(q) defines a technical violation as “an act or omission that violates a condition or conditions of probation.” Post at (¶ 23) (emphasis added by the dissent). The dissent reasons that under this definition “there could potentially be more -than one condition within a single violation!” Id. (emphasis added). We agree with this interpretation of the definition. Separate conditions of PRS commonly include orders not to commit any new criminal offenses (misdemeanor or felony), to “avoid injurious or vicious habits,” to “avoid persons or places of disreputable or harmful character,” not to possess or consume any alcohol or drugs, and not to possess firearms or other weapons. It is easy to see that such conditions may overlap so that in some cases a single “act or omission” by a probationer may “violate[ ] a condition or conditions of probation.” Miss. Code Ann. § 47-7~2(q) (emphasis added). Such an “act or omission” would be a single “technical violation” under the law. The dissent is correct to say this situation “could potentially” arise. Post at (1123) (emphasis added).

1112. However, that is not what happened in this case. Cobbert’s PRS was first revoked because he failed to report to his probation officer, he failed to pay court costs, and he failed to pay required fees. Cobbert’s PRS was revoked a second time because he again failed to report to his probation officer. Section 47—7—2(q) defines a technical violation as “an act or omission that violates a condition or conditions of probation.” Cobbert committed four separate acts or omissions, each of which violated a condition or conditions of his PRS. Again, the dissent is correct that “there could potentially be” a case in which a single “act or omission” by a probationer “violates ... [multiple] conditions of [his] probation.” Post at (¶ 22). But such a hypothetical case has nothing to do with the actual facts of this case, which involve four separate acts or omissions by Cobbert.

¶ 13. We do acknowledge that this Court recently reached a different result in Walker v. State, No. 2015-CP-00912-COA, — So.3d -, -, 2016 WL 6083239, at *4 (¶ 19) (Miss. Ct. App. Oct. 18, 2016) (rehearing denied April 11, 2017; petition for writ of certiorari filed April 21, 2017). Walker decided the issue in a single paragraph without discussing the proper interpretation of the statute. Walker’s argument was buried at the end of the third of five issues in a lengthy, handwritten pro se brief. As a result, the State may have overlooked the issue of statutory interpretation and did not address it directly until its motion for rehearing, which we recently denied. In retrospect, we should have requested supplemental briefing before deciding Walker. In any event, the conclusion in Walker is contrary to the plain language of the statute and should be overruled.

¶ 14. The dissent concludes with an assertion that “[t]he majority’s opinion is regressive.” Post at (¶ 27). However, our role is to apply the text of the statute as it was enacted by the Legislature, not to rewrite the law because we think it is “regressive” as written. The dissent also asserts that this opinion will “defeat the purpose of the statute,” which the dissent understands to be “creating uniformity among revocation sentences in Mississippi.” Id. Assuming the dissent is correct about the statute’s purpose, this assertion simply begs the question. Was the Legislature’s purpose to promote uniform treatment of first, second, third, and fourth revocations, as the dissent thinks best? Or was the Legislature’s purpose to promote uniform treatment of first, second, third, and fourth technical violations'! The text of the statute uses the latter term, which the Legislature specifically defined. “Whatever the Legislature says in the text of the statute is considered the best evidence of the legislative intent.” Allred, 928 So.2d at 155 (¶ 14) (quoting Pegram, 708 So.2d at 1314).

¶ 15. In summary, the circuit court had authority under the plain language of section 47-7-37(5)(a) to impose the full remainder of the suspended portion of Cobbert’s sentence based on his fourth technical violation of his PRS. We therefore affirm the circuit court’s order denying Cobbert’s subsequent PCR motion.

¶ 16. THE JUDGMENT OF THE LAMAR COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAMAR COUNTY.

GRIFFIS, P.J., ISHEE, CARLTON AND FAIR, JJ., CONCUR. GREENLEE, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J., AND BARNES, J.; LEE, C.J., AND GREENLEE, J., JOIN IN PART.

WESTBROOKS, J.,

DISSENTING:

¶ 17. I believe that the circuit court exceeded its authority by imposing the full remainder of the suspended portion of Cobbert’s sentence. Therefore, I respectfully dissent.

PROCEDURAL HISTORY

¶ 18. On May 12, 2008, Cobbert pleaded guilty to commercial burglary. The trial court sentenced him to seven years, with one year to serve in the custody of the MDOC, six years suspended, and five years of PRS. An order of revocation (first revocation) was filed on December 5, 2014, indicating Cobbert violated the conditions of his PRS by failing to: report, pay the required fees, and pay court costs. For his first revocation, Cobbert was ordered to serve ninety days in a technical-violation center. Shortly after being released, an arrest warrant was issued for Cobbert, charging him with residential burglary and receiving stolen property. During this revocation hearing (second revocation), the trial court noted that it would disregard the arrest, since Cobbert had not been indicted on the two criminal charges and no witness was present at the hearing to testify as to the probability of Cobbert’s guilt. The trial court revoked Cobbert’s PRS due to Cobbert’s admission that he had failed to report to his probation officer. Cobbert was ordered to serve the remainder of his sentence.

¶ 19. Cobbert filed a PCR motion alleging that the trial court failed to find he had more likely than not committed the crimes of residential burglary and receiving stolen property. The trial court denied Cobbert’s PCR motion, finding that Cobbert’s PRS was not revoked due to the pending criminal charges; rather, it was revoked due to Cobbert’s failure to report to his probation officer. Cobbert then filed a motion for rehearing, asserting that if the trial court used the technical violation for revoking his PRS, then he should have been sent to a technical-violation center for 120 days pursuant to Mississippi Code Annotated section 47—7—37(5)(a) (Rev. 2015). I agree with Cobbert’s assertion regarding sentencing.

¶ 20. Section 47-7-37(5)(a) was amended effective July 1,2014, to provide for graduated penalties for technical violations. Uniformity among revocation sentencing was the legislative purpose for the amendment. See also Miss. Code Ann. § 47-7-38 (Rev. 2015) (imposed graduated sanctions as an alternative to revocation for offenders who committed technical violations while on probation). Prior to July 2014, the concept of “technical violations” did not exist in Mississippi, but disparity among sentencing at revocation hearings did. The probation procedures apply to PRS. See also Miss. Code Ann. § 47-7-37(9).

¶ 21. Section 47-7-37(5)(a) states the following:

The probation and parole officer after making an arrest shall present to the detaining authorities a similar statement of the circumstances of violation. The probation and parole officer shall at once notify the court of the arrest and detention of the probationer and shall submit a report in writing showing in what manner the probationer has violated the conditions of probation. Within twenty-one (21) days of arrest and detention by warrant as herein provided,' the court shall cause the probationer to be brought before it and may continue or revoke all or any part of the probation ' or the suspension of sentence. If the court revokes probation for a technical violation, the court shall impose a period of imprisonment to be served in either ’a technical violation center or a restitution center not to exceed ninety (90) days for the first technical violation and not to exceed one hundred twenty’ (120) days for the second technical violation. For the third technical violation, the court may impose a period of imprisonment to be served in either a technical violation center' or a restitution center for up’ to one hundred eighty (180) days or the court may impose the remainder of the suspended portion of the sentence. For the fourth and any subsequent technical violation, the court may impose up to the remainder of the suspended portion of the sentence. The period of imprisonment in a technical violation center imposed under this section shall not be reduced in any manner.

(Emphasis added).

¶22. The majority contends that Cob-bert committed a total of four technical violations—three violations addressed in his first revocation and one violation addressed in his second revocation—thus, the trial court properly ordered Cobbert to serve the remainder of his sentence. However, the first revocation order indicated that Cobbert violated three conditions of his PRS: failure to report, failure to pay the required fees, and failure to pay court costs. The trial court ordered him to serve ninety days in a technical-violation center. The second revocation order noted that Cobbert failed to report to his probation officer, which the State contends is actually Cobbert’s fourth technical violation.

¶ 23. Mississippi Code Annotated section 47—7—2(q) (Rev. 2015) defines a technical violation as “an act or omission by the probationer that violates a condition or conditions of probation placed on the probationer by the court or the probation officer.” (Emphasis added). The plain reading of the statutes indicates that there could potentially be more than one condition within a single violation. Revocation hearings typically follow after the probationer has committed multiple violations, like in Cobbert’s situation where his first revocation hearing encompassed violating three conditions of his PRS. Under the majority’s rationale, if a person faces reinstatement of the remainder of his sentence after the first or second hearing, then the purpose of amending the statute to include the structured graduated schedule is defeated. Cobbert, and others similarly situated, would face either full- or remainder-sentence reinstatement at the time of the first revocation hearing. This would eviscerate the statute.

¶ 24. The trial court revoked Cobbert’s PRS and sentenced Cobbert to ninety days in the restitution center as the first technical violation. Accordingly, pursuant to section 47—7—37(5)(a), Cobbert’s second violation for failure to report to his probation officer should have resulted in a sentence of 120 days in the restitution center. Both the majority and I agree that the circuit revoked. Cobbert’s PRS without considering the new charges of residential burglary and receiving stolen property. Therefore, the only issues before the court were Cob-bert’s failure to report and failure to pay fees.

¶ 25. For these reasons, I also opine that Walker v. State, 2015-CP-00912-COA, — So.3d -, -, 2016 WL 6083239, at *4 (¶ 19) (Miss. Ct. App. Oct. 8, 2016) (rehearing denied April 11, 2017; petition for writ of certiorari filed April 21, 2017), does not contradict the statute. In Walker, this Court reversed and remanded for resen-tencing on a similar issue. There, the defendant’s probation was revoked, and he was ordered to serve the remainder of his sentence. Id. at -, 2016 WL 6083239, at *1 (¶ 1). The defendant’s revocation was based on several violations, including failure to report, to pay fees, and to pay restitution. Id. at -, 2016 WL 6083239, at *4 (¶ 18). However, this Court found, pursuant to section 47-7-37(5)(a), that it was the defendant’s “first technical violation of his probation.” Id. Thus, we found the defendant “should have been sentenced to not more than ninety days in a technical-violation center or restitution center, not to the full term of his suspended sentence ....” Id. at (¶ 19). Walker is consistent with the statute.

¶26. Also, it is important to note that most, if not all, revocations consist of more than one technical violation. I will go as far to say that a trial judge will always be presented with a defendant who has failed to pay and report—the two violations usually go hand in hand. Moreover, the facts in Cobbert are the exact same as the “hypothetical” case the majority identifies in its opinion. Maj. Op. at (¶ 12).

¶ 27. Here, it was Cobbert’s second technical violation of his PRS; thus, he should have been sentenced to not more than 120 days in a technical-violation center. Accordingly, I would find that the circuit court exceeded its authority by imposing the full remainder of Cobbert’s sentence. The majority’s opinion is regressive and would defeat the purpose of the statute: creating uniformity among revocation sentences in Mississippi. To be clear, I do not contend that the statute is .regressive. The majority’s application of the statute is regressive, because the opinion opposes the spirit of the statute.

¶ 28. Therefore, I would reverse and remand for resentencing.

IRVING, P.J., AND BARNES, J., JOIN THIS OPINION; LEE, C.J., AND GREENLEE, J., JOIN THIS OPINION IN PART.

      . Even if we treated Cobbert’s failure to pay fees to MDOC and failure to pay court costs as a single omission, that would still leave three technical violations, which would have permitted the circuit court to impose the full remainder of the suspended portion of Cob-bert’s sentence. See Miss. Code Ann. § 47-7-37(5)(a).

      . The order also stated Cobbert had been charged with residential burglary and receiving stolen property. As noted, the trial court disregarded this for purposes of revocation, since there was no evidence Cobbert more likely than not committed the crimes charged.