author: ISHEE, J.,

text:
    Jonathan GRIFFITH, Appellant v. Merlene WALL, Appellee
    NO. 2016-CA-01131-COA
    Court of Appeals of Mississippi.
    08/29/2017

      ATTORNEY FOR APPELLANT: ALEXANDER IGNATIEV
    ATTORNEY FOR APPELLEE: WILLIAM L. DUCKER
    BEFORE IRVING, P.J., ISHEE AND GREENLEE, JJ.
   ISHEE, J.,

FOR THE COURT:

¶ 1. Merlene Wall sued Jonathan Griffith for libel and slander, and sought an injunction in the County Court of Lamar County. After a trial on the facts, the county court ruled in favor of Griffith and dismissed the case. Wall appealed the decision to the Lamar County Circuit Court. Wall submitted a brief-—raising a new argument not previously asserted at trial; Griffith did not respond to the appeal with a brief. The circuit court held that Griffith’s failure to answer and file a brief was a confession of error. And so, the circuit court reversed the decision of the county court and ruled in favor of Wall. Griffith now appeals to this Court, arguing that Wall failed to make out a case for error, and therefore, he was entitled to a summary affirmance. We agree, and accordingly, reverse and render the judgment of the circuit court. The judgment of the county court is reinstated.

FACTS AND PROCEDURAL HISTORY

¶2. Wall was the municipal clerk of Lumberton. Griffith runs the “Lumberton Informer”—a blog which reports on politics and news in Lumberton. Griffith has often been critical of Wall in his posts on the blog. Additionally, the blog allows anyone to publish a comment following a blog entry. These comments may be posted anonymously. In various instances, anonymous comments—addressing Wall—posted to the blog were vulgar and crass.

113. Wall sued Griffith in the county-court for libel and slander, and to enjoin his publication. On June 7, 2015, the county court entered an injunction ordering Griffith, as the publisher of the “Lumber-ton Informer,” to cease and desist from writing defamatory material about Wall in his publication. A.trial was held on October 19, 2015, and a judgment was entered in favor of Griffith. At trial, Wall and Melissa Nightingale—a deputy city clerk—testified that they believed that Griffith was responsible for the anonymous comments posted to his blog. Griffith testified that the comments posted on the blog were moderated by a third party—and thus he was not responsible.

¶4. After the trial, the county court issued a written final judgment ruling in Griffith’s favor. First, the county court found that Wall was a public figure, and so Griffith possessed a First Amendment right to criticize Wall so long as the comments were not false, and not made with malice. Second, the county' court found that there was no evidence of defamatory comments—made by Griffith—in' any of his blog posts placed into evidence. Specifically, the county court found that there was no proof that these comments were factually false—most were just opinions. Likewise, the county court found that there was no proof of malice. And third, the county court found that there was insufficient proof in the record to find that Griffith had control over the posting of anonymous comments in his blog—and thus was not responsible for their content. Therefore, the county court found it unnecessary to determine if the anonymous comments were defamatory.

¶5. Wall then appealed to the circuit court. Wall filed a brief, arguing that federal law placed on Griffith an affirmative obligation to screen offensive material. Griffith failed to answer and did not file a brief with the circuit court. The circuit court then ruled in favor of Wall—finding that Griffith’s failure to participate in the appeal amounted to confession of error. Consequently, the circuit court reversed the county court and found that Griffith did defame Wall. Griffith now appeals.

DISCUSSION

¶ 6. On appeal, Griffith argues that the circuit court erred by taking his failure to file a brief as a confession of error, rather than summarily affirming thé county court. Griffith supports this assertion by arguing that Wall failed to make out a case of error. We agree.

¶ 7. At the outset, we must noté that this is a rare case where the failure to file a brief occurred not on appeal to this Court, but on appeal to a lower court. That said, the applicable rule at the time, Uniform Circuit and ‘ County Court Rule 12.03(D), which addressed appeals to the circuit court from’ the county court, providbd: “The consequences of failure to timely file a brief [in the circuit court] shall be the same as in the Supreme Court.”

¶ 8. Whenever the appellee has failed to file a brief, a reviewing court is presented with two options: “The first ‘is to take the appellee[’s] failure to file a brief as a confession of error and reverse.’” McGrew v. McGrew, 184 So.3d 302, 306 (¶ 10) (Miss. Ct. App. 2015) (quoting Miller v. Pannell, 815 So.2d 1117, 1119 (¶ 7) (Miss. 2002)). “This should be done when the record is complicated or voluminous, and the appellant has presented an apparent case of error.” Id. The second is to disregard the appellee’s failure to file a brief and affirm the [judgment].” Id. “This option is reserved for situations where there is a sound and unmistakable basis upon which the judgment may be safely affirmed.” Id. (internal quotations omitted).

¶ 9. After reviewing the record, we find that the circuit court erred in taking Griffith’s failure to file a brief as a confession of error. First, we find that the record on appeal is neither complicated nor voluminous. And even if it were, we find that Wall—the appellant at the circuit court level—failed to present an apparent case of error. In fact, the record shows that in her brief to the circuit court, Wall relied solely on a federal statute in an attempt to somehow tie the anonymous comments made on Griffith’s blog to Griffith himself. The federal statute Wall relies on—titled “[protection for private blocking, and screening of offensive material”—states in part:

No provider or user of an interactive computer service shall be held liable on account of ... any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected ....

47 U.S.C. § 230(c)(2)(A).

¶ 10. Wall contends that this statute placed an obligation on Griffith to remove offending material published—by anonymous posters—on his blog. A quick glance at the statute’s text suggests otherwise. For one thing, section 230(c)(1) explicitly protects a user of an interactive computer service from being “treated as the publisher or speaker of any information provided by another information content provider.” Indeed, nowhere in the text of either section 230(c)(1) or (c)(2)(A) does the statute place any obligation on a provider or a user to screen offensive material. What is more, the title of the statute clearly previews a statutory protection, not a mandate. By its very terms, the title denotes protection for private blocking and screening of offensive materials. One may chose to block or screen offensive material; he, however, is under no obligation to do so.

¶ 11. Wall’s other argument seems to be that even if the statute does not directly place such an obligation on Griffith—to screen offensive material—it does provide him with protection to do so. And so, Wall contends that his failure to utilize this protection ultimately encourages the dissemination of offensive material. While we have made clear that this statute operates as a protection, we do not agree with this assertion. Again, just because Griffith would have been protected if he had voluntarily screened the material, does not mean he had to. The record reflects that on appeal to the circuit court, Wall did not contest any of the merits of the actual defamation claim tried in the county court. Indeed, Wall—after having not raised it at the actual trial—relies on the federal statute to attach ownership of the anonymous comments to Griffith. And having determined that such statute does not operate in this manner, that leaves Wall with no case of error on appeal.

¶12. Because the record was neither complicated nor voluminous, coupled with Wall’s failure to make out an apparent case of error, we find that the circuit court should have disregarded Griffith’s failure to file a brief and affirmed the judgment of the county court. For here there was a “sound and unmistakable basis” upon which the circuit court could have safely affirmed the judgment of the county court. See McGrew, 184 So.3d at 306 (¶ 10).

¶ 13. It is undisputed that Wall—as city clerk—was a public figure; indeed, she admitted as much in her brief to the circuit court. And so, to prevail on a defamation claim, Wall had to show evidence that Griffith made a false statement of fact (not opinion). N.Y. Times v. Sullivan, 376 U.S. 254, 281, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Additionally, Wall had to show that Griffith acted with .actual malice—knowledge that such statements were false or made with reckless disregard of their truth or falsity. See id. After a trial and consideration of the facts presented, the county court found that Wall failed to carry her burden as to any of these elements.

¶ 14. In her brief to the circuit court, and even before us, Wall’s only claim of error was based on the control of the anonymous comments. Wall did not, for example, claim that the county court erred in finding that she was a public figure, that it erred in determining that she failed to prove that Griffith’s post contained false statements of fact, or that it erred in finding that she failed to prove actual malice. Indeed, Wall’s only hope was to attempt to use an inapplicable federal statute as a vehicle to attach ownership of these anonymous comments to Griffith. The county court found that there was insufficient proof in the record to find that Griffith had control over the posting of anonymous comments in his blog—and was thus not responsible for their content. Wall’s use of the federal statute does not change that conclusion. With all this in mind, we find that the circuit court could have safely affirmed the judgment of the county court.

¶ 15. In conclusion, we find that because the record was neither complicated nor voluminous, coupled with the fact that Wall failed to make out an apparent case of error, the circuit court should have affirmed the judgment of the county court— even though Griffith failed to file a brief. In reaching this end, it is not our intent to condone a litigant’s failure to file a brief. Nor do we encourage future litigants to approach the appellate process in a careless manner; for when a litigant does so, he does so at his own peril. Yet we find that in this specific case, with these specific facts, a case of error was not made. Therefore, we reverse and render the judgment of the circuit court. The judgment of the county court is reinstated.

¶ 16. REVERSED AND RENDERED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Communications Decency Act, 47 U.S.C. § 230(c) (2012).

      . Effective July 1, 2017, the Uniform Circuit and County Court Rules were amended and renamed the Uniform Civil Rules of Circuit and County Court. This substantively unchanged provision is now found in Rule 5.06. See UCRCCC 5.06.

      . "Information content provider” is defined as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive service.” 47 U.S.C. § 230(f)(3).


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    Willie DUCK, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00362-COA
    Court of Appeals of Mississippi.
    04/11/2017
    Rehearing Denied August 15, 2017

      ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: W. DANIEL HINCHCLIFF
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BARBARA WAKELAND BYRD
    BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ.
   LEE, C.J.,

FOR THE COURT:

¶ 1. Willie Duck was convicted in the Adams County Circuit Court of possession of more than two grams but less than ten grams of a controlled substance with intent to sell or distribute. After a bifurcated hearing, Duck was sentenced as a habitual offender to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC). Duck raises the following issues: (1) he was not properly sentenced as a habitual offender; (2) he was entitled to a new trial; (8) the trial court failed to grant a mistrial; (4) newly discovered evidence entitled him to a new trial; (5) the evidence was insufficient to support the verdict; and (6) ineffective assistance of counsel. Finding no merit, we affirm.

FACTS

¶ 2. On September 19, 2014, the Adams County Sheriffs Department, working with the Metro Narcotics Unit, staged a drug buy using a confidential informant. According to Officer Shane Daugherty, he was contacted by the confidential informant, Jessica Biglane, concerning a possible drug buy. According to Biglane, Duck had contacted her in order to sell methamphetamine from Biglane’s house located in Fenwick, Mississippi. Biglane testified that Duck indicated he needed to leave Natchez, Mississippi, due to a recent interaction with law enforcement.

¶ 3. Officer Daugherty, along with Agent David Washington of the narcotics unit, met with Biglane to provide her with money and to install recording devices in her vehicle. Biglane was instructed to drive to a local grocery store in Adams County where the agents would apprehend Duck after the drug buy. Officer Daugherty and Agent Washington followed Biglane as she picked up Duck and proceeded to the grocery store.

¶ 4. Agent Washington testified that he, Officer Daugherty, and Lieutenant George Pirkey approached Biglane’s vehicle after it reached the rendezvous point. Agent Washington stated that as Duck was exiting the front passenger side of Biglane’s vehicle, he dropped a plastic bag on the ground near his feet. Officer Daugherty testified that he could see Duck sitting in the front passenger side holding cash in one hand and a bag containing white rocks in his other hand. But Officer Daugherty did not see Duck drop the bag, only that Duck’s hands were empty by the time he exited the vehicle. Lieutenant Pirkey was waiting in the area when Biglane’s vehicle arrived at the grocery store. Lieutenant Pirkey testified that he approached the vehicle with the other agents and saw Duck drop a plastic bag as he exited the vehicle. Lieutenant Pirkey then retrieved the bag, and Duck was arrested. The substance in the bag was later tested and determined to be methamphetamine.

DISCUSSION

I. Habitual-Offender Status

¶ 5. To be sentenced as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015), the State must prove that the defendant had “been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and ... sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere

¶ 6. Duck argues that the evidence the State used to prove one of his prior convictions was not sufficient. Duck had been convicted on July 28, 2000, in Louisiana for possession of cocaine and had been sentenced to seventeen months. The State submitted a document titled “Docket Master, Orleans Parish Criminal District Court,” that listed Duck’s, conviction and sentence. The document was certified by the Deputy .Clerk of the Orleans Parish Criminal District Court. During the sentencing hearing, the State noted that it had requested evidence of Duck’s conviction in Louisiana, and was advised by the clerk that the particular document was what they normally provided when asked for evidence of a defendant’s prior convictions. The trial court found the document was sufficient proof, stating that “while it is not a sentencing order, it is evidence of his prior conviction.”

¶7. This Court has noted that a judgment of conviction is the “best evidence” of a prior conviction. Hull v. State, 174 So.3d 887, 901 (¶ 43) (Miss. Ct. App. 2015) (citation omitted). However, other forms of evidence, including certified copies of docket entries, have been allowed. See Vincent v. State, 200 Miss. 423, 424, 27 So.2d 556, 556 (1946) (cértifíed copies of docket entries of conviction were sufficient proof of a prior conviction); see also Lovelace v. State, 410 So.2d 876, 879 (Miss. 1982) (certified abstracts of court record were sufficient proof of a prior conviction). Here, the certified document from Louisiana was sufficient proof of one of Duck’s prior convictions. This issue is without merit.

II.New Trial

¶8. Duck argues that one of the witnesses, specifically Lieutenant Pirkey, was in the courtroom during a portion of the State’s opening argument.- In the middle of the State’s opening argument, Duck interrupted and invoked Mississippi Rule of Evidence 615, The trial court acquiesced •and removed the witnesses from the courtroom, Duck contends that Lieutenant Pir-key’s presence in the courtroom during part of the State’s opening argument was a deliberate attempt to tailor his testimony to the State’s evidence; thus, he should be granted a new trial. However, Duck has not produced any evidence to substantiate this claim, nor has he shown any prejudice resulting from Lieutenant Pirkey’s presence 'in the courtroom prior to the rule being, invoked. -We cannot find any error by the trial court in refusing to grant Duck’s motion for a new trial.

III. Motion for Mistrial

¶9. Duck next 'argues that the trial court should have granted his motion for a mistrial. We review a trial court’s denial of a motion for mistrial under our familiar abuse-of-discretion standard. Pulphus v. State, 782 So.2d 1220, 1223 (¶ 10) (Miss. 2001). During the State’s direct examination, Officer Washington testified as to what occurred after Duck exited the vehicle and dropped the bag. Regarding the bag, Officer Washington testified that “it was partially open .... That’s when we realized it was crystal [methamphetamine].” Duck objected and moved for a mistrial on the ground that the State had not yet produced testimony that the substance was indeed methamphetamine. The trial court sustained Duck’s objection but denied his motion for a mistrial. The trial court noted that a prior witness, Officer Daugherty, had testified ■ that the substance found in the bag that Duck dropped field-tested positive for methamphetamine. We can find no abuse of discretion by the trial court in denying Duck’s motion.

IV, New Evidence

¶ 10. Duck argues that after trial while he was in the county jail, Officer Washington saw Duck and stated, “I got you!” Duck contends this statement is proof that he was framed by the police; thus, he is entitled to a new trial. Duck raised this issue in his posttrial motion, which the trial court denied. Other than his bare assertion, Duck has not shown how this “newly discovered evidence” would have produced a different result at trial. See URCCC 10.05(3). We find no merit to this issue.

V. Insufficient Evidence

¶ 11. Lastly, Duck argues that the evidence was insufficient to support the guilty verdict. At the' close of the State’s case, Duck moved for a directed verdict, which the trial court denied. Duck did not present any evidence on his behalf. When determining whether the State presented legally sufficient evidence to support the verdict, “the critical inquiry is whethér 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[.]” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005). If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, that the essential' elements of the crime existed, this Court will affirm the conviction. Id. “During the trial, the jury is charged with the responsibility of weighing and considering the conflicting evidence of the witnesses and determining whose testimony should be believed.” Winters v. State, 814 So.2d 184, 187 (¶ 9) (Miss. Ct. App. 2002) (citation omitted).

¶ 12. Here we- find sufficient evidence to support the verdict, Both Agent Washington and Lieutenant Pirkey saw Duck exit the vehicle and drop a bag containing a substance that was later determined to be methamphetamine. Officer Daugherty saw Duck holding this bag pri- or to exiting the car. This issue is without merit.

VI. Ineffective Assistance of Counsel

¶ 13. Duck briefly asserts his trial counsel was ineffective for failure to object to two leading questions that the State .asked Officer Daugherty. During Officer Daugherty’s- testimony, the State had asked him what he had heard through the recording device planted in Biglane’s vehicle. The State was trying to establish that Biglane had exited the vehicle.

Q: And how did you know [Biglane] wasn’t still in the van? '
A: Lieutenant Pirkey informed me that she had gotten out of the vehicle and went into the store.
Q: I. believe y’all were listening?
A: Yes.
Q: And were able to hear that also? ■
A: I could hear [Biglane] getting out of the vehicle. Yes, sir.

¶ 14. To establish ineffective assistance of counsel, Duck must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Mississippi Supreme Court in Stringer v. State, 454 So.2d 468, 476-77 (Miss. 1984). Duck must demonstrate: (1) counsel’s performance was deficient and (2) that the deficiency prejudiced the defense. Braggs v. State, 121 So.3d 269, 272 (¶ 9) (Miss. Ct. App. 2013). “The Strickland test is applied with deference to counsel’s performance, considering the totality of the circumstances to determine whether counsel’s actions were both deficient and prejudicial.” Id. at 273 (¶ 11) (citing Conner v. State, 684 So.2d 608, 610 (Miss. 1996)).

¶ 15. Generally, ineffective-assistance claims are raised during postconviction proceedings. Archer v. State, 986 So.2d 951, 955 (¶ 15) (Miss. 2008). However, a claim of ineffectiveness may be raised on direct appeal “if such issues are based on facts fully apparent from the record.” M.R.A.P. 22(b). If the record cannot support a claim of ineffectiveness, then the appropriate action is to deny relief, preserving the appellant’s right to argue the same issue through a petition for postcon-viction relief. Braggs, 121 So.3d at 272 (¶ 9). Here, the issue is fully apparent from the record.

¶ 16. “[T]rial counsel’s failure to object to leading questions, without proof that prejudice resulted, does not amount to ineffective assistance of counsel.” Bullard v. State, 923 So.2d 1043, 1047 (¶ 13) (Miss. Ct. App. 2005). According to the record, Duck’s trial counsel did raise other objections throughout trial, indicating that his decision not to object to the two leading questions was a matter of trial strategy. See id. Furthermore, Duck has not proved that prejudice resulted from these leading questions. This issue is without merit.

¶ 17. THE JUDGMENT OF THE ADAMS COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF MORE THAN TWO GRAMS BUT LESS THAN TEN GRAMS OF A CONTROLLED SUBSTANCE WITH INTENT TO SELL OR DISTRIBUTE AND SENTENCE AS A HABITUAL OFFENDER OF TWENTY YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE, PROBATION, OR ANY REDUCTION OR SUSPENSION OF SENTENCE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ADAMS COUNTY.

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

      . Duck does not argue that the evidence was insufficient regarding his other prior conviction. The State had submitted a certified copy of a sentencing order to show Duck had been convicted on September 12, 2011, of robbery and sentenced to serve seven years in the custody of the MDOC.


author: IRVING, P.J.,

text:
    Aaron L. PATANE a/k/a Aaron Lee Patane a/k/a Aaron Patane, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00194-COA
    Court of Appeals of Mississippi.
    04/18/2017
    Rehearing Denied August 22, 2017

      ATTORNEY FOR APPELLANT: AARON L. PATANE (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ABBIE EASON KOONCE
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   IRVING, P.J.,

FOR THE COURT:

¶ 1. Aaron Patane appeals the judgment of the Circuit Court of Calhoun County, denying his motion for post-conviction relief (PCR). He raises three issues: (1) his guilty plea was involuntary; (2) he received ineffective assistance of counsel; and (3) his life sentence was unconstitutional.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. In December 2014, by criminal information, Patane was .charged with sexual battery in violation of Mississippi Code Annotated section 97-3-95(1)(d) (Rev. 2014). On December 18, 2014, Patane waived indictment - and pleaded guilty ,t,o sexual battery. He was sentenced to life in prison and ordered to pay a $1,000 fíne. On November 20, 2015, Patane filed his PCR motion; however, the circuit court denied the motion, finding that “it plainly appears from the face of the motion, exhibits, and prior proceedings that the Petitioner is not entitled to any relief.” Patane now appeals the circuit court’s denial of his motion.

DISCUSSION

¶ 4. “When reviewing a trial court’s decision to dismiss a ... [PCR motion], an appellate court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Buckley v. State, 119 So.3d 1171, 1173 (¶ 4) (Miss. Ct. App. 2013). “Our review of .,, a question of law[ ] is de novo.” Id.

I. Voluntariness of Guilty Plea

¶ 5. Patane alleges that he was coerced into signing his plea petition by his attorney, and neither the court nor his attorney advised him of the rights he would be giving up or the consequences of his guilty plea. He states that he did not have time to read the documents included in the plea petition and signed them under the threat of additional charges being brought by the district attorney.

¶ 6. The. State responds that “[a] plea is considered voluntary and- intelligent if the defendant is advised about the nature of the charge against him and the consequences of the entry of the plea. The [plea] petition fully enumerates the rights that [Patane] would waivé upon signing the plea.” Ward v. State, 879 So.2d 452, 455 (¶ 9) (Miss. Ct. App. 2003). “The plea’’ petition, similarly to statements in open court, may be used to discredit post-plea allegations.” Id. The State contends that the plea petition, signed by Patane, contains all of the necessary information to'verify the voluntariness of his guilty pléá.

¶ 7. Based on Patane’s plea petition and his responses to the court’s inquiries during his plea colloquy, it is clear that he was fully informed of his rights, and his plea was voluntarily and intelligently given. Pa-tane’s signed plea petition contained the requisite admonishments informing him of the following rights he would be relinquishing, among others:

My lawyer has advised me of the nature of the charge and/or charges and the possible defenses that I may have to the charge and/or charges exhibited against me,
I understand that I may plead “not guilty” and may persist in that plea and that [a,] the Constitution guarantees me the right to a speedy and public trial by jury, [b.] the right to see, hear[,] and ,cross[-]examine all witnesses called to testify, [c.] the right to use the power and processes of the court to compel the production of evidence including the attendance of any witnesses.in my favor, [d.]-the right to have the presence and assistance of a lawyer at all stages of the trial and any appeal, [e,] the right to testify in my own defense, [f.] the right to a jury verdict of all twelve juror[s] before I could be found guilty, [g.] I understand that if I plea[d] not guilty and demand a jury trial I would be by law presumed innocent of the charge and/or charges at the outset of a jury trial and that presumption would remain with me until removed by competent and credible evidence, and [I] am proven guilty beyond a reasonable doubt and to the satisfaction of twelve jurors.

In addition to the admonishments above, the plea petitipn also outlined explanations of Patane’s: right against self incrimination, in forma pauperis right, maximum sentence for his crime—life imprisonment, right to a voluntary plea, and eligibility for parole or early release.

¶ 8. During Patane’s plea colloquy—addressing his understanding of the contents of his plea petition—he had the following exchange with the court:

[COURT]: On each page of this plea petition there are signature lines and each one of them purports to bear your signature. Did you sign all 7 of theses pages?
[PATANE]: Yes, sir.
[COURT]: Before you signed it did you go over it with your attorney?
[PATANE]: Yes, sir.
[COURT]: Did your attorney explain the contents of this petition to you and explain it to you in a way that you could understand?
[PATANE]: Yes, sir. .
* * * *
[COURT]: Are you satisfied with the services of your attorney?
[PATANE]: Yes, sir.
⅜ ⅜ ⅜ ⅜
[COURT]: Has anybody done anything to intimidate you, threaten you[,] coerce you[,] or otherwise force you to plead guilty?
[PATANE]: No sir.
[COURT]: You understand that the Department. of Corrections calculates sex offenders on a quote, day for day basis; do you understand that?
[PATANE]: Yes, sir.

¶ 9. As Patane’s plea petition and plea colloquy clearly demonstrate that he was fully informed of the rights that he would relinquish by pleading guilty, we find no merit to his assertion that his .guilty plea was not entered freely and voluntarily. This issue is without merit.

¶ 10. Patane -argues that he would not have pleaded guilty and would have taken his case to trial had his counsel not provided ineffective assistance. He asserts that his attorney demanded that he sign the plea-petition documents or the State would withdraw its offer. He also asserts that his counsel provided no explanation as to what he was signing, and specifically did not explain the minimum and maximum sentences for the charge. He states that-he was led to believe that a life sentence was the lowest sentence available for the charge. Patane further asserts that his counsel was appointed on December 18, 2014, the same day that he signed his waiver of indictment and plea petition for a sentence of life in prison. He argues that it was not possible for his counsel to perform his due diligence by investigating the facts of the case, reviewing the prosecution’s evidence, and concluding it was in his best interest to accept a life sentence—in a matter of minutes from the time of his appointment.

II. Ineffective Assistance of Counsel

¶ 11. In order to prove ineffective assistance of counsel—in the context of a guilty plea—a defendant “must show that, were it not for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Burrough v. State, 9 So.3d 368, 373 (¶ 22) (Miss. 2009). The State asserts that Patane makes no. such showing and offers no support for his allegations except his own affidavit. Since Patane failed to provide affidavits—other than his own—in support of his arguments, the State alleges that “[w]here a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” Bass v. State, 174 So.3d 883, 885 (¶ 6) (Miss. Ct. App. 2015). However, this Court has clarified the scope of that interpretation, stating:

The fact that there [are] no affidavits does not in and of itself render the motion invalid. The statute states affidavits are required of those witnesses that will testify. Thus, if there are no witnesses to the allegations asserted by the appellant, there is no requirement for supporting affidavits. Rather, the appellant may attest to the facts that he intends to prove through his petition. Thus, a [PCR] motion is not properly denied based solely on the fact that there are no supporting affidavits.

Castro v. State, 159 So.3d 1217, 1219 (¶ 7) (Miss. Ct. App. 2015). As in Castro, there were no witnesses to testify to Patane’s private interactions with his attorney, the content of which may or may not support his claim that his counsel was ineffective and that counsel’s ineffectiveness was the basis for Patane choosing to plead guilty. Despite the allegations in his affidavit, when asked during his plea colloquy if he was satisfied with the services of his attorney, Patane responded, ‘Tes, sir.”

¶ 12. There is no possibility of parole for a person convicted of a sex crime. Miss. Code Ann. § 47-7-3 (Rev. 2015). The punishment for sexual battery provided by the code section that Patane was charged under states that “every person who shall be convicted of sexual battery under Section 97-3-95(1)(d) who is eighteen (18) years of age or older shall be imprisoned for life in the State Penitentiary or such lesser term of imprisonment as the court may determine, but not less than twenty (20) years.” Miss. Code Ann. § 97-3-101(3) (Rev. 2014).

¶ 13. In light of this information, there does not appear to be any cognizable motivation for Patane to plead guilty and receive a sentence of life in prison to avoid additional charges that would have effectively made his sentence exactly the same. A trial by jury would seem to prove more advantageous when weighing the absolute of life in prison versus the possibility of twenty years or an acquittal. Although an on-the-record explanation of why Patane chose to accept the plea agreement would be helpful, the absence of such an explanation does not amount to ineffective assistance of counsel. Patane’s plea colloquy contradicts his current arguments, as the State clearly recommended “that Mr. Pa-tane be sentenced to life in the custody of the Mississippi Department of Corrections.” The State further advised that it was the State’s understanding that Pa-tane’s time would be a day-for-day sentence. The court also informed Patane: “If the court sentences you to life in prison I don’t know when or if there will be a parole date. I am through predicting what the Department of Corrections might do with any offense.” The court later reiterated its concern for Patane’s understanding of the consequences of his plea by stating, “I do not know if and when you will ever be entitled to any sort of parole[,] and I don’t want you to rely on anything I have said or failed to say as a reason for agreeing to the plea recommendation ....”

¶ 14. In analyzing the ineffective-assistanee-of-counsel claim, based on the record before us, we find that Patane has not proven that his counsel was in error, except as to the minimum sentence placed in the plea petition. However, we find that he failed to prove that there was “a reasonable probability that, but for counsel’s errors, [he] would not have pleaded guilty and would have insisted on going to trial.” Keith v. State, 999 So.2d 383, 389-90 (¶ 17) (Miss. Ct. App. 2008) (emphasis added) (internal citations and quotations omitted). As previously discussed, Patane was aware of the rights he was giving up and the effect that his guilty plea could potentially have on his eligibility for parole, yet he chose to plead guilty anyway. Although the plea petition mistakenly stated that the minimum sentence was life imprisonment, and no one during the plea colloquy corrected the information, we cannot conclude that but for this error, Patane would have chosen to go to trial and face the eight other charges involving his abuse of the minor child, including additional charges of sexual battery, possession of child pornography, and touching for lustful purposes. Moreover, he could have eventually been prosecuted as a habitual offender, which would have netted him a life sentence. Further, as stated, he was informed by the criminal information as to the minimum sentence for the charge to which he pleaded guilty. Consequently, this issue is without merit.

III. Life Sentence

¶ 15. Patane argues that his life sentence was illegal and therefore unconstitutional because it was handed down without the recommendation of a jury. However, the State correctly responds that “[u]nlike most crimes that carry a potential sentence of life, section 97-3-101(3) does not require that a jury make the determination as to whether the defendant will receive life in prison or some lesser sentence.” Carter v. State, 996 So.2d 112, 128-29 (¶ 43) (Miss. Ct. App. 2008). As stated previously, sexual battery carries a sentence of life imprisonment or “such lesser term of imprisonment as the court may determine, but not less than (20) years.” Miss. Code Ann. 97-3-101(3). Since the code section Patane was charged under does not require a jury to decide whether a defendant receives a life sentence, the court was within it rights to sentence him to a life sentence. Patane’s sentence is constitutional; therefore, this issue is without merit.

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

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

      . The plea petition erroneously stated that the minimum sentence was life imprisonment. However, the criminal information containing the one count to which Patane pleaded guilty provided that the minimum punishment for the sexual-battery charge was twenty years and the maximum punishment was life imprisonment. See Dockens v. State, 879 So.2d 1072, 1075 (¶ 6) (Miss. Ct. App. 2004) (holding that failure by the trial court to inform the defendant of the maximum and minimum sentences is harmless error if the defendant was correctly informed by another source such as the indictment). Patane stated under oath that he had received a copy of the criminal information and that he had a tenth-grade education.

      . There is a contradictory statement in Pa-tane's affidavit that says he met his attorney on December 5, 2014, although he was not officially appointed based on the order appointing counsel on December 18, 2015.


author: WILSON, J., GREENLEE, J.,

text:
    Dennis Tyrell MILLER a/k/a Dennis Miller, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01229-COA
    Court of Appeals of Mississippi.
    05/02/2017
    Rehearing Denied August 29, 2017
    ATTORNEYS FOR APPELLANT: EDMUND J. PHILLIPS JR. JAMES EDWIN SMITH III
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA . MCCLIN-TON
   WILSON, J.,

FOR THE COURT:

¶ 1. On August 22, 2014, Dennis Tyrell Miller killed his girlfriend, Jarita Monique Green, during an argument in their apartment. A Neshoba County grand jury indicted him for deliberate design murder. A jury trial was held on July 6, 2015. Miller argued self-defense, but the jury found him guilty of manslaughter. At sentencing, the State established that Miller had prior felony convictions for burglary of a dwelling, burglary of a building, and the sale of cocaine. Miller was then sentenced as .a violent habitual offender to life imprisonment -without eligibility for parole or probation or any reduction or suspension of the sentence. See Miss. Code Ann. § 99-19-83 (Rev. 2015).

¶2. On appeal, Miller raises only one issue. He argues that his sentence as a violent habitual offender should be vacated because prior to July 1, 2014, burglary of a dwelling was not considered a “per se ‘crime of violence’ under Section 99-19-83.” Brown v. State, 102 So.3d 1087, 1092 (¶ 21) (Miss. 2012). Prior to July 1, 2014, burglary of a dwelling qualified as a “crime of violence” only if there was “proof of an actual act of violence during the commission of the burglary.” Id. However, effective July 1, 2014, the Legislature enacted Mississippi Code Annotated section 97-3-2 (Rev. 2014), which expressly defines burglary of a dwelling, among other crimes, as a per se crime of violence. Miller killed Green after section 97-3-2 was enacted; therefore, he was properly sentenced for his present offense of manslaughter as a violent habitual offender.

¶ 3. In his reply brief on appeal, Miller asserts that his sentence violates the Ex Post Facto Clauses of the United States Constitution and Mississippi Constitution. U.S. Const. art. I, § 9, cl. 3 & § 10, cl. 1; Miss. Const. art. 3, § 16. However, as we explain below, this argument is without merit. Miller’s enhanced sentence “is a stiffened penalty for [his] latest crime, which is considered to be an aggravated offense because a repetitive one.” Smith v. State, 465 So.2d 999, 1003 (Miss. 1985) (emphasis added) (quoting Branning v. State, 224 So.2d 579, 580-81 (Miss. 1969)). It is not an “ex post facto” punishment for his prior burglary. Miller committed his latest crime of manslaughter after July 1, 2014; therefore, his enhanced sentence for that offense is valid and constitutional. Accordingly, we affirm.

DISCUSSION

I. Waiver

¶ 4. In the trial court, Miller made no argument that section 97-3-2’s definition of crimes of violence did not apply to his prior conviction for burglary of a dwelling. Rather, at his.sentencing hearing, counsel for Miller made a confusing argument that Miller’s prior conviction for burglary of a dwelling did not fit section 97-3-2’s definition, even though that provision states that “[bjurglary of a dwelling” “shall be classified as [a] crime[ ] of violence.” Miss. Code Ann. § 97-3-2(1)(o). The circuit court rejected this argument, sentenced Miller as a violent habitual offender, and the hearing ended. Miller made no argument that section 97-3-2 did not apply to his prior conviction, let alone that its application would be, unconstitutional.. Indeed, at his sentencing hearing, Miller seemingly accepted that section 97-3-2 did apply.

¶ 5. In his opening brief on appeal, Miller asserted for the first time that section 97-3-2 should not apply to his prior conviction for burglary of a dwelling. However, his opening brief still did not mention the Ex Post Facto Clauses of the United States Constitution or Mississippi Constitution or raise any other constitutional issue. The ex post facto issue was first raised in a single paragraph near the end of Miller’s reply brief.

¶ 6. Ordinarily, “[a] defendant is procedurally barred from raising an objection on appeal that is different than that raised at trial. A trial judge will not be found in error on a matter not presented to him for decision.” Jones v. State, 606 So.2d 1051, 1058 (Miss. 1992) (internal citations omitted). However, we have recognized that “the right to be free from an illegal sentence” and “the right not to be subject to ex post -facto laws” are among those “fundamental rights” that, under Mississippi Supreme Court precedent, are excepted from “all procedural bars that apply to [even] ... petitions” for post-conviction relief. Salter v. State, 184 So.3d 944, 950 (¶ 22) (Miss. Ct. App. 2015). In addition, the State did not argue that the new issue raised in Miller’s opening brief was procedurally barred. Therefore, we will address Miller’s arguments on the merits.

II. Miller’s Sentence

¶ 7. Mississippi Code Annotated section 99-19-83 provides:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more, whether served concurrently or not, in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence, as defined by Section 97-3-2, shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole, probation or any other form of early release from actual physical custody within the Department of Corrections.

Miss. Code Ann. § 97-3-2 (emphasis added). The emphasized language was among the amendments to the statute that went into effect July 1, 2014. 2014 Miss. Laws ch. 457, § 78 (H.B. 585). Prior to July 1, 2014, there was no comprehensive statutory definition of “crime of violence.” Section 97-3-2 went into effect on that day. See id. § 39.

¶ 8. The evidence as to Miller’s prior convictions is clear. He has prior convictions for the sale of cocaine (1998), burglary of a dwelling (1998), and burglary of a building (1999). Each conviction arose out of a separate incident, and Miller was sentenced to and served more than one year in prison on each conviction. Thus, the only issue is whether burglary of a dwelling is a “crime of violence.”

¶ 9. In 2012, the Mississippi Supreme Court held that burglary of a dwelling was not a “per se ‘crime of violence’ under Section 99-19-83.” Brown, 102 So.3d at 1092 (¶ 21). Brown held that burglary of a dwelling was a “crime of violence” only if there was “proof of an actual act of violence during the commission of the burglary.” Id. The Court stated: “The Legislature certainly is free to enact a statute that makes burglary of a dwelling a per se crime of violence. But it has not chosen to do so .... ” Id.

¶ 10. Effective July 1, 2014, as part of House Bill 585, the Legislature did enact a statute making burglary of a dwelling a per se crime of violence. Section 97-3-2 makes clear that “[b]urglary of a dwelling” is among those crimes “classified as crimes of violence.” Miss. Code Ann. § 97-3-2(1)(o).

¶ 11. A little less than two months later, on August 22, 2014, Miller stabbed Green to death during an argument in their apartment. He was convicted of manslaughter, and the circuit court properly sentenced him to life imprisonment as a violent habitual offender under section 99-19-83.

¶ 12. Miller’s sentence does not violate either the state or federal constitutional prohibition on “ex post facto laws.” His “sentence as a ... habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.” Smith, 465 So.2d at 1003 (emphasis added) (quoting Branning, 224 So.2d at 580-81). In Smith, our Supreme Court held that the imposition of an enhanced sentence based on predicate felonies committed prior to the enactment of our nonviolent habitual offender statute, Miss. Code Ann. § 99-19-81, did not violate the constitutional prohibition on ex post facto laws. Id. The result is the same here. Miller killed Green after his prior residential burglary was classified as a per se crime of violence. Therefore, the “stiffened penalty for [his] latest crime” of manslaughter is not unconstitutional. Id.; accord Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948) (upholding a life sentence imposed under Pennsylvania’s Habitual Criminal Act that was based in part on a prior conviction that predated the Act’s effective date).

¶ 13. The dissent asserts that Smith is distinguishable because the enactment of section 99-19-81 supposedly did not “aggravate” or “change the nature of’ the prior convictions at issue in that case. Post at (¶¶ 27-28). As a matter of substance, this simply is not true. Before section 99-19-81 was enacted, those prior convictions could not have served as a predicate for any enhanced sentence. The enactment of section 99-19-81 made those convictions predicate felonies for the first time. In Smith, the Supreme Court held that this was permissible and did not violate the Ex Post Facto Clause even though section 99-19-81 was enacted after the defendant committed and was convicted of the prior offenses. This was so because the defendant’s sentence as a habitual offender was an enhanced punishment for his most recent crime, not an additional penalty for his prior crimes. The same is true in this case.

¶ 14. The dissent seems to imply that Smith is distinguishable because section 99-19-81 did not “deem” prior felonies “crimes of violence,” whereas House Bill 585 “deems” burglary of a dwelling a per se “crime of violence.” Post at (¶ 27). If that is the dissent’s distinction, it is a matter of form, not of substance. The Legislature could fix the supposed constitutional problem by enacting a new section of the Mississippi Code that copied verbatim the language of section 99-19-83 but substituted the words “burglary of a dwelling” for “crime of violence, as defined by Section 97-3-2.” That would achieve the exact same result, but it would avoid the alleged constitutional problem of “deeming” burglary of a dwelling a crime of violence. No rule of constitutional law requires the Legislature to engage in such a pointless drafting exercise. Under Smith, the law is valid as written and applied to Miller.

¶ 15. The dissent’s “deeming” objection is also inconsistent with federal caselaw. Federal law provides for enhanced sentences for drug offenders with one or more “prior convictions for a felony drug offense.” See 21 U.S.C. § 841. Prior to September 13, 1994, federal law did not deem a state drug conviction a “felony drug offense” unless it was deemed a felony under state law. United States v. Glover, 153 F.3d 749, 757 (D.C. Cir. 1998). On September 13, 1994, Congress amended federal law to provide that any state drug conviction punishable by imprisonment for more than one year would be deemed a “felony drug offense,” even if the crime was deemed a misdemeanor under state law. Id. This resulted in the “reclassification” of some prior state drug convictions as “felony drug offenses” for purposes of federal law. Id. In Glover, the defendant argued that “reclassification” of his prior crimes violated the Ex Post Facto Clause. Citing the United States Supreme Court’s decision in Gryger, the Court of Appeals for the D.C. Circuit rejected his argument. The court explained: “Despite Glover’s characterization, the 1994 ‘reclassification’ of his prior crimes did not add a new penalty for those crimes themselves. Like other repeat offender statutes, it did nothing more than prospectively define new, more drastic consequences if. Glover committed a further crime[.]” Id. at 757-78 (“[T]he circuits uniformly have rejected similar Ex Post Facto attacks on other repeat offender statutes.” . (collecting cases)). The same reasoning applies here. The “reclassification” (or “deeming”) of Miller’s prior burglary conviction is-not unconstitutional because his enhanced sentence was imposed for the commission of a new crime that he committed after the reclassification.

¶ 16. Finally, the dissent adds a nominally separate argument that sentencing Miller as a violent habitual offender amounted to a “retroactive” application of section 97-3-2. This argument fails for the same rea-: sons. As Smith held, Miller’s sentence is not “invalidly retroactive.” Smith, 465 So.2d at 1003. His “sentence as a ... habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.” Id. (emphasis added). Miller was convicted and sentenced as a violent habitual offender because he killed Green after the law was amended. He was not hauled out of prison and resen-tenced for a prior conviction. In essence, the Legislature warned Miller and others with prior residential burglary convictions: “If you commit another felony, you will he subject to a sentence of life without the possibility of parole.” See Glover, 153 F.3d at 758 (Congress’s “reclassification” of defendant’s prior convictions provided “ ‘fair warning ... that he would face, stiffen penalties as a repeat offender if he committed ..another drug-related, offense,”). Miller failed - to heed this warning. After the change in the law, he committed manslaughter. His sentence as a violent habitual offender does not result from the retroactive, application of any law.

¶ 17. Miller was properly sentenced as a violent.habitual offender based on the law in effect at the time he stabbed Green to death. As the Mississippi Supreme Court held in Smith, his sentence is a constitutionally permissible punishment for his most recent crime of manslaughter.. Accordingly, we affirm.

¶ 18. THE JUDGMENT OF THE NESHOBA COUNTY CIRCUIT COURT OF CONVICTION OF MANSLAUGHTER AND SENTENCE AS A VIOLENT HABITUAL OFFENDER OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR ANY SUSPENSION OR REDUCTION OF SENTENCE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ÁRE ASSESSED TO NESHOBA COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON AND FAIR, JJ., CONCUR.

GREENLEE, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J., ISHEE AND WESTBROOKS, JJ.

GREENLEE, J.,

DISSENTING:

¶ 19.1 respectfully dissent.

¶20. The statute as interpreted applies retroactively to change the nature of a prior conviction. Its application is ex post facto, which is prohibited by provisions of the United States and Mississippi Constitutions. Mississippi is critical of retroactive laws, as shown in Mississippi Code Annotated section 99-19-1 (Rev. 2015), the statute governing retroactivity of criminal laws affecting prosecution or punishment. Also criminal law should be interpreted in the light most critical to the State. I would reverse and remand for resentencing.

¶21. In the prior conviction at issue, Miller was found guilty of burglary of a dwelling in 1998. The Supreme Court has held that a burglary of a dwelling such as Miller’s was not per se violent. Brown v. State, 102 So.3d 1087, 1093 (¶ 28) (Miss. 2012). Brown further held that there must be proof submitted that violence actually occurred for the crime to be later treated as violent. Id. Brown’s, ruling controls Miller’s dwelling-burglary conviction. Mississippi Code Annotated section 97-3-2 (Rev. 2014), enacted in 2014, statutorily finds that burglary of a dwelling is per se violent for sentencing purposes for a later criminal act. The circuit court’s and the majority’s application of section 97-3-2 to Miller’s dwelling-burglary conviction, making it a crime of violence, overrides both the absence of proof of violence for conviction and the law at the time of conviction that such was not per' se violent.

¶ 22. Ex post facto laws are in violation of both the United States and Mississippi Constitutions. The Ex Post Facto Clause “is aimed at laws that retroactively alter the definition of crimes or increase the punishment for criminal acts.” Cal. Dep’t of Corrs. v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). The standard for determining whether a law violates the Ex Post Facto Clause encompasses those two components: (1) retro-spectivity (applying to events occurring before its enactment), and (2) disadvantaging the offender affected by it by either (a) altering the definition of criminal conduct, or (b) increasing the punishment for criminal acts. Id.; see also Lynce v. Mathis, 519 U.S. 433, 441, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997).

¶ 23. There are four generally recognized categories of ex post facto laws: (1) one that makes an act, innocent when done before the passing of the law, criminal; (2) one that aggravates a crime, or makes it greater than it was when committed; (3) one that changes the punishment, inflicting greater punishment than prescribed to the crime when committed; and (4) one that alters the legal rules of evidence, lowering the evidentiary requirements than the law required at the time of the commission of the crime in order to convict. Carmell v. Texas, 529 U.S. 513, 522, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000) (citing Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798)). The fourth category encompasses laws that lower the burden of proof. Id. at 540, 120 S.Ct. 1620.

¶ 24. Mississippi Code Annotated section 97-3-2, codified in 2014, defines burglary of a dwelling as a violent crime. Prior to that statute’s enactment, -burglary of a dwelling was not treated or considered automatically a crime of violence: The enactment of section 97-3-2 allowed that Miller be sentenced to a mandatory life sentence instead of the maximum forty years for which he otherwise qualified.

¶ 25. The majority holds that the instant crime occurred after the sentencing enhancement under section 97-3-2 became effective. Thus, it holds it does not matter that Miller’s dwelling burglary occurred approximately sixteen years prior to section 97-3-2’s becoming effective.

¶ 26. However, Miller’s dwelling burglary was not found violent when he was convicted, but when applying section 97-3-2, it is now considered violent. Applying section 97-3-2 to Miller’s dwelling burglary would make it a greater crime than when committed. It deems a finding of fact that the fact-finder did not find, violence. Thus, applying section 97-3-2 to Miller’s 1998 dwelling burglary would be an impermissible ex post fact law as applied to him. Additionally, Brown, 102 So.3d at 1093 (¶ 28), held that violence must be proven to have actually occurred for a dwelling burglary to be considered violent for sentencing purposes, as in Miller’s 1998 dwelling-burglary conviction. So at the time of its commission, violence needed to actually be proven for it to be considered a violent crime for sentencing purposes. Section 97-3-2, as applied by the circuit court and the majority, dispenses with the requirement of actually proving that violence occurred. Thus, less is now required for the finding of violence than was previously required, negating the evidentiary proof of violence and deeming violence when, sixteen years prior, violence was required to be proven. Such is an ex post facto application of the law.

¶27. The majority relies on Smith v. State, 465 So.2d 999 (Miss. 1985), which is distinguishable. Enactment of section 99-19-81 allowed for sentencing enhancements (the statute at issue in Smith). That statute did not deem any additional elements or ingredients into Smith’s prior offenses which were not previously found. Before its enactment, Smith had two nonviolent felony convictions. After its enactment, Smith had two nonviolent felony convictions. Section 99-19-81 just allowed a sentencing enhancement to a current crime on the basis of prior convictions. Here, prior to section 97-3-2, Miller was convicted of three nonviolent felony convictions. Through section 97-3-2, the circuit court and the majority find Miller still has two nonviolent felony convictions and now one violent felony conviction. That application of the statute retroactively finds a fact, an aggravating one, in Miller’s prior conviction that was not there before. That is ex post facto. The majority also references Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948), but it is distinguishable under the same reasoning.

¶ 28. The majority says that the constitutional problem posed by section 99-19-83’s construction coupled with section 97-3-2’s retroactive application could be fixed by just amending section 99-19-83 to substitute “burglary of a dwelling” for “crime of violence as defined by [sjection 97-3-2.” I agree. Doing so would not be the Legislature deeming that violence occurred, just defining another aggravating factor. It does not change the nature of a prior crime, a fact that alters the legally prescribed sentence for Miller’s instant conviction. As written the statute legislatively deems an aggravating fact into Miller’s predicate conviction of burglary of a dwelling.

¶ 29. The majority also cites to United States v. Glover, 153 F.3d 749, 757 (D.C. Cir. 1998), in support of its position. Glover’s analysis is sound, but it is also distinguishable. In Glover, Congress amended the pertinent statute to define felony drug convictions as those that are punishable by more than one year’s imprisonment. All of Glover’s prior convictions were punishable by more than one year’s imprisonment. That federal statute did not declare certain elements or ingredients to exist in Glover’s prior convictions that were not previously found to have occurred.

¶ 30. Mississippi is skeptical of retroac-tivity. Our Supreme Court has held that “[a] statute will not be construed to be retroactive unless the words admit of no other construction or meaning, and there is a plain declaration in the act that it is.” Fisher v. Drankus, 204 So.3d 1232, 1236 (¶ 13) (Miss. 2016). A statute also restricts the State from retroactively applying amendments to criminal statutes:

No statutory change of any law affecting a crime or its punishment or the collection of a penalty shall affect or defeat the prosecution of any crime committed prior to its enactment, or the collection of any penalty, whether such prosecution be instituted before or after such enactment; and all laws defining a crime or prescribing its punishment, or for the imposition of penalties, shall be continued in operation for the purpose of providing punishment for crimes committed under them, and for collection of such penalties, notwithstanding amendatory or repealing statutes, unless otherwise specially provided in such statutes.

Miss. Code Ann. § 99-19-1 (Rev. 2015). The Supreme Court has interpreted section 99-19-1 as follows:

This statute is a saving clause for every statute enacted which makes “a change of any law affecting á crime or its punishment” unless otherwise provided in the statute making the change. Under the above statute, any crime committed prior to the enactment of any law making a change is prosecuted under the.law as it stood before the change was made, and no person charged tvith a crime committed before the change was made is affected in any way. The effect of the above statute is to write into every law “affecting a crime or its punishment” a saving clause as effectually as if' the changed statute itself contained it.

Britton v. State, 101 Miss. 584, 58 So. 530, 531 (1912) (emphasis added). Section 97-3-2, at issue here, makes a change of law affecting a crime. Thus, Miller is not to be “affected in any way” by section 97-3-2 because the “crime was committed before the change was made.” Id. This Court has also held that section 97-3-2 does not apply retroactively. See Johnston v. State, 2016-CP-00282-COA, 214 So.3d 317, 318, 2017 WL 1238176, at *2 (¶ 9) (Miss. Ct. App. Apr. 4, 2017).

¶ 31. I also note that, though not raised by Miller, section 97-3-2 as applied herein appears to flirt with Sixth Amendment concerns under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (“[O]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.”), and its progeny. See also Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013); United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d,621 (2005); Blakely v. Washington, 542 U.S. 296, 303-04, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Under the application of section 97-3-2 here, the prior conviction has been deemed to include a new fact not found by the jury that increases the penalty for the crime beyond the otherwise prescribed statutory maximum.

¶ 32. For these reasons, I would reverse and remand so that Miller may be sentenced under section 99-19-81 as applied to him. I respectfully dissent.

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

      . Article I, section 9, clause 3 of the United States Constitution prohibits ex post facto laws. Article I, section 10, clause 1 of the U.S. Constitution prohibits a state from passing ex post facto laws. Article 3, section 16 of the Mississippi Constitution also prohibits ex post facto laws.


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

text:
    Charles Thomas BOSTICK and Larry S. Poe, Appellants v. DESOTO COUNTY, Mississippi, BY AND THROUGH ITS BOARD OF SUPERVISORS, Appellee
    NO. 2015-CA-01500-COA
    Court of Appeals of Mississippi.
    05/09/2017
    Rehearing Denied August 29, 2017

      ATTORNEY FOR APPELLANTS: WILLIAM P. MYERS -
    ATTORNEY FOR APPELLEE: ROBERT E. QUIMBY
   WILSON, J.,

FOR THE COURT:

¶ 1. Tom Bostick and Larry Poe own houses in a. residential subdivision in De-Soto County. Bostick and Poe began offering their houses for short-term' rent to transient guests on HomeAway.com and other websites. DeSoto County contends that such rentals are not a permitted use •under applicable DeSoto County Zoning Regulations, which permit, as relevant’ in this case, “single family dwellings.” The DeSoto County Chancery Court agreed and permanently enjoined Bostick and Poe from offering their houses as “vacation rentals” to short-term, transient renters. On appeal, Bostick and Poe argue that the chancery court misinterpreted the applicable regulations. However, we agree with the chancery court that such rentals are not a permitted use. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Bostick owns a house in Blue Lake Springs, a residential subdivision in Lake Cormorant, an unincorporated community in DeSoto County. Bostick once lived in the house, but he now resides near Auburn, Alabama. After he moved, Bostick began offering the house for rent on HomeAway.com, with a two-night minimum stay. Bostick’s online listing touts the house’s proximity to Graceland, Beale Street, Tunica, and the University of Mississippi. Online reviews for the house indicate that he has rented it for, among other purpose's, family gatherings, vacations, “guys” and “girls” weekends, a “bachelo-rette gathering,” and as a place for out-of-state wedding guests to stay.

¶ 3. Poe owns three houses in Blue Lake Springs. He has offered the houses for short-term rent on Craigslist, HomeA-way.com, and other websites. Neighbors have complained about raucous parties, loud music, and out-of-state vehicles coming and going at the houses.

¶ 4. In December 2014, the County filed an application in the DeSoto County Chancery Court for a temporary restraining order, preliminary injunction, and permanent injunction to “halt the short-term rental” of Bostick’s home. The County alleged that the property was “not [being] used as any person’s residence but [was] rather being continually rented on a 2 to 3 night basis.” The County further alleged that such use of the property violated the applicable county zoning regulations for property zoned “A-R Overlay.” The County filed a similar application to enjoin Poe from renting his houses on a short-term basis.

¶ 5. On January 30, 2015, a hearing was held in the Bostick case. Following the hearing, the chancery court entered an order preliminarily enjoining Bostick from renting the house “to transient guests for compensation.” Bostick and Poe are represented by the same counsel, and the court subsequently entered an agreed order consolidating the Bostick and Poe cases.

¶ 6. The consolidated cases proceeded to a final hearing on June 4, 2015. Benny Hopkins, the director of planning for De-Soto County, and Jeremy Sartain, a longtime resident of Blue Lake Springs, testified in the County’s case-in-chief. Shelley Johnston, a certified planner and planning consultant, testified for Bostick and Poe.

¶ 7. Sartain testified that neighbors were concerned about parties at the subject properties with “loud music” and numerous vehicles with out-of-state license plates. He testified that during a recent weekend, “15 to 20 motorcycles [were] parked in the driveway” of one of the houses and “loud music” was playing. “All weekend,” “all you heard was the motorcycles rip[-]roaring through the neighborhood.” The motorcycles all had out-of-state tags, and no one knew why they were there. Sartain and others were afraid to allow their children to ride bikes or play outside. Another weekend, Poe rented a house to University of Memphis students for a party. Poe told Sartain that he knew that the students had a “stripper” at the party—or, if not a stripper, “a female [who] was not dressed appropriately.”

¶ 8. The chancery court subsequently ruled “that a permanent injunction [was] justified,” finding as follows:

Single family dwellings permitted in the AR zone are dwellings designed or used as a residence, and they do not include a room in a hotel which is open to transient guests. It is not the intention of the DeSoto County Zoning Regulations to allow so-called vacation rentals in a residential subdivision.

Therefore, the court “permanently enjoined” Bostick and Poe “from renting their homes as so-called vacation rentals.” Bostick and Poe filed a timely motion for a new trial, which was denied, and a timely notice of appeal. On appeal, they argue that the DeSoto County Zoning Regulations do not prohibit the rental of a “single family dwelling” to “transient guests” on a “short-term basis.”

DISCUSSION

¶ 9. “The findings of a chancellor will not be disturbed on review unless the chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal standard. ... However, for questions of law, the standard of review is de novo.” McNeil v. Hester, 753 So.2d 1057, 1063 (¶ 21) (Miss. 2000). There are no significant or material facts in dispute in this case. Rather, the appeal turns on the proper interpretation of applicable zoning regulations, an issue of law. Therefore, we review the chancery court’s decision de novo.

¶ 10. “Zoning ordinances should be given a fair and reasonable construction, in the light of their terminology, the objects sought to be obtained, the natural import of the words used in common and accepted usage, the setting in which they are employed, and the general structure of the zoning ordinance as a whole.” City of Gulfport v. Daniels, 231 Miss. 599, 604-05, 97 So.2d 218, 220 (1957). “The cardinal rule in construction of zoning ordinances is to give effect to the intent of the lawmaking body.” Columbus & Greenville Ry. Co. v. Scales, 578 So.2d 275, 279 (Miss. 1991). “[The Supreme] Court has held that, construing a zoning ordinance, unless manifestly unreasonable, great weight should be given to the construction placed upon the words by the local authorities.’” Hall v. City of Ridgeland, 37 So.3d 25, 40 (¶ 50) (Miss. 2010) (quoting Scales, 578 So.2d at 279).

¶ 11. Under the DeSoto County Zoning Regulations, the houses at issue in this appeal are in a “Residential Overlay District” referred to as “A-R Overlay.” As relevant in this case, permitted uses in the A-R Overlay District are the same “[u]ses permitted in the underlying base zone district,” which is “A-R”—the “Agricultural-Residential District.” “Permitted Uses” in the A-R District include, as relevant in this appeal, “[s]ingle family dwellings.” The issue in this appeal is essentially whether a “single family dwelling” may be continually rented to a succession of transient guests on a short-term basis and yet retain its character as a single family dwelling.

¶ 12. Article II of the DeSoto County Zoning Regulations provides definitions for a number of terms that are potentially relevant to this issue:

24. DWELLING: Any building or portion thereof designed or used as the residence of one (1) or more persons, but not including a tent, cabin, travel trailer, or a room in a hotel, motel or boarding house.
25. DWELLING, SINGLE FAMILY ATTACHED: A dwelling designed for and occupied by not more than one family having a wall in common with one other dwelling unit but located on a separate lot.
26. DWELLING, SINGLE FAMILY DETACHED: A dwelling designed for and occupied by not more than one family which does not have any roof wall or floor in common with any other dwelling unit.
31. FAMILY: One or more individuals occupying a dwelling unit and living as a single household unit but not exceeding four unrelated persons.
47. HOTEL: A building in which overnight lodging is provided and offered to the public for compensation, and which is open to transient guests, in contradistinction, to a boarding house or lodging house as herein defined.
83. ROOMING HOUSE [or BOARDING HOUSE or LODGING HOUSE]: A building or place where lodging is provided (or which is equipped regularly to provide lodging by pre-arrangement for definite periods), for compensation, for five or more, but not exceeding 12 individuals, not open to transient guests, in contradistinction to hotels open to transients including group houses and halfway houses.

¶ 13. In this case, the County has focused on the general definition of “dwelling,” arguing that transient, short-term renters do not use the houses as a “residence,” as contemplated by the definition. The County also argues that the houses have been put to a “hotel-like use,” which excludes them from the definition. The County concludes that because such use of the houses is contrary to the definition of “dwelling,” it is also contrary to their permitted use as “single family dwellings.”

¶ 14. The dissent disagrees with the County’s interpretation of the definition. The dissent emphasizes that a “dwelling” is defined in part as a “building or portion thereof designed or used as the residence of one (1) or more persons” (emphasis added). The dissent reasons that a house is a dwelling if it is “designed” as a residence even if it is not “used” as such, and the houses at issue clearly were designed to be residences; therefore, they are dwellings. The dissent also rejects the County’s argument that the houses are no longer dwellings because Bostick and Poe are using them like hotels. The dissent emphasizes that only “a room in a hotel” (emphasis added) is excluded from the definition of dwelling.

¶ 15. As stated, the relevant regulations must be interpreted fairly and reasonably in a manner consistent with the purpose and structure of the DeSoto County Zoning Regulations as a whole, Daniels, 231 Miss. at 604-05, 97 So.2d at 220, and, “unless manifestly unreasonable,” we will give “great weight ... to the construction placed upon the words by the local authorities.” Hall, 37 So.3d at 40 (¶ 50) (quoting Scales, 578 So.2d at 279). In this case, we cannot say that DeSoto County’s interpretation of the definition of a dwelling is manifestly unreasonable. We accept the dissent's point that a house may be a dwelling as long as it is “designed” as a “residence,” even if it is not “used” as such. Even so, the County reasonably determined that these houses were being used as “hotels,” as that term is defined in the regulations, and that such use excludes them from the definition of a dwelling. As noted above, a “hotel” is defined to include a “building in which overnight lodging is provided and offered to the public for compensation, and which is open to transient guests.” As used by Bostick and Poe, the houses at issue meet this definition: they are offered for rent on public websites, and they are marketed and “open to transient guests.” Thus, although the houses lack some common, recognizable -features of most hotels, the County reasonably concluded that they are being used as hotels, as the term is defined in the applicable regulations. Furthermore, given that the definition of a dwelling specifically excludes “a room in a hotel,” it is not manifestly unreasonable for the County to apply the exclusion to a property being used as a hotel.

¶ 16. The foregoing is a sufficient basis to affirm the judgment and injunction entered by the chancery court. However, the DeSoto County Zoning Regulations’ more specific definition of a “single family dwelling” provides additional support for the injunction. The County has not relied on this more specific definition even though the relevant permitted use in this case is, specifically, “[sjingle family dwellings.” However, based on the longstanding rule of statutory interpretation that a specific provision controls over a more general provision, the more specific definition cannot be ignored.

¶ 17. As noted above, the zoning regulations define a' “single family dwelling”— whether “attached” or “detached”—as “[a] dwelling designed for and occupied by not more than one family .,.." (Emphasis added). Regardless of whether any particular group that rented from Bostick or Poe met the definition of a “family” (see supra n.7), the transient nature . of the rentals resulted in the houses being “occupied by ... more than one family,” a non-permitted use under the applicable zoning regulations. Bostick and Poe rented their houses for occupancies by a succession, of short-term, transient renters. We conclude that this was inconsistent with the definition of a “single family dwelling.”

¶ 18. Finally, we note that a “bed and breakfast home” is a “conditional use” in the A-R District. Unlike a “permitted use,” a “conditional use” “may be permitted” only if it is first “approved by the [DeSoto County] Board of Adjustment.” The Board must investigate and hold a public hearing on any application for a conditional use permit, and the Board will approve the application only if it finds “that the county would benefit from the proposed use and the surrounding' area would not be adversely affected.” A “bed and breakfast home” is also subject to a minimum lot size of 1.5 acres,. off-street parking requirements, and approval by the DeSoto County Health Department. Also, “[g]uest activities” at a bed and breakfast “shall be in keeping with the normal activities of an overnight visiting guest.” Thus, if Bostick or Poe wanted to , operate a “bed and breakfast” in any of the subject houses, they would have to. meet all of these conditions, and even then the Board of Adjustment would have discretion to deny approval if, after a public hearing, the Board determined that such use would negatively affect the neighborhood. We doubt that the County intended to place such significant preconditions to the operation of a “bed and breakfast” and yet, in the same zoning district, intended to allow an unlimited succession of short-term rentals to transient guests, without any preconditions, preapproval, or other requirements.

CONCLUSION

¶ 19. In summary, we agree with the chancery court that short-term rentals to transient guests are not a permitted use under the applicable DeSoto County Zoning Regulations. Therefore, we affirm the judgment and permanent injunction entered by the chancery court enjoining Bos-tick and Poe “from renting their homes as so-called vacation rentals.”

¶ 20. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

BARNES, J.,

DISSENTING:

¶ 21. I respectfully dissent. The DeSoto County zoning regulations do not prohibit the rental of properties in the A-R zone. The County’s classification of the use of Bostick’s and Poe’s properties as a “hotel” is manifestly unreasonable, and the chancery court’s injunction prohibiting “vacation rentals” is without foundation in the regulations.

¶22. The pertinent permitted use for this A-R zone is a “single family dwelling.” Neither the County nor the chancery court relies on the definition of “family” in limiting the use of the properties; the chancery court’s injunction does not allow “vacation rentals,” regardless of the relationship among the renters. The County contends it would be a violation of the regulations whether the rental was to “a family of four or eight university students.” Accordingly, we look to other definitions in the regulations to determine permitted use.

¶ 23. A “dwelling” is defined as “[ajny building or portion thereof designed or used as the residence of one (1) or more persons, but not including a tent, cabin, trailer, or a room in a hotel, motel or boarding house.” A hotel is defined as “[a] building in which overnight lodging is provided and offered to the public for compensation, and which is open to transient guests, in contradistinction, to a boarding house or lodging house as herein defined.” The term “transient” or “transient guest” is never defined.

¶ 24. Nothing in the chancery court’s injunction indicates what length of rental would be allowed under the regulations. The only length of time mentioned in the regulations is in a “definition within a definition.” The term “family” is defined as “[o]ne or more individuals occupying a dwelling unit and living as a single household unit but not exceeding four unrelated persons.” (Emphasis added). In turn, “dwelling unit” is defined as: “One room or rooms connected together, constituting a separate, independent housekeeping establishment for owner occupancy or rental or lease on a weekly, monthly, or longer basis[.]” (Emphasis added). Thus, under the zoning regulations, properties in the A-R zone can be rented on a weekly basis. Weekly rentals, then, cannot be considered “transient.”

¶ 25. The parties, however, contend that the length of tenancy is not the issue. DeSoto County maintains that the issue is the nature of the rental, arguing that “[t]he length of time one rents the subject property does not matter; the A[-]R zone does not allow for the renting of properties to transients for profit.” The. Appellants likewise assert that “the length of the stay has no bearing on the character of the use,” and “[t]here is no provision in the DeSoto County ordinance to suggest otherwise.” Neither party seems to realize the term “transient” is directly related to a duration or period of time. Nor do they rely on the periods of time specified in the definition of “dwelling unit.” Both appear to want an “all or nothing” ruling. Do the regulations prohibit this type of rental or do they not? I conclude that they do- not.

¶ 26. While our courts have not previously addressed this precise issue, there' is authority from other jurisdictions that the “mere temporary or short-term use of a residence does not preclude that use from being ‘residential.’” Houston v. Wilson Mesa Ranch Homeowners Ass’n Inc., 360 P.3d 255, 259 (¶ 19) (Colo. App. 2015). The Utah Court of Appeals has held:

[W]e must construe existing zoning ordinances strictly against the city ... [and] conclude that short-term leases of residential properties are not prohibited by the zoning ordinance... Although we recognize that short-term leases may disrupt the residential environment of a neighborhood in some instances, by failing to prohibit short-term leases, Sandy City has implicitly determined that such practices are conducive to a residential environment. In other words, “we will not find a violation of law simply because [the permitted use may appear] inconsistent with the general intent statement ... when the use is in compliance with the substantive provisions of the ordinance.”

Brown v. Sandy City Bd. of Adjustment, 957 P.2d 207, 212 (Utah Ct. App. 1998) (internal citations omitted); see also Heef Realty & Investments LLP v. City of Cedarburg Bd. of Appeals, 361 Wis.2d 185, 861 N.W.2d 797, 801 (Wis. Ct. App. 2015) (“[T]ime/occupaney restrictions or requirements that are not in the zoning scheme” cannot be imposed.)

¶ 27. In a recent case, Shvekh v. Zoning Hearing Board of Stroud Township, 154 A.3d 408 (Pa. Commw. Ct. 2017), the Commonwealth Court of Pennsylvania considered a factually analogous-situation. Irina Shvekh owned a three-acre, single-family home that she advertised on various vacation-rental websites for “events, birthdays, weddings.” Id. at 410. • The local zoning board determined that Shvekh’s rental of her home violated the zoning ordinance because it constituted an expressly prohibited use as a “tourist home,”, and determined that the “short-term transient rentals [were] more typical of a hotel or tourist home, where vacationers or travelers would not be considered to be maintaining a residence in the ordinary meaning of the phrase.” Id. at 411. The appellate court, however, held that while deference should be given to a “[a] zoning board’s interpretation of its own zoning ordinance^] ... a municipality cannot advance a new and strained interpretation of its zoning ordinance in order to effect what it would like the ordinance to say without an amendment.” Id. at 414 (citations omitted).

¶28. The zoning ordinance in Shvekh defined a “dwelling” as “[a]ny building or portion thereof, designed or used exclusively as the residence for one or more persons.” Id. at 412. The appellate court found there was “no question that the [property [was] ‘designed for’ one family,” commenting on the fact that the definition has “two alternatives” for meeting the definition of a “single family dwelling.” Id. at 414. It concluded:

[Vacation-rental sites have] expanded the possible uses of a single-family dwelling, and the Township can address these new uses in the Zoning Ordinance. However, amendments cannot be effected by shoe-horning a use that "involves renting an entire single-family home to vacationers into the definition of “tourist home.” The Property meets the definition of single-family residence because it has been “designed for or occupied exclusively for one family;” Zoning Ordinance, Article II, § 2.266(a) (emphasis added); R.R. 224a. The vacation rental of the entire home bears no relation to the bedroom-by-bedroom rental that is the hallmark of a tourist home[.]

Id. at 415.

¶ 29. The DeSoto' County’s zoning regulations similarly defíne a “dwelling” as “[a]ny building or portion thereof designed or used as the residence of one (1) or more persons, but not including a tent, cabin, travel trailer, or a room in a hotel, motel or boarding house.”' (Emphasis added). The use of the disjunctive in the definition indicates that the dwelling may either be designed as a residence or used as a residence; it does not have to be both. There is no question that the Appellants’ properties were designed as residences.

¶ 30. Moreover, the definition of a “dwelling” in the DeSoto County zoning regulations merely excludes using the property as “a room in a hotel, motel or boarding house.” The Appellants are renting the entire premises; they are not renting the property room, by room. As the rental of the entire.house bore “no relation to the bedroom-by-bedroom rental that is the hallmark of a tourist home” .in Shvekh, the rental of the entire house in the instant case bears no relation to the room-by-room rental that is the hallmark of a hotel. As the majority observes, the, properties “lack some common, recognizable features of most hotels.” There is nothing to suggest the Appellants’ homes were open to the public at large' (e.g., no “vacancy” sign); the renters have to make advance reservations. See Fruchter v. Zoning Bd. of Appeals of Town of Hurley, 133 A.D.3d 1174, 1176 (N.Y. App. Div. 2015) (concluding the petitionér’s-rental of property did not fall under the definition of a hotel or bed-and-breakfast, noting the rental of entire property and lack of any “common exterior entrance”); Atkinson v. Wilt, 94 A.D.3d 1218 1220, 941 N.Y.S.2d 798 (N.Y. App. Div. 2012). (holding the homeowner’s advertising of his property on a vacation-rental website did not “transform[] the premises from,, a-single-family residence into a tourist accommodation”). As the Appellants observe:

The properties owned by Bostick and Poe are unmistakable as single family-residences. They are not' hotels and were never constructed to be hotels. ... [Tjhe property is still a house, no matter whether the tenant stays for a weekend or longer. There is no provision in the DeSoto County ordinance to suggest otherwise.

¶31. The majority finds that DeSoto County’s application of the exclusion to the property from being used as a hotel was not “manifestly unreasonable.” I disagree. Although deference must be afforded to DeSoto County’s construction of its zoning regulations, as in Shvekh, I find that DeSo-to County is advancing a “new and strained interpretation” of its zoning regulations to restrict the Appellants’ use of their respective properties. A “[l]iberal construction does not mean strained construction, and a court cannot distort the plain meaning of a zoning ordinance in order more fully to effectuate its purpose.” See 8 Eugene McQuillan, Municipal Corporations § 25.73 at 232 (3d ed. 2000). Vacation rentals are not prohibited by the zoning regulations.

¶32. I would reverse and render the judgment, set aside the chancery court’s permanent injunction, and remand for further proceedings regarding Bostick’s claim for damages and the Appellants’ claim for attorney’s fees.

LEE, C.J., JOINS THIS OPINION.

      . The County originally named Stanley Roje-ski as the defendant, Rojeski admitted that he was the record owner of the property but argued that he was not a proper defendant because he had sold the property to Bostick pursuant to an owner-financed purchase .agreement. However, Rojeski’s obligation to convey title was conditioned on Bostick making full payment under the agreement, which was not scheduled to occur until October 2025. While this case, was pending in the chancery court, Rojeski executed a warranty deed in favor of Bostick, and the parties agreed that Rojeski should be dismissed and Bostick substituted as the defendant.

      . Hopkins’s and Johnston’s testimony largely consisted of advocacy and defense of the parties’ respective interpretations of the zoning regulations.

      . In their reply brief, Bostick and Poe argue that the zoning regulations are unconstitutionally vague if interpreted to prohibit short-term rentals to transient guests. The issue was not raised in the trial court or in Bos-tick's/Poe's principal brief on appeal. Accordingly, the issue is waived. See, e.g., Paw Paw Island Land Co. v. Issaquena & Warren Ctys. Land Co., 51 So.3d 916, 928 (¶ 49) (Miss. 2010) ("As it is improper to raise new arguments in a reply brief, the Court is under no obligation or duty to consider such argument.”); City of Hattiesburg v. Precision Constr. LLC, 192 So.3d 1089, 1093 (¶ 18) (Miss. Ct. App. 2016) ("[A] question not raised in the trial court will not be considered on appeal. Moreover, it is not sufficient to simply mention or ‘discuss’ an issue at a hearing. ... [A] trial judge cannot be put in error on a matter which was never presented to him for decision.” (citation, quotation marks omitted)).

      . Other permitted uses include certain agricultural activities, churches, country clubs, public schools, and certain other listed uses. According to the regulation’s statement of purpose, "[t]he ‘A-R’ District is intended to encourage very low-density residential uses in an agricultural setting in the outlying parts of the County’s zoning jurisdiction.”

      . "Boarding house” and “lodging house" are defined: "Same as [r]ooming house,”

      . See Black’s Law Dictionary 1637 (Bryan A, Garner ed., 9th ed. 2009) (“Transient": adj,: “Temporary; impermanent; passing away after a short time.” n.: “A person or thing whose presence is temporary or fleeting.”); American Heritage Dictionary of the English Language 1901 (3d ed. 1992) (“Transient”: adj,; "Remaining in a place only a brief time: transient laborers" n,: “One that is transient, especially a hotel guest .or boarder who stays for only a brief time.”).

      . The definition of "single family dwelling” was addressed briefly in testimony in the chancery court/ although it was not the basis of the County’s argument in that court either. The County has indicated that it is not seeking an injunction based on the definition of a “family.” The County’s position is that short-term rentals to transient guests are not a permitted use, regardless of whether the renters are a nuclear family, a group of college students, or any other group. The discussion in the text is not based on the definition of "family” and applies equally to all short-term rentals to transient guests.

      . See, e.g., Yarbrough v. Camphor, 645 So.2d 867, 872 (Miss. 1994); Lincoln Cty. v. Entrican, 230 So.2d 801, 804 (Miss. 1970); McCaffrey's Food Mkt. Inc. v. Miss. Milk Comm’n, 227 So.2d 459, 463 (Miss. 1969).

      . Cf. Garrett Enters. Consol., Inc. v. Allen Utils. LLC, 176 So.3d 800, 803 (¶ 8) (Miss. Ct. App, 2015) (holding that the Court was bound to consider a contract provision that was "plainly relevant to the central issue of contract interpretation raised [on] appeal” despite the parties' failure to cite or discuss the provision).