author: WESTBROOKS, J.,

text:
    Dwight NELSON a/k/a Peter, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-00818-COA
    Court of Appeals of Mississippi.
    04/04/2017
    Rehearing Denied July 25, 2017

      SIMPSON COUNTY CIRCUIT COURT, EDDIE H. BOWEN, J.
    ATTORNEY FOR APPELLANT: WARREN LOUIS MARTIN JR.
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH, JASON L. DAVIS
    BEFORE LEE, C.J., GREENLEE AND WESTBROOKS, JJ.
   WESTBROOKS, J.,

FOR THE COURT:

¶ 1. Dwight Nelson was convicted in the Circuit Court of Simpson County of sexual battery and touching a child for lustful purposes. Nelson was sentenced to serve life in prison for sexual battery and ten years for gratification of lust. His sentences were ordered to run consecutively. After the denial of his post-trial motion, Nelson timely filed his notice of appeal. On appeal, he raises several issues. Finding no error, we affirm the circuit court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 7, 2014, J.S. informed her mother, Courtney Sumrell, that she had been raped by her “Uncle Peter.” At the time, J.S. was ten years old. Nelson is sometimes called “Peter” by his family. Nelson is SumreH’s uncle, who had been staying with Sumrell’s aunt, Hazel Nelson, during the time of the abuse. J.S. and Sumrell lived with Teresa Arrington, Sum-rell’s mother. Arrington lived next door during the time of the abuse. Sumrell took J.S. to the police station the same night J.S. reported the abuse. The police informed Sumrell to take her daughter to Simpson General Hospital for further examination. No scars, tearing, or torn hymen was found during J.S.’s examination. Upon further investigation, Nelson was arrested and charged with sexual battery and touching a child for lustful purposes.

¶ 3. At trial, J.S. testified Nelson started sexually abusing her when she was six or seven years old, until she was ten years old. During her forensic interview, J.S. described the sexual acts performed on her by Nelson. She described how his affection turned from tickling to something more. J.S. gave details about Nelson rubbing his “private” on her “private.” J.S. stated Nelson would put “grease” on his penis before penetrating her. J.S. stated the last time the sexual abuse occurred was a little before Thanksgiving break, in 2013, although the record shows the abuse could have also occurred between the Thanksgiving and Christmas breaks in 2013 at her grandmother’s house. During their last encounter, J.S. said Nelson put a piece of wood behind his door so that no one could enter his room. She stated Nelson pulled her pants down and lay on top of her. She said it hurt her stomach, because he put his weight on her. J.S. stated Nelson’s “private” went inside her “private,” and something “wet and' clear-white” came out of Nelson’s “private.” Additionally, she stated when he finished, Nelson took a rag and wiped himself.

¶ 4. Following trial, Nelson was convicted in the Circuit Court of Simpson County of sexual battery and touching a child for lustful purposes. Nelson was sentenced to serve life in prison for sexual battery and ten years for gratification of lust, with the sentences to run consecutively and without eligibility for parole, probation, or early release. After the denial of his post-trial motions, Nelson timely filed his notice of appeal.

DISCUSSION

I. Ineffective Assistance of Counsel

¶ 5. “To prove ineffective assistance of counsel, [one] must show that: (1) his counsel’s performance was deficient, and (2) this deficiency .prejudiced his defense.” Jackson v. State, 73 So.3d 1176, 1181 (¶ 19) (Miss. Ct. App. 2011) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “We only consider an ineffective-assistance-of-counsel claim on direct appeal when: ‘(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.’ ” Webb v. State, 113 So.3d 592, 602 (¶ 41) (Miss. Ct. App. 2012) (citation omitted). However, “[i]f this Court does not reverse on other grounds and is unable to conclude that the defendant received ineffective assistance of counsel, it should affirm without prejudice to the defendant’s right to raise the ineffective assistance of counsel issue via appropriate post-conviction proceedings.” Collins v. State, 70 So.3d 1144, 1148 (¶ 17) (Miss. Ct. App. 2011) (citation and quotation marks omitted). “Review on direct appeal of an inef-feetive-assistance-of-counsel claim is confined strictly to the record.” Id.

¶ 6. In Webb, this court did not address the merits of Webb’s claims—particularly Webb’s claim that “his counsel did not adequately object to the hearsay witnesses.” Webb, 113 So.3d at 602 (¶ 41). While Webb stipulated the record was adequate, the State did not. Id. “With no stipulation by both parties and no apparent ‘ineffectiveness of constitutional dimensions’ in the trial record,” the court did “not address the merits of Webb’s claims.” Id.

¶ 7. In this case, with no stipulation by the parties, we address the adequacy of the record. Nelson contends his trial counsel was ineffective, because counsel did not make any contemporaneous objections at trial. However, Nelson’s counsel presented four witnesses and provided the jury with a possible defense. Also, Nelson contends that his trial counsel failed to conduct a proper investigation into his case. Nelson’s counsel did not present any testimony from a treating physician to aid in Nelson’s assertion that he was incapacitated due to back surgery. Counsel did not submit medical records. And counsel mentioned Nelson was a truck driver, but did not submit any date to provide Nelson with a possible alibi during the time J.S. said the abuse occurred. “Counsel’s choice[s] of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy” and will not stand as support for an ineffective-assistance-of-counsel claim. Hancock v. State, 964 So.2d 1167, 1175 (¶ 18) (Miss. Ct. App. 2007) (citation omitted).

¶ 8. Despite Nelson’s arguments, we find nothing in the record to affirmatively show Nelson received ineffective assistance of counsel. See Webb, 113 So.3d at 602 (¶ 41). Accordingly, the issue of ineffective assistance of counsel would be more appropriate via postconviction proceedings.

II. Motion for New Trial

¶ 9. “As distinguished from a JNOV [motion], a motion for a new trial asks to vacate the judgment on grounds related to the weight, not sufficiency, of the evidence.” Singleton v. State, 948 So.2d 465, 473 (¶ 20) (Miss. Ct. App. 2007) (citation omitted). The appropriate standard of review for a denial of a new trial requires the appellate court to “accept as true the evidence which supports the verdict and [to] reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Id. “A new trial will not be ordered unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an ‘unconscionable injustice.’ ” Id.

¶ 10. At Nelson’s trial, the State presented testimony from J.S, her mother, a nurse practitioner, and a forensic interviewer. The testimony from these witnesses supported J.S.’s assertion that she had been sexually abused by Nelson. Nelson had the opportunity to cross-examine each witness. To aid in his defense, Nelson submitted testimony from his two sisters, his brother, and his mother. Those witnesses testified they did not see any signs of inappropriate behavior and could not believe Nelson was capable of such inappropriate behavior. After a careful review of the evidence and record, we find the trial court did not err in denying Nelson’s motion for a new trial. The verdict is not so contrary to the overwhelming weight of the evidence that allowing the verdict to stand would sanction an unconscionable injustice.

III. Sufficiency of Indictment

¶ 11. Uniform Circuit and County Court Rule 7.06 requires that an indictment “fully notify the defendant of the nature and cause of the accusation.” This rule also requires that an indictment include, among other things, “[t]he date, and if applicable, the time at which the offense was alleged to have been committed. Failure to state the correct date shall not render the indictment insufficient ....” URCCC 7.06(5). Brown v. State, 983 So.2d 1059, 1062 (¶ 10) (Miss. Ct. App. 2008) (citation omitted). Moreover, “the [Mississippi] Supreme Court has held, ‘a specific date in a child sexual abuse case is not required so long as the defendant is fully and fairly advised of the charge against him.’ ” Brown, 983 So.2d at 1063 (¶ 14) (quoting Eakes v. State, 665 So.2d 852, 860 (Miss. 1995)).

¶ 12. Nélson contends his indictment was defective, because it did not set forth specific dates of the alleged incidents as required by law. We disagree. Nelson offered testimony in direct contradiction to the victim’s assertion that Nelson was able to commit sexual battery during that time. Witnesses testified Nelson was incapacitated during the time of the abuse because of his back surgery.

¶ 13. We find the indictment’s lack of specificity did not prejudice Nelson’s ability to establish his defense.

IV. Testimony Under Tender-Years Exception

¶ 14. “We review for abuse of discretion a party’s claim that the circuit court erred by admitting hearsay.” Mason v. State, 203 So.3d 732, 738 (¶ 26) (Miss. Ct. App. 2016) (citation omitted).

¶ 15, Under Mississippi Rule of Evidence 803(25), the “tender-years exception” to the hearsay rule, a witness may testify about statements made “by a child of tender years describing any act of sexual contact with or by another.” “Before admitting this testimony, the trial judge must conduct a hearing outside the jury’s presence and make two findings—(1) the child was of tender years when she made the statement, and (2) the statement has substantial indicia of reliability.” Webb, 113 So.3d at 595 (¶ 1).

¶ 16. There are twelve factors the trial court should consider on the record when determining whether substantial indicia of reliability exist. These factors are as follows:

(1) whether there is an apparent motive on declarant’s part to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; (5) the timing, of the declarations; (6) the relationship between the declarant and the witness; (7) the possibility of the declar-ant’s faulty recollection is remote; (8) certainty that the statements were made; (9) the .credibility of the person testifying about the statements; (10) the age or maturity of the declarant; (11) whether suggestive techniques were used in eliciting the statement; and (12) whether the declarant’s age, knowledge, and experience make it unlikely that the declarant fabricated.

M.R.E. 803(25) advisory committee’s note. The trial court conducted a brief analysis of J.S.’s testimony using each factor during the tender-years hearing. The trial court determined that J.S. was a child of tender years, and that her statements to the nurse practitioner and forensic inters viewer had substantial indicia of reliability.

¶ 17. Nelson claims that J.S.’s testimony is unreliable, because of the inconsistencies regarding the time of the sexual abuse. We disagree. J.S. stated the 'last sexual encounter occurred either before Thanksgiving break 2013 or between the Thanksgiving and Christmas breaks ’ in 2013. However, her story of the abusé did not change. J.S. described, in detail, their sexual contact. We find her testimony and statements made to the nurse practitioner and forensic interviewer both credible and reliable.

¶ 18. Accordingly, we find the trial court did not abuse its discretion by allowing the testimony of the nurse practitioner, forensic interviewer, or J.S.

Y. Expert Witnesses and Daubert Challenge

¶ 19. “The [United States Supreme] Court in Daubert adopted á non-exhaustive, illustrative list of reliability factors for determining the admissibility of expert witness testimony.” Carter v. State, 996 So.2d 112, 116 (¶ 14) (Miss. Ct. App. 2008) (quoting Miss. Trans. Comm’n v. McLemore, 863 So.2d 81, 36-37 (¶ 13) (Misg. 2003) (citing Daubert v. Merrell Dow Pharm. Inc., 509 U.S. at 579, 592-94, 113 S.Ct. 2786 (1993))). “The focus of this analysis must be solely on principles and methodology, not on the conclusions they generate.” Id. (quotation marks omitted).

These factors include whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication;, whether, in respect to a particular technique, there is a high known or potential rate of error; whether there are standards controlling the technique’s operation; and whether the theory or technique enjoys general acceptance within a relevant scientific community.

Id. “The applicability of these-factors depends on the nature of the issue, the expert’s particular expertise, and the subject of the testimony.” Id. “Before a qualified expert’s opinion may be received, it must rise above mere speculation.” Williams v. State, 35 So.3d 480, 486 (¶ 19) (Miss. 2010) (citation omitted).

¶ 20. Nelson contends. the trial court erred in allowing the testimony of the State’s expert witnesses, because neither of them met the qualifications outlined in Daubert. Notwithstanding the procedural bar, we find no error in the trial court admitting expert testimony provided by the nurse practitioner and the forensic interviewer. Moreover, Nelson did not offer a single objection to the trial court when both the nurse, practitioner and the forensic interviewer were proffered as expert witnesses.

¶ 21. “Where a party fails to object to the admission of expert testimony during trial, the appellate court reviews the decision to admit that evidence for plain error.” Univ. of Miss. Med. Ctr. v. Peacock, 972 So.2d 619, 626 (¶ 14) (Miss. Ct. App. 2006) (citing United States v. Mornan, 413 F.3d 372, 379 (3rd Cir. 2005); Rushing v. Kansas City S. Ry., 186 F.3d 496, 506 (5th Cir. 1999) (superseded on other grounds) (“failure to object to expert testimony forfeits the objection, precluding full review on appeal”)). “Deference to the trial judge’s determination of the reliability of expert testimony is particularly warranted where the defendant does not object to the admissibility of the expert’s testimony.” Id.

¶ 22. Regan Doleac is a certified pediatric sexual assault nurse examiner. She has performed a little over one thousand examinations on children. She also has the background and education to be qualified as an expert in her field. Nelson had no objection to Doleac being qualified as an expert. Doleac explained physical exams do not always elicit evidence, and absence of a torn hymen does not negate the fact that sexual abuse or intercourse has occurred.

¶ 23. Rachel Daniels, the forensic interviewer and social worker, is trained to interview children to learn how they communicate. During the interview she conducted with J.S., Daniels stated J.S. indicated there were several instances of sexual contact between her and Nelson. Daniels stated J.S. had trouble remembering dates of the incidents, but that was common for a child of J.S.’s age.

¶24. Accordingly, we find no error in trial court’s decision to admit the testimony of the forensic interviewer.

YI. Jury Instruction S-5

¶ 25. “It is well settled that jury instructions generally are within the discretion of the trial court, so the standard of review for the denial of jury instructions is abuse of discretion.” Sanders v. State, 77 So.3d 497, 502 (¶ 19) (Miss. Ct. App. 2011), aff'd but criticized on other grounds, 77 So.3d 484 (Miss. 2012) (citation omitted). “Furthermore, the instructions' actually given must be read as a whole.” Id. (quotation marks omitted). “When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Id.

¶ 26. Nelson asserts the trial court erred in granting an instruction given by the State, because the instruction contained a dictionary definition of the term “licentious.” We find this assignment of error is without merit. The trial court properly granted the instruction to give a clear definition of the word “licentious,” to be read in conjunction with the jury instruction regarding “touching of a child for lustful purposes.”

VII. Motion for Directed Verdict or JNOV

¶ 27. The standards of review for denials of motions for judgments notwithstanding the verdict and directed verdicts are the same. Singleton, 948 So.2d at 472 (¶ 16) (citation omitted). Both motions “challenge the legal sufficiency of the evidence presented at trial.” Id. On review, this Court “accept[s] as true all the evidence favorable to the [S]tate, together with reasonable .inferences arising therefrom, [and] disregard^] the evidence favorable to the defendant, and if such evidence would support a. verdict of guilty beyond a; reasonable doubt, the trial court’s denial of the motion must be affirmed.” Id. “This Court may only discharge the defendant when we conclude, based on the evidence viewed in [the] light most favorable to the [State], that no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty,” Id. (quotation marks omitted). “However, this Court is not required to inquire whether it is satisfied that the evidence presented at trial established that the defendant was guilty beyond a reasonable doubt.” Id.

¶28. This Court finds the evidence presented legally sufficient to obtain a guilty verdict against Nelson. The testimony of J.S., her mother, and two experts was such that a reasonable, hypothetical juror could find beyond a reasonable doubt that Nelson was guilty. Therefore, we find no error in the trial court’s denial of the Nelson’s motions for a directed verdict and aJNOV.

VIII. Excessive Sentence

¶ 29. “In order for an error related to improper sentencing to be preserved for appeal, there must be an objection made at trial.” Hobgood v. State, 926 So.2d 847, 857 (¶ 34) (Miss. 2006) (citations omitted). In Hobgood, the appellant was procedurally barred from raising the issue of improper sentencing on appeal. Id.

¶ 30. Nelson asserts the sentence imposed upon him is excessive and violates his rights. We disagree. Also, no objection regarding an improper sentence was made at his sentencing hearing. Therefore, this Court finds Nelson is procedurally barred from raising this issue on appeal for the first time. Accordingly, we find no error with the judgment of the trial court and affirm.

¶ 31. THE JUDGMENT OF THE SIMPSON COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, SEXUAL BATTERY, AND SENTENCE OF LIFE; AND COUNT II, TOUCHING A CHILD FOR LUSTFUL PURPOSES, AND SENTENCE OF TEN YEARS, WITH THE SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE, PROBATION, OR EARLY RELEASE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . To protect the child’s identity, we have used her initials in place of her name.

      . After his trial, Nelson filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. Though the record does not reflect a ruling on this motion, both parties concede Nelson's motion was denied verbally, This appeal followed.


source: Caselaw Access Project

author: WILSON, J.,

license: Public Domain

text:
    Jody Slade BUSH a/k/a Jody Bush, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00648-COA
    Court of Appeals of Mississippi.
    06/06/2017

      SCOTT COUNTY CIRCUIT COURT, MARCUS D. GORDON, J.

      ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: W. DANIEL HINCHCLIFF
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER
    , BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   WILSON, J.,

FOR THE COURT:

¶ 1, Jody Slade Bush was convicted of felony leaving the scene of an accident. The accident occurred when the truck Bush was driving left the road and flipped late at night in Scott County. Bush’s roommate, Matthew Smith, was ejected from the truck and suffered serious traumatic brain injuries. Following a jury trial and guilty verdict, the circuit court sentenced Bush to twelve years in the custody of the Mississippi Department of Corrections (MDOC), with two years suspended and two years of post-release supervision.

-¶2. On appeal, Bush claims that he was deprived of a fair trial because of two comments by the trial judge and inadequate jury instructions. He also argues that he is entitled to a new trial because one juror was asleep at one point in the trial. Bush failed to raise these issues in the trial court, and his arguments are without merit. Therefore, we affirm his conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 3. On Saturday, August 2, 2014, Bush and Smith went to Thomas Heard’s house for a cookout. Heard lived in a trailer on Old Highway 80 in Lake, Mississippi, with his sister, Alicia Parker. Heard and Bush were “best friends.”

¶4. Bush drove to the cookout in his blue Ford F-150. On their way to the cookout, Bush and. Smith stopped at a liquor store and bought some rum. There was some conflict in the testimony as to when Bush and Smith arrived .at the cookout. Bush, Parker, and Jana Parks all testified that they arrived sometime between 8 and 9 p.m., whereas Ashley Manis testified that they arrived later.

¶ 5. Bush testified that he drank two cans of Keystone Light, a “mixed drink,” and a shot of rum from the bottle while at the cookout. Bush testified that he also ate a steak, potatoes, and other food at the cookout, 'and he claimed that he was not intoxicated when he left the cookout. However, on cross-examination, Bush testified that he “didn’t keep up with how much [he] was drinking” at the cookout. Heard testified - that he did not pay attention to how much alcohol Bush drank; however, he did not believe that Bush was intoxicated, and he. had no hesitation about Bush driving. Parker similarly testified that she “didn’t see [Bush] drink” and was not concerned about his ability to drive when he left.

¶6. Manis and Parks both recalled that Bush drank a “medium to heavy” amount of alcohol at the cookout. Manis testified that Bush drank tequila and took “several” drinks from a bottle of liquor. Parks also testified that Bush drank tequila straight from a bottle. Manis testified that she was “nervous” about Bush driving, especially when she saw ,him drive away from Heard’s house “extremely fast” with his “tires spinning.” Parks similarly testified that she did not think that Bush should have been driving that night and that she and “several” others urged him not to drive. Parks also testified that Bush “spun out of the driveway ... driving fast.”

. ¶ 7. Bush and Smith left the cookout around 11:30 p.m. to drive to Bush’s parents’ house. Bush was driving his truck. Bush testified that shortly after they left Heard’s house, while driving on Old Highway 80, a tire on his truck blew out and he lost control of the vehicle. According to Bush, Smith grabbed for the steering wheel to try to control the truck, but the truck left the road, flipped, and came to rest on its side. Smith was ejected from the. cab during the wreck. Bush remembered Smith being ejected through the back window of the cab, but the back window was still intact after the wreck. At trial, Bush claimed that he was driving 55 to 60 miles per hour when his tire blew out. The wreck occurred less than a mile from Heard’s house.

¶ 8. Bush testified that he “remember[ed] coming to” in the dark outside the truck, but he did not remember how he got out of the truck. Bush claimed that he yelled for Smith but could not find him. According to Bush, he also could not find his cell phone and did not know when another car might come down the road. Bush testified that he left the scene and walked back to Heard’s house to get help.

¶ 9. Soon after the wreck occurred, Taylor Goodwin and her boyfriend, Caleb Shearer, came upon the scene while driving south on Old Highway 80. Goodwin noticed the truck’s lights and then saw the truck in the ditch. Shearer testified that he saw a man climbing out of the truck as he and Goodwin passed by. When Goodwin and Shearer realized that the truck had wrecked, they stopped and turned around to go back and help. By the time they arrived back at the scene less than a minute later, the man that Shearer had seen climbing out of the truck was gone. However, they immediately saw Smith lying on the ground about thirty feet behind the truck. Goodwin testified that there was sufficient light from the wrecked truck for them to see Smith. When they found him, Smith was still alive, gasping for breath and choking on blood. Goodwin called 911.

¶ 10. About twenty or thirty minutes after Bush and Smith left, the group at Heard’s house saw the lights and heard the sirens of emergency responders driving past on Old Highway 80. Parks and Parker left the house' in a car to see what had occurred. Ten or twenty minutes later, Heard and Manis found Bush walking back up the driveway toward Heard’s house, Bush was “bleeding really bad” from a “big laceration” on his forehead. Heard testified that Bush’s collarbone was swollen. Bush repeatedly stated, “Somebody please go find Matt. I’m sorry. I think Matt’s dead.” Manis helped take Bush'inside the house and tried to wash off the blood and stop the bleeding, Manis testified that Bush told her that he had been driving 80 to 85 miles per hour when he lost control of the truck, although Bush denied this and claimed that Manis misunderstood him.

¶ 11. Someone at the house called Parks and told her that Bush had returned. Parker and Parks then drove back to the house, and Parks, who is a nurse, cleaned Bush’s laceration and bandaged it with Steri-strips and gauze. Parks encouraged Bush to go to the hospital, but he declined. Bush’s parents came to check oh him, but they later returned home, and Bush spent the night at Heard’s house. Parks told others at the house to keep Bush awake because he could have suffered a concussion; however, Parks testified that this was only a precaution, and she did not believe that Bush was actually concussed. At trial, Dr. Steven Hayne testified for the defense that, based on his review of medical records, he believed that Bush suffered a concussion and a cracked vertebra.

¶ 12. Parker testified that Bush seemed to be “in shock” after he returned to Heard’s house, and Heard testified that Bush seemed “shocked” and said things that did not make sense. However, Parks and Manis both testified that Bush was alert and aware of where he was and what had occurred. Bush began smoking cigarettes soon after he returned to the house. Bush testified that he “just wanted to go smoke a cigarette to calm [his] nerves.” Parks testified that she eventually asked Bush, “What the heck were you thinking? Why did you leave [Smith] there?” According to Parks, Bush answered, “I’ve been drinking. I’m not getting a DUI. I’m not going back to jail.”

¶ 13. Scott County Deputy Sheriff Coty May responded to the scene of the wreck. By the time May arrived, emergency medical personnel were already attending to Smith. May noticed that there was blood smeared on the inside of the truck’s windshield and hand prints on the driver’s side door, which led him to believe that a second person had been in the truck when it crashed. May testified that he heard one of two women near the road yell out that there had been a second person in the vehicle, that she was on the phone with him, and that he was “okay.” May testified that at the time he was still assisting medical personnel with Smith, so he was unable to stop and question the women. By the time the ambulance left with Smith, the two women were gone, and May was unable to learn anything else about the truck’s second occupant that night. Parks corroborated May’s testimony. She testified that she “yelled ... across the pasture” that “the driver [was] safe” but never talked to May or gave anyone the driver’s name. Parker testified that she thought that she told May that Bush was the driver and that he was at Heard’s house. However, May denied that Parker spoke to him, and there was nothing else to corroborate Parker’s claim.

¶ 14. The next day—Sunday, August 3, 2014—May notified Smith’s stepfather, Garry Wilson, that Smith had been in a wreck and was in critical condition at the University of Mississippi Medical Center (UMMC) in Jackson. Wilson testified that the doctors treating Smith initially did not expect him to survive. May met Wilson and gave him a cell phone that was found at the scene. Wilson did not believe that the phone looked like Smith’s phone, and he also informed May that the wrecked truck did not belong to Smith. Wilson later looked through the contacts in the phone, and called “Dad,” which turned out to be Bush’s father, Lewis Bush (Lewis).

¶ 15. On Tuesday, August 5, 2014, Bush and Lewis met Wilson at the trailer in Pearl where Bush and Smith had been living. Wilson testified that Bush first lied and claimed that Smith had borrowed his truck and that he (Bush) had not been in the truck when it wrecked. Wilson further testified that Bush then changed his story and admitted that he was in the truck but lied again and denied that he was driving at the time of the wreck. According to Wilson, Bush claimed that Smith had driven because he (Bush) had a suspended license from a prior DUI. Wilson testified that Bush finally admitted that he had been driving the truck at the time of the wreck.

¶16. Wilson called May that evening and told him about his conversation with Bush. May did not know that Bush had been in the truck or driving before Wilson told him. A few days later, May went to Heard’s house, where Bush was still staying. Bush went to the sheriffs department with May and gave a statement. A Scott County grand jury indicted Bush for felony leaving the scene of an accident. See Miss. Code Ann. §§ 63-3-401 & -405 (Rev. 2013). The case proceeded to trial on October 5-7, 2015.

¶17. Testifying in his own defense, Bush stated that after the wreck, he was unable to find Smith or a cell phone. He claimed that he was in great pain and “was seeing lights and rainbows.” He claimed that he left the scene because he did not know if any other cars would drive past, and Heard’s house was “the only place [he] knew” to go. He testified that he returned to Heard’s house to find help for Smith. Bush denied that he was intoxicated; as noted above, he testified that he only had two beers, a mixed drink, and a shot of rum, although he also testified that he “didn’t keep up with how much [he] was drinking.” Bush testified that he went to the emergency room on Monday, August 4, 2014, because the pain in his shoulder worsened. He then returned to Heard’s house for a few more days until sheriffs deputies came to talk to him. Bush claimed that he did not contact law enforcement because he assumed that they knew that he was the driver and would seek him out.

¶ 18. May testified at trial that there was an inhabited residence near the wreck that Bush would have passed by directly on his way back to Heard’s house. May also testified that there were five other inhabited residences on the opposite side of the road between the scene of the wreck and Heard’s house. All of these homes were closer to the scene than Heard’s house.

¶ 19. At the close of the evidence, the jury found Bush guilty of felony leaving the scene of an accident. The circuit court sentenced Bush to twelve years in MDOC custody, with two years suspended and two years of post-release supervision.

¶ 20. Bush’s trial counsel failed to file any post-trial motions and failed to file a notice of appeal. Trial counsel filed a “Petition for Appeal In Forma Pauperis,” but even that pleading, which was not a notice of appeal, was filed more than thirty days after the circuit court entered its final judgment of conviction and sentence. The Clerk of the Supreme Court issued a notice to trial counsel to show cause why the appeal should not be dismissed as untimely. Trial counsel failed to respond to the show-cause notice; however, the Office of the State Public Defender (OSPD) did respond. OSPD acknowledged that trial counsel failed to perfect the appeal and requested leave to file an out-of-time appeal. The Supreme Court entered an order granting leave to file an out-of-time appeal. See M.R.A.P. 4 cmt.

¶ 21. As noted above, Bush raises two issues on appeal. First, he claims that he was prejudiced due to two comments by the trial judge—one during voir dire and one during the trial—and allegedly inadequate jury instructions. Second, he argues that he is entitled to a new trial because a juror was asleep at one point in the trial. We address these issues below.

DISCUSSION

I. Jury Instructions and Judicial Comments

¶22. Bush phrases his first issue on appeal as “whether the jury instructions, including judicial comments, fairly announced the law and properly instructed the jury so as to assure the jury reached a just and fair verdict.” We start with the two “judicial comments” about which Bush complains and then move on to alleged deficiencies in the' jury instructions. We begin by noting that Bush did not object to either of the judge’s comments. Therefore, the issue is waived for purposes of appeal. Procedural bar notwithstanding, these arguments are also without merit.

¶ 23. Near the beginning of voir dire by the court, the transcript shows that the trial judge asked potential jurors the following question: “Can you give him the burden of the proof preponderance- [sic]?” At the time, Bush did not object or ask the judge for clarification, but he now argues that “[t]he jury was then and there mis-instructed to a much lower burden of proof and ... asked by the trial judge if they would commit to that lessened burden of proof.” Assuming the transcript accurately reflects the judge’s comment, the contention that it amounts to prejudicial error is without merit. The judge had just finished accurately instructing the potential jurors on the defendant’s “presumption of innocence” and the State’s burden to- “prove this charge beyond a reasonable doubt.” The judge went on to state that he would give .the jury instructions on the law, which the jury would be required to follow. At the close of the evidence, the judge again instructed the jury on the presumption of innocence and the requirement of proof beyond a reasonable doubt. “It is presumed that the .jury follows the judge’s instructions.” Moody, 841 So.2d at 1076 (¶ 18). We presume that the jurors in this case followed the clear instructions given to them at the close of the evidence, not an unclear and un-objected-to comment two days earlier during voir dire. See id. at (¶ 19).

¶24. Bush also insists that, during cross-examination of his girlfriend, Mi-tra Ghafarianpoor, “the trial judge made two statements which could only be viewed as comments on the evidence which were peremptory in nature and instruet[ed] the jury to find certain elements as facts.” In support of this claim, Bush points to the following exchange, which occurred when the prosecutor was questioning Ghafar-ianpoor about whéther she had received a voice mail from Bush’s sister in the hours after the wreck:

THE COURT: Just a minute. You know the issues in this case.is whether this fellow here was driving that pickup ,and—
MR. MCMURTRY: No, sir. No, that’s not an issue.
THE COURT: Well, he was driving the truck.
MR: MCMURTRY: Well, that’s one of the elements—
THE COURT: And he left the scene. Now that’s the issue. Now, I want you to get to it instead of ....

Bush asserts that these statements by the judge amounted to “two de facto peremptory instructions.” Again, however, Bush did not object to the judge’s comments, so the issue is waived.

¶25. Moreover, the trial judge was only instructing the prosecutor to limit his questions to the material factual issues in the case. The prosecutor argued that Gha-farianpoor had made inconsistent statements about the voice mail, which went to her “credibility,” but the judge ruled that “there [was] no credibility issue at all,” and that the matter of the voice mail was “irrelevant.” The trial judge then instructed the prosecutor to “get on with this case.”

¶ 26. In context, the judge’s comments cannot be interpreted as peremptory instructions or prejudicial to Bush. The evidence at trial, including Bush’s own testimony, was undisputed that Bush was driving and that he did leave the scene. At the close of the evidence, the court fully and fairly instructed the jury on Bush’s theory of defense, including instructing that a person is not guilty of felony leaving the scene of an accident if he “left the scene to find help or aid for himself or another.” The trial judge’s brief reference to two obvious and undisputed facts—in the course of a ruling limiting the State’s cross-examination of a defense witness—was not an improper comment on Bush’s theory of the defense. Bush was able to present his defense with proper instructions and without any improper limitation. Bush’s complaint about the trial judge’s comment is without merit.

¶ 27. Finally, Bush complains that the trial judge did not give two. “standard instructions,” one that provides general instructions for juries in criminal cases and one on the requirement of a unanimous verdict. See Mississippi Judicial College, Mississippi Model Jury Instructions, Criminal § 1:2 & 1:23 (2016). Bush argues that these standard instructions were needed to reduce confusion created by the trial judge’s comments. However, we have already determined above that the trial judge’s comments were not improper or prejudicial, and the jury was fairly and accurately instructed on the presumption of innocence and the State’s burden of proof. Moreover, Bush did not request either of these instructions at trial or object when they were not given. Indeed, neither instruction was mentioned during the charge conference or’ at any other point. Accordingly, this issue is proeedurally barred and without merit.

II. Sleeping Juror

¶ 28. Bush argues on appeal that he is éntitled to a new trial because a juror was allowed to remain on the jury after he was observed sleeping during a witness’s testimony. During Wilson’s cross-examination, Bush’s attorney (Mr. Camp) noticed that a juror was asleep. He asked for permission to approach the bench and the following sidebar occurred:

MR. CAMP: I think we have a juror that’s asleep.
MR. MCMURTRY: I disagree, Judge. I think he might be sleepy, but he’s not asleep.
MR. CAMP: Well, he was snoring a second ago....
THE COURT: Which one is asleep?
MR. CAMP: I think the gentleman in the yellow. He may have woken up now. I don’t know.
THE COURT: I think he was asleep this morning.
MR. CAMP: I don’t know.
THE COURT: I’ll wake him up.
MR. CAMP: Okay.
THE COURT: The juror is asleep. Have a seat.

The trial judge instructed the juror: “You’re going to have to stay awake or send the bill to this baldheaded fellow over here.” What exactly the judge meant is not clear from context. But in any event, there was no further discussion of the juror, and Bush never requested that the juror be replaced with an alternate.

¶ 29. Bush notes that “[tjhe Mississippi Supreme Court has stated that a sleeping juror is a matter of ‘great concern’ to the courts.” Carpenter v. State, 132 So.3d 1053, 1059 (¶ 17) (Miss. Ct. App. 2013) (citing Church v. Massey, 697 So.2d 407, 414 (Miss. 1997)). That is true, but it is also well-settled that a trial judge will not be put in error on an issue that was never presented to the judge for a decision. Thus, if the defendant never asks a trial judge to remove the sleeping juror during trial, he is procedurally barred from raising the issue on appeal. See Birkhead v. State, 57 So.3d 1223, 1236-37 (¶¶ 46-48) (Miss. 2011); Jones, 149 So.3d at 1068-70 (¶¶ 44-55). As a general matter, a sleeping juror is of great concern to this Court and the Supreme Court; however, based on Bush’s failure to request removal of the juror at any point during the trial, we can only assume that this particular sleeping juror was of no great concern to Bush or his counsel.

¶ 30. This case is similar to Jones. There, both the defendant’s attorney and the trial judge noticed one or two jurors sleeping'more than once during the trial, and the defendant’s attorney suggested that one of the jurors might need to be replaced. However, the trial judge reserved ruling on the issue, stating that he would wait until the end of the trial to determine whether removal was necessary. See id. at 1068-69 (¶¶ 44-47). The defendant never made a motion to remove the sleeping juror, and this Court held that his failure to do so barred him from raising the issue on appeal. See id. at 1069-70 (¶¶ 47-55). The Court rejected the defendant’s argument that “the trial judge’s failure to [remove a juror] sua sponte entitle[d] him to a new trial.” Id. at 1069 (¶ 48). We explained that “merely voicing concerns” about a sleeping juror was insufficient to preserve the issue for appeal; rather, an on-the-record motion to remove the juror was required. Id. at 1070 (¶ 53). Because the defendant failed to make such a motion, there were “no on-the-record findings” on the issue, nor did “we have the benefit of the [trial] court’s reasoning for keeping [the juror] on the panel.” Id. at (¶ 54). Therefore, there was “no decision to review for an abuse of discretion.” Id. at (¶ 55). We held that the defendant had waived the issue and was not entitled to a new trial. Id.

¶ 31. The result is the same in this case. Bush did not ask that the juror be removed, so we can only assume that he did not object to this juror remaining on the panel. Furthermore, because Bush did not make a motion to remove the juror, there are no findings as to how long the juror was asleep, nor do we know the trial judge’s reasoning for allowing the juror to remain on the panel. On this record, Bush is not entitled to a new trial simply because the trial judge did not remove the juror sua sponte. Rather, Bush waived the issue by failing to request that relief in the trial court.

CONCLUSION

¶ 32. The issues raised by Bush on appeal are procedurally barred and without merit. Therefore, his conviction and sentence are affirmed.

¶ 33. THE JUDGMENT OF THE SCOTT COUNTY CIRCUIT COURT OF CONVICTION OF FELONY LEAVING THE SCENE OF AN ACCIDENT AND SENTENCE OF TWELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWO YEARS SUSPENDED AND TWO YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SCOTT COUNTY.

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

      . Manis testified that she had received training and had been certified as an emergency medical responder.for a volunteer fire department.

      . Bush denied saying this.

      . Smith sustained numerous injuries in the crash, including traumatic brain injuries, and was airlifted to UMMC. He was in a coma initially, and he was unable to speak or feed, bathe, or otherwise care for himself for months after the crash. At trial, Smith’s doctor testified that his memory and cognitive abilities had improved to some extent, but he was still physically disabled and required assistance with basic personal needs, and he was unlikely to recover to the point that he could drive or obtain employment. Wilson testified that Smith had no memory of the crash or the events leading up to it.

      .Bush and Smith had been roommates for only a short time. This was the first time Wilson had met Bush.

      . Lewis and Bush testified that Bush never denied that he was in the truck or driving the truck at the time of the wreck.

      . See, e.g., Moody v. State, 841 So.2d 1067, 1075 (¶ 15) (Miss. 2003); Shelton v. State, 445 So.2d 844, 846 (Miss. 1984); Hollins v. State, 99 So.3d 237, 240 (¶ 8) (Miss. Ct. App. 2012); Shephard v. State, 66 So.3d 687, 691 (¶ 13) (Miss. Ct. App. 2011).

      . "Sic” is indicated in the official transcript.

      . See, e.g., Wilson v. State, 936 So.2d 357, 363 (¶ 14) (Miss. 2009) (“A trial court is not required to sua sponte instruct the jury or suggest jury instructions in addition to what the parties tender.... [I]t is not error when a trial court does not [give an] ... instruction [that] was not presented by either party.”).

      . We review a trial judge’s decision excusing ,or declining to excuse a juror for abuse of discretion only, Jones v. State, 149 So.3d 1060, 1070 (¶ 55) (Miss. Ct. App. 2014).


author: ISHEE, J„

text:
    Mark Steven LOPEZ a/k/a Mark S. Lopez a/k/a Mark Lopez, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00394-COA
    Court of Appeals of Mississippi.
    06/06/2017

      HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, CHRISTOPHER LOUIS SCHMIDT, J.
    ATTORNEY FOR APPELLANT: MARK STEVEN LOPEZ (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE

      BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ.
   ISHEE, J„

FOR THE COURT:

• ¶ 1. Mark Lopez was convicted as a habitual offender in the First Judicial District of the Harrison County Circuit Court. This appeal stems from the circuit court’s denial of Lopez’s motion for postconviction relief (PCR). Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On July 14, 2014, Lopez was charged with the unlawful transfer of less than ten dosage units of hydrocodone, a Schedule III opioid. Because. Lopez had previous felony convictions, he was indicted as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2015). On December 11, 2014, Lopez voluntarily entered a plea of guilty, and was thereafter sentenced as a habitual offender to serve a term of four years in the custody of the Mississippi Department of Corrections (MDOC), without the possibility of parole or probation. On December 15, 2015, however, Lopez filed a motion for resentencing, which the circuit court characterized as a PCR motion, pursuant to Mississippi Code Annotated section 99-39-5 (Rev. 2015).

¶ 3. In that motion, Lopez asserted that his sentence should be reduced for the following reasons: (1) he received ineffective assistance of counsel and/or an illegal sentence; (2) he did not satisfy the requirements to be classified as a habitual offender; (3) he completed long-term drug and alcohol treatment, as ordered by the court; and (4) he had served one-fourth of his sentence. Finding no merit to any of the issues raised by Lopez in his motion, the circuit court summarily denied his motion. Lopez timely appealed.

STANDARD OF REVIEW

¶ 4. “This Court reviews a circuit court’s [denial] of a PCR motion for abuse of discretion.” Birmingham v. State, 159 So.3d 597, 598 (¶ 4) (Miss. Ct. App. 2014). “We will only reverse if the circuit court’s decision was clearly erroneous.” Id. (quoting Williams v. State, 110 So.3d 840, 842 (¶ 11) (Miss. Ct. App. 2013)). We review questions of law de novo. Id.

DISCUSSION

¶5. To begin, we reaffirm that “[a]n evidentiary hearing is not necessary where the allegations in a [PCR motion] are specific and conclusory.” Russell v. State, 44 So.3d 431, 434 (¶ 6) (Miss. Ct. App. 2010) (citing Cole v. State, 666 So.2d 767, 777 (Miss. 1995)). “The trial court is not required to grant an evidentiary hearing on every [motion] it entertains.” Byrne v. State, 30 So.3d 1264, 1266 (¶ 7) (Miss. Ct. App. 2010) (citation omitted). Thus, we find at the outset that-the circuit court’s summary denial of Lopez’s PCR motion was not improper. See Miss. Code Ann. § 99-39-11(2) (Rev. 2015).

I. Ineffective Assistance of Counsel and Illegal Sentence

¶ 6. Lopez first argues that ,he was ineffectively represented by his attorney because he was not “made aware of ... House Bill 585.” 2014 Miss. Laws ch. 457. Lopez further argues that his sentence is illegal because the crime with which he was charged is “now considered a misdemeanor.”

¶ 7. It is well settled that our standard of review when discussing a claim of ineffective assistance of counsel is the two-prong analysis originally set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove ineffective assistance of counsel, Lopez must demonstrate: (1) that his “counsel’s performance was deficient,” in that it “fell below an objective standard of reasonableness,” and (2) that the deficient performance prejudiced the defense—that is, there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 687-88, 694, 104 S.Ct. 2052. Moreover, “[i]n considering a claim of ineffective assistance of counsel, an appellate court must strongly presume that counsel’s conduct falls within a wide range of reasonable professional assistance.” Anderson v. State, 195 So.3d 835, 840 (¶ 14) (Miss. Ct. App. 2016) (quoting Liddell v. State, 7 So.3d 217, 219 (¶ 6) (Miss. 2009)). In cases where a guilty plea has been entered, the first prong remains the same, while “the second prong of prejudice is shown by proving that the ineffective assistance of counsel affected the outcome of the plea process.” Wilson v. State, 81 So.3d 1067, 1074 (¶ 10) (Miss. 2012) (citing Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).

¶ 8. Reviewing the record, there is no evidence before this Court illustrating that Lopez’s counsel’s representation fell below an objective standard of reasonableness. And, in fact, Lopez acknowledged his counsel’s adequacy in his sworn and subscribed “petition to enter [a] plea of guilty.” In addition, Lopez has offered no evidence showing that, but for his counsel’s alleged errors, he would not have pleaded guilty, or the result would have somehow come out differently. We therefore find that Lopez’s ineffective-assistance-of-counsel claim fails.

¶ 9. Regarding the legality of Lopez’s sentence, he voluntarily pleaded guilty to the illegal transfer of less than ten dosage units of hydrocodone, a Schedule III controlled substance. Pursuant to Mississippi Code Annotated section 41-29-139(b)(4) (Rev. 2013), Lopez was subject to a maximum term of twenty years. Id. As Lopez only received a four-year sentence, his sentence falls within the maximum parameter set forth under section 41-29-139(b)(4) at the time he pleaded guilty, and we do not find it be reversible error. Lopez is also mistaken that the current statute classifies his offense as a misdemeanor. Miss. Code Ann. § 41-29-139(b) (Supp. 2016); Miss. Code Ann. § 1-3-11 (Rev. 2014) (defining “felony”). We therefore find these issues without merit.

II. Habitual-Offender Status

¶ 10. Lopez next asserts that he should not have been classified as a habitual offender because his prior felony convictions were approximately twenty years ago. Lopez was sentenced as a habitual offender pursuant to section 99-19-81, which 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 separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

¶ 11. The record reveals that in 1995, Lopez was previously convicted of three felonies, all within Harrison County. Furthermore, Lopez received sentences of three years in MDOC custody for two of the felonies, and five years for the third. Thus, the record illustrates that Lopez has been convicted of a felony at least twice previously upon charges separately brought and arising out of separate incidents at different times and was sentenced to separate terms of one year or more in a state penal institution. The fact that it has been twenty years since Lopez’s last felony conviction has no bearing on his status under section 99-19-81. See Miss. Code Ann. § 99-19-81. Therefore, Lopez satisfies the requirements of section 99-19-81, and thus, was properly sentenced as a habitual offender.

III. Long-Term Drug and Alcohol Treatment and Time Served

¶ 12. Lopez argues that he is entitled to resentencing because he has successfully completed MDOC’s long-term drug and alcohol treatment program. We disagree. As the circuit court highlighted in its order denying Lopez’s PCR motion, though participation in the treatment program was court-ordered, Lopez’s sentence was not subject to modification should he complete the program. And with respect to time served, Lopez states that he has “served [one-fourth] of his court ordered [four-]year sentence.” Lopez, however, fails to provide how this assertion entitles him to postconviction relief in the form of a new sentence. The circuit court inferred that Lopez was likely arguing his parole eligibility under either House Bill 585 or Mississippi Code Annotated section 47-7-3 (Supp. 2016). Assuming such, the circuit court determined that would require Lopez to file a separate motion with the court. Lopez has not contested this finding on appeal. As such, we find these issues are without merit.

CONCLUSION

¶ 13. Reviewing the record before this Court, we cannot hold that the circuit court abused its discretion in summarily denying Lopez’s PCR motion.

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

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

      . We note that because Lopez was a habitual offender, the trial judge was required to sentence him to the statutory maximum, twenty years. See Miss. Code Ann. § 99-19-81. Lopez's sentence of four years was therefore “illegally lenient,” "[b]ut a convicted defendant who receives an illegally lenient sentence suffers no prejudice. Thus, [Lopez’s] illegally lenient sentence amounts to harmless error.” Tucker v. State, 93 So.3d 913, 916 (¶ 15) (Miss. Ct. App. 2012).


author: LEE, C.J.,

text:
    Darrell SHOEMAKE, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CA-01415-COA
    Court of Appeals of Mississippi.
    06/06/2017

      COVINGTON COUNTY CIRCUIT COURT, WILLIAM R. BARNETT, J. .
    ATTORNEY ' FOR APPELLANT: BRANDON LARUE BROOKS
    ATTORNEY FOR APPELLEE: OFFICE- OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLIN-TON
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   LEE, C.J.,

FOR THE COURT:

¶ 1. Darrell Shoemake appeals the Cov-ington County Circuit Court’s denial of his motion for postconviction relief (PCR). On appeal, Shoemake claims: (1) his guilty plea was entered involuntarily; and (2) his trial counsel was ineffective. Finding his motion is time-barred and without merit, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On February 13, 2009, Shoemake pled guilty in the Covington County Circuit Court to sexual battery for his sexual relationship with a seventeen-year-old National Guard recruit while he was employed as a National Guard recruiter. Shoemake was sentenced to seven years, with two years to serve in the custody of the Mississippi Department of Corrections (MDOC) and five years of postrelease supervision. Shoemake was also required to register as a sex offender. Shoemake filed a motion for PCR on May 29, 2013, and the trial court denied his motion on the merits and as time-barred under the three-year statute of limitations.

STANDARD OF REVIEW

¶3. A circuit court’s denial or dismissal of a PCR motion is reviewed for abuse of discretion, and we will only reverse the circuit court if its decision is clearly erroneous. Hughes v. State, 106 So.3d 836, 838 (¶ 4) (Miss. Ct. App. 2012). However, we review the trial court’s legal conclusions under a de novo standard of review. Id.

DISCUSSION

I. Time-bar

¶ 4. Mississippi Code Annotated section 99-39-6(2) (Rev. 2015) provides “[a] motion for relief under this article shall be made[,] ... in [the] ease of a guilty plea, within three ... years after entry of the judgment of conviction.” Shoemake’s judgment of conviction was entered on February 13, 2009. Shoemake did not file his PCR motion until May 29, 2013, over four years after his judgment of conviction.

¶ 5. Shoemake made no attempt to challenge the limitation period and failed to demonstrate he met an exception listed in the statute. Therefore, the trial court properly dismissed Shoemake’s PCR motion because it was untimely.

II. Involuntary Guilty Plea

¶ 6. Notwithstanding the time-bar, Shoemake has not shown he entered his guilty plea involuntarily. Shoemake argues that he was not informed of the elements of the sexual-battery charge and that there was no factual basis for the plea.

¶ 7. Shoemake relies on Jones v. State, 936 So.2d 993, 1000 (¶ 23) (Miss. Ct. App. 2006), where this Court reversed a trial court’s denial of a PCR motion because the record did not adequately demonstrate the defendant had knowledge of the elements of sexual battery. In Jones, the defendant pled guilty to sexual battery of his ten-year-old daughter. Id. at 994 (¶ 2). The defendant later challenged' the validity of his guilty plea, arguing that it was entered involuntarily because he was not informed of the elements of the charge. Id. at (¶ 4). Finding the record in Jones did not adequately establish the defendant’s knowledge of the elements of his charge, this Court reversed and remanded for a hearing to determine whether the elements were explained to the defendant prior to his plea. Id. at 1000 (¶ 23).

¶ 8. The record in this case is factually different from Jones. The plea-hearing transcript affirmatively demonstrates that the trial court ensured Shoemake had knowledge of the elements of sexual battery. The trial court specifically questioned Shoemake about whether his attorney explained the charge to him. Shoemake replied that his attorney did explain the charge, and Shoemake informed the court that he understood it.

¶ 9. Further, this Court in Timmons v. State, 176 So.3d 168, 172 (¶ 13) (Miss. Ct. App. 2016), held there are a variety of ways to establish a factual basis to support a guilty plea, including an “actual admission” of the defendant and, if -sufficiently specific, “an indictment or information can be used as the sole source of the factual basis for a guilty plea.” Shoemake admitted guilt on two occasions: once in his guilty-plea petition and again at his plea hearing. Further, the trial court had the indictment read aloud, which included each element of Shoemake’s charge. In addition, the State showed how it would prove its case had it gone to trial. At no point did Shoemake contest any statements made during his plea hearing. This issue is without merit.

Ill, Ineffective Assistance of Counsel

¶ 10. Notwithstanding the time-bar, Shoemake’s second argument on appeal asserts ineffective assistance of counsel when entering his plea. To succeed on an ineffective-assistance-of-counsel claim, a defendant must show that the attorney’s performance “fell below an objective standard of reasonableness” and that because of the deficient performance, the defense was prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show prejudice, “the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. There is a strong presumption that counsel’s performance fell “within a wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052.

¶ 11. Although Shoemake informed the trial court during his plea hearing that he had no complaints about his attorney, Shoemake argues on appeal that his attorney failed to: (1) inform him he would have to serve a two-year sentence; (2) sufficiently investigate the facts, physical evidence, and defenses; (3) prevent Shoe-make from pleading guilty despite a lack of factual basis for the charge; (4) explain the elements of statutory rape; (5) “advise him as to the age of consent”; and (6) file a motion for discovery. First, the record shows that Shoemake knew not only that he was facing at least a two-year sentence but that he could potentially receive a thirty-year sentence. Further, the record shows Shoemake knew he was required to register as a sex offender upon his release from prison.

¶ 12. Shoemake’s second, third, fourth, and fifth challenges concerning the facts of his case also fail because, even if his attorneys conduct fell below a reasonableness standard, Shoemake has not shown his case would have ended differently. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “In the context of guilty pleas, this means the 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.” Thomas v. State, 175 So.3d 525, 532 (¶ 21) (Miss. Ct. App. 2015) (citing Burrough v. State, 9 So.3d 368, 375 (¶ 22) (Miss. 2009)). Shoe-make admits in his guilty-plea petition that he did in fact have a sexual relationship with a minor, and that he understood the matters set forth in the indictment identifying him as a person in a position of authority and trust over the victim. He now challenges the “facts” about whether the victim was emancipated and had the ability to consent, and whether he was in a position of authority or trust over the victim. The sexual-battery statute makes no exception for emancipated minors, and the list of positions of authority and trust is without limitation. Miss. Code Ann. § 97-3-95(2) (Rev. 2014). Shoemake has failed to demonstrate that had his attorney informed him of these “facts,” he would not have pled guilty.

¶ 13. Lastly, Shoemake argues his attorney was ineffective for failing to file a motion for discovery as well as a motion for a psychiatric evaluation and a motion to dismiss. Shoemake argues that a motion for discovery would have ascertained “the exact nature and quality of any and all physical evidence in existence.” However, the Mississippi Supreme Court has held that “the filing of [pretrial] motions is within the bounds of trial strategy and the mere fact that an attorney did not file a motion for discovery is not sufficient to raise an ineffective-assistance-of-counsel claim.” Giles v. State, 187 So.3d 116, 121 (¶ 17) (Miss. 2016) (citing Ivy v. State, 589 So.2d 1263, 1265 (Miss. 1991)). Shoemake’s ineffective-assistance-of-counsel claim is also without merit.

¶ 14. THE JUDGMENT OF THE COVINGTON COUNTY CIRCUIT COURT DENYING THE MOTION FOR POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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