text:
    Robert PRUITT, Appellant v. HOWARD INDUSTRIES, INC., Appellee
    NO. 2016-WC-01521-COA
    Court of Appeals of Mississippi.
    12/05/2017

      ATTORNEY FOR APPELLANT: LINDSAY ERIN VARNADOE
    ATTORNEYS FOR APPELLEE: RICHARD LEWIS YODER JR., WILLIAM LAWRENCE THAMES
    BEFORE IRVING, P.J., WILSON AND GREENLEE, JJ.
   GREENLEE, J.,

FOR THE COURT:

¶ 1. Robert Pruitt, a “final assembler” employed by Howard Industries, suffered a lower-back injury while on the job. Pruitt’s injuries were treated, and he returned to work. Pruitt then filed a petition to controvert with the Mississippi Workers’ Compensation Commission (Commission). Following a hearing on the merits, an administrative judge found that Pruitt was to undergo an additional MRI of his lower back. After the additional MRI, the administrative judge issued an amended order and found that Pruitt did not suffer any permanent disability or loss of wage-earning capacity. Pruitt appealed to the Commission, which adopted the findings of the administrative judge. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Pruitt began working at Howard Industries in 1992 loading steel onto a platform. Pruitt performed this job until 2000, at which time he left his employment with Howard Industries and began a full-time career in ministry. In 2004, Pruitt returned to work for Howard Industries as a final assembly-line worker. As part of his duty as a final assembler, he often would bolt down transformer air compartments to pallets. On July 9, 2012, while in the scope of his employment, Pruitt was lifting an air-compressor unit on a transformer, when “something popped in [his] back ... and [he] couldn’t move at all.” ,

¶ 3. Several doctors examined Pruitt after his injury. He first went to MEA Medical Clinic in Laurel, where an MRI revealed that Pruitt had lumbar spondylosis in his lower back. He then was referred to Dr. Michael Patterson of Southern Bone & Joint Specialists, who treated Pruitt conservatively without the need for surgery and released Pruitt to return to “full duty work” with no restrictions.. On August 26 and 27, 2013, Robbie Bishop, an occupational therapist with Similarly named Southern Bone and Joint Rehabilitation, performed a functional-capacity-evaluation (FCE) test on Pruitt and assigned him a three-percent impairment of the whole body with certain restrictions. Following his FCE, he returned to work at Howard Industries in the same position with accommodations.

¶ 4.’ On May 5, 2014, Pruitt filed a petition to controvert with the Commission alleging he had sustained a compensable injury to his back in 2012 while in the scope of employment with Howard' Industries. Howard Industries admitted that the injury occurred in the scope of employment but denied that he had suffered any loss of wage-earning capacity as a result of the injury,

¶ 5. On August 21, 2015, Dr. Rahul Voh-ra, of NewSouth Neurospine, conducted, an independent evaluation of Pruitt and reviewed all of his medical records relating to his back injury. Dr Vohra found that Pruitt reached maximum medical improvement (MMI) in September 2013 and recommended that a second MRI be taken to compare acute and structural damages.

¶ 6, On October 15, 2015, a hearing on the merits was held before an administrative judge. The administrative judge agreed with Dr. Vohra’s opinion and ordered Pruitt to undergo a second MRI of his lower back. On April 12, 2016, following the results of the second MRI, the administrative judge issued an amended opinion and order, finding that Pruitt failed to prove that he suffered any permanent disability or loss of wage-earning capacity. Pruitt sought review from the Commission, which affirmed and adopted the decision of the administrative judge. Pruitt appealed.

STANDARD OF REVIEW

¶ 7. In reviewing the decisión of the Commission, this Court’s, review is limited to “whether the Commission erred as a matter of law or made findings of fact contrary to the overwhelming weight of the evidence.” Smith v. Johnston Tombig bee Furniture Mfg. Co., 43 So.3d 1159, 1164 (¶ 15) (Miss. Ct. App. 2010). When the Commission accepts the findings and conclusions of the administrative judge, this Court reviews those findings and conclusions as those of the Commission. McDowell v. Smith, 856 So.2d 581, 585 (¶ 10) (Miss. Ct. App. 2003). Because the Commission serves as “ultimate fact-finder and judge of the credibility of witnesses,” we “may not reweigh the evidence [that was] before the Commission.” Pulliam v. Miss. State Hudspeth Reg’l Ctr., 147 So.3d 864, 868 (¶ 16) (Miss. Ct. App. 2014). However, we review the Commission’s application of law de novo. Spann v. Wal-Mart Stores Inc., 700 So.2d 308, 311 (¶ 12) (Miss. 1997).

DISCUSSION

¶8. In his only issue on appeal,, Pruitt contends that the Commission’s decision was not .supported by substantial evidence. Specifically, Pruitt argues that the evidence proved he suffered a loss of wage-earning capacity; thus, he was entitled to permanent partial disability benefits. . ,

¶ 9. In Mississippi, “disability” is defined as an “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings.” Miss. Code Ann. § 71-3-3(i) (Rev. 2011).- Therefore, “disability” consists of two: elements — an actual physical injury and the loss of wage-earning capacity. Gregg v. Natchez Trace Elec. Power Ass’n, 64 So.3d 473, 476 (¶ 10) (Miss. 2011). 'Moreover, “[t]he claimant bears the burden of proof of disability and the extent thereof.” Univ. of Miss. Med. Ctr. v. Smith, 909 So.2d 1209, 1218 (¶ 31) (Miss. Ct. App. 2005).

¶ 10. Pruitt suffered an injury to his lower black, which resulted in a “3% whole person impairment.” This is significant because, unlike in a scheduled-member case, in a “body as a whole” case- “the only available measure for computing allowable benefits to consider is the claimant’s overall diminished wage-earning capacity.” Arendale v. Balkamp Inc., 879 So.2d 448, 452 (¶ 10) (Miss. Ct. App. 2003). Further, in body-as-a-whole cases, a rebuttable presumption of no loss of wage-earning capacity exists when a claimant returns to his same or similar employment and earns the same or higher wages. Weathersby v. Miss. Baptist Health Sys. Inc., 195 So.3d 877, 883 (¶ 25) (Miss. Ct. App. 2016). A claimant can rebut this presumption by

evidence on the part of the claimant that the post-injury earnings are unreliable due to: [ (1) ] increase in general-wage levels since the time of accident, [(2) ] [the] claimant’s own greater maturity and training',' [ (3) ] longer hours worked by [the] claimant after the accident, [ (4) ] payment of wages disproportionate to capacity out of sympathy to [the] claimant, and [ (5).] the-temporary and unpredictablé character of post-injury earnings.

Id. (quoting Gen. Elec. Co. v. McKinnon, 507 So.2d 363, 365 (Miss. 1987)). Additionally, “any [other] factor or condition which causes the actual post-injury wages to become a less reliable indicator of earning capacity will be considered,” Id.

¶ 11. In applying the relevant law to the claim and evidence before us in the present case, a rebuttable presumption of no loss of wage-earning capacity arose because Pruitt’s post-injury wages exceeded his pre-injury wages. Pruitt’s testimony and the documentary evidence offered at the hearing both indicate that his pre-injury pay gradé was an “11-3” with an hourly wage of $12.46 per hour and his post-injury pay grade was an “11-3 ” with an hourly wage of $12.91. Rather than decrease, Pruitt’s hourly rate of pay increased. Further, Pruitt testified that he was a final assembler before his injury and, when he returned to work after his FCE, he remained a final assembler— driving a forklift or hyster, but still performing a production job on the floor of Howard Industries. Moreover, not only was Pruitt’s job title and wage the same, but he was employed in the same plant and division as before his injury. Therefore, it is clear that a rebuttable presumption of no loss of wage-earning capacity was present.

¶ 12. With a rebuttable presumption of no loss of wage-earning capacity established, it was Pruitt’s burden to rebut that presumption, and the Commission found that he failed to do so. Under our limited deferential standard of review, we cannot say that the Commission’s decision was clearly erroneous. Pruitt did not present any evidence of an increase in general wage levels since his injury, that he was working additional hours for the same pay, that he was being paid out of his employer’s sympathy, or of any other circumstance that would compel the conclusion that his post-injury wages were an unreliable indicator of his wage-earning capacity. Rather, Pruitt admitted that he could not work as many hours as before his injury yet his wage had increased. Further, Howard Industries presented evidence that both his hourly wage and his gross wage had increased, while he remained in the same job.

¶ 13. Pruitt contends that he established a loss of wage-earning capacity because his doctors assigned him a three-percent whole-person impairment and released him to return work with light-duty work restrictions. Pruitt asserts that these restrictions did not allow him to lift greater than twenty pounds and prevented him from working overtime, which he asserts he had done prior to his injury. Further, he asserts that the Commission erred in not considering, due to his restrictions, his loss of access to employable jobs in the event of separating from Howard Industries.

¶ 14. It is undisputed that Pruitt suffered a three-percent whole-body impairment and was placed on light-work restrictions when he returned to work after his injury. However, the Mississippi Supreme Court has explained that “a claimant who has suffered a functional/medical disability of 15% may have no industrial disability at all if the functional impairment does not impede the claimant’s ability to perform the duties of employment.” Robinson v. Packard Elec. Div., Gen. Motors Corp., 523 So.2d 329, 331 (Miss. 1988). To establish an industrial impairment, the claimant must prove (1) the presence of a medical impairment and (2) the loss of wage-earning capacity. Id. In the present case, the Commission determined that Pruitt failed to show that the limitation placed on him had any impact on his “ability to perform the duties of [his] employment” or “resulted in a loss of wage-earning capacity.” Id. This determination is supported by substantial evidence.

¶ 15. While Pruitt has permanent light-work restrictions, his testimony clearly indicated that he was performing a production job at Howard Industries, just as he was before his injury. Pruitt asserts that after his injury he operated a forklift, which he had not done before. However, Loren Koski, vice president of Howard Industries, testified that Pruitt’s job as a forklift operator was a necessary production job and that “between 10 and 12” other final assemblers operate forklifts and “[p]eople get moved around a lot.” Moreover, Pruitt by his own testimony admits he returned to work at the same plant, in the same division, and in the same job but making a higher wage.

¶ 16. Pruitt asserts that his restrictions will not allow him to work overtime as he did before his injury and that the restrictions have limited his employment opportunities in the event that he were to sepá-rate from Howard Industries. However, neither of these assertions has merit. Ko-ski testified that Pruitt “does not have 'a restriction in the number of hours he can work” and that no Howard Industries employees are guaranteed overtime, especially in Pruitt’s division because of its cyclical nature. Further, Pruitt admits that he has not applied for any other jobs outside Howard Industries, nor did he produce any evidence that he was in danger of termination. Nonetheless, the record clearly indicates that Pruitt’s post-injury wages exceed his pre-injury wages and, therefore, Pruitt failed to prove any loss of wage-earning capacity.

CONCLUSION

¶ 17. Employing our limited standard of review, the Court finds that the Commission properly applied the presumption that Pruitt suffered no loss of wage-earning capacity because Pruitt’s post-injury wages were higher than his pre-injury wages. Moreover, the Commission’s finding that Pruitt failed to produce sufficient evidence to rebut this presumption is supported by substantial evidence. Therefore, we affirm the Commission’s decision.

¶ 18. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WILSON, WESTBROOKS AND TINDELL, JJ., CONCUR. CARLTON; J., NOT PARTICIPATING..

      . Pruitt testified that when he returned to work after his injury he mostly drove a forklift or hyster, which he had not done before his accident.

      . Koski also testified that the final assembler job has "a vast range of duties.” Therefore, Koski stated that "[Pruitt] can perform a final assembler job perfectly fine with his restrictions.”


source: Caselaw Access Project

author: FAIR, J.,

license: Public Domain

text:
    David WARD, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01284-COA
    Court of Appeals of Mississippi.
    12/12/2017

      ATTORNEY FOR APPELLANT: DAVID WARD (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. David Ward appeals the Rankin County Circuit Court’s judgment denying his motion for post-conviction relief. Finding Ward’s motion successive-writ barred, we affirm the. circuit court.

FACTS

¶2. Ward was indicted for the possession of a firearm by a convicted felon pursuant to Mississippi Code Annotated section 97-37-5 (Rev. 2014). He was indicted as a habitual offender but "agreed to a plea bargain in exchange for the State dropping the enhancement. On December 29, 2014, Ward filed his guilty-plea petition, in which he stated under oath that he wished to plead guilty because he willfully, feloniously, knowingly, and- intentionally possessed a firearm when he had previously been convicted of a felony offense. The circuit court found that Ward’s plea was given freely and voluntarily. As a result, Ward was sentenced to a term of ten years in the custody of the Mississippi. Department of Corrections,

¶ 3. On March 28, 2016, Ward filed his first PCR motion. Ward contended that he was indicted by an illegally convened grand jury. Ward additionally alleged ineffective assistance of counsel. On May 27, 2016, the circuit court denied Ward’s PCR motion. On June 10, 2016, Ward filed a second PCR motion, largely rehashing the same issues. On August 24, 2016, the circuit court also denied that motion. In response, Ward filed the instant appeal.

STANDARD OF REVIEW

¶ 4. The circuit court may dismiss a PCR motion without an evidentiary hearing “if it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the mov-ant is not entitled to any relief.” Miss. Code Ann. § 99-39-11(2) (Rev. 2015). To succeed on appeal, the movant must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive. Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss. 1999).

¶ 5. Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Id.

DISCUSSION

¶ 6. On appeal, Ward challenges the sufficiency of the indictment, and as a result, claims his plea was involuntary. He also alleges that he received ineffective assistance of counsel during the trial proceedings. “The [Mississippi Supreme Court] has held that claims of ineffective assistance of counsel and involuntary guilty pleas are "... subject to the procedural bars of the [Uniform Postr-Conviction Collateral Relief Act (UPCCRA) ].” Salter v. State, 64 So.3d 514, 518 (¶ 14) (Miss. Ct. App. 2010) (citing Kirk v. State, 798 So.2d 345, 346 (¶ 6) (Miss. 2000)).

¶7. Ward’s PCR motion is successive-writ barred. “Under the UPCCRA, any order denying or dismissing a PCR motion is a bar to a second or successive PCR motion.” Stokes v. State, 199 So.3d 745, 749 (¶ 9) (Miss. Ct. App. 2016) (citing Miss. Code Ann. § 99-39-23(6) (Rev. 2015)). The circuit court dismissed Ward’s first PCR motion filed on March 28, 2016, finding that his claims were without merit. In dismissing Ward’s second PCR motion, the circuit court found it successive-writ barred and meritless based on Ward’s guilty plea. We find the court properly dismissed Ward’s successive motion.

¶ 8. Procedural bar notwithstanding, Ward’s arguments are without merit.

i. Sufficiency of the Indictment

¶ 9. Ward contends that he was indicted by an illegally convened grand jury because, he alleges, the, July 2014 term grand jury had completed its duties and the indictment was not signed and filed until September 3, 2014. Ward bases his claim on the contention that the grand jury was not impaneled in September when his indictment was signed and filed. However, this Court has held that “once a grand jury is impaneled, it continues to serve during each successive term of court until a subsequent grand jury is impaneled.” Gray v. State, 819 So.2d 542, 546 (¶ 21) (Miss. Ct. App. 2001). Furthermore, under the laws of this State, unless otherwise ordered by the circuit court, a grand jury may be impaneled only twice during a calendar year. Miss. Code Ann. § 13-6-39 (Rev. 2012). “[I]t is the responsibility of any person challenging the validity of an official, or official act, to show invalidity by clear proof.” Gray, 819 So.2d at 547 (¶ 24). Any evidence must be balanced by the “strong presumption that the official acts of [public] officers are valid.” Id. Nothing in the record suggests that the circuit court had discharged the July 2014 term grand jury from its duties before the indictment was filed on September 3, 2014.

¶ 10. Ward also contends that the indictment failed to notify him of the charges he faced. Rule 7.06 of the Uniform Rules of Circuit and County Court required that a valid indictment shall include the following:

1. The name of the accused;
2. The date on which the indictment was filed in court;
3. A statement that the prosecution is brought in the name and by the authority of the State of Mississippi;
4. The county and judicial district in which the indictment was brought;
5. The date and, if applicable, the time at which the offense was alleged to have been committed ... ;
6. The signature of the foreman of the grand jury issuing it; and
7. The words “against the peace and dignity of the state.”

Ward’s indictment met those requirements. Pursuant to Mississippi Code Annotated section 99-7-9 (Rev. 2015), “the endorsement by the foreman, together with the marking, dating, and signing by the clerks[,] shall be legal evidence of finding and presenting to the court of the indictment.” Thus,' Ward’s claim fails.

2. Ineffective Assistance of Counsel

¶ 11. To establish a claim of ineffective assistance of counsel, a criminal defendant must show, under the totality of the circumstances, that (1) his counsel’s performance was deficient, and (2) the deficiency deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 12. Ward alleges that his counsel should have challenged the grand jury proceedings for their alleged failure to meet the requirements of section 99-7-9 and Article, 14 Section 264 of the Mississippi Constitution, and that this resulted in the Ward’s involuntary guilty plea. Further, Ward contends that if trial counsel had advised him that the police obtained custody of his vehicle unlawfully and moved to suppress that evidence, he would not have pled guilty and would have insisted on going to trial.

¶ 13. A review of the record demonstrates that these allegations are unfounded. Ward’s plea hearing and his plea petition both reveal that Ward was advised of what a guilty plea would entail, and more importantly, Ward was questioned by the circuit judge concerning the representation he received from his attorney.

COURT: You’ve been represented by Mr. Sellers. Are you satisfied with his representation?
WARD: I’m satisfied.
COURT: Have you got any complaints you wish to make about your attorney?
WARD: No.

¶ 14. To establish a claim of ineffective assistance of counsel, Ward was required to show that but for his counsel’s errors, he would not have pled guilty to the crime, would have proceeded to trial, and the ultimate outcome would have been different. Henderson v. State, 89 So.3d 598, 602 (¶ 15) (Miss. Ct. App. 2011). Ward fails to meet that burden. Therefore, we affirm the circuit court’s ruling.

¶ 15. AFFIRMED.

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

      . We note that the Uniform Rules of Circuit and County Court relating to criminal practice have been supplanted by the Mississippi Rules of Criminal Procedure, effective July 1, 2017. But because the former rules were still in effect during Ward’s trial, Rule 7.06 applies to Ward’s case.


text:
    Maged Muthanna Saleh QASOON a/k/a Mike a/k/a Majed Kassom a/k/a Maged Qasoon a/k/a Mageed Quasoon, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01330-COA
    Court of Appeals of Mississippi.
    12/12/2017

      ATTORNEY FOR APPELLANT: P. SHAWN HARRIS, FOREST
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE, JACKSON

      BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. Maged Qasoon was captured on video selling eight grams of synthetic marijuana or “spice” to a confidential informant. Qasoon’s defense at trial was essentially that he did not know the substance he was selling was illegal. On appeal, he focuses on the specific language of his indictment, which described his offense as “sale of AB-FUBINACA,” anil on the testimony at' trial establishing only that the substance Qasoon sold was AB-FUBINACA “or a related isomer.” Because these contentions are made for the first time on appeal, the record is largely undeveloped, but to the extent that the issues are preserved, we find them to be without merit.

DISCUSSION

1, Unconstitutionally Vague Statute

¶2. In his first issue, Qasoon alleges that Mississippi’s schedule of controlled substances is unconstitutionally vague. This issue is raised for the first time on appeal, and would ordinarily be barred for that reason. But in Fulgham v. State, 47 So.3d 698, 700 (¶ 6) (Miss. 2010), a four-justice plurality held that vagueness claims are exempt from procedural bars, and the other two opinions in the ease, comprising the remainder of the court, assumed the same result. Therefore, this issue may be raised for the first time on appeal.

¶ 3. However, Qasoon fails to adequately-raise the issue. He does not support this argument with any relevant authority concerning the void-for-vagueness doctrine, nor does he frame his argument according to the vagueness test followed by Mississippi courts. See, e.g., Nolan v. State, 182 So.3d 484, 492 (¶¶ 28-31) (Miss. Ct. App. 2016). The failure to cite and employ relevant , authority waives this issue on appeal, irrespective of whether the claim would ordinarily, be excepted from procedural bars. See, e¡g., Duncan v. State, 939 So.2d. 772, 779 n.3 (Miss. 2006) (“Where an assertion of error is not supported by authority, that assertion is deemed abandoned.”).

¶ 4. Notwithstanding that the issue has been waived, Qasoon’s contentions are without merit. The challenged statute does not affect a constitutional right, and therefore our analysis would begin by “applying the statute to the complainant’s conduct before considering any hypothetical scenarios.” Nolan, 182 So.3d at 492 (¶ 31). Qasoon’s challenge is purely hypothetical: he alleges that since our statute controls isomers of specifically listed substances, and since isomers do not necessarily have the same or similar chemical properties to the listed compounds, it is theoretically possible for inert or benign substances to be controlled. Qasoon contends that the statute is unconstitutionally vague because a reasonable person might not intuitively expect such compounds to be controlled, nor would he have the means to verify compliance with the statute.

¶ 5. Setting aside the question of whether that would actually make the statute unconstitutionally vague, there is no reason to think anything like Qasoon’s hypothetical actually happened here. It is true that the lab technician who analyzed the substance could only say that it was “AB-FUBINACA or a related isomer,” but nothing suggested that the substance was innocuous. It was referred to as “spice” and offered as a substitute for marijuana. The active ingredient had been laced on plant material, mimicking the appearance of marijuana. It was sold for a large amount of money ($200 for eight grams), and the exchange was made in a parking lot approximately two miles from the convenience store owned by Qasoon’s father, where Qasoon worked and, according to his defense, sold legal marijuana substitutes. In the recording of the sale, Qasoon boasted of the substance’s psychoactive potency; he said it was better than marijuana and what was sold at his store, cautioned against smoking it too quickly, and even claimed it had been tested by a medical professional.

¶ 6. This issue is waived and without merit.

2. Sufficiency of Indictment

¶7. Qasoon next contends that his indictment was insufficient because it alleged possession of “AB-FUBINACA,” rather than the chemical description applicable to the compound given in Schedule I of the Mississippi Uniform Controlled Substances Law.

¶ 8. Qasoon’s indictment alleged that, in relevant part, he:

did willingly, unlawfully, and feloniously and knowingly sell, barter, transfer, distribute or dispense approximately 7.90 gram(s) of AB-FUBINACA, a Schedule I controlled substance ..., in violation of Seetion[s] 41-29-139 [and] 41-29-113(c)(L)[] of the Mississippi Code ....

¶ 9. Qasoon did not challenge the sufficiency of his indictment at trial. While it is true that “[challenges to the substantive sufficiency of an indictment may not be waived and consequently may be raised for the first time on appeal,” this does not include all challenges to an indictment. See Ross v. State, 954 So. 2d 968, 1015 (¶ 126) (Miss. 2007). Nonjurisdictional defects in the indictment may not be attacked for the first time on appeal absent a showing of cause and actual prejudice. Crawford v. State, 716 So.2d 1028, 1050-51 (¶ 82) (Miss. 1998) (superceded by rule on other grounds, as recognized by Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 39 (¶ 22) (Miss. 2003)). Mississippi law recognizes only two such jurisdictional defects: where the “indictment fails to charge a necessary element of a crime or if there exists no subject matter jurisdiction.” Banana v. State, 635 So.2d 851, 853 (Miss. 1994); see also Brown v. State, 37 So.3d 1205, 1209-10 (¶ 9) (Miss. Ct. App. 2009).

¶ 10. Qasoon contends that the indictment “is insufficient because it fails to sufficiently charge the defendant with notice of what substance he is charged with possessing.” He bases this on two points: the use of the name “AB-FUBINACA” rather than the description used in the statute, which is rather dense, and the fact that the indictment alleged transfer of AB-FUBINACA rather than AB-FUBI-NACA or a related isomer as the proof showed.

¶ 11. Both of these challenges are barred on appeal. An indictment that uses a code or trade name for a controlled substance rather than a chemical description does not fail to allege an essential element; “fe]quivalent words of substantially the same meaning as those of the statute may be substituted.” Gilmer v. State, 955 So.2d 829, 837 (¶ 26) (Miss. 2007). AB-FUBINACA is apparently a “code name” for a specific synthetic canna-•binoid, derived loosely from its chemical formula. The name appears to be in rather widespread use; the drug was temporarily placed into the federal controlled substances Schedule I by that name in February 2014. See 79 Fed. Reg. 7577-01 (Feb. 10, 2014). Grady Downey, a forensic scientist with the Mississippi Crime Laboratory, testified that AB-FUBINACA is not specifically listed in Schedule I of the'Mississippi Uniform' Controlled Substances Law, but it is prohibited because it is a “compound which has a skeletal molecular structure which is composed of an indazole carboxamide compound.” See Miss. Code Ann. § 41-29-113(c)(55)(L) (Supp. 2016).

¶ 12. Moreover, “[t]he purpose of the indictment is to provide the accused reasonable notice of the charges against him so that he may prepare .an adequate defense.” Warren v. State, 187 So.3d 616, 621 (¶ 10) (Miss. 2016) (citation omitted). “The ultimate test, when considering the validity of an indictment on appeal, is whether the defendant was prejudiced in the preparation of his defense.” Id. at 621-22 (¶ 10) (citation omitted). From the record, it is apparent that Qasoon’s defense was not prejudiced. ■ No complaint was made about the indictment, and from the transcript of the trial it is obvious that Qasooris attorney knew exactly what AB-FUBINACÁ was, as he walked the State’s forensic scientist through its history' in an attempt to show that the drug was a recent invention and that it had only been prohibited in Mississippi for about six weeks at the time of the offense. Qasooris attorney even presented a printout of the Wikipedia entry on' AB-FUBINACA, which the witness confirmed contained a generally accurate description of the substance and its history.

¶ 13. Finally, the indictment sufficiently, albeit imperfectly, specified the code subsection that was alleged to have been violated. The indictment pointed Qasoon to “§ 41-29-113(c)(L)” of the Mississippi Code, which does not exist, as an apparent scrivener’s error omitted the “(55)” from the subsection. However, the correct subsection, 41~29-113(c)(55)(L), is the only “(L)” in the section. Coupled with the specific allegation naming AB-FUBINACA, this was adequate to put Qasoon on reasonable notice of the allegation against him.

¶ 14. As to Qasoon’s second contention, the exclusion of the words “or a related isomer,” this was not a defect in the indictment, as the indictment, on its face, alleged a crime. Rather, Qasooris complaint seems to be that there was a variance between the indictment and the proof at trial. We will discuss that issue in turn.

3. Sufficiency of the Evidence / Variance

¶ 15. Finally, Qasoon contends that his conviction was not supported by sufficient evidence. He bases this argument not on his guilt or innocence under the statute, but on the particular way the jury was instructed, which was to find him guilty if it found beyond a reasonable doubt that he had distributed “AB-FTJBÍNACA, a Schedule I controlled substance.” Qasoon points out that the lab technician who examined the substance could only determine it was AB-FUBINACA or a related isomer. The statute expressly prohibits the transfer of isomers of AB-FUBINACA, just as it does the substance itself., See Miss. Code Ann. § 41-29-llS(c)(55).

¶ 16. This issue is also proeedurally barred. “The supreme court has indicated that any challenge to a variance between the proof and the indictment must be specifically alleged” at trial. Hughey v. State, 729 So.2d 828, 832 (¶ 19) (Miss. Ct. App. 1998). The defendant must “specifically raise this question in the trial court in a motion for a directed verdict, .in a motion for a peremptory instruction or in a motion for a judgment [notwithstanding the verdict],” or it is waived. Id. (quoting Cantrell v. State, 507 So.2d 325, 331 (Miss. 1987)).

' ¶ 17. Notwithstanding the procedural bar, the flaw in Qasoon’s argument is that we are not reviewing the giving of the jury instruction, since that, too, was not challenged. “A reviewing court’s limited determination on sufficiency review ... does not rest on how the jury was instructed.... All that a defendant is entitled to on a sufficiency challenge is for the court to make a ‘legal’ determination whether the evidence was strong enough to reach a jury at all.” Musacchio v. United States, — U.S. —, 136 S.Ct. 709, 715, 193 L.Ed.2d 639 (2016). Of course, the State still had to prove the offense alleged in the indictment, but the real question here is whether there was a fatal variance between the indictment and the proof. See Graham v. State, 185 So.3d 992, 1001 (¶ 25) (Miss. 2016) (citation omitted).

¶ 18. Not all variances are fatal; error occurs only when the variance from the language of the indictment is material. Id. at 1000 (¶23) (citation omitted). “A variance is material if it affects the substantive rights of the defendant.” Burrows v. State, 961 So.2d 701, 705 (¶ 11) (Miss. .2007) (citation omitted). The variance is not material if the State’s proof is “practically and substantially, though not identically, the same as that alleged.” See Roney v. State, 153 Miss. 290, 297, 120 So. 445, 446 (1929) (quoting Bowers v. State, 145 Miss. 832, 835, 111 So. 301, 301 (1927)).

¶ 19. Our caselaw is replete with similar examples of minor substitutions of proof that were not found to'be" material variances. In Roney, no error was found even though the indictment alleged that the defendant committed an aggravated assault with “brass knueks,” and the proof showed it was done with a crutch. See Roney, 153 Miss. at 298, 120 So. at 446. In Bowers, the defendant was alleged to have struck the victim with a wrench when the proof showed that the weapon was a stick. See Bowers, 145 Miss. at 835, 111 So. at 301. In Burrows, the defendant was alleged to have digitally penetrated the victim, while the proof showed he used an object. See Burrows, 961 So.2d at 706 (¶ 14). And in Graham, the allegation was that the defendant had performed fellatio on the victim, but it was adequate to prove that the victim had performed fellatio on the defendant. See Graham, 185 So.3d at 998-99 (¶¶ 16-17). In these cases, the supreme court reasoned that the indictment had sufficiently informed the defendant that he was alleged to have committed a certain offense, and the proof had showed that the same crime had been committed, just in a somewhat different way than alleged; and the defendant’s “ability to prepare and present a defense to the [offense alleged] was not materially affected.” See Burrows, 961 So.2d at 706 (¶ 14).

¶20. Here, Qasoon’s indictment alleged that the offense was committed in an admittedly narrow way, but the indictment gave Qasoon adequate notice of the crime he was alleged to have committed. The proof at trial showed that he did in fact commit that crime, as he was just as guilty of the same offense had the substance been an isomer of AB-FUBINACA rather than AB-FUBINACA itself. See § 41-29-113(c)(55).' The distinction between AB-FUBINACA and an isomer of AB-FUBI-NACA did not affect Qasoon’s defense; in fact, the issue seems tó have gone unnoticed until this appeal. We conclude that the variance between the indictment and the proof was not material and therefore not fatal. This issue is without merit in addition to being procedurally barred.

¶ 21. AFFIRMED.

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

      . "Isomers are two or more compounds which have the same molecular formula but different molecular structures. The variations in structure may give rise to.different chemical characteristics.” United States v. Hall, 552 F.2d 273, 274 (9th Cir. 1977).

      . This is apparently a scrivener's error, as the actual subsection is 41-29-113(c)(55)(L).

      . The statute reads in relevant part:
      (55) Synthetic cannabinoids. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of a synthetic cannabinoid found in any of the following chemical groups, whether or not substituted to any extent, or any of those groups which contain any synthetic cannabinoid salts, isomers, or salts of isomers, whenever the existence of such salts, isomers, or salts of isomers is possible within the specific chemical designation, including all synthetic cannabinoid chemical analogues in such groups: ... (L) 3-carboxamide-lH-indazoles, whether or not substituted in the indazole ring to any extent and substituted to any degree on the carboxamide nitrogen and 3-carboxamide-lH-indoles, whether or not substituted in the indole ring to any extent and substituí-ed to any degree on the cárboxamide nitrogen[J
      Miss. Code Ann. § 41-29-113(c)(55)(L) (Supp. 2016). ’


author: WILSON, J.,

text:
    Quincy HOLMES, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01374-COA
    Court of Appeals of Mississippi.
    01/02/2018
    ATTORNEY FOR APPELLANT: QUINCY HOLMES (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: KAYLYN HAVRILLA MCCLIN-TON
    BEFORE IRVING, P.J., BARNES AND WILSON, JJ.
   WILSON, J.,

FOR THE COURT:'

¶ 1. Quincy Holmes pled guilty to robbery and motor vehicle theft, and the circuit court sentenced him to consecutive prison terms of fifteen years and ten years. Holmes later filed a petition for post-conviction relief in which he alleged, among other things, that he received ineffective assistance of counsel because his lawyer did not advise him of his right to appeal the sentence imposed following his guilty plea. The circuit court dismissed the petition as without merit, and Holmes appealed, On appeal, Holmes addresses only his ineffective assistance claim. Holmes’s claim is without merit because, among other reasons, there is no right to a direct appeal from a sentence imposed following a guilty plea. Henderson v. State, 89 So.3d 598, 603 (¶¶ 19-21) (Miss. Ct. App. 2011).

¶ 2. AFFIRMED.

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


author: PARKER, Justice.

text:
    The CITY OF BIRMINGHAM RETIREMENT AND RELIEF SYSTEM v. Kevin McGOUGH
    1150997
    Supreme Court of Alabama.
    March 17, 2017
    James D. Love, Birmingham, for appellant.
    Bernard D. Nomberg and David P. Nomberg of The Nomberg Law Firm, Birmingham, for appellee.
   PARKER, Justice.

The City of Birmingham Retirement and Relief System (“the Retirement System”) appeals the Jefferson Circuit Court’s judgment in favor of Kevin McGough. We reverse and remand.

Facts and Procedural History

McGough, then a firefighter employed by the City of Birmingham (“the city”), alleges that he sustained an injury to his left knee on April 30, 2011, during the course of his employment. For approximately one year after he injured his left knee, McGough received medical treatment from numerous doctors and-continued to work as much as he was able.

On August 20, 2012, McGough filed a claim with the Retirement System for extraordinary-disability benefits and ordinary-disability benefits to be paid out of “the retirement and relief fund.” See § 45-37A-51.120(a)(27), Ala. Code 1975 (Local Laws, Jefferson County). McGough signed a form entitled “disability procedure” that stated that “[t]he Retirement and Relief Pension Board[] is the authoritative entity which will consider the medical evidence and determine whether you will be approved to receive a disability benefit.” The “disability-procedure” form also stated: “I understand that if my disability claim is denied, ... I have the opportunity to appeal the Board’s decision, through the circuit court, within 90 days of the denial of my claim.”

On November 14, 2012, the Retirement System denied McGough’s request for extraordinary-disability benefits and granted McGough’s" request for ordinary-disability benefits. It is undisputed that the Retirement System did not notify McGough by certified mail of its decision. Instead, on November 26, 2012, Lorren Oliver, the Retirement System’s secretary, sent McGough a non-certified letter stating that the Retirement System “approved your application for ordinary disability at the rate of $722.31 per month, effective September 22, 2012, ... based on the doctor’s recommendation.” • -

On February 18, 2013, less than 90 days after McGough received Oliver’s letter dated November 26, 2012, McGough sent a letter to Oliver stating:

“This is in response to your letter dated November 26, 2012, in reference to the ... Retirement ... System’s denial of my application for extraordinary, disability. I wish to appeal the [Retirement System’s] decision and request information as to the appeal process as well as any other information I need to formally appeal.
“If' nothing more than this letter is required it will stand as formal request for the appeal of the [Retirement System’s] decision.”

McGough received nothing from the Retirement System in response to his February 18, 2013, letter.

On July 15, 2013, McGough sent another letter to Oliver. McGough’s letter stated that he had not received a certified letter notifying him of the Retirement System’s denial of his application for extraordinary-disability benefits and that, in February 2013, he had telephoned the Retirement System “to inquire about the certified letter.” McGough’s letter states that he was told by an employee of the Retirement System that she “would make sure [the certified letter] gets sent and that [McGough] would have 30 days from the date of the letter to appeal.” McGough’s letter further states that, “[a]s of July 10, 2013, [he] still [had] not received the certified letter.” McGough requested a certified letter from the Retirement System “so that [he could] proceed with the appeal process.” On the same day, McGough sent the same letter to Sandy Roberts, an employee of the Retirement System,

On August 1, 2013, McGough’s attorney e-mailed Oliver and Roberts, requesting that McGough, be permitted to appeal the Retirement System’s decision denying McGough’s application for extraordinary-disability benefits.

On December 3, 2013, more than one year after the Retirement System’s final decision denying 'McGough’s application for extraordinary-disability benefits, the Retirement System sent McGough a certified letter. The parties submitted to the circuit court two different certified letters sent by the Retirement System to McGough, both dated December 3, 2013. One notified him of thé Retirement System’s November 14, 2012, decision to approve McGough’s application for ordinary-disability benefits; the other notified him of the Retirement System’s November 14, 2012, decision to deny McGough’s application for extraordinary-disability benefits. The latter certified letter was delivered to McGough on December 5, 2013.

On July 15, 2014, in accordance with § 45-37A-51.139, Ala. Code 1975 (Local Laws, Jefferson County], McGough filed a mandamus petition in the Jefferson Circuit Court (“the circuit court”) in an effort to challenge the Retirement System’s decision denying his application for extraordinary-disability benefits.

On August 18, 2014, the Retirement System- filed a motion to dismiss McGough’s mandamus petition or,- in the alternative, for a summary judgment. The Retirement System argued that McGough’s mandamus petition was barred as untimely under § 45-37A-51.139(a). On October 22, 2014, following' a hearing, the circuit court denied the Retirement System’s motion to dismiss or, in the alternative, for a summary judgment.

On December 5, ,2014, the Retirement System petitioned this Court for a writ of mandamus directing the,circuit court to dismiss McGough’s challenge to the Retirement System’s decision to the circuit court as untimely. This Court denied the Retirement System’s petition for a writ of mandamus, without an opinion. See Ex parte City of Birmingham Ret. & Relief Sys. (No. 1140223, June 30, 2015), 215 So.3d 1026 (Ala. 2015)(table).

On October 30, 2015, the Retirement System again filed in the circuit court a motion to dismiss or, in the alternative, for a summary judgment, arguing that McGough’s mandamus petition challenging the Retirement System’s decision' was barred under § 45-37A-51.139(a) as untimely. On November 27, 2015, McGough filed a response to the Retirement' System’s motion. On November* 30, 2015, following a hearing, the circuit court denied the Retirement System’s motion to dismiss or, in the alternative, for a summary judgment.

On May 9, 2016, following a bench trial, the circuit court granted McGough’s petition for' a writ of mandamus and ordered that the Retirement System grant McGough’s application for extraordinary-disability benefits. The circuit court again held that McGough had “timely and properly appealed his request for a determination of extraordinary disability benefits.”

On May 23, 2016, McGough filed a motion to tax costs. McGough requested ■ reimbursement for $5,497.79 in costs and supported his motion with extensive documentary evidence. On June 6, 2016, the circuit court granted McGough’s motion. Also on June 6, 2016, the Retirement System filed a motion requesting that the circuit court reconsider its order granting McGough’s motion to tax costs. On June 22, 2016, after the Retirement System had filed its notice of appeal, the circuit court purported to deny the Retirement System’s motion.'-

Standard of Review

“‘Because the trial court heard ore tenus evidence during the bench trial, the ore tenus standard of review applies.’ Kennedy v. Boles Invs., Inc., 53 So.3d 60, 67 (Ala. 2010).
““““[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.” ’ ” Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala. 2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala. 2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala. 2002)). “‘The presumption 'of correctness, however, ■ is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.’ ” Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala. 2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala. 1985)). “Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.” Waltman v. Rowell, 913 So.2d at 1086.’
“Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala. 2007). ‘Questions of law are reviewed de novo.’ Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala. 2004).”

Moultrie v. Wall, 172 So.3d 828, 839 (Ala. 2015).

Discussion

The appeals process from a final decision by the. Retirement System is set forth-in § 45-37A-51.139. The first issue raised by the Retirement System concerns the timeliness of McGough’s petition for a writ of mandamus challenging the Retirement System’s denial of McGough’s application for extraordinary-disability benefits. Section 45-37A-51.139(a) sets forth the following procedure for challenging a final decision of the Retirement System:

“Any decision of the board denying a benefit claimed may be subject to review by the circuit court, in the manner and subject to the limitations herein provided. An employee may secure a review of a decision of the board by mandamus proceedings in the circuit court, which proceedings the employee shall institute, in the court by filing therein a petition for mandamus. The petition may designate the board as respondent or the members thereof as respondents. Each respondent shall be served with process, unless the respondent or his or her or its attorney accepts service. The petition for mandamus shall be barred if it is not filed within 90 days from the date whereon the board of managers makes its final decision on the benefit claimed, provided written notice of such final decision of the board shall be given by certified or registered mail, postage prepaid, and properly addressed, to the claimant or his or her attorney within 10 days after such final decision of the board. If timely notice shall not be given as provided in the.last preceding sentence, claimant shall not be barred from filing mandamus until the expiration of 80 days from the mailing of notice as above provided; but in no event, anything therein to the contrary notwithstanding, shall mandamus be filed after one year from the date of such final decision of the board .... ”

The plain language of § 45-37A-51.139(a) contemplates three situations regarding the timeliness of an employee’s filing of a mandamus petition in the circuit court challenging a final decision of the Retirement System. First, § 45-37A-51.139(a) states that a claimant’s petition for mandamus challenging a final decision of the Retirement System will be barred “if it is not filed within 90 days from the date” of the Retirement System’s final decision. However, this 90-day period applies only if the Retirement System provides written notice to the claimant “by certified or registered mail, postage prepaid, and properly addressed, to the claimant or his or her attorney within 10 days after such final decision.” (Emphasis added.) Second, § 45-37A-51.139(a) states that, if the Retirement System fails to send, by certified or registered mail, the claimant notice of its final decision within 10 days of that final decision, then the claimant “shall not be barred from filing mandamus until the expiration of 80 days from the mailing of notice as above provided.” Third, § 45-37A-51.139(a) states, “but in no event, anything therein to the contrary notwithstanding, shall mandamus be filed after one year from the date of such final decision of the board.”

The Retirement System argues that MeGough’s mandamus petition challenging the Retirement System’s denial of his application for extraordinary-disability benefits was untimely under the second and third timeliness clauses of § 45-37A-51.139(a). First, the Retirement System argues that McGough’s mandamus petition is barred under the third timeliness clause of § 45-37A-51.139(a), which states: “[B]ut in no event, anything therein to the contrary notwithstanding, shall mandamus be filed after one year from the date of such final decision of the board.” The Retirement System notes that it rendered its final decision denying McGough’s application for extraordinary-disability benefits on November 14, 2012. The Retirement System further notes that McGough did not file his mandamus petition in the circuit court until July 15, 2014, considerably more than one year after the Retirement System’s final decision. These facts are undisputed. The Retirement System argues that, by operation of the plain language of the third timeliness clause of § 45-37A-51.139(a), McGough’s mandamus petition was untimely and that the circuit court erred in concluding otherwise.

McGough does not offer any argument in response to the Retirement System’s interpretation of the third timeliness clause of § 45-37A-51.139(a). In fact, the plain language of that clause is clear: A mandamus petition challenging a final decision of the Retirement System cannot be filed more than one year after the final decision. Instead, McGough argues that the Retirement System should be estopped from asserting that McGough’s mandamus petition is time-barred under § 45-37A-51.139(a) because of the actions taken by the Retirement System to allegedly mislead McGough. McGough directs this Court’s attention to the letter he wrote Oliver on February 18, 2013, in which McGough expressed his desire to appeal and as to which he received no response from the. Retirement System. McGough also directs this Court’s attention to the letters he wrote Oliver and Roberts dated July 15, 2013, which are summarized above. In short, in those letters, McGough states that he had been assured by an employee of the Retirement System that he would receive a certified letter and that, once he received the certified letter, he would have 30 days to appeal the Retirement System’s final decision. McGough argues that these facts demonstrate that the Retirement System “was aware, at least constructively, by way of [McGough’s] letters and other communication that he wanted to appeal, but [he] was acting under a misapprehension of the appeal procedure that they had created in him.” McGough’s brief, at p. 43 (footnote omitted).

For purposes of this decision, however, we need not determine whether the Retirement System is estopped from arguing that McGough’s petition is barred by the third timeliness clause in § 45-37A-51.139(a). This is so because the Retirement System ’argues, in the alternative, that McGough’s mandamus petition challenging the Retirement System’s denial of his application for extraordinary-disability benefits was untimely under the second timeliness clause of § 45-37A-51.139(a), which states: “If timely notice shall not be given as provided in the last preceding sentence, claimant shall not be barred from filing mandamus until the expiration of 80 days from the mailing of notice as above provided.” We find the Retirement System’s argument in this regard convincing.

The second timeliness clause of § 45-37A-51.139(a) references the first timeliness clause of § 45-37A-51.139(a); the interplay between these two timeliness clauses is explained above. It is undisputed that the Retirement System, did not send McGough a certified letter within-10 days of its November 14, 2012, final decision, as contemplated in the first timeliness clause of § 45-37A~51.139(a). Instead, the Retirement System sent McGough a certified letter on December 3, 2013, notifying McGough that his application for extraordinary-disability benefits had been denied. Accordingly, the second timeliness clause applies. Pursuant to the second timeliness clause of § 45-37A-5i.l39(a), McGough’s mandamus petition would not be barred as untimely so long as he filed it before “the expiration of 80 days from the mailing of notice as above provided.” McGough did not file his mandamus petition in the circuit court before the expiration of 80 days from the mailing- of the December 3, 2013, letter. McGough did not file his mandamus petition- in the circuit court- until July 15, 2013, more than 200 days from the time the Retirement System mailed him a certified letter notifying him of the Retirement System’s final decision. Clearly, McGough’s mandamus petition is barred under the plain language of the second timeliness clause of § 45-37A-51.139(a),

McGough offers no argument concerning the interpretation of the second timeliness clause of § 46-37A-51.139(a). Instead, McGough argues that he received a certified letter from the Retirement System dated December 3,2013, notifying him that the Retirement System had approved his application for ordinary-disability benefits. McGough attached this letter to his mandamus petition filed in the circuit court, This alone is not evidence indicating that the Retirement System did not send McGough a certified letter giving him notice of the Retirement System’s final decision concerning McGough’s application for extraordinary-disability benefits. In fact, during the bench trial,. the Retirement System introduced into evidence a certified letter it sent to McGough on December 3, 2013, notifying McGough that the Retirement System had denied his application for extraordinary-disability benefits. The circuit court specifically certified that this letter was an exhibit admitted during the course of the bench trial. McGough has not directed this Court’s attention to anything in the record indicating that he objected to the admission of this evidence at trial. Nor does McGough argue that this Court should not consider the certified letter. The fact that McGough was sent two certified letters on the same date is not contradictory evidence to which the ore tenus standard of review would be applicable. The record simply indicates that the Retirement System sent McGough two certified letters on December 3,2013; one certified letter notified him of the Retirement System’s decision granting his application for ordinary-disability benefits; the other certified letter notified him of the Retirement System’s decision denying his application for extraordinary-disability benefits. McGough’s argument does not demonstrate that the Retirement System failed to send him a certified letter notifying him of the Retirement System’s final decision denying McGough’s application for extraordinary-disability benefits.

For these reasons, we conclude that McGough’s mandamus petition is barred by the second timeliness clause of § 45-37A-51.139(a). Our conclusion pretermits discussion of the other arguments raised by the parties.

Conclusion

Based on the foregoing, we conclude that McGough’s mandamus petition challenging the Retirement System’s final decision denying McGough’s application for extraordinary-disability benefits is untimely under § 45-37A-51,139(a). Accordingly, we reverse the circuit court’s judgment and remand the matter for proceedings consistent with this opinion.

REVERSED AND REMANDED.

Stuart, Shaw, Wise, and Bryan, JJ., concur.

      .Section 45-37A-51.226(b)(1), Ala. Code 1975 (Local Laws, Jefferson County), states that extraordinary-disability benefits aire available to those who “shall become totally disabled to perform his. or her customary duties by reason of personal injury received as a result of an accident arising out of and in the course of his or her employment in the service and occurring at a definite time and place” and that,
      "in the event such total disability shall continue until the participant ceases to draw salary as an employee of the city, such disabled participant shall be entitled to a monthly allowance from the fund equal to 70 percent of his or her monthly salary at ■the time of the application for extraordinary disability benefits arising from the accident which resulted in such total disability. If such participant shall be eligible for extraordinary disability benefits subsequent to August 1, 2009, the extraordinary disability benefit shall be subject to the offset for any workers’ compensation benefit or other such disability benefit payable by the city as set forth hereafter.”
      (Emphasis added.)

      . Section 45-37A-51.225(a), Ala.' Code 1975 (Local Laws, Jefferson County), states that ordinary-disability benefits are available to those who “shall become totally disabled to perform his or her customary duties as an employee of the city and not be entitled to an extraordinary disability allowance” and that those ’ employees shall be “be entitled to ■ a monthly ordinary disability allowance equal to two percent of such participant’s final average salary multiplied by his or her years of credited service at the date of disability.”

      . Although not explained by the parties, it appears that “the Retirement and Relief Pension Board” is the Retirement System’s board of managers. See § 45-37A-51.120(a)(6) and § 45-37A-51.130, Ala. Code 1975 (Local Laws, Jefferson County).

      . Notification of the Retirement System’s final decision is significant for the appeals pro.-cess set forth in § 45-37A-51.139(a), Ala. Code 1975 (Local Laws, Jefferson County), which is set forth and discussed below.

      . We note that McGough argues that this Court cannot consider the Retirement System’s arguments pertaining to the timeliness of his mandamus petition, because, he says, "there is no appeal of the denial of a motion to dismiss except by permission of the circuit court, a procedure the [Retirement] System did not use. See Rules 4 and 5, Ala. R. App. P.” McGough’s petition, at pp. 35-36. Of course, this rule applies only if a party seeks interlocutory appellate review of such an order. However, as McGough recognizes, we are not reviewing the interlocutory denial of the Retirement System’s motion to dismiss, but the final judgment of the circuit court, which specifically addressed these arguments. These arguments, therefore, are properly before us.

      . McGough’s estoppel argument does not apply to this argument raised by the Retirement System. McGough has not directed this Court’s attention to any evidence indicating that the Retirement System took any action to try and mislead or to dissuade McGough from filing his mandamus petition challenging the Retirement System's final decision denying his application for extraordinary-disability benefits after McGough was sent the December 3, 2013, certified letter giving him notice of the Retirement System’s final decision.

      . Again, for purposes of this analysis we are assuming that the Retirement System is es-topped from arguing that the third timeliness clause of § 45-37A-51.139(a) — which prohibits an employee from filing a mandamus petition challenging a final decision of the Retirement System more than one year after the - final decision has been reached — bars McGough’s mandamus petition,

      . McGough notes in his brief before this Court that he actually stated in his mandamus petition that he filed with the circuit court that he received “a certified letter from [the Retirement System] informing him of the denial of his claim for extraordinary disability benefits.” McGough states that that statement was simply a "scrivener’s error.” McGough’s brief, at p. 37.

      .Although not required to do so under § 45-37A-51.139(a), the Retirement System also presented evidence indicating that someone with the last name "McGough” signed a form indicating that he had received the certified letter on December 5, 2013, The second timeliness clause of § 45-37A-51.139(a) requires that notice be given to the claimant “by certified or registered mail, postage prep'aid, and properly addressed, to the claimant or his attorney.” McGough has not argued that the Retirement System failed to comply with those requirements.