author: GRAVOIS, J.

text:
    STATE of Louisiana v. Sean A. BYERS
    NO. 16-KA-627
    Court of Appeal of Louisiana, Fifth Circuit.
    February 08, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, SEAN A. BYERS, Bruce G. Whittaker
    Panel composed of Fredericka Homberg Wicker, Jude G. Gravois, and Hans J. Liljeberg
   GRAVOIS, J.

11 Defendant, Sean A. Byers, appeals his conviction and sentence for pornography involving juveniles under the age of thirteen. For the reasons that follow, we affirm defendant’s conviction and sentence and grant appellate counsel’s motion to withdraw as counsel of record for defendant.

PROCEDURAL HISTORY AND FACTS

On September 29, 2015, the Jefferson Parish District Attorney filed a bill of ⅛ formation charging defendant, Sean A. Byers, with pornography involving juveniles under the age of thirteen, in violation of La. R.S. 14:81.1. Defendant was arraigned on September 30, 2015 and pled not guilty. On May 19, 2016, the trial judge denied defendant’s motions to suppress statement and evidence after a hearing. On June 6, 2016, defendant withdrew his not guilty plea and pled guilty as charged. On that same date, the trial judge sentenced defendant to imprisonment at hard labor for ten years without the benefit of probation, parole, or suspension of sentence. The trial judge ordered that the sentence would run concurrently with any other sentences defendant may be serving at that time. He also notified defendant of the sex offender and child predator registration requirements. On July 12,2016, defendant filed a motion for an out-of-time appeal, which was granted on July 22, 2016.

Because defendant pled guilty, the underlying facts were not fully developed at a trial. Nevertheless, the State alleged in the bill of information that on or about August 6, 2015, defendant, in the Parish of Jefferson, violated La. R.S. 14:81.1, in that he committed pornography involving juveniles by the intentional possession of any photographs, films, videotapes, or other visual reproductions of any sexual performance involving a child under the age of thirteen. Aso, the State gave a factual basis for the charge during the guilty plea colloquy, namely, that if this matter had gone to trial, the State would have proven beyond a reasonable doubt Igthat on August 6, 2015, within the Parish of Jefferson, defendant violated La. R.S. 14:81.1, in that he possessed pornography depicting juveniles under the age of thirteen. Defendant, thereafter, indicated that he heard, understood, and agreed with the factual basis that was read into the record.

ANALYSIS

Under the procedure adopted by this Court in State v. Bradford, 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that he has thoroughly reviewed the trial court record and found no non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed appellate counsel requests permission to withdraw as counsel of record for defendant.

In Anders, supra, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds defendant’s appeal to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “a brief referring to anything in the record that might arguably support the appeal” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1896, 1902, 100 L.Ed.2d 440 (1988).

In Jyles, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every mer-itless pretrial motion or objection |smade at trial with a detailed explanation of why the motions or objections lack merit. The Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Id.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Bradford, 676 So.2d at 1110.

Defendant’s appellate counsel asserts that after a detailed review of the record,- he could find no non-frivolous issues to raise on appeal. Appellate counsel states that defendant entered an unqualified guilty plea to the bill of information waiving all non-jurisdictional defects. He further states that defendant did not reserve the right to seek review of any of the trial court’s rulings under State v. Crosby, 338 So.2d 684 (La. 1976). Appellate counsel notes that defendant did not object to the charged offense during the plea proceeding, to the trial court’s acceptance of the guilty plea, or to the sentence agreed upon and imposed. Therefore, appellate counsel maintains that defendant has waived his right to seek review on direct appeal. Appellate counsel asserts that the trial court heard and denied defendant’s motions to suppress statement and evidence. He further asserts |4that the evidence presented at the motion hearing and the contents of the search warrant adequately support the trial court’s denial of the motions to suppress.

Additionally, appellate counsel notes that there does not appear to be any basis in the record to support any claim that the plea was constitutionally infirm. He further notes that during the colloquy, defendant indicated he had not been forced or coerced into entering the plea, that he was pleading guilty because he was guilty, and that he understood his rights, the charge, and the sentence he would receive in exchange for the plea.

Appellate counsel states that the plea bargain appears to have been advantageous to defendant, as he received the minimum ten-year sentence on a charge that carried a sentencing range of ten to forty years. He indicates that the sentence imposed is exactly the sentence defendant bargained for in his plea agreement and that this Court has recognized that defendant is precluded from raising an excessive sentence claim on appeal when the imposed sentence is the product of a plea agreement. Appellate counsel asserts that the bill of information appears to be in order, that the minutes indicate that defendant was present with counsel for all critical court proceedings, and that the plea form and accompanying colloquy was thorough and complete.

Appellate counsel has filed a motion to withdraw as attorney of record for defendant which indicates that he has prepared an Anders brief and that he has notified defendant of the filing of this motion and of his right to file a pro se supplemental brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until December 12, 2016, to file a pro se supplemental brief. Defendant has not filed a pro se brief.

In its response brief to appellate counsel’s Anders brief, the State asserts that the brief filed by appellate counsel shows a conscientious and thorough review of | sthe procedural history of the case with references to the record for the convenience of this Court. It fui’ther asserts that appellate counsel has “cast an advocate’s eye” over the record and determined that there were no non-frivolous issues to raise on appeal. As such, the State asserts that appellate counsel has, therefore, conformed with and followed the procedures set forth in An-ders and Jyles, and should be granted permission to withdraw as counsel of record for defendant.

The State also responds that it agrees with appellate counsel that after a careful review of the record, there are no non-frivolous issues present. It notes that defendant was properly convicted of one count of possession of pornography involving children under the age of thirteen, that defendant was present at all crucial stages, and that neither the pleadings nor the transcripts provide any arguable basis for an appeal. The State asserts that the trial court fully explained to defendant the ramifications of pleading guilty and foregoing a trial, that the trial court clearly described the charge and the sentence defendant was facing, and that defendant entered into a fair plea agreement with the State that was explained to him by his trial counsel. The State further asserts that the trial court also fully explained defendant’s right to appeal and that defendant indicated he understood and agreed to these explanations. As such, the State contends there is nothing else in the record that would suggest a non-frivolous issue to be raised on appeal.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. The bill of information properly charged defendant and plainly and concisely stated the essential facts constituting the offense charged. It also sufficiently identified defendant and the crime charged. See La. C.Cr.P. Arts. 463-466. Further, as reflected by the minute entry and commitment, defendant appeared at each stage of the proceedings against him, including his arraignment, guilty plea, and sentencing.

| r,Further, defendant pleaded guilty in this case. Generally, when a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and review of such defects either by appeal or post-conviction relief is precluded. State v. Turner, 09-1079 (La.App. 5 Cir. 7/27/10), 47 So.3d 455, 459. Here, defendant entered unqualified guilty pleas, and therefore, all non-jurisdictional defects were waived. No rulings were preserved for appeal under the holding in Crosby, supra. Also, once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally in~ firm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

A review of the record reveals no unconstitutional infirmity or irregularities in defendant’s guilty plea. The transcript of the colloquy shows that defendant was aware that he was pleading guilty to possession of pornography involving juveniles. Defendant was also properly advised of his Boy-kin rights. On the waiver of rights form and during the guilty plea colloquy with the trial court, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination. On the waiver of rights form, defendant initialed next to each of these rights and signed the form, indicating that he ^understood he was waiving these rights by pleading guilty. During the colloquy with the trial judge, defendant also indicated that he understood the rights he was waiving by pleading guilty.

Further, during his guilty plea colloquy and in the waiver of rights form, defendant indicated that he had not been forced, coerced, or threatened into entering his guilty plea and that he was satisfied with the way his attorney and the court handled his case. Defendant was also informed by the waiver of rights form and during the. colloquy of his maximum sentencing exposure and of the actual sentence that would be imposed upon acceptance of his guilty plea. After the colloquy with defendant, the trial court accepted defendant’s plea as knowingly, intelligently, freely, and voluntarily made.

With regard to defendant’s sentence, it was imposed in accordance with the plea agreement. This Court has consistently recognized that La. C.Cr.P. Art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. State v. Moore, 06-875 (La.App. 5 Cir. 4/11/07), 958 So.2d 36, 46, writ denied, 09-2046 (La. 8/18/10), 42 So.3d 394. In addition, defendant’s sentence falls within the sentencing range set forth in the statute. See La. R.S. 14:81.1. The plea agreement was beneficial to defendant in that he received a ten-year sentence when he could have received a forty-year sentence. A defendant who intentionally possesses child pornography can be charged on a separate count and sentenced separately for each count upon which the defendant is convicted for each child in |8each sexual performance captured within photographs, films, videotapes, and/or other visual reproductions that comprise the defendant’s collection of child pornography. State v. Hearn, 09-434 (La.App. 5 Cir. 12/29/09), 30 So.3d 873, 878 (citing State v. Fussell, 06-2595 (La. 1/16/08), 974 So.2d 1223, 1238). In the instant case, the probable cause affidavit indicates that defendant possessed and distributed three videos of child pornography to a detective and that he also possessed sixteen additional images and videos of child pornography.

The transcript reflects that the trial judge correctly imposed the ten-year sentence without the benefit of probation, parole, or suspension of sentence. The commitment and the Uniform Commitment Order also correctly reflect that the ten-year sentence was to be served without the benefit of probation, parole, or suspension of sentence. However, defendant was not advised during the plea colloquy or in the waiver of rights form that the sentence would be imposed without the benefit of probation, parole, or suspension of sentence. We find that the trial judge’s failure to advise defendant of these restrictions prior to the guilty plea did not affect the voluntariness of that plea.

In State v. Harrell, 09-364 (La.App. 5 Cir. 5/11/10), 40 So.3d 311, 323-24, writ denied, 10-1377 (La. 2/10/12), 80 So.3d 473, the defendant contended that his plea on count three was not knowing and voluntary because the trial court failed to advise him that the first five years of the sentence had to be served without the benefit of parole, probation, or suspension of sentence. On appeal, this Court found that the trial court’s failure in this regard did not render the defendant’s guilty plea unknowing or involuntary. It noted that the trial court advised the defendant of his Boykin rights, that the defendant indicated his willingness to plead guilty throughout the plea colloquy, that the defendant acknowledged that he had discussed the guilty plea with his attorney and that he still desired to plead guilty, and that the defendant received a substantial benefit for pleading guilty.

|flIn the instant case, the record reflects that the trial judge advised defendant of his rights and defendant indicated his willingness to plead guilty. Defendant acknowledged that he had discussed his guilty plea form with his attorney and that he still desired to plead guilty. Moreover, defendant received a substantial benefit for pleading guilty as was discussed previously. Also, the record does not reflect that receiving the benefit of parole, probation, or suspension of sentence was crucial to his guilty plea. Defendant did not object to these restrictions when the trial court imposed them. Under these circumstances, we find that defendant’s rights were not affected. Therefore, we find that the trial judge’s failure to advise defendant in the waiver of rights form or during the colloquy prior to the guilty plea that the sentence was to be served without the benefit of parole, probation, or suspension of sentence did not render his guilty plea unknowing or involuntary. See Harrell, supra.

Based on the foregoing, the proceedings surrounding defendant’s guilty plea and sentencing do not present any non-frivolous issues to be raised on appeal. Appellate counsel’s brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel’s assertion. Therefore, defendant’s conviction and sentence are affirmed, and appellate counsel’s motion to withdraw as counsel of record for defendant is hereby granted.

ERRORS PATENT REVIEW

The record was reviewed for errors patent in accordance with La. C.Cr.P. Art. 920, State v. Oliveaux, 312 So.2d 337 (La. 1975), and State v. Wetland, 556 So.2d 175 (La. App. 5 Cir. 1990). The review reveals no errors patent in this case.

I tqCONCLUSION

For the foregoing reasons, defendant’s conviction and sentence are affirmed. Appellate counsel’s motion to withdraw as counsel of record for defendant is hereby granted.

AFFIRMED; MOTION TO WITHDRAW GRANTED

      . In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).

      . Prior to his guilty plea, defendant filed omnibus motions, which included a motion to suppress confession, a motion to suppress evidence, and a motion for a preliminary examination, The record indicates that the trial judge denied the motions to suppress confession and evidence after a hearing and that defendant waived the preliminary examination. Defendant did not preserve these rulings for appeal under Crosby, supra.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . The waiver of rights form shows that defendant was pleading guilty to the crime of “R.S. 14:81(E)(5)(a), to wit: possession of child pornography under the age of 13.” However, there appears to be a typographical error in the statutory citation. Defendant actually pled guilty to a violation of La. R.S. 14:81.1, pornography involving juveniles, and not La. R.S. 14:81, indecent behavior with juveniles. Additionally, La. R.S. 14:81 does not have a section (E)(5)(a). In any event, the transcript of the colloquy reflects that defendant was aware he was pleading guilty to possession of pornography involving juveniles. The description of the offense in the waiver of rights form reflects that defendant was aware he was pleading guilty to possession of pornography involving juveniles under the age of thirteen. Also, defendant admitted to the factual basis wherein the State said it would have proven that defendant violated La. R.S. 14:81.1 in that he possessed pornography depicting juveniles under the age of thirteen. Further, the State alleged in the bill of information that defendant violated La. R.S. 14:81.1 in that he possessed pornography involving juveniles under the age of thirteen.

      . The trial judge did not inform defendant of the minimum sentence. La. C.Cr.P. Art. 556.1(A)(1) provides that, prior to accepting a guilty plea, the court must personally inform the defendant of the nature of the charge to which the plea is offered, any mandatory minimum penalty, and the maximum possible penalty. "Any variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea.” La. C.Cr.P. Art. 556.1(E). Violations of La. C.Cr.P. Art. 556.1 that do not rise to the level of Boykin violations are subject to harmless error analysis. State v. Craig, 10-854 (La.App. 5 Cir. 5/24/11), 66 So.3d 60, 64. In the instant case, we find any violation of Article 556,1 did not cause prejudice since defendant knew the sentence he would receive, and he received that sentence. The advisement of the agreed upon sentence was sufficient for compliance with La. C.Cr.P. Art. 556.1. SeeCraig, 66 So.3d at 64; State v. Broadway, 40,569 (La.App. 2 Cir. 1/25/06), 920 So.2d 960, 963.


source: Caselaw Access Project

author: Judge Roland L. Belsome

license: Public Domain

text:
    Donna JONES, Lynette Brown and Tarenzette Butler v. SEWERAGE AND WATER BOARD OF NEW ORLEANS and Transit Management of Southeast Louisiana, Inc.
    NO. 2016-CA-0691
    Court of Appeal of Louisiana, Fourth Circuit.
    March 8, 2017

      Louis A. Gerdes, Jr., 1739 St. Bernard Avenue, New Orleans, LA 70116, COUNSEL FOR PLAINTIFF/APPELLANT
    Geri Broussard Baloney, THE BROUS-SARD BALONEY LAW FIRM, APC, 1903 W. Airline Hwy., LaPlace, LA 70068, COUNSEL FOR DEFENDANT/APPEL-LEE
    (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Joy Cossich Lobrano)
   Judge Roland L. Belsome

Plaintiffs appeal the trial court’s granting of Defendant Transit Management of Southeast Louisiana’s Exception of Prescription. For the reasons that follow, the trial coui't’s judgment is reversed.

FACTS AND PROCEDURAL HISTORY

On July 8, 2003, Plaintiffs were passengers on a streetcar owned and operated by Defendant Transit Management of Southeast Louisiana, Inc. (“TMSEL”) when the streetcar was struck by a Sewerage and Water Board truck.

On June 29, 2004, Plaintiffs filed a petition for damages in Civil District Court of Orleans Parish, bearing docket number 04-9545, against TMSEL and Sewerage and Water Board of Louisiana claiming to have suffered injuries due to the collision. Plaintiffs requested service on the defendants, but did not pay filing or service fees as they had applied to proceed in forma pauperis. On or about July 2, 2004, Plaintiffs’ in forma pauperis application was denied.

On September 1, 2004, an Act recognizing Defendant Transit Management as a political subdivision went into effect. This Act resulted in TMSEL’s ability to invoke the ninety-day service requirements in place for all political subdivisions as a defense.

In October 2006, the plaintiffs paid the filing and service fees for the petition for damages against TMSEL and Sewerage and Water Board of Louisiana; the citations were issued on November 17, 2006.

On February 26, 2007, Plaintiffs filed a second petition for damages in Civil District Court of Orleans Parish, bearing docket number 07-1791, against the same Defendants, arising out of the same accident and making nearly identical allegations.

On November 13, 2007, Plaintiffs’ first suit was dismissed without prejudice.

On April 1, 2009, TMSEL filed an Answer to Plaintiffs’ second suit. TMSEL’s Answer also included the Peremptory Exception of Prescription that is presently at issue in this appeal. Following the hearing on the exception, the trial court requested post-trial memoranda from the parties and granted the exception. This appeal followed.

STANDARD OF REVIEW

When no evidence is introduced at the hearing on an exception of prescription, “the reviewing court simply determines whether the trial court’s finding was legally correct.” Where there is no dispute regarding material facts, only the determination of a legal issue, the reviewing court must apply the de novo standard of review. “The standard controlling our review of a peremptory exception of prescription also requires that we strictly construe the statutes against prescription and in favor of the claim that is said to be extinguished.”

DISCUSSION

TMSEL’s exception of prescription was based on Plaintiffs’ second suit being prescribed on its face and prescription not being interrupted by Plaintiffs filing of the first suit against Defendants.

Under Louisiana law, a party typically has one year after injury or damage is sustained to file a law suit or the claim is prescribed. Prescription runs against all persons unless an exception is established by legislation. When a petition reveals on its face that the cause of action pled has prescribed, the plaintiff bears the burden of proving that the claim has not prescribed as a result of interruption, suspension, or renunciation. The Civil Code provides that prescription is interrupted when suit is filed in a court of competent jurisdiction and venue.

The instant suit was filed by Plaintiffs on February 26, 2007, over three years after the injuries complained of in the petition were incurred. Because the cause of action has prescribed on its face, the burden shifts to Plaintiffs to negate prescription.

Plaintiffs argue that the prescription was interrupted by the timely filing of their first petition for damages against Defendants. The injuries alleged in the petition occurred on July 3, 2003. Plaintiffs filed the first petition on June 26, 2004 and applied to proceed in forma pauperis. The application was denied shortly thereafter, but Plaintiffs did not pay the required fees to effectuate service until over two years later. The first petition was dismissed without prejudice on November 13, 2007.

Defendant TMSEL excepted to the instant petition on the grounds that the claim had prescribed, arguing that pursuant to La. R.S. 13:5107(D) prescription was not interrupted by the filing of the first petition due to Plaintiffs failure to serve the first petition within ninety days of TMSEL being designated as a political subdivision.

On September 1, 2004, the Louisiana State Legislature amended La. R.S. 13:6102 to designate TMSEL as a political subdivision for litigation purposes. One effect of this designation was that as of September 1, 2004, TMSEL could invoke the protections of La. R.S. 13:5107(D).

The issue on appeal is whether La. R.S. 13:5107(D) applies retroactively to a lawsuit filed prior to an entity being designated as a political subdivision. We find that it does not.

Defendant TMSEL argues that the filing of the first petition did not interrupt prescription because service of that petition was not perfected within ninety days of TMSEL being designated as a political subdivision. While this Court has determined that the timely filing of a petition does not serve to interrupt prescription as to a political subdivision where service is not effectuated within the ninety-day time period required by La. R.S. 13:5107, this Court has not had occasion to consider the implications where an entity is designated as a political subdivision after suit has been filed.

TMSEL cites to the case Pate v. Regional Transit Authority in support of its position. In the Pate case, the plaintiff was injured while she was a passenger on an RTA bus. She timely filed suit against RTA, a political subdivision, but that suit was dismissed due to the plaintiffs failure to serve RTA within ninety days of filing. Shortly after the first suit was dismissed, the plaintiff filed a second, nearly identical petition against RTA. RTA filed an exception of prescription, arguing that the cause of action had prescribed as the second petition was filed more than a year after the injuries were sustained. The trial court granted the exception, and this Court affirmed the judgment finding that “the time that Ms. Pate’s first lawsuit was pending from its filing to its dismissal did not interrupt or suspend the running of prescription.” The Court stated that “La. C.C. Arts. 3462 and 3463 are rendered inapplicable to a situation in which service was not requested on ‘the state, a state agency, or a political subdivision, or any officer or employee thereof within ninety days of the filing of an otherwise timely lawsuit in a competent court and a proper venue.” However, the Pate case is distinguishable from the facts of this case in that RTA was a political subdivision during the entire pendency of that case.

TMSEL further cites to Cole v. Celotex Corporation in support of its contention that La. R.S. 13:5107(D) should be applied retroactively to a suit filed prior to TMSEL’s designation as a political subdivision. However, a careful reading of the Cole case leads to a contrary conclusion. In the Cole case, the Court considered the retroactivity of Act 431, the Louisiana Comparative Fault law. The Court first noted that the general rule against retro-activity of statutes and the exceptions to that rule is codified in La. C.C. Art. 6. The Court then stated that “[generally, the determinative point in time separating prospective from retroactive application of an enactment is the date the cause of action accrues. .,. [o]nce a party’s cause of action accrues, it becomes a vested property right that may not constitutionally be divested.” The Court went on to state that “statutes enacted after the acquisition of such a vested property right ... cannot be retroactively applied so as to divest the plaintiff of his vested right in his cause of action because such a retroactive application would contravene the due process guaranties.”

■While TMSEL is correct in stating the Louisiana Supreme Court has found that the service requirements of La. R.S. 13:5107(D) apply retroactively regardless of when the cause ■ of action arose, the Court was considering a scenario in which suit was filed after the effective date of the statute. In the case Naquin v. Titan Indem. Co., the Louisiana Supreme Court found that the service requirements set forth in La. R.S. 13:5107(D) applied to causes of action that arose prior to the effective date of the statute where suit was filed after the effective date. The Court noted that “[t]he rules governing service of process are procedural because they prescribe a method for enforcing a previously existing substantive right and relate to the form of the proceeding or the operation of the laws.” The Court further stated that the legislature is permitted to alter rules governing service of process as long as a party still receives notice and an opportunity to be heard.

Applying the reasoning of the cases cited to above, the service requirements set forth in La. R.S. 13:5107(D) do not apply to suits filed against TMSEL prior to its designation as a political subdivision. La. R.S. 13:5102(B)(2) includes no language concerning the retroactivity of the statute. The legislative history of the statute also provides no indication of any intent that political subdivision status of TMSEL should be applied retroactively. The requirements imposed by La. R.S. 13:5107(D) became effective as to TMSEL on September 1, 2004, and thus only apply to suits filed after that date.

In this case, the imposition of the ninety-day service requirement as to TMSEL for suits filed prior to its political subdivision designation would serve to divest Plaintiffs of right to sue on their cause of action. We therefore find that Plaintiffs filing of the first petition against Defendants served to interrupt prescription. Thus, the trial court erred in granting TMSEL’s exception of prescription. The trial court’s judgment and dismissal of the ease is reversed. The matter is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED

      . See La. R.S. § 13:5102.

      . The record does not include the judgment from the dismissal of the first suit.

      . Felix v. Safeway Ins. Co., 2015-0701, p. 6 (La.App. 4 Cir. 12/16/15), 183 So.3d 627, 631— 32 (citing Bulliard v. City of St. Martinville, 2014-140, p. 2 (La.App. 3 Cir. 6/4/14), 139 So.3d 1269, 1271).

      . Id.

      . Id. at 631.

      . La. C.C. Art. 3492. "Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained."

      . La. C.C. ArL. 3467.

      . Bordelon v. Med. Ctr. of Baton Rouge, 2003-0202, p. 3 (La. 10/21/03), 871 So.2d 1075, 1077-78, as corrected (Jan. 28, 2004).

      . La. C.C. Art. 3462.

      . The record indicates that Plaintiffs paid the filing and service fees for the first petition in October 2006, yet did not request service until November 17, 2007, after the petition had been dismissed by the trial court.

        .See La. R.S. § .13:5102.

      . Pursuant to La. R.S. 13:5107(D)(1), "[i]n all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action. ...” If service is not requested within the required time period, the suit must be dismissed after a contradictory motion. The statute further states that when a political subdivision is dismissed because it was not timely served, the filing of the petition does not suspend the running of prescription as to the political subdivision.

      . Pate v. Reg'l Transit Auth., 2008-1147 (La. App. 4 Cir, 3/11/09), 8 So.3d 744.

      . Id. at 745.

      . Id.at 745-46.

      . Id. at 746.

      . Id.

      . Id. at 747.

      . Id.

      . Cole v. Celotex Corp., 599 So.2d 1058 (La. 1992).

      . Id. at 1063,

      . Id.; La. C.C. Art. 6 states that "[i]n the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.”

      . Cole, 599 So.2d at 1063.

      . Id.

      . Naquin v. Titan Indem. Co., 2000-1585, pp. 4-5 (La. 2/21/01), 779 So.2d 704, 708 [emphasis added].

      . Id. (citing Keith v. U.S. Fidelity & Guar. Co., 96-2075, p. 6 (La. 5/9/97), 694 So.2d 180, 183. (“Procedural laws prescribe a method for enforcing a previously existing substantive right and relate to the form of the proceeding or the operation of the laws.”)).

      . Id.


author: Judge Terri F. Love BELSOME, J.,

text:
    Phyllis Marie MATTHEWS v. UNITED FIRE & CASUALTY INSURANCE COMPANY DOCTOR PIPE, INC. and Danny Anthony Robert
    NO. 2016-C-0389
    Court of Appeal of Louisiana, Fourth Circuit.
    March 8, 2017

      STEPHEN R. BARRY, DAPHNE P. MCNUTT, KATHLEEN C. MARKS-BURY, BARRY & CO., LLC, 612 Gravier Street, New Orleans, Louisiana 70130, COUNSEL FOR DEFENDANTS/RELA-TORS, UNITED FIRE & CASUALTY INSURANCE COMPANY, DOCTOR PIPE, INC., STEVEN CHAMBERS, AND DANNY ANTHONY ROBERT
    Dominick F. Impastato, III, Mary W. Russo, Frischhertz, Poúlliard, Frischhertz, & Impastato, LLC, 1130 St. Charles Avenue, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/RESPONDENT, PHYLLIS MARIE MATTHEWS
    (Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Regina Bartholomew Woods)
   Judge Terri F. Love

| jThis instant application for supervisory review arises from injuries and damages suffered from a car accident. Plaintiff filed suit in Orleans Parish. Defendants filed an exception of improper venue. Plaintiff then amended her petition to add two additional defendants. Defendants contended that plaintiff fraudulently added a defendant to achieve proper venue status. Defendants also asserted that plaintiff sued her uninsured motorist carrier in bad faith. The trial court denied the exception and found that defendants failed to prove that the defendant was fraudulently added. Defendants sought supervisory review with this Court.

This Court originally denied writs. The Louisiana Supreme Court then granted writs and remanded the matter for briefing, argument, and opinion. After briefing and oral argument, we find that the trial court did not err by denying defendants’ exception of improper venue. Defendants failed to meet their burden of proving the defendant company owner was fraudulently added. Discussion as to other possible proper bases for venue is pretermitted. As such, the writ is denied and the judgment of the trial court is affirmed.

[ 9FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Phyllis Matthews, an Orleans Parish domiciliary, was involved in a vehicular accident with Dan Robert in Jefferson Parish. Mr. Robert, a Jefferson Parish domiciliary, was driving a vehicle owned by his employer, Doctor Pipe, Inc. (“Doctor Pipe”). Doctor Pipe is domiciled in St. Charles Parish and has its principal place of business in Jefferson Parish. Ms. Matthews filed a Petition for Damages in Orleans Parish against Doctor Pipe, United Fire and Casualty Insurance Company (“United”), Doctor Pipe’s insurer, and Mr. Robert (collectively “Defendants”). United is not incorporated in Louisiana, but has an East Baton Rouge Parish domicile for venue purposes.

The Defendants filed an exception of improper venue contending that Orleans Parish was not the proper parish in which to bring suit. Ms. Matthews then filed her first Amended and Supplemental Petition, which added Steven Chambers, the owner of Doctor Pipe; and Liberty Mutual Insurance Company (“Liberty”), her uninsured motorist and medical pay insurer; as additional defendants. Mr. Chambers undisput-edly resides in Orleans Parish.

The trial court denied the Defendants’ exception of improper venue. The Defendants sought supervisory review. This Court denied writs, finding that venue was proper in Orleans Parish. Matthews v. United Fire & Casualty Ins. Co., 16-0389 (La. App. 4 Cir. 06/09/16). The Defendants then sought review from the Louisiana Supreme Court. The Supreme Court granted writs and remanded the matter for “briefing, argument, and opinion.” Matthews v. United Fire & Casualty Ins. Co., 16-1303 (La. 11/02/16), 206 So.3d 211.

STANDARD OF REVIEW

Exceptions of improper venue are reviewed using the de novo standard of review, as venue is a question of law. Premier Dodge, L.L.C. v. Perrilloux, 05-0554, p. 2 (La.App. 4 Cir. 1/25/06), 926 So.2d 576, 577.

Any factual determinations made by the trial court will be reviewed with the manifest error/clearly wrong standard. Brewer v. J.B. Hunt Transp., Inc., 09-1408, 09-1428, p. 9 (La. 3/16/10), 35 So.3d 230, 237. “If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id., 09-1408, 09-1428, pp. 12-13, 35 So.3d at 239. “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous.” Id., 09-1408, 09-1428, p. 13, 35 So.3d at 239.

VENUE

“Venue means the parish where an action or proceeding may properly be brought and tried under the rules regulating the subject.” La. C.C.P. art. 41. La. C.C.P. art. 42, the general venue provisions, “essentially provides for venue at the ‘home base’ of the entity sued.” Underwood v. Lane Mem’l Hosp., 97-1997, p. 4 (La. 7/8/98), 714 So.2d 715, 717. “Under the general rules of venue án action against an individual domiciled in the state shall be brought in the parish of his domicile, an action against a domestic corporation shall be brought in the parish where its registered office is located, and an action against a foreign insurer shall be brought in the parish of East Baton Rouge.” Kellis v. Farber, 523 So.2d 843, 845 (La. 1988). “An action on a health and accident insurance policy may be brought in the parish where the insured is domiciled, or in the parish where the accident or illness occurred.” La. C.C.P. art. 76.

“Evidence may be introduced to support or controvert the declinatory exception of improper venue, when the grounds thereof do not appear from the petition, the citation or return thereon.” M & M Gaming, Inc. v. Storey, 01-0545, p. 3 (La.App. 4 Cir. 5/30/01), 788 So.2d 1230, 1232. See also La. C.C.P. art. 930. “If grounds for an objection of improper venue do not appear on the face of plaintiffs petition, the burden is on defendant to offer evidence in support of his position,” Vital v. State, 522 So.2d 151, 152 (La. App. 4th Cir. 1988). “When no evidence is introduced at the trial of the exception the court is restricted to the allegations of the petition, which for purposes of the exception are to be accepted as true.” Id.

JOINDER OF MR. CHAMBERS

■ Defendants assert that Ms. Matthews added Mr. Chambers as a defendant in bad faith to establish proper venue in Orleans Parish. Defendants contend that the trial court erred by stating: “I don’t believe that the defendant has carried the burden of proving that the joinder of Steven Chambers was fraudulent,” and by denying their exception of improper venue. Defendants also rely upon Canter v. Koehring Co., 283 So.2d 716, 721 (La. 1973), to aver that a fellow employee or supervisor cannot be held accountable for an employee’s negligence unless: 1) the employer owes a duty of care, which he breaches; 2) this duty is delegated to the employee; 3) the employee breaches this duty; and 4) he knew or should have known of the employee’s breach of the delegated duty.

| nit is undisputed that Mr. Chambers is domiciled in Orleans Parish. La. C.C.P. art. 42(1) mandates, in pertinent part, that an action “[ajgainst an individual who is domiciled in the state shall be brought in the parish of his domicile.” Accordingly, venue in Orleans Parish is proper for any action properly filed against Mr. Chambers. The first amended petition accuses Mr. Chambers of negligent hiring and negligent supervision of Mr. Robert, the truck driver that collided with Ms. Matthews. Negligent hiring and supervision is recognized as a cognizable tort. See Roberts v. Benoit, 605 So.2d 1032 (La. 1991); Harrington v. Louisiana State Bd. of Elementary & Secondary Educ., 97-1670 (La.App. 4 Cir. 5/20/98), 714 So.2d 845; Kelley v. Dyson, 08-1202 (La.App. 5 Cir. 3/24/09), 10 So.3d 283. Ms. Matthews contends that hiring and supervision are under Mr. Chambers’ purview as the owner, registered agent, president, vice president, and director of Doctor Pipe.

The trial court found that Defendants failed to meet their burden of proving that Mr. Chambers was fraudulently added. We agree.

We first note that a portion of Canter was superseded by statute. Peironnet v. Matador Res. Co., 12-2292, 12-2377, p. 34 (La. 6/28/13), 144 So. 3d 791, 817, fn 13. Further, Defendants seek to utilize Canter to force Ms. Matthews to prove the allegations contained in her petition to a burden like that of an exception of no cause of action or summary judgment. Defendants contend that Mr. Chambers was only added to achieve venue in Orleans Parish, and that Ms. Matthews’ petition fails to make a prima facie case for negligent hiring/supervision. However, our role on an exception of improper venue is not to determine whether Ms. Matthews will likely prevail at trial or judge whether she presents a prima facie case. Rather, Ron an exception of improper venue, we take the allegations in the petition as true unless the evidence presented by Defendants supports their position of improper venue. Ms. Matthews’ petition contains legally sound allegations against Mr. Chambers. While Mr. Chambers may not remain a party the length of the entire suit, once venue was determined proper, it does “not become improper by reason of a subsequent establishment of different findings of fact.” Sea Tang Fisheries, Inc. v. You’ll See Sea Foods, Inc., 569 So. 2d 992, 994 (La. App. 1st Cir. 1990). Accordingly, we find that the trial court did not err by denying Defendants’ exception of improper venue, as venue is proper in Orleans Parish.

UM COVERAGE/MEDICAL PAYMENTS

Defendants also contend that Ms. Matthews cannot achieve proper venue by adding Liberty, Ms. Matthews’ uninsured motorist and medical payment carrier. Specifically, Defendants allege that the claims against Liberty were brought in bad faith due to the fact that the United policy provides $1 million in coverage, which is more than enough to cover Ms. Matthew’s alleged damages, and venue based on Liberty should not be in Orleans Parish because Ms. Matthews’ listed address was in St. Bernard Parish.

Because we found that venue was proper in Orleans Parish based upon Mr. Chambers, a discussion of whether venue is proper based upon the addition of Ms. Matthews’ UM/medical payments carrier is pretermitted.

DECREE

For the above-mentioned reasons, we find that Defendants failed to meet their burden of proving that Ms. Matthews added Mr. Chambers in bad faith. ^Accordingly, venue is proper in Orleans Parish. Therefore, the trial court did not err, and the writ is denied.

WRIT DENIED

BELSOME, J„ CONCURS WITH REASONS

BELSOME, J.,

CONCURS WITH REASONS

11While I concur in the majority’s result that the trial court properly denied the exception of improper venue, I write separately to address the issue of whether venue is proper based on the addition of Respondent’s uninsured motorist and medical payments carrier, Liberty Mutual Insurance Company.

Following the filing of Plaintiffs original petition, Respondent became aware that uninsured motorist and medical payments coverage was available through her own uninsured motorist insurance policy, yet the insurer had not made the proper payments under the policies. Liberty Mutual’s failure to make payments pursuant to the medical payments provision of Respondent’s policy gave rise to liability on a first party insurance claim for injuries sustained in the accident. Accordingly, in September 2014, Respondent amended her petition to add Liberty Mutual as a defendant.

In Gaspard v. Louisiana Farm Bureau Ins. Co., 96-2148 (La. App. 4 Cir. 11/6/96), 684 So.2d 55, this Court held that an insured may file suit against his uninsured motorist’s insurer in the parish of proper venue of the insured party—i.e., the parish where the insured is domiciled, citing former La. R.S. 22:655(B)Ja now La. R.S. 22:1269(B)(1). “For purposes of the venue exception, the plaintiffs allegations are taken as true and must appear on the face of the plaintiffs petition.” French Jordan, Inc. v. Travelers Ins. Co., 2007-0007, p. 6 (La.App. 4 Cir. 4/25/07), 958 So.2d 699, 703, writ denied, 2007-1089 (La. 9/14/07), 963 So.2d 998, If the grounds for the objection of venue are not apparent on the face of the petition, the burden is on the defendant to offer evidence to support his objection. Id.

Respondent alleged that she was domiciled in Orleans Parish in her original petition. In her amended petition, she alleged that her damages exceed the limits of the tortfeasor’s policy and that her medical payments coverage had not been paid for her injuries.

All of the documentary evidence presented at the hearing showed that Respondent was domiciled in Orleans Parish at the time the policy was drafted and at the time of the accident. Respondent’s voter registration, utility bills, certificate of occupancy, and homestead exemption all reflect an Orleans Parish address.

Relators failed to show the trial court erred in finding that Respondent is an Orleans Parish resident. Venue is therefore proper in Orleans Parish based on Respondent’s claims against Liberty Mutual.

      . Defendants maintained that Orleans Parish was also not a proper venue because the plaintiff added her uninsured motorist/medical pay carrier in bad faith, as their policy limits would not be exhausted.

      . Defendants contend that Ms. Matthews did not prove she was domiciled in Orleans Parish because she used a St. Bernard Parish address to obtain a lower premium from Liberty. However, the record contains documentation to support the trial court's finding that Ms. Matthews is domiciled in Orleans Parish. The documents include a voter's registration card, utility bills, homestead exemption, and vehicle registration.

      , As reflected on the certificate issued by the Louisiana Secretary of State.

      . As we noted previously, Ms. Matthews utilized a St, Bernard address to receive a lower premium for car insurance. She is domiciled in Orleans Parish.

      . See also La. C.C.P. art. 76 (actions against insurers, involving policies other than life and health, may be brought in the parish where the loss occurred or the insured is domiciled.).


author: KING, JUSTICE,

text:
    Earnest LEE v. John Earl BOOKER
    NO. 2015-CA-01910-SCT
    Supreme Court of Mississippi.
    02/16/2017
    ATTORNEYS FOR APPELLANT: ANTHONY LOUIS SCHMIDT, JR. OFFICE OF THE ATTORNEY GENERAL BY: DARRELL CLAYTON BAUGHN
    ATTORNEY FOR APPELLEE: JOHN EARL BOOKER (PRO SE)
   KING, JUSTICE,

FOR THE COURT:

¶ 1. After a legislative overhaul of the probation and parole statutes, John Earl Booker, a parole-eligible inmate, requested a case .plan pursuant to Mississippi Code Section 47-7-3.1. The Mississippi Department of Corrections (MDOC) denied Booker’s request, stating that the statute did not apply retroactively. The Sunflower County Circuit Court reversed the MDOC’s denial of Booker’s request and found that the statute applied retroactively and that Booker was eligible for a case plan.

FACTS AND PROCEDURAL HISTORY

¶ 2. A Corrections and Criminal Justice Task Force, created by the Legislature in 2013 to develop policy recommendations, found that Mississippi had the second largest imprisonment rate in the country. At the then-current growth rate, the Task Force estimated that new corrections spending would cost the State hundred of millions of dollars over the next ten years. Id. Consequently, with the goal of ensuring certainty in sentencing and controlling corrections costs while keeping public safety paramount, the Legislature adopted the Task Force’s recommendations, and on July 1, 2014, passed with overwhelming support House Bill 585. Id. To combat the growth of the prison population, House Bill 585 implemented a system. requiring parole-eligible inmates to follow a case plan.” Id. A parole case plan is defined by statute as “an individualized, written accountability and behavior change strategy developed by the department in collaboration with the parole board to prepare offenders for release on parole at the parole eligibility date.” Miss. Code Ann. § 47-7-2 (c) (Rev. 2015).

¶ 3. Mississippi Code Section 47-7-3.1(1) states that “[i]n consultation with the Parole Board, the department shall develop a case plan for all parole eligible inmates to guide an inmate’s rehabilitation while in the department’s custody and to reduce the likelihood of recidivism after release.” Miss. Code Ann. § 47-7-3.1(1) (Rev. 2015).

¶ 4. Booker was sentenced in July 1981 and in 1982 and became parole-eligible on September 15, 2011. The Parole Board denied Booker parole on September 24, 2014, and set his next parole-hearing date for four years later. After the Legislature passed House Bill 585, Booker, through the MDOC’s Administrative Remedy Program, requested a case plan pursuant to Section 47-7-3.1, Verlena Flagg, Associate Warden, first denied Booker’s request, maintaining that the statute was not retroactive and that only inmates convicted on or after July 1, 2014, were eligible to receive case plans. Inmates sentenced before the effective date of the statute were to continue the traditional avenue of parole, through review by the Parole Board. Earnest Lee, Superintendent of the Mississippi State Penitentiary, affirmed Flagg’s denial of Booker’s request for a case plan and interpretation of the statute.

¶5. Booker appealed to the Sunflower County Circuit Court on August 11, 2015. On September 2, 2015, the circuit court found that, because the language of the statute was plain and unambiguous, the statute applied retroactively and Booker was entitled to receive a case plan pursuant thereto. The circuit court ordered the MDOC to provide Booker a case plan within ninety days. Aggrieved, Lee appeals.

DISCUSSION

¶ 6. On December 8, 2016, this Court held that Mississippi Code Section 47-7-3.1 “does not clearly and unequivocally express an intention for retroactive applicability.” Fisher v. Drankus, 204 So.3d 1232, 1236 (Miss. 2016). Thus, pursuant to this Court’s precedent, because he was convicted prior to July 1, 2014, Booker is not now eligible to receive a parole case plan under Section 47-7-3.1.

CONCLUSION

¶ 7. Accordingly, we reverse the decision of the circuit court and render a judgment in favor of the MDOC.

¶ 8. REVERSED AND RENDERED.

WALLER, C.J., RANDOLPH, P.J., KITCHENS, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR. DICKINSON, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . http://www.legislature.ms.gov/Documents/ MSTaskForce_FinalReport.pdf (last visited February 14, 2017).

      . The Fisher v. Drankus opinion was not unanimous. One Justice concurred in result only, and two Justices dissented.


author: RANDOLPH, PRESIDING JUSTICE,

text:
    Sam HALES v. STATE of Mississippi
    NO. 2015-KA-01776-SCT
    Supreme Court of Mississippi.
    03/02/2017
    ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: BENJAMIN ALLEN SU-BER, GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER
    BEFORE RANDOLPH, P.J., KING AND BEAM, JJ.
   RANDOLPH, PRESIDING JUSTICE,

FOR THE COURT:

¶ 1. Sam Hales was convicted and sentenced to serve a term of twenty-five years in the custody of the Mississippi Department of Corrections (MDOC) for one count of sexual battery and fifteen years for one count of touching a child for lustful purposes, for a total of forty years, to be served day for day. Hales argues that the trial court erred in denying his motion for judgment notwithstanding the verdict (JNOV) because the jury’s verdict was against the overwhelming weight of the evidence. Finding no error, we affirm Hales’s convictions and sentences.

FACTS

¶2. J.P., who was fourteen years old and in the eighth grade at the time of trial, lived with his mother, father, and four sisters. J.P. testified that Hales lived near him and that he was related to Hales, but J.P. was unsure of the nature of their relationship. J.P. testified that Hales “did something bad to me when I was little.” J.P. believed the first occurrence of abuse was in February when he was in third grade. He recalled the incident happened around his sister’s birthday. J.P. testified that he had gone to Hales’s house to get a phone number for his mother. Hales told J.P. to wait in the living room. While J.P. was waiting, Hales came out of the kitchen with his pants unzipped, playing with his penis. J.P. testified that Hales “took me and slung me in the chair and grabbed, put his hand behind my head and told me to suck his penis.” Hales pushed J.P.’s head down to his penis, and Hales’s penis went inside J.P.’s mouth. Hales kept his hand on J.P.’s neck and let J.P. go only when J.P.’s mother called on the house phone.

¶ 3. J.P. testified that the last time he was abused by Hales was 2013 when he was in fifth grade. J.P. believe the incident occurred around Halloween or Thanksgiving. J.P. testified that he was in Hales’s bedroom and that Hales’s mother, Delores, and brother, James House, also were at home at the time. Hales gave J.P. a “nasty book” with pictures of naked men and women to read. While J.P. was reading, Hales was “playing with himself, and he was trying to rub on me.” J.P. testified that Hales was touching J.P.’s penis outside his clothes. After J.P. finished reading the book, Hales told J.P. to lean over and suck Hales’s penis. J.P. stopped when Hales finally let go of his head.

¶ 4. J.P. testified that Hales was circumcised and had a mole on the tip of his penis. J.P. testified that he believed he was abused by Hales fifteen times. J.P. did not tell anyone about the abuse because he was worried about his mother, who recently had suffered a mini stroke, and he was afraid Hales would convince everyone that J.P, was lying. J.P. eventually told three of his cousins. J.P.’s oldest cousin told J.P.’s father what had happened, and J.P.’s father told J.P.’s mother. The first time J.P. talked to his mother, he told her that nothing had happened because Hales had told J.P. not to tell anyone. When his mother asked him again, he told her the truth, and his mother called the police. J.P. testified that he finally told the truth because he was tired of Hales abusing him. J.P. identified Hales as the person who had sexually assaulted and fondled him.

¶ 5. J.P. acknowledged that he knew Hales had suffered a stroke in 2012 and had used a cane ever since. J.P. testified that he had been admitted to Pine Grove Behavioral Health and Addiction Services for approximately one week during the spring of 2012 for depression and anger problems.

¶ 6. Thomas Roach, a corrections officer with the Jasper County Sheriffs Department, testified that, when Hales was strip-searched, Roach had noticed Hales was circumcised. Roach testified that he did not conduct a detailed inspection to determine if Hales had a mole on the tip of his penis. Chris Thompson, a criminal investigator with the Jasper County Sheriffs Department, testified that Hales’s date of birth was April 15, 1959, and Hales’s address was in District One of Jasper County-

¶ 7. The State rested and Hales moved for a directed verdict. The trial court overruled the motion, finding that there was “sufficient evidence for the case to go to the jury. The credibility of the victim is for the jury to determine.”

¶8. Kathy House, Hales’s sister-in-law, testified that she, her husband James, and her mother-in-law Delores all lived with Hales. House testified that Delores was bedridden and stayed in her bedroom but that Delores could see everything that happened on the couch in the living room. House testified that either she or Mary Jones, her sister-in-law, would be at the house at all times to take care of Delores. House also • testified that she cleaned the house, including Hales’s room, and never saw any “nasty” books. House stated that she noticed a change in Hales’s mental state after his stroke and that he sometimes rambled and had difficulty answering questions. House testified that she had known J.P. for approximately seven years and that he seemed like a sweet child, but that he was known to lie.

¶ 9. On cross-examination, House denied that she ever left the house to run errands. She testified that if she were not at the house caring for Delores, her sister-in-law was there. House testified that she had a good relationship with Hales and did not want to see him go to prison. House testified that, while she agreed molesting a child was something one would do only in private, she never saw Hales molest J.P.

¶ 10. Jones testified that she also lived in the home with her brother, Hales. Jones testified that her mother, Delores, was bedridden and slept in a room that had been built onto the house. Delores would have been able hear everything that happened in the living room; however, her view to the living room was blocked by a wall. Jones testified that Hales’s stroke had a “bad effect” on him. She testified that Hales “couldn’t think like he used to and couldn’t hardly use his left—well he couldn’t use his left side for awhile.” Jones testified that Hales’s mental state had improved, but he still rambled when he was asked questions. Jones never left her mother alone because she was unable to care for herself. Jones also testified that when she cleaned the house, she never found any nasty books in Hales’s room.

¶ 11. On cross-examination, Jones testified that there were places that Hales could have hidden pornographic materials. Jones testified that she loved her brother and did not want him to go to prison.

¶ 12, Hales ultimately was indicted on one count of sexual battery and one count of touching a child for lustful purposes. After a two-day trial, a Jasper County jury found Hales guilty of both counts. At a bifurcated hearing, Hales was sentenced to a term of twenty-five years for sexual battery and a term of fifteen years for touching a child for lustful purposes. The trial judge denied Hales’s motion for JNOV, and Hales appealed.

ANALYSIS

¶ 13. Hales raises only one issue on appeal-whether the trial court erred in denying his motion for new trial because his verdict was against the overwhelming weight of the evidence.

¶14. “A motion for new trial challenges the weight of the evidence. Sheffield v. State, 749 So.2d 123, 127 (Miss. 1999). A reversal is warranted only if the trial court abused its discretion in denying a motion for new trial.” Ivy v. State, 949 So.2d 748, 753 (Miss. 2007). In Bush v. State, 895 So.2d 836 (Miss. 2005), this Court set out.the standard of review for weight of the evidence, stating:

[w]hen reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Herring v. State, 691 So.2d 948, 957 (Miss.1997). We have stated that on a motion for new trial:
the court sits as a thirteenth-juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.
Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss. 2000).... [T]he evidence should be weighed in the light most favorable to the verdict. Herring, 691 So.2d at 957.

Bush, 895 So.2d at 844.

¶ 15. Hales was charged with sexual battery under Mississippi Code Section 97-3-95(l)(d), which provides that “[a] person is guilty of sexual battery if he or she engages in sexual penetration with ... [a] child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older thán the child.” Hales .also was charged with touching a child for lustful purposes under Mississippi Code Section 97-5-23, which provides that:

[a]ny person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, or with any object, any child under the age of sixteen (16) years, with or without the child’s consent ... shall be guilty of a felony.

Miss. Code Ann. § 97-5-23 (Supp. 2016).

¶ 16. Hales argues that he is entitled to a new trial because the State failed to produce any physical evidence that Hales inappropriately touched the minor victim or physically forced J.P. to perform oral sex. Hales also argues that J.P. “continually contradicted himself and was unbelievable.” Hales claims the testimony of J.P. was insufficient to establish that Hales committed the crimes beyond a reasonable doubt.

¶ 17. We have held that the “victim’s testimony regarding the occurrence of sexual battery, even in the absence of corroborating physical evidence, is legally sufficient to sustain a conviction for sexual battery.” Gazzier v. State, 744 So.2d 776, 779 (Miss. 1999). J.P. testified'in detail regarding the first and last times that Hales had fondled and sexually assaulted him. Although Hales attempted to impeach J.P.’s testimony, J.P.’s testimony was not substantially contradicted. Any conflict in the testimony was resolved in the State’s favor by the jury, which has the duty to weigh the credibility of witnesses and their testimony. Clemons v. State, 199 So.3d 670, 674 (Miss. 2016). Reviewing the evidence in the light most favorable to the jury’s verdict, we conclude that the evidence presented at trial sufficiently supported a finding that Hales sexually assaulted and fondled J.P. We find that this issue is without merit.

CONCLUSION

¶ 18. We find that Hales’s assignment of error is without merit and affirm his sentences and convictions.

¶ 19. COUNT I: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY-FIVE (25) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF TOUCHING A CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCES SHALL RUN CONSECUTIVELY AND DAY-FOR-DAY, AND THESE SENTENCES SHALL NOT BE REDUCED OR SUSPENDED. THE APPELLANT SHALL NOT BE ELIGIBLE FOR PAROLE, PROBATION OR EARLY RELEASE.

WALLER, C.J., DICKINSON, P.J., KITCHENS, KING, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.

      . Initials are used to protect the identity of the minor child.

      . Dr. A Keith Lay Jr. testified by stipulation that Hales did not have a mole on his penis.


author: GRIFFIS, P.J.,

text:
    Joseph KEYS a/k/a Joseph Benjamin Keys a/k/a Skeet Keys a/k/a Joseph B. Keys, Appellant v. STATE of Mississippi, Appellee
    NO. 2013-KA-00475-COA
    Court of Appeals of Mississippi.
    09/20/2016
    Certiorari Denied December 15, 2016

      OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HIN-CHCLIFF, FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT, FOR AP-PELLEE
   MODIFIED OPINION ON MOTION FOR REHEARING

GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. The motion for rehearing is denied. The previous per curiam affirmance of this Court is withdrawn, and this opinion is substituted in its place.

¶ 2. Joseph Keys was convicted, in the Covington County Circuit Court, of sexual battery, and sentenced as a habitual offender to life in the custody of the Mississippi Department of Corrections. Keys perfected an appeal, which was assigned to this Court. In a brief prepared by the Mississippi Office of State Public Defender, Indigent Appeals Division, Keys raises two issues: (1) whether the circuit court erred in both not allowing impeachment evidence of Zyesha McGill’s testimony, as well as not allowing the introduction of evidence showing that the victim lived with a convicted sex offender, and (2) whether the circuit court committed reversible error in submitting the issue of life imprisonment to the jury. Additionally, Keys filed a pro se brief asserting three additional issues: (3) whether he was denied a speedy trial, (4) whether newly discovered evidence entitles him to a new trial, and (5) whether he was denied effective assistance of counsel. Finding no error, we affirm.

FACTS

¶ 3. Keys was indicted for the sexual battery of his cousin, Jane Doe. Keys was approximately fifty years old at the time of the crime, and Jane was eleven years old at that time. Jane was twelve years old at the time of the trial. Prior to trial, the prosecution moved to sentence Keys under Mississippi Code Annotated section 99—19— 81 (Rev. 2007).

¶ 4. Jane testified that when she was ten years old, Keys began touching her inappropriately, showing her his penis, and on one occasion “some white stuff’ came out of his penis onto her leg. Jane also testified Keys had tried to put his penis inside her. Jane additionally testified Keys licked her genital area and inserted his finger into her vagina on more than one occasion. When she objected to his actions, he would hit her. She also said she was afraid of him because he was bigger than her.

¶ 5. The indictment only referenced one count of sexual battery, which occurred on May 1, 2011. A family barbecue occurred on that day. Jane testified Keys telephoned her mother and asked for Jane to come to an aunt’s house where he had something to give to her. Jane’s mother told her to go there, and Jane complied, even though she was afraid. Jane said that at the aunt’s house, Keys held her down, pulled down her pants, and licked her genital area. When a relative drove up to the house, Jane ran out the door.

¶ 6. On direct examination, Jane admitted that after her cousins, who were around her own age, learned of Keys’s sexual attacks, they picked on her and teased her. Because she was embarrassed, she falsely told one cousin Keys had not done anything to her. She said she lied because she wanted to stop the teasing. Two of Jane’s cousins testified Jane told them Keys had not done anything to her. However, one of them admitted Jane was being teased about Keys prior to her denial, and the other said Jane later said Keys had molested her.

¶ 7. Jane said the first person she told of Keys’s actions was Zyesha McGill. McGill’s testimony not only supported Jane’s accusations against Keys, but McGill also testified to admissions made by Keys. McGill’s testimony will be more fully discussed later in this opinion, because in Keys’s first issue he contends the circuit court erred in not allowing him to introduce another witness’s testimony to impeach McGill’s testimony.

¶ 8. Dr. Derrick Duffield was an emergency-room physician who examined Jane on June 20, 2011, some fifty days after the battery. He noted an irritation on the genital area that was not normal, and stated Jane’s behavior was consistent with that of a victim of sexual assault.

¶ 9, Cheryl Caldwell was a forensic interviewer with the Child Abuse Prevention Center in Hattiesburg, Mississippi. She stated Jane’s, behavior was similar to sexual-assault victims, and she did not think Jane fabricated her account.

¶ 10. Keys testified in his own defense. He denied all allegations, and said he had never been alone with Jane, although he had babysat her and her brother and sister. He said he knew who McGill was, but he never had any conversations with her. He speculated that Jane fabricated her story because she and her mother blamed him for Jane’s father being in jail for a crime unrelated to this case.

DISCUSSION

I. Impeachment Evidence

¶ 11. Keys contends the circuit court erred both when it prohibited him from impeaching McGill’s testimony and when it prohibited him from introducing evidence that Jane lived with a convicted sex offender. “A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, the court will not reverse this ruling.” Corrothers v. State, 148 So.3d 278, 310 (¶ 76) (Miss.2014). Further, limitations on cross-examination are also reviewed under an abuse-of- discretion standard. Anthony v. State, 108 So.3d 394, 397 (¶ 5) (Miss.2013).

¶ 12. McGill testified she knew both Jane and Keys because the father of her child was related to both of them. McGill said that before Jane ever told her of the abuse, she and Keys were discussing her own relationship difficulties, and Keys said: “[Y]ou can’t help who you love.” According to McGill, Keys further said no one would approve, but he was in love with his cousin. Later, after thinking of what Keys had said, McGill came to suspect Keys was referring to Jane, because McGill recalled Jane would become withdrawn when Keys was around her, and Jane seemed to try to avoid him.

¶ 13. On June 19, 2011, Jane was at McGill’s house. McGill asked Jane if Keys had behaved inappropriately. Jane then told her of the abuse in detail. That same day, while Jane was still there, Keys came by McGill’s house, and he was looking for Jane. McGill testified Keys told Jane that McGill knew of the abuse, and she was going to allow it to continue. McGill differed, and said she would not let Keys touch Jane. But McGill did urge Jane to speak with Keys. McGill said she did this to get “more evidence.” McGill testified Keys told Jane: “[Y]ou liked the way I touched you down there. How are you going to change it up now?”

¶ 14. During cross-examination of McGill, the following exchange took place:

Q. Do you recall ever saying that this really didn’t—did you ever make a statement to anybody, after this incident, that it wasn’t true at all?
A. I never said that.
Q. You never once said that?
A. I never said that.
Q. Okay. Not to anybody?
A. No, to anybody, because I didn’t talk to nobody, why would I talk to a family that is harassing me about a situation when it deals with a child? When it deals with a child being touched, I wasn’t talking to them. The only person I was talking to, conver[sing] with was [Jane,] on Keys Hill to be exact. And I would come and speak to people. But as far as holding a conversation, it was with [Jane.]

However, Keys failed to ask McGill specifically about a statement she may have made to Irene Taylor, which Keys contends would have indicated that McGill fabricated her testimony.

¶ 15. During the defense’s case-in-chief, Taylor was called as a witness. When asked whether she recalled McGill calling her during August 2011, the prosecution objected on the grounds that the question called for hearsay, and further that it was inadmissible for impeachment purposes, because Mississippi Rule of Evidence 613(b) requires that in order to impeach a witness’s testimony, the witness must be “afforded an opportunity to explain or deny” the statement. The circuit judge ruled Taylor’s testimony was inadmissible unless McGill was afforded an opportunity to explain any statement she made to Taylor. Unfortunately for the defense, at the time Taylor’s testimony was not allowed, McGill had been finally excused because she was pregnant and had gone into labor, and needed medical treatment. Initially after McGill’s testimony, the defense asked that McGill not be finally excused because she might need to be re-called. McGill remained in the courthouse while other witnesses were called. However, when McGill went into labor, the prosecution asked that she be finally excused to obtain medical treatment, and the defense agreed to her being finally excused.

¶ 16. After Taylor’s testimony had not been allowed, the trial recessed for the evening, but the defense was unable to locate McGill before trial recommenced. The following morning, the circuit judge stated that the Covington County Sheriff was going to look for McGill, and the circuit judge ruled that if McGill could be found and brought back to court to be asked specifically about the phone conversation with Taylor, then the impeachment would be allowed. But McGill did not return to trial, and no proffer of Taylor’s testimony was made for the record.

¶ 17. On appeal, Keys contends that a proper predicate had been laid with the general question of whether McGill ever said something to the effect that Keys was not guilty, and that the circuit judge erred in not allowing the impeachment. Under similar facts, this Court found that unless the witness to be impeached is confronted with the “specific statement,” then impeachment cannot be allowed. Al-Fatah v. State, 916 So.2d 584, 592 (¶ 25) (Miss.Ct. App.2005); see also Ladd v. State, 969 So.2d 141, 146 (¶ 23) (Miss.Ct.App.2007). The circuit judge correctly found the defense failed to lay a proper predicate. Furthermore, rather than showing any abuse of discretion, the record shows the circuit judge gave the defense every opportunity available to present Taylor’s testimony concerning any phone call from McGill. This issue is without merit.

¶ 18. Additionally, Keys contends the circuit judge erred in not allowing introduction of evidence showing that Jane lived with a convicted sex offender. Approximately two weeks prior to trial, the prosecution filed a motion in limine to prevent Keys from introducing any evidence concerning the victim’s prior sexual activities. On the morning of the first day of trial, the defense produced uncertified copies of some document that may have shown Jane’s grandfather, with whom she was living, was registered as a sex offender in another state. There were no details of why the grandfather may have been on the registry. The prosecution then brought up its motion in limine, and also argued that the defense failed to provide notice fifteen days prior to trial that it intended to submit evidence of Jane’s prior sexual behavior, as required by Mississippi Rule of Evidence 412(c)(1). The circuit judge asked Keys’s counsel if he had any knowledge that the grandfather may have been the perpetrator, and Keys’s counsel said he did not. The circuit judge found not only that the potential for prejudice outweighed any probative effect, but also that there was no probative effect, and the status of the grandfather was simply not relevant. Again, a circuit court will not be overturned on an evidentiary issue absent an abuse of discretion. Corrothers, 148 So.3d at 310 (¶ 76). Nothing in the record shows an abuse of discretion. This issue is without merit.

II. Erroneous Jury Instruction

¶ 19. Jury Instruction S-8 informed the jury of three possible verdicts that it could reach: (1) guilty of sexual battery and “fix the penalty at life imprisonment,” (2) guilty of sexual battery and “cannot agree to fix the penalty at life imprisonment,” and (3) not guilty. The jury re-turned the verdict of guilty with life imprisonment. However, Mississippi Code Annotated section 97-3-101(3) (Rev. 2014) provides that the circuit court shall set the term of imprisonment, with a maximum sentence of life imprisonment, or a lesser term not to be less than twenty years. And in this case, the prosecution moved prior to trial to sentence Keys as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2007). Consequently, not only was it for the circuit judge to set the term of imprisonment, the circuit judge had no discretion in the matter, and a life sentence without parole was mandatory if Keys was convicted. Nevertheless, the instruction was erroneous, and the State confesses error.

¶ 20. Errors in jury instructions are subject to harmless-error analysis. Conley v. State, 790 So.2d 773, 793 (¶ 72) (Miss. 2001); see also Harrell v. State, 134 So.3d 266, 274 (¶ 30) (Miss.2014) (harmless error not appropriate when jury instruction omits essential element of crime charged). In this case, the error had absolutely no effect on the sentence itself. Further, the jury was properly instructed that its duty was to judge the credibility of the witnesses. The defense contends that the instruction’s reference to a possible life sentence may have inflamed the passions on the jury by highlighting the seriousness of the crime. But what the jury’s affixing a life sentence really showed is that it disbelieved Keys’s testimony, and given Jane’s testimony of repeated sexual assaults by an adult relative some forty years her senior, the jury was disinclined to offer what mercy it had erroneously been instructed was its to give. The error was harmless. This issue is without merit.

III. Speedy Trial

¶ 21. Keys failed to raise a speedy-trial issue either at trial or in his motion for a new trial, and the issue was first raised in his pro se appellate brief. The failure to raise a constitutional speedy-trial claim at trial limits appellate review to a plain-error analysis. Review is limited to whether a fundamental right was impacted, and if so, whether a miscarriage of justice occurred. Dora v. State, 986 So.2d 917, 925 (¶ 19) (Miss.2008). “Absent the plain-error criteria being satisfied unequivocally, appellate courts are loath to address issues not presented to the trial court.” Id, To raise a successful plain-error challenge that an appellant’s constitutional right to a speedy trial was violated, it is incumbent upon an appellant to point to specific prejudice that arose and created a miscarriage of justice. Havard v. State, 94 So.3d 229, 237 (¶ 22) (Miss.2012); Patterson v. State, 79 So.3d 549, 550 (¶ 9) (Miss. Ct.App.2011).

¶ 22. Eighteen months elapsed between Keys’s arrest and trial. Keys was originally arrested on June 23, 2011, and trial commenced on January 22, 2013. In Dora, over three years elapsed between Dora’s arrest and trial, yet no prejudice was found from the mere lapse of time. Dora, 986 So.2d at 925 (¶¶ 19-22). Thus, delay itself does not show prejudice. Keys contends he was prejudiced when the prosecution asked that McGill be finally excused as a witness when she began experiencing labor pains, and Keys contends that had he been brought to trial earlier, McGill would not have been pregnant. However, Keys is mistaken as to what prevented his attorney from being able to lay a proper predicate for impeaching testimony. It was not because McGill was pregnant; rather, it was because his attorney agreed to finally excuse her as a witness. Keys fails to show any prejudice stemming from the delay in bringing him to trial. This issue is without merit.

IV. Newly Discovered Evidence

¶ 23. Keys attached copies to his pro se brief of purported text messages between Jane and another person, in which Jane may have admitted her testimony against Keys was fabricated. However, these texts are not in the record, and they were not presented in the circuit court either at trial or in the motion for a new trial. Evidence that is discovered after trial must still be presented to the trial court in a motion for a new trial for the issue to be raised on direct appeal. Melton v. State, 723 So.2d 1156, 1159 (¶ 14) (Miss. 1998). Nevertheless, newly discovered evidence may be a ground for post-conviction relief. Miss. Code Ann. § 99-39-5(1)(e) (Rev. 2007). Therefore, we dismiss this issue without prejudice.

V. Effective Assistance of Counsel

¶ 24. Ineffective-assistance-of-counsel claims are rarely addressed on direct appeal, because an appellate court is limited to what is in the record presented to the trial court, and conversely, post-conviction-relief proceedings allow a defendant to present information expanding upon the record. McClendon v. State, 152 So.3d 1189, 1191 (¶ 12) (Miss.Ct.App.2014). An ineffective-assistance-of-counsel claim is only addressed on direct appeal if the record affirmatively shows there was ineffectiveness, or if the parties stipulate the record is sufficient to address the claim. Aguilar v. State, 847 So.2d 871, 878 (¶ 17) (Miss.Ct.App.2002). The record does not show counsel’s performance was constitutionally deficient, nor have the parties stipulated. Therefore, we dismiss this issue without prejudice.

¶ 25. THE MOTION FOR REHEARING IS DENIED. THE PREVIOUS PER CURIAM AFFIRMANCE OF THE COURT IS WITHDRAWN, AND THIS OPINION IS SUBSTITUTED. THE JUDGMENT OF THE CIRCUIT COURT OF COVINGTON COUNTY OF CONVICTION OF SEXUAL BATTERY AND SENTENCE AS A HABITUAL OFFENDER OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COVING-TON COUNTY.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON AND FAIR, JJ., CONCUR. JAMES, WILSON AND GREENLEE, JJ., NOT PARTICIPATING.

      . The minor’s name has been changed to protect her privacy.

      . The prosecution also objected to Taylor’s testimony because of a possible discovery violation, but the circuit judge was disinclined to prohibit Taylor's testimony if there was any way to cure any impediment to her being called.


author: WILSON, J.,

text:
    Daniel Keith SINGLETON a/k/a Daniel K. Singleton a/k/a Daniel Singleton, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CP-01419-COA
    Court of Appeals of Mississippi.
    10/04/2016
    Rehearing Denied February 28, 2017

      ATTORNEY FOR APPELLANT: DANIEL KEITH SINGLETON (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER
    BEFORE LEE, C.J., WILSON AND GREENLEE, JJ.
   WILSON, J.,

FOR THE COURT:

¶ 1. Daniel Keith Singleton pled guilty to the charge of possession of a weapon—a dirk knife—by a convicted felon and was sentenced to ten years in the custody of the Mississippi Department of Corrections (MDOC). Singleton filed a motion for post-conviction relief (PCR) in Rankin County Circuit Court. The circuit court dismissed his motion and Singleton appeals. His two basic arguments, stated a variety of ways, are that his knife was a “survival knife,” not a dirk knife, and that the stop and search that led to his arrest violated the Fourth Amendment. Singleton’s arguments are without merit, so we affirm.

FACTS

¶2. On November 22, 2013, Singleton was indicted on one count of possession of a weapon (“a dirk knife”) by a convicted felon in violation of Mississippi Code Annotated section 97-37-5 (Rev. 2014). On February 13, 2014, Singleton signed and filed a petition to plead guilty to the same charge, in which he stated that he wanted to plead guilty to possession of “a dirk knife.” Singleton subsequently appeared in court and pled guilty. On the record, the prosecutor stated that the factual basis of the plea was that on or about September 29, 2013, Singleton, a convicted felon, “did unlawfully, knowingly, and feloniously possess a ... [d]irk knife.” In open court and under oath, Singleton expressly agreed to these facts. The court accepted Singleton’s plea as knowing, intelligent, and voluntary; adjudicated him guilty; and sentenced him to ten years in MDOC custody, with two years to serve, and five years of post-release supervision.

¶ 3. On August 14,2015, Singleton filed a PCR motion in which he raised several related claims for relief. The circuit court ordered that Singleton’s plea hearing be transcribed and included in the record. After reviewing the transcript and file, the court summarily dismissed Singleton’s motion pursuant to Mississippi Code Annotated section 99-39-11(2) (Rev. 2015). Singleton filed a timely notice of appeal from the circuit court’s judgment.

DISCUSSION

¶ 4. On appeal, although Singleton specifies a number of issues and sub-issues, all of his claims derive from two basic arguments: that the search and the investigatory stop that led to his arrest violated the Fourth Amendment and that the knife was really a “survival knife,” not a dirk knife.

¶5. Singleton’s first argument fails because it is well settled that “[a] valid guilty plea waives the defendant’s right to make certain constitutional challenges, including those under the Fourth Amendment.” Burns v. State, 984 So.2d 1024, 1025 (¶ 7) (Miss.Ct.App.2008). Accordingly, Singleton has waived any search-and-seizure claim under the Fourth Amendment. Id. at (¶ 8).

¶ 6. Singleton’s second argument fails because he pled guilty and expressly admitted under oath that he possessed a dirk knife. “[A] voluntary guilty plea waives the requirement that the prosecution prove each element of the offense.” Swift v. State, 815 So.2d 1230, 1233 (¶ 11) (Miss.Ct.App.2001). Had Singleton insisted on a trial, the State would have been required to prove beyond a reasonable doubt that Singleton’s knife was a dirk knife. See generally Summerall v. State, 41 So.3d 729 (Miss.Ct.App.2010). However, when Singleton pled guilty and admitted that he possessed a dirk knife, he waived the right to put the State to its proof. Accordingly, this issue is without merit.

¶ 7. Singleton makes a related argument that his attorney misinformed him that his “survival knife” was a dirk knife, which allegedly constituted ineffective assistance of counsel and also rendered his plea invalid. Singleton also argues that his realization that his knife was not a dirk knife constitutes “evidence of material facts, not previously presented and heard, that requires vacation of [his] conviction ... in the interest of justice.” Miss. Code Ann. § 99-39-5(l)(e) (Rev. 2015). These arguments are also without merit.

¶8. Singleton stated under oath at his plea hearing that he had no complaints about his lawyer and was satisfied with his advice and assistance. Singleton’s present claim of ineffective assistance is based entirely on his own allegations. “A defendant’s declarations during the plea colloquy that he was satisfied with the services of his lawyer are presumptively true. Solemn declarations in open court carry a strong presumption of verity.” Pierce v. State, 115 So.3d 869, 873 (¶ 12) (Miss.Ct.App.2013) (internal quotation marks omitted). In addition, our Supreme Court has held that if the movant in a PCR proceeding “offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” Lindsay v. State, 720 So.2d 182, 184 (¶ 6) (Miss.1998) (quoting Vielee v. State, 653 So.2d 920, 922 (Miss.1995)). Accordingly, Singleton’s ineffective assistance claim is without merit.

¶ 9. The transcript of Singleton’s plea hearing also clearly reflects that he was informed of the essential elements and nature of the charge against him, the various rights that he would waive by pleading guilty, and the applicable minimum and maximum sentences. Therefore, Singleton’s claim that his plea was involuntary is also without merit. See Smith v. State, 636 So.2d 1220, 1224-26 (Miss.1994).

¶ 10. Finally, Singleton’s “newly discovered evidence” claim also fails. Indeed, Singleton does not identify any “newly discovered evidence” but simply claims that the evidence that has always been the basis of the charge (his knife) does not support his conviction. In any event, as this Court has explained,

Newly discovered evidence is relevant only in situations where a defendant went to trial and was convicted. If, following the trial, a defendant discovers relevant and material evidence which could not have reasonably been discovered prior to trial, the defendant may seek to have his conviction set aside based on the newly discovei-ed evidence. When a defendant pleads guilty, he is admitting that he committed the offense. Therefore, by definition, a plea of guilty negates any notion that there is some undiscovered evidence which could prove his innocence.

Townes v. State, 88 So.3d 812, 815 (¶ 6) (Miss.Ct.App.2012) (quoting Jenkins v. State, 986 So.2d 1031, 1034 (¶ 12) (Miss.Ct. App.2008) (quoting Jones v. State, 915 So.2d 511, 514 (¶ 10) (Miss.Ct.App.2005))). Accordingly, Singleton’s post hoc claim that his knife was not a dirk knife is not a basis for post-conviction relief.

¶ 11. For the foregoing reasons, the circuit court correctly denied Singleton’s PCR motion, and we affirm,

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

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

      . Singleton had a prior conviction for felony evasion.

      . Section 97-37-5(1) makes it "unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm or any bowie knife, dirk knife, butcher knife, switchblade knife, metallic knuckles, blackjack, or any muffler or silencer for any firearm” (emphasis added).