author: LAWRENCE, J., FOR THE COURT:

text:
    Larry WOOTEN a/k/a Larry C. Wooten, Appellant v. STATE of Mississippi, Appellee
    NO. 2018-CP-00378-COA
    Court of Appeals of Mississippi.
    May 28, 2019
    ATTORNEY FOR APPELLANT: LARRY WOOTEN (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, Jackson
    BEFORE CARLTON, P.J., LAWRENCE AND C. WILSON, JJ.
   LAWRENCE, J., FOR THE COURT:

¶1. On January 3, 2006, Larry Wooten pleaded guilty to possession of cocaine. The Rankin County Circuit Court sentenced Wooten to serve eight years in the custody of the Mississippi Department of Corrections (MDOC). The court ordered that after Wooten served three years with MDOC he would be placed on post-release supervision for three years. The circuit court revoked Wooten's post-release supervision after several separate violations and ordered him to serve the remainder of his sentence.

¶2. Twelve years later on January 30, 2018, Wooten filed a motion for post-conviction relief (PCR) and alleged that he was inappropriately sentenced as a result of his post-release supervision being revoked. The circuit court denied Wooten's motion. For the reasons outlined below, we affirm the circuit court's judgment.

FACTS

¶3. On February 10, 2005, Larry Wooten was charged by indictment with possession of cocaine - a Schedule II controlled substance - in violation of Mississippi Code Annotated section 41-29-139 (Supp. 2000). Almost a year later in January 2006, Wooten entered a plea of guilty. The circuit court sentenced Wooten to serve an eight-year term. Specifically, Wooten was to serve the first three years in the custody of MDOC, followed by a three-year period on post-release supervision.

¶4. Wooten first violated his post-release supervision on December 11, 2007, when he tested positive for marijuana. Again, on April 2, 2008, Wooten violated the terms and conditions of his post-release supervision by pleading guilty to driving under the influence (DUI), driving without a driver's license, and a seatbelt violation. As a result, on August 6, 2008, MDOC filed a petition for revocation, and on July 30, 2009, the circuit court revoked Wooten's suspended sentence. Wooten was ordered to serve the remainder of his sentence in the custody of MDOC. From September 2009 until July 2013, Wooten requested his sentencing order a total of six times. Each time, Wooten was provided with a copy of his sentencing order and a copy of the order of revocation.

¶5. Despite having his sentencing order, it was not until January 30, 2018, that Wooten, pro se, moved for PCR, alleging that he was "re-sentenced" by the trial court at his revocation hearing and that his original sentence was unsupported by statutory law. The circuit court dismissed his motion and held that Wooten had failed to file his motion within the time prescribed by law and was not entitled to relief. As a result, Wooten filed his notice of appeal.

STANDARD OF REVIEW

¶6. In matters of post-conviction relief this Court's standard of review is clear. The denial of a PCR motion will not be reversed unless this Court finds that the trial court's decision was clearly erroneous. Smith v. State , 806 So.2d 1148, 1150 (¶3) (Miss. Ct. App. 2002). We review questions of law de novo. Hobson v. State , 910 So.2d 1139, 1140 (¶4) (Miss. Ct. App. 2005).

ANALYSIS

¶7. Wooten argues on appeal that his claim is not time-barred. Specifically, Wooten claims his sentence was improperly revoked and that his sentence had expired by the time he was ordered to serve the remainder in the custody of MDOC. Additionally, Wooten asserts that the circuit court "re-sentenced" him during his revocation hearing and that his sentence was illegally increased from six years to eight. We first address the procedural bar.

¶8. The circuit court found that Wooten's PCR motion was time-barred because it did not meet the three-year statutory requirements under Mississippi Code Annotated section 99-39-5(2) (Rev. 2015). To be clear, Wooten's post-release supervision was revoked on July 30, 2009, and he moved for PCR on January 30, 2018. Twelve years had lapsed between the initial judgment of conviction and his PCR motion. In his brief, Wooten argues that the procedural bars do not apply because his sentence is not supported by a statute. Alternatively, he claims the violation of his constitutional rights surpasses any procedural bars.

¶9. A defendant who enters a plea of guilty has three years after the entry of the judgment of conviction to seek relief. Miss. Code Ann. § 99-39-5(2). There are, however, several exceptions available to a defendant who moves for relief after the three-year period. Id. at § 99-39-5(2)(a)-(b). The defendant carries the burden to "show he has met a statutory exception." Campbell v. State , 233 So.3d 904, 906 (¶5) (Miss. Ct. App. 2017) (citing White v. State , 59 So.3d 633, 635 (¶8) (Miss. Ct. App. 2011) ). The statute specifically cites six exceptions to the time-bar:

1. An intervening decision from the Mississippi or United States Supreme Court that would adversely affect the outcome of the conviction or sentence;
2. Newly discovered evidence not reasonably discoverable at trial that would likely have caused a different result;
3. Biological evidence demonstrating that the movant would likely either not have been convicted or received a lesser sentence;
4. The movant's sentence is expired;
5. His parole, probation, or conditional release has been unlawfully revoked; or
6. The motion is in a capital case and is filed no more than one year after conviction.

Miss. Code Ann. § 99-39-5(2). The supreme court has also carved out an exception to the time-bar for violations of a defendant's fundamental rights. Rowland v. State , 42 So.3d 503, 507 (¶12) (Miss. 2010). "Errors affecting fundamental constitutional rights are excepted from the procedural bars." Id. As this Court has found in the past, "the mere suggestion of a constitutional-rights violation is not itself sufficient to surmount the time-bar." Smith v. State , 118 So.3d 180, 183 (¶11) (Miss. Ct. App. 2013).

¶10. Wooten was convicted on January 3, 2006. Wooten's post-release supervision was revoked on July 30, 2009. He moved for PCR on January 30, 2018-clearly more than three years after the date the court entered his judgment of conviction and after his sentence was revoked. Therefore, the circuit court correctly determined the claim was time-bared. Regardless, if any one exception applies, the time-bar is defeated.

¶11. Wooten claims that his sentence was illegally revoked. Specifically, he claims that the circuit court merely adopted the recommendation of MDOC and failed to hold a proper revocation hearing. This, he argues, violates his rights to due process and equal protection under the law. Alternatively, he asserts that his sentence was expired and so the revocation of his post-release supervision was improper. Of these two, we first address his claims that he was not afforded a proper revocation hearing.

¶12. The record indicates that there was a hearing on MDOC's motion for revocation. The defendant was present and the court considered the motion before it. At this hearing, the court found that Wooten had violated the terms and provision of his post-release supervision and granted MDOC's petition. "Revocation requires only a showing that the defendant 'more likely than not' violated the terms [of his post-release supervision.]" Felix v. State , 73 So. 3d 1194, 1196 (¶8) (Miss. Ct. App. 2011). The revocation order indicates that Wooten pleaded guilty to testing positive for marijuana and also to DUI, driving without a driver's license, and a seatbelt violation. As the order points out, these crimes are violations of the terms and conditions of Wooten's post-release supervision. His guilty plea to these offenses clearly met the standard outlined by this Court.

¶13. Wooten's alternative argument for exception to the time-bar is that his sentence had expired by the time his post-release supervision was revoked. Wooten argues that his sentence expired in April or May of 2010. These dates come from Wooten's belief he was sentenced to a "six-year split sentence." Respectfully, it is clear from the record that Wooten does not understand the contents of his sentencing order.

¶14. While on his three year post-release supervision, Wooten violated the terms of the circuit court's order on two separate occasions. MDOC, within the time period allotted, filed a motion for the circuit court to revoke Wooten's suspended five-year sentence. The circuit court agreed with MDOC's assessment. As a result, Wooten was ordered to serve his remaining time.

¶15. A circuit court has the authority to "continue or revoke all or any part of the probation or the suspension of sentence, and may cause the sentence imposed to be executed or may impose any part of the sentence which might have been imposed at the time of conviction." Miss. Code Ann. § 47-7-37(5)(a) (Supp. 2018). Simply put, it was within the circuit court's authority to order Wooten to serve the remainder of his original sentence after he violated the terms and conditions of his post-release supervision. Thus, this issue is without merit, and we find that the circuit court did not err.

¶16. AFFIRMED.

BARNES, C.J., CARLTON AN D J. WILSON, P.JJ., GREENLEE, WESTBROOKS, TINDELL, McDONALD, McCARTY AND C. WILSON, JJ., CONCUR.

      Wooten's notice of appeal is not timely under Rule 4 of the Mississippi Rules of Appellate Procedure, because it was filed more than thirty days after the circuit court's order of dismissal. Rule 2(a)(c) of those rules, however, allows for a suspension of the Rules of Appellate Procedure in the interest of expediting a decision or for good cause. Specifically, Rule 2(a)(c) provides that "the time for taking an appeal under Rules 4 or 5 may be extended in criminal and post-conviction cases, but not in civil cases." Wooten signed his notice of appeal within the thirty-day period provided for by Rule 4, but the appeal was not filed with the clerk until after the period expired. We find that to be good cause shown and suspend the rules to extend the time period.


source: Caselaw Access Project

author: CARLTON, P.J., FOR THE COURT: McCARTY, J., CONCURRING IN PART AND DISSENTING IN PART:

license: Public Domain

text:
    Rashad J. SMITH a/k/a Rashad Jamale Smith a/k/a Rashad Smith a/k/a Twin, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-01494-COA
    Court of Appeals of Mississippi.
    May 28, 2019
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA AINSWORTH
    BEFORE CARLTON, P.J., LAWRENCE AND C. WILSON, JJ.
   CARLTON, P.J., FOR THE COURT:

¶1. Rashad Smith was tried in Lincoln County Circuit Court on a two-count indictment. Prior to trial, the court granted the State's motion to amend the indictment to allege Smith's habitual-offender status, but a written order amending the indictment was not entered. A nolle prosequi order was subsequently entered on Count I of the indictment, and the jury found Smith guilty on Count II (unauthorized possession of a cell phone in the Lincoln County jail). The trial court sentenced Smith to serve fifteen years, day for day, as a habitual offender.

¶2. On appeal, Smith asserts that (1) his conviction should be reversed and rendered because the State's evidence was insufficient for a conviction under the indictment as drafted, or, alternatively, he is entitled to a new trial because the verdict was contrary to the overwhelming weight of evidence; and (2) he received ineffective assistance of counsel because the indictment in this case was never properly amended to authorize sentencing as a habitual offender and his counsel failed to object, thereby waiving this issue for appellate review. We find no merit to Smith's first assignment of error, and we deny Smith's ineffective-assistance-of-counsel claim without prejudice to his right to pursue relief on this alleged error in a petition for post-conviction relief.

I. STATEMENT OF FACTS AND COURSE OF PROCEEDINGS

¶3. On August 16, 2017, Smith was tried in Lincoln County Circuit Court on a two-count indictment. Count I of the indictment charged Smith with possession of marijuana in the Lincoln County jail. After the jury deadlocked on Count I, the State requested and was granted a nolle prosequi order on that count. Count II of the indictment charged Smith with unauthorized possession of a cell phone in the Lincoln County jail, in violation of Mississippi Code Annotated section 47-5-193 (Rev. 2015). The jury found Smith guilty on Count II, and he was sentenced to serve fifteen years as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015).

¶4. The original indictment did not allege that Smith was a habitual offender. Prior to trial, the State moved to amend the indictment to allege Smith's habitual-offender status. That motion was heard on June 26, 2017. At the hearing, the trial court ruled on the record that the State met its burden for the indictment to be amended to include a habitual-offender sentencing enhancement, but the record reflects that no order to that effect was entered.

¶5. At the one-day trial held on August 26, 2017, the State's witness, Correctional Officer Larry Morris, testified that on September 28, 2015, Rashad Smith "turned himself in" to the Lincoln County jail because his twin brother, Rashan, was mistakenly in jail instead of Rashad. On cross examination, Officer Morris was asked whether he told Smith what he could and could not bring to the jail when Smith phoned in to advise that he was turning himself in. Officer Morris responded, "No," and then he stated that Smith had "been down [to the jail] before so I didn't have to [give him any instructions]."

¶6. Officer Morris testified that when Smith arrived at the jail, Smith was brought in through one locked door and was taken to the booking area to be processed. He further testified that before he (Morris) was able to get Smith booked in, Smith grabbed a jail uniform off of a shelf along with a mat that the jail provides, went in another area, and changed his clothes. According to Officer Morris, Smith was in "a hurry to get dressed out and to go upstairs." Officer Morris said he told Smith that before he could go upstairs, Morris needed to finish booking him and that he needed to be searched. At that point, Officer Morris testified, Smith put his belongings on the counter, and several items that were rolled up with the jail-issued mat started falling out, including two cell phones and some marijuana. Officer Morris turned these items over to Brookhaven Police Investigator Lisa Jackson who turned them over to Lincoln County Chief Deputy Johnny Hall.

¶7. The State's witness, Chief Deputy Johnny Hall, testified that he investigated the September 28, 2015 incident, and that when he interviewed Smith, Smith told him that he was bringing the cell phones in with "the help" of Officer Morris. Hall further testified that this allegation was never confirmed. The State also established through Chief Deputy Hall's testimony that the Lincoln County jail is a correctional facility in Brookhaven, Lincoln County, Mississippi.

¶8. At the close of the State's case, defense counsel moved for a directed verdict, which the trial court denied. Smith did not testify at trial, and the defense presented no other witnesses.

¶9. The court instructed the jury which found Smith guilty of possession of a cell phone in a correctional facility under Count II of the indictment.

¶10. Following the announcement of the jury verdict, the trial court proceeded with the sentencing hearing. At that hearing, the trial court read the jury's verdict on the record and then stated that at "a motion hearing ... on June 26th of 2017, the [c]ourt found beyond a reasonable doubt that Mr. Smith was an habitual criminal within the meaning of section 99-19-81." Defense counsel stated on the record that he had no objection to sentencing proceedings going forward, and there is no indication in the record that defense counsel made any objection to the absence of a written order allowing the amendment to the indictment to reflect Smith's habitual-offender status. The trial court sentenced Smith to fifteen years in the custody of the Mississippi Department of Corrections (MDOC), to be served day for day pursuant to section 99-19-81. Following the denial of his motion for a judgment notwithstanding the verdict (JNOV), or, alternatively, for a new trial, Smith appeals.

II. LAW AND ANALYSIS

A. The State's Alleged Failure of Proof

¶11. Smith asserts that the State failed to prove two statutory elements of section 47-5-193 and one non-statutory factual allegation charged in Count II of the indictment, and, therefore, the trial court erred in denying his JNOV motion, or, alternatively, the trial court erred in denying his motion for a new trial. We find that these assertions are without merit because we find that the State was not required to prove these elements, as discussed below.

1. The Statutory Elements Under Section 47-5-193

¶12. Count II of Smith's indictment charged him with violating section 47-5-193. In McCollum v. State , 81 So.3d 1191 (Miss. Ct. App. 2012), we examined section 47-5-193 and held that "[i]t is clear the statute considers that the possession of contraband and the taking of contraband are two separate crimes." Id. at 1192 (¶6). We found that the first sentence in section 47-5-193 "makes possession of contraband unlawful." Id. The statute provides:

It is unlawful for any officer or employee of the department, of any county sheriff's department, of any private correctional facility in this state in which offenders are confined, of any municipal or other correctional facility in this state, or for any other person or offender to possess, furnish, attempt to furnish, or assist in furnishing to any offender confined in this state any ... cell phone or any of its components or accessories to include, but not limited to, Subscriber Information Module (SIM) cards or chargers.

Miss. Code Ann. § 47-5-193. The second sentence of section 47-5-193 makes the "taking of contraband unlawful." McCollum , 81 So.3d at 1192 (¶6). The statute provides:

It is unlawful for any person or offender to take, attempt to take, or assist in taking any ... cell phone or any of its components or accessories to include, but not limited to, Subscriber Information Module (SIM) cards or chargers on property within the state belonging to the department, a county, a municipality, or other entity that is occupied or used by offenders, except as authorized by law.

Miss. Code Ann. § 47-5-193. Count II of Smith's indictment charged as follows:

[O]n or about September 28, 2015, in Lincoln County, Mississippi and within the jurisdiction of this court, Rashad J. Smith did wilfully, unlawfully, feloniously and knowingly possess a cell phone, to wit: a Nokia Smartphone, black in color bearing the IMEI number 353047069216952 in the Lincoln County Jail, a correctional facility, in Lincoln County, Mississippi, at a time when [Rashad J. Smith] was an inmate housed in the aforementioned correctional facility, contrary to and in violation of Section[ ] 47-5-193 of the Mississippi Code of 1972, this being count two of the indictment....

¶13. Smith asserts that the State failed to prove two statutory elements under section 47-5-193, namely, that the Lincoln County jail was "property belonging" to Lincoln County and that the property was "occupied or used by offenders." These statutory elements are found in the second sentence, not the first sentence, of section 47-5-193. After our review of the record, including Count II of the indictment, the applicable jury instruction setting forth the counts contained in the indictment, and the jury's verdict, we determine that Smith was indicted and convicted under the first sentence of section 47-5-193, namely "possession of a cell phone" in a correctional facility. We therefore find that the State was not required to prove the two statutory elements addressed in Smith's assignment of error because these elements are not essential to the "possession of a cell phone" crime charged under the first sentence of section 47-5-193.

¶14. McCollum is instructive on this issue. In that case McCollum argued that his indictment was defective because it merely stated that he "did wilfully, unlawfully, feloniously, and without authority have in his possession an unauthorized electronic device, cell phone, or other contraband item, to-wit: one (1) cell phone and two (2) SIM cards[,]" and did not include, among other information, the phrase "on property belonging to the Department of Corrections." McCollum , 81 So.3d at 1192 (¶5). We rejected McCollum's argument as follows: "McCollum was charged with possession of contraband; therefore, the indictment did not need to include the essential elements for the crime of taking of contraband. The indictment properly charged McCollum with the essential elements of possession of contraband in a correctional facility. Accordingly, this issue is without merit." Id. at 1192 (¶7).

¶15. Based on the same reasoning, we find in this case that section 47-5-193 is not ambiguous and that a plain reading of the first sentence of section 47-5-193 shows that it does not require proof that the jail belonged to Lincoln County or that it was occupied or used by offenders. Although the first sentence of section 47-5-193 contains the phrase "in which offenders are confined," that language modifies "officer or employee" and not "any other person or offender." We therefore find no merit in Smith's assertion that the State was required to prove these two statutory elements under section 47-5-193.

2. The Factual Allegation in the Indictment that Smith Was an "Inmate" in the Lincoln County Jail

¶16. Smith also asserts that because Count II of the indictment provided that Smith was an "inmate housed" in the Lincoln County jail, the State was required to prove that Smith was an inmate at the jail, even though this is not a statutory element under section 47-5-193. We recognize that in Richmond v. State , 751 So.2d 1038 (Miss. 1999), which is a case Smith relies upon for this proposition, the Mississippi Supreme Court held that an indictment's reference to the value of property had to be proven even though value was not an element of the offense charged. Richmond , 751 So.2d at 1045-46 (¶¶17-19). The supreme court recently distinguished Richmond in Smith v. State , 250 So.3d 421 (Miss. 2018), and we find that the Smith court's analysis supports our determination here that the State was not required to prove that Smith was an "inmate" in the Lincoln County jail in this case.

¶17. In Smith the defendant was charged with armed robbery and that the indictment listed the specific property stolen. Smith , 250 So.3d at 424-25 (¶13). Relying on Richmond , the defendant (Rickie Omar Smith) argued that the State increased its burden by listing the stolen property in the indictment, and because it did so, the State was required to prove that Smith stole each specified item. Smith , 250 So.3d at 426 (¶17). The supreme court disagreed, beginning its analysis by distinguishing Richmond . Smith , at 426-29 (¶¶18-28).

¶18. In Richmond , the Smith court explained that the defendant was charged with motor vehicle theft, but the indictment included the value of the vehicle allegedly stolen (which is not an element of the crime of motor vehicle theft) but is an essential element for the different crime of grand larceny. Smith , 250 So.3d at 426 (¶18) (citing Richmond , 751 So.2d at 1042 (¶¶8-9) ). As the Smith court explained, the Richmond court affirmed the trial court's decision to require the State to prove the value element, recognizing that the State had " 'handicapped itself through the indictment by adding an unnecessary element of proof.' " Smith , 250 So.3d at 427 (¶21) (quoting Richmond , 751 So.2d at 1046 (¶19) ).

¶19. Comparing the circumstances before it to those before the Richmond court, the Smith court observed that "[u]nlike the substantive change described in Richmond , where the value of the motor vehicle arguably changed the crime from motor vehicle theft to grand larceny, the identity or lack thereof of personal property in an armed robbery does not change the crime." Smith , 250 So.3d at 427 (¶22). Accordingly, the Smith court determined that the State was not required to prove that every item listed on the indictment had been taken by Smith or his accomplices. Id. at 427-29 (¶¶22-30).

¶20. We find that the same analysis applies here. Section 47-5-193 makes it unlawful "for any ... person or offender" to possess a cell phone in a correctional facility. Miss. Code Ann. § 47-5-193 ; see Houston v. State , 150 So.3d 157, 159 (¶9) (Miss. Ct. App. 2014). Whether Smith was an "inmate" at the facility or simply a "person" at the facility does not change the crime charged-possession of a cell phone in a correctional facility. We therefore find that the State was not required to prove that Smith was an "inmate" at the Lincoln County jail because this factual allegation does not change the crime charged. Smith , 250 So.3d at 427-29 (¶¶22-30).

¶21. Smith also cites Cooley v. State , 803 So.2d 485 (Miss. Ct. App. 2001), as support for his assertion that the State must prove that Smith was an inmate because that term was used in the indictment. We find, however, that Cooley does not support Smith's argument.

¶22. In Cooley , the defendant "was charged with aggravated assault by use of a deadly weapon identified as a hatchet," pursuant to Mississippi Code Annotated section 97-3-7(2)(b) (Rev. 2000), which was the statute in effect when Cooley committed the crime. Cooley , 803 So.2d at 487 (¶4). This Court held that "the State elected to indict Cooley for aggravated assault with a deadly weapon. It was therefore incumbent upon the State to either prove that an instrument which by its very nature is a deadly weapon was used, or that an instrument was used which[ ] the jury, as finder of fact, could determine was a deadly weapon." Id. at 489 (¶12). Because "[t]here is no testimony that a hatchet or any other deadly weapon was used ," id. at 489 (¶13) (emphasis added), this Court reversed and rendered a simple assault conviction. Id. at (¶15) ; see also id. at 488 (¶10) ("There is no evidence of the use of a deadly weapon to make this aggravated assault pursuant to section 97-3-7(2)(b).").

¶23. This language from Cooley shows that the State was held to prove the statutory element of proof (a "deadly weapon") and not the particular weapon used (the hatchet), even though the hatchet was identified in the indictment. Id. In Smith's case, we find that the State was not required to prove that Smith was an "inmate" at the Lincoln County jail because all that section 47-5-193 requires is that Smith be either a "person or offender" in possession of a cell phone at the facility.

¶24. Smith also cites Tyler v. State , 69 Miss. 395, 11 So. 25 (1892), in support of his assertion that the phrase in the indictment "an inmate housed" was not surplusage and therefore must be proven as charged. But the supreme court recognized in Tyler that "[w]here the entire averment, of which the descriptive matter is a part, is surplusage, it may be rejected, and the descriptive averment need not be proved." Tyler , 69 Miss. at 397, 11 So. at 25. On the other hand, a factual averment in an indictment "must be proved as charged wherever, if the person, thing, act, place, or time to which it refers was struck from the indictment, no offense would be charged." Id. In Smith's case, eliminating the phrase "an inmate housed" from the indictment would still state the offense charged, as follows:

[O]n or about September 28, 2015, in Lincoln County, Mississippi and within the jurisdiction of this court, Rashad J. Smith did wilfully, unlawfully, feloniously and knowingly possess a cell phone, to wit: a Nokia Smartphone, black in color bearing the IMEI number 353047069216952 in the Lincoln County Jail, a correctional facility, in Lincoln County, Mississippi, at a time when [Rashad J. Smith] was an inmate housed in the aforementioned correctional facility, contrary to and in violation of Section[ ] 47-5-193 of the Mississippi Code of 1972, this being count two of the indictment....

Thus, under Tyler , "an inmate housed" is surplusage and need not be proven. Tyler , 69 Miss. at 397, 11 So. at 25.

¶25. Finally, we observe that the record reflects that the jury was specifically instructed on Count II as follows:

RASHAD J. SMITH has been charged with unlawful possession of a cell phone in a correctional facility. If you find from the evidence in this case beyond a reasonable doubt that:
RASHAD J. SMITH, on or about September 28, 2015, in Lincoln County, Mississippi, knowingly and feloniously possessed a cell phone, to-wit: a Nokia smartphone bearing number 353047069216952, while the said Rashad J. Smith was an inmate housed in the Lincoln County jail , a correctional facility; then you shall find the defendant "guilty of unlawful possession of a cell phone in a correctional facility."
However, it the State has failed to prove any one or more of the above listed elements of the crime beyond a reasonable doubt, then you shall find the defendant not guilty as to Count [II].

(Emphasis added). Having found that Smith was "guilty of unlawful possession of a cell phone in a correctional facility," the jury necessarily found that Smith was "an inmate housed in the Lincoln County jail," as instructed. Evans v. State , 226 So.3d 1, 32 (¶83) (Miss. 2017) ("The jury is presumed to follow the instructions given by the trial court."). We therefore reject Smith's argument for this additional reason.

¶26. In sum, because Smith's only challenge to the sufficiency or weight of the evidence is based upon three elements that we find the State was not required to prove, we find no merit in Smith's assertion that the trial court erred in denying his JNOV motion or, alternatively, his motion for a new trial.

3. The Sufficiency or Weight of the Evidence

¶27. In any event, assuming for the sake of argument that the State was required to prove that Smith was an "inmate" of the Lincoln County jail, we find that the State submitted sufficient evidence to support Smith's conviction and that the verdict was not against the overwhelming weight of the evidence.

a. The Sufficiency of the Evidence

¶28. "The denial of a JNOV motion is reviewed de novo because it is a challenge to the legal sufficiency of the evidence." Wilson v. State , No. 2017-KA-01197-COA, 276 So.3d 1241, 1262 (¶57), 2018 WL 6498709, at *13 (¶57) (Miss. Ct. App. Dec. 11, 2018) (internal quotation mark omitted). "In reviewing the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. "This Court may only reverse a denial of a JNOV motion when, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty." Id.

¶29. Smith relies on Brooks v. Pennington , 995 So.2d 733 (Miss. Ct. App. 2007), in asserting that the State failed to prove he was an "inmate" at the Lincoln County jail. We find that the unique facts in Brooks make it inapplicable here. In Brooks , Willie Lee Brooks pleaded guilty to driving under the influence (DUI) and, in relevant part, was sentenced to serve six months in the Rankin County jail with five months of that time suspended. Brooks subsequently sued the Rankin County Sheriff and his bail bond surety for false imprisonment, among other claims, when Brooks was re-incarcerated upon his surrender by his bail bondsman when Brooks failed to pay his bond surety. Brooks , 995 So.2d at 736-37 (¶¶1-4). At the time of his surrender and re-incarceration, Brooks had already served his DUI jail sentence. Id. at 736 (¶¶1-2).

¶30. Among other issues, Brooks appealed the trial court's determination that the sheriff was immune from liability under the Mississippi Tort Claims Act (MTCA), specifically Mississippi Code Annotated section 11-46-9(1)(m) (Rev. 2002), which provides for immunity for any claim "[o]f any claimant who at the time the claim arises is an inmate of any ... jail ....' " Miss. Code Ann. § 11-46-9(1)(m) ; see Brooks , 995 So.2d at 736 (¶3). The Court addressed whether Brooks was an "inmate" at the time he was surrendered by the bondsman by addressing a number of duties the jailors' were required to satisfy before accepting Brooks as an inmate. Id. at 738-39 (¶10). These duties included the duty to "identify the defendant ... [and to] use reasonable care to verify that the bond upon which the accused is being surrendered is presently valid and binding on the principal and surety." Id. The Court found that "there is a genuine issue of material fact as to whether [these] duties ... were breached, as well as to Brooks's damages." Id. at 739 (¶11).

¶31. Whether Smith was an "inmate" in this case is wholly distinguishable from determining whether Brooks was an inmate based upon the special duties that apply only when an arrestee is surrendered by a bondsman, as the Court addressed in Brooks . Smith was not brought in through a bail bondsman; he turned himself in. Further, Smith, by his own actions, initially bypassed the booking-in process in a rush to "go upstairs," as we detail below.

¶32. Section 47-5-193 does not contain the word "inmate," thus we look to the ordinary usage of the word "inmate" in determining the sufficiency of the evidence as to Smith's inmate status here. See Hall v. State , 241 So.3d 629, 631 (¶7) (Miss. 2018) ("This Court frequently looks to dictionaries to ascertain the meaning of a word in its common or popular sense."). "Inmate" is defined in The American Heritage Dictionary of the English Language as "a person confined to an institution, such as a prison or hospital." The American Heritage Dictionary of the English Language 930 (3rd ed. 1992). Based on our review of the record, we find that the State presented sufficient evidence at trial for a competent jury to find that Smith was an "inmate"-i.e., "a person confined to" the Lincoln County jail.

¶33. Officer Larry Morris testified that Smith had "turned himself in" to the Lincoln County jail and was taken through locked doors to the booking area. Officer Morris further testified that before Smith could be processed through normal procedures, Smith grabbed a jail uniform off of a shelf along with a mat provided by the jail, went in another area, and changed into the jail uniform. Smith came out in his jail uniform with his jail-issued mat and told Officer Morris that he was ready to go "upstairs." Officer Morris told him that he first needed to be searched and that the booking process needed to be completed. At this point, Smith put his belongings on the counter, and the Nokia cell phone, among other items, fell out of the rolled up mat.

¶34. Although the booking process had not been completed, Smith was in a locked area, dressed in a jail uniform, and was not free to leave. Smith himself expressed that he was ready to go "upstairs." The jury reviewed the evidence presented at trial in its entirety and determined which facts were to be accepted as true or rejected as false. Viewing the evidence in the light most favorable to the prosecution, reasonable jurors could have found beyond a reasonable doubt that Smith was "confined" in the Lincoln County jail, thus meeting the "inmate" factual allegation in the indictment. Gillett v. State , 56 So.3d 469, 505 (¶102) (Miss. 2010) ("The jury determines the weight and credibility to give witness testimony and other evidence. This Court may not pass upon the credibility of witnesses and, where the evidence justifies a verdict, it must be accepted as having been found worthy of belief.") (citation and internal quotation mark omitted). We therefore find that the trial court did not err in denying Smith's JNOV motion.

b. The Weight of the Evidence

¶35. Based upon the same evidence and testimony addressed above, we also reject Smith's alternative argument that the trial court erred when it denied his motion for a new trial because the verdict was against the overwhelming weight of the evidence. "Appellate courts review a trial court's decision to deny a motion for a new trial utilizing an abuse-of-discretion standard of review.... When considering a challenge to the weight of the evidence, the verdict will only be disturbed when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Pruitt v. State , 122 So.3d 806, 809 (¶6) (Miss. Ct. App. 2013). It is the jury's role to assess the weight and credibility of the evidence. Id. at 809 (¶8). Taking the evidence that supports the jury's verdict as true as outlined above and reviewing it in the light most favorable to the verdict, we find that allowing the verdict to stand would not sanction an "unconscionable injustice." Id. at 809 (¶¶6-8).

B. Ineffective Assistance of Counsel

¶36. As addressed above, the State did not allege that Smith was a habitual offender in the original indictment against him. The State subsequently moved to amend the indictment to allege habitual-offender status. At the June 2017 hearing on that motion, the trial court ruled on the record that the State met its burden for the indictment to be amended to include a habitual-offender sentencing enhancement. The record reflects, however, that no order was entered amending the indictment to charge Smith as a habitual offender, and the defense did not object to the absence of such an order. Smith asserts that he received ineffective assistance of counsel because his lawyer did not object to the absence of a written order allowing the indictment to be amended as required by Mississippi Code Annotated section 99-17-15 (Rev. 2015), resulting in a waiver of this issue on appeal. See Reed v. State , 506 So.2d 277, 279 (Miss. 1987).

¶37. In Reed , the Mississippi Supreme Court held that "[t]he State is required to make sure that such an order [amending an indictment] appears in the record," and the failure to do so renders the amendment ineffective. Id. ; see also MRCrP 14.1(b) (effective July 1, 2017) (indictment must contain penalty enhancement information or formal notice must be filed at least 30 days prior to trial or entry of a guilty plea). "[T]he defense is required to object to the absence of such order if it wishes to preserve th[e] point for appeal." Reed , 506 So.2d at 279. For the reasons explained below, we deny Smith's ineffective-assistance-of-counsel claim without prejudice to his right to seek relief as to this claimed error in a properly filed petition for post-conviction relief. Miss. Code Ann. § 99-39-7 (Rev. 2015) (providing that when the petitioner's conviction and sentence have been affirmed on direct appeal, the petitioner must obtain leave of the Mississippi Supreme Court before filing a petition for post conviction relief in the circuit court).

¶38. This Court will "only consider an ineffective-assistance-of-counsel claim on direct appeal when: (1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge." Nelson v. State , 222 So.3d 318, 322 (¶5) (Miss. Ct. App. 2017) (internal quotation marks omitted). Although Smith stipulates to the record's adequacy on this point, the State does not. As such, in deciding whether to go forward on this issue, this Court must determine whether the record affirmatively shows that Smith was denied ineffective assistance of counsel. See Williams v. State , 228 So.3d 949, 952 (¶12) (Miss. Ct. App. 2017).

¶39. To establish his ineffective-assistance claim, Smith must "prove, under the totality of the circumstances that (1) his attorney's performance was defective and (2) the deficiency deprived the defendant of a fair trial." Collins v. State , 221 So.3d 366, 372 (¶20) (Miss. Ct. App. 2016) ; see Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In this regard, "a presumption exists that an attorney's performance falls within the wide range of reasonable professional assistance and that the decisions made by trial counsel are strategic." Braggs v. State , 121 So.3d 269, 273 (¶11) (Miss. Ct. App. 2013) ; Collins , 221 So.3d at 372 (¶20).

¶40. With this standard in mind, our review of the record indicates that Smith's assignment of error on this point is beyond the contents of the record. We recognize, as the dissent points out, that even if Smith's counsel had objected to the lack of an order in the record allowing the amended indictment, this would likely have simply triggered a request that the trial court enter an order on the ruling it had already made. Smith would have still been sentenced as a habitual offender. Under these circumstances, defense counsel's failure to object on this issue does not result in any prejudice to Smith, or deprive him of a fair trial. However, the decision as to whether to object or not constitutes a strategic decision fully outside the scope of the face of the record. We find that resolution of this issue is better left to be assessed on a complete record. Precedent reflects that on direct appeal, we will deny relief in those matters "where the record cannot support an ineffective assistance of counsel claim ... [and we will] preserv[e] the defendant's right to argue the same issue through a petition for post-conviction relief." Johnson v. State , 196 So.3d 973, 975 (¶8) (Miss. Ct. App. 2015) (quoting McClendon v. State , 152 So.3d 1189, 1192 (¶12) (Miss. Ct. App. 2014) ). For this reason, we deny Smith's ineffective-assistance claim without prejudice to his right to file a motion for post-conviction relief on this alleged error.

¶41. AFFIRMED.

BARNES, C.J., GREENLEE, WESTBROOKS, TINDELL, LAWRENCE AND C. WILSON, JJ., CONCUR. J. WILSON, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. McCARTY, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY McDONALD, J.

McCARTY, J., CONCURRING IN PART AND DISSENTING IN PART:

¶42. Because I believe the record is sufficient at this point to resolve the question of whether there was ineffective assistance of counsel and does not require further exploration in the post-conviction process, I respectfully dissent in part. I agree with the majority's detailed conclusions regarding the sufficiency of the indictment and other issues in this case and therefore concur in part. Because the Supreme Court has made clear that the operative inquiry is whether there was a fair opportunity to present a defense and no unfair surprise in sentencing, even though the attorney may have failed to object, I do not think it results in prejudice to the defendant under the unique facts of this case. Yet I believe it could be per se ineffective assistance of counsel in other cases, which could likewise be dealt with on direct appeal.

¶43. The Legislature affirmatively requires a trial court's order amending an indictment to be placed upon the docket, and it is clear from the statute's repeated use of the word "shall" that filing the order amending the indictment is a legislative commandment. "A basic tenet of statutory construction constrains us to conclude that, unlike the discretionary nature of 'may,' the word 'shall' is a mandatory directive."

Ivy v. Harrington , 644 So.2d 1218, 1221 (Miss. 1994). When the word "shall" is used, there is "no discretion"-it must be followed. Id. This is not a new commandment. "It is the law that an amendment to an indictment must be by order of the court which must precisely specify the amendment and the order must be spread on the minutes." Thomas v. State , 167 Miss. 504, 505, 142 So. 507, 507 (1932).

¶44. As the majority correctly points out, failure to object that the order amending the indictment was not placed on the docket will result in waiver. "The State is required to make sure that such an order appears in the record and the defense is required to object to the absence of such order if it wishes to preserve this point for appeal." Reed v. State , 506 So.2d 277, 279 (Miss. 1987). The waiver rule is well-established, and dates to at least 1973. See Jones v. State , 279 So.2d 594 (Miss.1973) ("In the trial appellant waived any objection to the amendment, and made no point of the fact that the order authorizing the amendment was not entered upon the minutes of the court prior to actual making of the amendment," and so "waived his right to urge reversible error so far as the amendment is concerned."); see also Sturgis v. State , 379 So.2d 534, 536-37 (Miss. 1980) (finding waiver when defendant failed to raise that the order was not filed as required by statute).

¶45. This brings us to the claim by the defendant that he was deprived of effective assistance of counsel. The State carried its burden to amend the indictment but failed to place it upon the docket as required by the Legislature and controlling precedent. Although this failure is error, nearly fifty years of precedent hold that the error is waived if the defendant does not object. Trial counsel did not object here, and as a result the majority correctly applies the precedent and rules that the issue is waived.

¶46. Where I must part ways is the analysis of whether this was ineffective assistance of counsel. The Supreme Court "has held that adequate notice is achieved through formal pleadings, which include the specific amendment to be offered and which are filed sufficiently in advance of trial to ensure that a defendant will have a fair opportunity to present a defense and will not be unfairly surprised." Williams v. State , 131 So.3d 1174, 1177 (¶7) (Miss. 2014) (internal quotation marks omitted). "Whether notice of a possible enhanced sentence was given sufficiently in advance of trial should be considered on a case-by-case basis." Id. (internal quotation mark omitted). We have held that a post-conviction amendment to an indictment was valid because the defendant "had fair notice" and had filed a motion to amend, which detailed all of the offenses that made him eligible for habitual-offender status. Lyles v. State , 212 So.3d 879, 883 (¶17) (Miss. Ct. App. 2016).

¶47. From the record in this case, the defendant was put on notice of the amendment, and while it was error of counsel to not object to the failure to file the amendment, it does not result in prejudice. An objection would have likely just triggered the actual filing of the amended indictment, in turn satisfying Williams and Lyles . There was no prejudice in this case because of its unique nature, and not all cases will be the same; as the Supreme Court has reminded us. This issue is to be determined on a case-by-case basis.

¶48. Similar errors have resulted in reversal, such as in Williams , where "[t]he State's motion placed [him] on notice that it intended to utilize his prior drug conviction, but only for sentence enhancement," not "as a subsequent drug offender." Williams , 131 So.3d at 1178 (¶10). "Because Williams was not given proper notice in advance of trial of the State's intent to seek enhanced punishment as a subsequent drug offender ... we are compelled to reverse that portion of his sentence." Id. So while it may not have been ineffective assistance of counsel in this particular case to fail to object, there are many instances where it could be. A failure to object if the amendment of the indictment involved a name change, venue, a missing element, or as in Williams , doubled the potential sentence, could very well be ineffective assistance of counsel. It would be apparent from the face of the record and ripe for resolution on direct appeal.

¶49. We do not need to delay ruling on the issue for another day, and so I would find as a matter of law that while it may have been error by the trial counsel, it did not result in prejudice to the defendant as there was sufficient notice under the facts of this case.

McDONALD, J., JOINS THIS OPINION.

      The original indictment also incorrectly entered the name "Ryan Farley Lewis" as Smith's name in Count II, rather than "Rashad J. Smith." The State separately moved to amend the indictment to correct this error, and a written order was entered amending the indictment.

      The jury's verdict, announced in open court, was as follows: "We, the jury, find the Defendant, Rashad J. Smith, guilty of possession of a cell phone in a correctional facility as [to] Count 2 of the indictment."

      In Crosby v. State , 856 So.2d 523 (Miss. Ct. App. 2003), the Court stated that in Cooley "[t]he problem was the indictment alleged that the beating was done with a hatchet and no one found or identified a hatchet during testimony." Id. at 528 (¶9). This overstatement regarding this purported finding in Cooley is dictum. In Crosby the Court was not addressing whether the State was require to prove a non-statutory, factual element of an indictment. We are not bound by this statement. Hughes v. Hosemann , 68 So.3d 1260, 1264 (¶11) (Miss. 2011) (observing that gratuitous remarks in a prior case, made outside the court's dispositive conclusion, were "mere dicta-surplusage, which no court is bound to follow").

      Section 99-17-15 provides that "[t]he order of the court for amendment of the indictment ... shall be entered on the minutes, and shall specify precisely the amendment, and shall be a part of the record of said case, and shall have the same effect as if the indictment or other proceeding were actually changed to conform to the amendment." Miss. Code Ann. 99-17-15 (Rev. 2015).

      Williams v. State , 131 So.3d 1174, 1177 (¶7) (Miss. 2014).


text:
    EX PARTE Clinton CARTER, in his capacity as Director of Finance for the State of Alabama
    (In re: Jim Zeigler v. Clinton Carter, in his capacity as Director of Finance for the State of Alabama, et al.)
    Ex parte CGI Technologies and Solutions, Inc.
    (In re: Jim Zeigler v. Clinton Carter, in his capacity as Director of Finance for the State of Alabama, et al.)
    1160887 1160897
    Supreme Court of Alabama.
    July 27, 2018 Rehearing Applications Denied October 19, 2018
    Albert L. Jordan, Michael L. Jackson, and Susan M. Brown of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham; Algert S. Agricola, Jr., deputy atty. gen., of Ryals, Donaldson & Agricola, P.C., Montgomery; and Jerry L. Carpenter, Alabama Department of Finance, for petitioner Clinton Carter, in his capacity as Director of Finance for the State of Alabama.
    Samuel H. Franklin and M. Christian King of Lightfoot, Franklin & White, L.L.C., Birmingham, for petitioner CGI Technologies and Solutions, Inc.
    Andrew P. Campbell, Yawanna N. McDonald, and John C. Guin of Campbell Guin, LLC, Birmingham; and J. Doyle Fuller and Susan G. Copeland of Fuller & Copeland, Montgomery, for respondent Jim Zeigler.
   Judge James H. Anderson, Montgomery, as respondent.

MENDHEIM, Justice.

CGI Technologies and Solutions, Inc. ("CGI"), and Clinton Carter, in his capacity as Director of the Alabama Department of Finance, separately petition this Court for a writ of mandamus directing the Montgomery Circuit Court to dismiss, for lack of subject-matter jurisdiction, an action filed by Jim Zeigler challenging a contract between CGI and the State of Alabama on the basis that the contract violated Alabama's competitive-bid law. We grant the petitions and issue the writs.

I. Facts

On September 30, 1982, the State of Alabama, through the Department of Finance, entered into a software contract with American Management Systems, Inc. ("AMS"), that granted the State a license to install a local-government finance-system package on computers in the Finance Department ("the 1982 contract"). There is no dispute that the 1982 contract was competitively bid.

In 2004, AMS was acquired by CGI. On November 1, 2012, the State and CGI entered into what they called "Amendment 11" to the 1982 contract. Amendment 11 extended the license for "Advantage 2 Software," which apparently was or had become part of the local-government finance-system package, for an additional 15 years. Amendment 11 was the first amendment to the 1982 contract since 1994.

On January 1, 2013, the State and CGI entered into an agreement labeled "Amendment 12," which provided for the State to acquire what was called "the Packaged System," a program CGI was to configure, install, and maintain for the State's Medicaid agency and that included "Advantage-related enhancements." CGI began the work contracted for in Amendment 12 on January 15, 2013.

On September 30, 2013, the State and CGI entered into "Amendment 13," which authorized the purchase of the Packaged System for configuration, installation, and maintenance across State-agency computer systems over a period of five years. The software purchase and implementation provided by Amendment 13 became known as the State of Alabama Accounting Resources System ("STAARS"). According to Zeigler's complaint, "STAARS is based on CGI's Advantage [Enterprise Resource Planning] software, which is designed and built specifically for state and local governments." The State and CGI entered into four amendments addressing STAARS between March 2014 and September 2015.

On March 31, 2017, the State and CGI entered into a letter agreement memorializing an understanding "relative to concluding work" on STAARS. The letter agreement noted that "CGI acknowledges the State's intent to begin transition to an in-house delivery plan or to award a new contract for operational services and support for STAARS within 90 days of the date of this letter, after which, CGI will provide Disengagement Services." Also, the letter agreement recognized a "winding down" of the contractual relationship between CGI and the State, which was to conclude by September 30, 2017. Other than the "winding-down period," the State agreed that "CGI has satisfied its contractual obligations with respect to the STAARS project and software and services provided by CGI under the STAARS Contract." The agreement also stated:

"CGI acknowledges that the State of Alabama will not further amend the 1982 Memorandum of Agreement, the amendments thereto, or any existing Statements of Work thereunder, nor restart work concluded by this agreement without executing a new contract competitively awarded pursuant to the provisions of Chapter 16 of Title 41, Code of Alabama 1975."

On September 29, 2017, Carter filed with this Court a "Supplement" to his petition in which he explained that, because of an "emergency" not anticipated by the State, the State had to enter into a further "Professional Services Contract" with CGI to extend its performance for up to 60 days beyond the original September 30, 2017, winding-down period. In other words, the State contracted for further services from CGI after October 1, 2017, but not extending beyond November 29, 2017. Carter described the need for further services as follows:

"[T]he emergency arose because the State has not been able since July 7 to end the risk of catastrophic failure in the STAARS system arising from the end of CGI's managed services by appropriate interaction between CGI and the new vendor for managed services replacing CGI [Infiniti]. The risk arises from the need to allow CGI to extract proprietary processes and trade secrets used during its provision of managed services, and enable the new vendor to become the service provider using its own knowledge, and without using CGI proprietary processes and trade secrets."

Supplement to Carter's petition, pp. 3-4. The need for further services by CGI meant that further payments would be made to CGI.

On December 18, 2017, Carter filed a second supplement to his petition, in which he stated:

"Defendant CGI is performing no work for the State of Alabama, and will receive no further payments for the enhancement of the CGI-licensed software known as STAARS, or for ongoing managed operational services of the STAARS system, or for the winding down process needed to conclude CGI work and transition to a new vendor. That work was completed on November 29, and the last payment related to it was made on or about December 14. Pursuant to a contract awarded by a competitive process, Infiniti is the new sole vendor providing software services for the State of Alabama."

Second supplement to Carter's petition, p. 1.

According to Zeigler, in December 2015 he first learned that the amendments authorizing and implementing STAARS had not been competitively bid. On July 21, 2016, Zeigler filed this action in Montgomery Circuit Court against CGI, Carter, in his capacity as finance director, the governor, and the attorney general. In his original complaint, Zeigler alleged that he "has standing to bring this action in his individual capacity pursuant to § 41-16-31, Code of Alabama 1975."

Section 41-16-31, Ala. Code 1975, provides:

"Any taxpayer of the area within the jurisdiction of the awarding authority and any bona fide unsuccessful bidder on a particular contract shall be empowered to bring a civil action in the appropriate court to enjoin execution of any contract entered into in violation of the provisions of this article."

The original complaint also referenced Zeigler, in his official capacity as State Auditor.

On August 16, 2016, Zeigler filed an amendment to his complaint in which he sought to delete "all references to this action being brought by the Plaintiff in his official capacity as State Auditor" and to "clarify that, from this point on, this action is being prosecuted by Zeigler in his individual capacity as a taxpayer of this state, and as class action on behalf of all other taxpayers of this state." Approximately a month later Zeigler filed a second amended complaint.

On April 18, 2017, Zeigler filed his "Third Amended Complaint," which is the operative complaint for these petitions. Zeigler's first count of the third amendment to the complaint sought a judgment declaring that the STAARS amendments were void pursuant to § 41-16-20 et seq., Ala. Code 1975 (hereinafter this section and associated Code sections -- including § 41-16-31 -- are referred to collectively as "the Competitive Bid Law"), because the State did not engage in the competitive-bid process for the purchase, implementation, and maintenance of STAARS. Zeigler requested that the court "create a constructive trust for the benefit of taxpayers (and hence, the State of Alabama) consisting of all monies, profits and gains illegally obtained by CGI as a result of the STAARS" amendments as part of the relief in this count. Count two of that amended complaint sought a judgment declaring that the STAARS amendments violated § 29-2-41, Ala. Code 1975, because the proposed amendments were not submitted to the Contract Review Permanent Legislative Oversight Committee, and that, as a result, those amendments to the 1982 contract were void. Count three asserted a claim of unjust enrichment against CGI for retaining the payments it had received from the State for STAARS. Count four sought rescission of the contract created by the STAARS amendments and restitution to recover the payments made to CGI on behalf of Alabama taxpayers. Count five asserted a claim for money had and received. In Count six Zeigler sought a permanent injunction voiding the STAARS amendments, prohibiting any further performance as to those amendments, and preventing Carter from making any further payments to CGI. Count seven sought a preliminary injunction prohibiting Carter from making any further payments to CGI under the STAARS amendments during the pendency of the action.

On April 26, 2017, CGI filed a motion to dismiss the amended complaint. CGI contended, among other things, that the statute under which Zeigler claimed a right to bring his action, § 41-16-31, allowed for a remedy only of enjoining execution of a contract that violates the competitive-bid law, which meant that it did not permit claims of unjust enrichment or seeking restitution. CGI also contended that, under this Court's precedent, Zeigler lacked taxpayer standing to recover allegedly wrongfully expended funds. On April 29, 2017, Carter filed a motion to dismiss the amended complaint. Carter argued that Zeigler lacked standing because his original complaint failed to allege that he was a taxpayer or that his taxes were used to fund payments made pursuant to the STAARS amendments. Carter also contended that § 41-16-31 permits the filing of an action only before a contract has been signed, not after performance under the contract has commenced.

On May 31, 2017, the circuit court entered an order in which it dismissed counts two through seven of Zeigler's complaint, but it denied the motions to dismiss as to count one seeking a declaratory judgment relating to the alleged violation of the Competitive Bid Law. The circuit court also dismissed Zeigler's motion for class certification under Rule 23, Ala. R. Civ. P.

Thereafter, CGI and Carter filed separate petitions for a writ of mandamus contending that the circuit court erred in declining to dismiss Zeigler's remaining declaratory-judgment claim. The Court consolidated those petitions for the purpose of writing one opinion.

II. Standard of Review

" ' " 'The writ of mandamus is a drastic and extraordinary writ, to be "issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court." Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala. 1993) ; see also Ex parte Ziglar, 669 So.2d 133, 134 (Ala. 1995).' Ex parte Carter, [807 So.2d 534,] 536 [ (Ala. 2001) ]."
" ' Ex parte McWilliams, 812 So.2d 318, 321 (Ala. 2001).
" ' "Subject to certain narrow exceptions ..., we have held that, because an 'adequate remedy' exists by way of an appeal, the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by petition for writ of mandamus." Ex parte Liberty Nat'l Life Ins. Co., 825 So.2d 758, 761-62 (Ala. 2002).'
" Ex parte Kohlberg Kravis Roberts & Co., L.P., 78 So.3d 959, 965-66 (Ala. 2011)...."

Ex parte Rhodes, 144 So.3d 316, 317-18 (Ala. 2013). However, " 'the question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus.' " Ex parte Hill, 225 So.3d 56, 64 (Ala. 2016) (quoting Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala. 2000) ). Both taxpayer standing and mootness pertain to subject-matter jurisdiction, see Morrow v. Bentley, 261 So.3d 278, 283-85 (Ala. 2017), and Wood v. State, 261 So.3d 322, 330-31 (Ala. 2017), respectively.

III. Analysis

CGI and Carter contend that two overarching problems plague the circuit court's refusal to dismiss Zeigler's remaining claim seeking a judgment declaring that the STAARS amendments violated the Competitive Bid Law. First, Carter contends, for a variety of reasons, that Zeigler lacks taxpayer standing to bring this action. Second, both CGI and Carter contend that the action is moot because the STAARS amendments have been fully performed. Because we agree with the latter contention regarding the mootness of this action, we pretermit discussion of whether Zeigler lacks taxpayer standing.

Both Carter and CGI contend that Zeigler's action was due to be dismissed by the circuit court in its entirety as moot because performance under the STAARS amendments has been completed. The March 31, 2017, letter agreement indicated that all "winding down" of responsibilities as to the STAARS amendments was to conclude on September 30, 2017. Through supplements submitted to this Court while these petitions have been pending, which Zeigler has not contested, Carter has informed this Court (1) that a further professional-services contract was entered into between the State and CGI that would last 60 days beyond the original end date of September 30, 2017; (2) that work was completed under that contract on November 29, 2017; (3) that the final payment to CGI was made on December 14, 2017; and (4) that CGI is performing no further work for the State as to STAARS and the services it formerly performed are now being handled by a new service provider.

The petitioners note that, although Zeigler initially sought a preliminary injunction in this action, the circuit court dismissed that request and never granted any injunction. As a result, CGI continued its performance under the STAARS amendments as litigation in this case unfolded, and the State paid CGI for the services remaining under its contract with CGI, including the services provided under the STAARS amendments. The petitioners conclude: "Now that the STAARS amendments have been fully performed ..., the question whether they were validly entered will be purely academic and not within the Court's authority to decide." Carter's petition, pp. 25-26.

Zeigler counters that this case is not moot because, he argues, a contract that is declared to be invalid under the Competitive Bid Law is void. See § 41-16-21(c), Ala. Code 1975 (stating that "[c]ontracts entered into in violation of this article shall be void"). "The issue here is whether the STAARS [amendments were] void when entered into. The determination of that issue has substantial significance for the rights and liabilities of the parties, including, among other things, [Zeigler's] pending claim for restitution." Zeigler's brief, pp. 29-30. Indeed, Zeigler relies heavily on the alleged right to restitution based on the amendments being void.

Zeigler cites general statements of law to the effect that the power to void a contract necessarily includes the power to obtain restitution. See, e.g., Transamerica Mortg. Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11, 18, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979) ("A person with the power to void a contract ordinarily may resort to a court to have the contract rescinded and to obtain restitution of consideration paid."). It is telling, however, that the only Alabama case Zeigler cites with regard to the Competitive Bid Law in this regard is State ex rel. Russell County v. Fourth National Bank of Columbus, Georgia, 270 Ala. 135, 117 So.2d 145 (1959), a case in which the State instituted suit on behalf of Russell County after Russell County paid for services under a contract it had entered into in violation of a pertinent bid law. In that case, this Court observed:

"The enforcement of a contract for the construction of roads entered into without a compliance with the provisions of § 54, Title 23, [Ala. Code 1940,] may be enjoined.
"But we are not here concerned with an effort to enjoin the execution or enforcement of a contract.
"Here the roads have been constructed. The contractors have been paid. For aught appearing in the bill, the roads were properly built and the contractors received no more than the reasonable value of the services, materials and labor furnished."

270 Ala. at 145, 117 So.2d at 153 (citations omitted). The Court continued:

"There are cases to the effect that even though the contract for public improvements has been completed, if the contract was made in violation of a law providing for the letting of contracts to the lowest bidder, a suit may be maintained to restrain the paying out of public monies upon such contracts.
"Other cases hold that under such circumstances the monies paid out may be recovered.
"....
"The prevailing rule may be that where there has been a failure to comply with a competitive bid statute, there can be no recovery by a contractor or a furnisher of supplies or materials to a public agency, either on the contract or on a theory of implied contract or quantum meruit, or upon a basis of estoppel or upon the doctrine of unjust enrichment or upon any other equitable ground or consideration.
"However, other cases have allowed recovery on implied contract or quantum meruit where the services, labor or material have been performed and accepted by the public agency notwithstanding noncompliance with a statute requiring that contracts should be let only after competitive bidding.
"We are of the opinion that the rule of the cases last cited above is in accord with the rule of our cases which have treated generally with the question as to whether recovery may be had from a city or county in an action in quantum meruit for service performed or material furnished.
"In summary, we find that the Alabama law pertinent to this type of case is that where the contract was not within the corporate power, expressly prohibited by law, or violative of public policy, no recovery may be had either on express contract or quantum meruit.
"But where the power to contract lies within the competence of the city or county, and there has been an irregular exercise of that power, recovery [by the contractor] in quantum meruit may be had although the express contract is void.
"The general power to construct and maintain roads was within the competence of the County Commission for Russell County. There was an irregular exercise of that power which under our cases would not defeat recovery in quantum meruit for services and material furnished where the transaction was made in good faith. As we have heretofore indicated, there is no averment of fraud, collusion, peculation or improvidence.
"If the contractors could have recovered in quantum meruit for the reasonable value of the labor and materials furnished by them, as we have indicated, it follows that the County cannot succeed in this suit to recover a sum equal to the amount of money paid to the contractors."

270 Ala. at 145-46, 117 So.2d at 153-54 (citations omitted; emphasis added). We do not find the equitable principles discussed in State ex rel. Russell County to be helpful to Ziegler's argument that he, as a taxpayer, may prosecute an action on behalf of the State for restitution, particularly where it appears the services contracted for are "within the competence of" the State and have been performed by the contractor; the contractor has been paid; and there is no allegation of "fraud, collusion, peculation [stealing] or improvidence" as to the transaction at issue.

More importantly, however, § 41-16-31 authorizes a taxpayer action for injunctive relief only for violations of the Competitive Bid Law. As this Court noted in Crest Construction Corp. v. Shelby County Board of Education, 612 So.2d 425, 431 (Ala. 1992) :

"The legislature has provided a remedy to prevent an agency from violating the provisions of the Competitive Bid Law. A taxpayer or a 'bona fide unsuccessful bidder' may sue 'to enjoin execution of any contract entered into in violation of the provisions of [Article 3, § 41-16-50 through 41-16-63].' Ala. Code 1975, § 41-16-61. This language is unambiguous."

The Crest Court further noted that the remedy the legislature provided in the Competitive Bid Law is "a limited one." 612 So.2d at 432 (also referencing the principle of "expressio unius est exclusio alterius," " 'the expression of one thing is the exclusion of another.' Black's Law Dictionary 521 (6th ed. 1990)." 612 So.2d at 432 text and n.2.). Thus, the Court has unequivocally held that "nothing in the legislative history of § 41-16-31 nor in the cases interpreting that statute ... allows an unsuccessful bidder to sue for monetary damages." Jenkins, Weber & Assocs. v. Hewitt, 565 So.2d 616, 618 (Ala. 1990). In explaining the rationale for this holding, the Jenkins Court noted:

"This Court held as follows in City of Montgomery v. Brendle Fire Equipment, Inc., 291 Ala. 216, 220, 279 So.2d 480, 484 (1973), interpreting Ala. Code 1940, Title 55, § 515, the predecessor to § 41-16-31 :
" 'This court finds the language of section 515 to be unambiguous, and under such circumstances the "expressed intent must be given effect, and there is no room for construction." Under the statutory language it appears that the City's interpretation is correct. The statute makes available the equitable remedy of an injunction on a "particular contract." This wording does not contemplate enjoining future contractual arrangements. Also, the statute provides for enjoining the "execution" of any contract which is violative of Chapter 22, not the formation of contracts to be made in the future which may run afoul of Chapter 22.'
"(Citations omitted, emphasis original.) City of Montgomery established the remedy pursuant to Title 55, § 515, as one for injunctive relief."

565 So.2d at 617 (final emphasis added).

It is true that the rationale in cases such as Crest and Jenkins could be explained by the fact that "[t]he Competitive Bid Law was enacted for the benefit of the public, not for the benefit of the unsuccessful bidder." TFT, Inc. v. Warning Sys., Inc., 751 So.2d 1238, 1247 (Ala. 1999). But the fact remains that the only relief authorized under § 41-16-31 is "to enjoin execution of any contract entered into in violation of the provisions of this article," whether the complaining party is an unsuccessful bidder or a taxpayer. In keeping with this language, our cases repeatedly have emphasized a taxpayer's right to stop the unlawful expenditure of taxpayer money but have not mentioned a taxpayer's having a right to recover funds already expended by the State for services rendered. See, e.g., Ingle v. Adkins, 256 So.3d 62, 71 (Ala. 2017) ("[T]his Court has repeatedly recognized that a taxpayer has standing to seek an injunction against public officials to prevent illegal payments from public funds." (emphasis added) ); Zeigler v. Baker, 344 So.2d 761, 764 (Ala. 1977) ("The right of a taxpayer to challenge the unlawful disbursement of state funds ... is unquestioned." (first emphasis added) ); Goode v. Tyler, 237 Ala. 106, 109, 186 So. 129, 131 (1939) ("[T]his Court is committed to the doctrine that a taxpayer may maintain a suit in equity to restrain a state officer in the unlawful disbursement of state funds." (emphasis added) ); and Turnipseed v. Blan, 226 Ala. 549, 552, 148 So. 116, 118 (1933) (recognizing "the right of a taxpayer to maintain a suit in equity to restrain an officer of a city or county from disbursing funds without statutory authority or under an unconstitutional statute" (emphasis added) ). The legislature has considered the issue whether taxpayers should have a legal remedy for an alleged violation of the Competitive Bid Law by the State, and the legislature has provided the taxpayers with a specific remedy for such violations. This Court has no authority to create an additional taxpayer remedy.

Based on the foregoing, we conclude that injunctive relief was the only remedy potentially available to Zeigler, as a taxpayer, for the alleged violation of the Competitive Bid Law. However, because the 1982 contract, including the STAARS amendments, has been fully performed, injunctive relief is no longer available, and any declaration that the State violated the Competitive Bid Law would serve no purpose. As this Court has held, a matter is moot where "there is no effective remedy upon which relief can be granted" based on subsequent events. AIRCO, Inc. v. Alabama Pub. Serv. Comm'n, 360 So.2d 970, 971 (Ala. 1978). "To render an opinion based solely upon ... alleged improper actions (without seeking a remedy therefrom) ... would be to render impermissible advisory opinions." Id. Moreover, "[a]n action that originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised in it have become moot by subsequent acts or events." Case v. Alabama State Bar, 939 So.2d 881, 884 (Ala. 2006). See also Underwood v. Alabama State Bd. of Educ., 39 So.3d 120, 127 (Ala. 2009) (" 'This Court has often said that, as a general rule, it will not decide questions after a decision has become useless or moot.' " (quoting Arrington v. State ex rel. Parsons, 422 So.2d 759, 760 (Ala. 1982) ) ).

Because performance under the 1982 contract, including the STAARS amendments, has been completed, there is no performance to enjoin, and there is no further remedy available to Zeigler for the alleged violation of the Competitive Bid Law. Therefore, we agree with the petitioners that Zeigler's claims are now moot.

IV. Conclusion

Based on the foregoing, we grant the petitions and direct the circuit court to enter an order dismissing the action.

1160887-PETITION GRANTED; WRIT ISSUED.

1160897-PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Bolin, Parker, Shaw, Wise, and Sellers, JJ., concur.

Bryan, J., concurs in the result.

Main, J., recuses himself.

      At the time he filed the underlying action, Zeigler was State Auditor for Alabama, a position he holds as of the date of this opinion.

      The governor and the attorney general were subsequently dismissed as defendants.

      Section 41-16-20, Ala. Code 1975, provides, in part:
      "(a) With the exception of contracts for public works whose competitive bidding requirements are governed exclusively by Title 39, all contracts of whatever nature for labor, services, work, or for the purchase or lease of materials, equipment, supplies, other personal property or other nonprofessional services, involving fifteen thousand dollars ($15,000) or more, made by or on behalf of any state department, board, bureau, commission, committee, institution, corporation, authority, or office shall, except as otherwise provided in this article, be let by free and open competitive bidding, on sealed bids, to the lowest responsible bidder."

      Section 29-2-41, Ala. Code 1975, states, in part:
      "Each state department entering into a contract to be paid out of appropriated funds, federal or state, on a state warrant which is notified by the committee is required to submit to the committee any proposed contract for personal or professional services. Each contract shall be accompanied by an itemization of the total cost estimate of the contract."

      We are not to be understood as implying that a taxpayer could prosecute an action on behalf of the State for restitution where such allegations are made. That circumstance is not before us.