text:
    Raquel Shadawn TAYLOR a/k/a Raquel Taylor, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-01559-COA
    Court of Appeals of Mississippi.
    November 27, 2018
    OFFICE OF STATE PUBLIC DEFENDER, BY: W. DANIEL HINCHCLIFF, ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE, Jackson, ATTORNEY FOR APPELLEE
    BEFORE IRVING, P.J., CARLTON AND FAIR, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. On September 12, 2017, a jury convicted Raquel Taylor of aggravated assault. Taylor was sentenced as a non-violent habitual offender to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC) with sixteen years suspended after serving four years, followed by five years of supervised probation. Taylor now appeals.

FACTS

¶ 2. On December 26, 2015, while shopping at Northpark Mall in Ridgeland, Mississippi, Tiphaney Willis and Taylor had a verbal exchange about a mutual male interest. Willis made a purchase at the store where the confrontation occurred and proceeded to leave the mall. In the parking lot, as Willis was approaching her car, Taylor came from behind and struck Willis several times with a tire-iron. A bystander intervened and called 911. Taylor drove away from the scene.

¶ 3. Willis was taken to the hospital. Ridgeland police officer Barry Hollingsworth responded to the scene and found Willis with two contusions on her head and blood on her face. Jason Rudd, a Ridgeland police officer, also responded to the scene and witnessed Willis, on a stretcher, being put into the ambulance. A suspect was developed based on the eyewitnesses' accounts. The next day, Willis identified a picture of Taylor and the tire-iron. Taylor was arrested.

¶ 4. After waiving her Miranda rights, Taylor made a statement. At trial, Taylor conceded that she hit Willis with a tire-iron. Among those who testified were two shoppers that witnessed the exchange of words inside the mall and the assault in the parking lot. A unanimous jury found Taylor guilty of aggravated assault.

DISCUSSION

¶ 5. Pursuant to Lindsey v. State , 939 So.2d 743 (Miss. 2005), appellate counsel filed a brief stating that he:

diligently searched the procedural and factual history of this criminal action and scoured the record searching for any arguable issues which could be presented to the Court on Raquel Shadawn Taylor's behalf in good faith for appellate review and upon conclusion, have found none.

In Lindsey , the Mississippi Supreme Court set out the procedure to be followed when a defendant's attorney does not find any arguable issues to support an appeal. Lindsey , 939 at 748 (¶ 18),. Appellate counsel must file a brief showing that counsel has thoroughly reviewed the record and has found nothing to support an appeal. Counsel must then send the appellant a copy of the brief, informing the client that counsel found no arguable issue for an appeal, and counsel must advise the client of her right to file a pro se brief. Id. If the defendant raises any arguable issue in her pro se brief, or if the appellate court finds any arguable issues upon its independent review of the record, the appellate court must, if circumstances warrant, require counsel to file supplemental briefing on the issue. Id.

¶ 6. Taylor's attorney asserts that he examined: (1) the reason for Taylor's arrest and the circumstances surrounding the arrest; (2) any possible violations of Taylor's right to counsel; (3) the entire trial transcript; (4) all rulings of the trial court; (5) possible procedural misconduct; (6) all jury instructions; (7) all exhibits, whether admitted into evidence or not; (8) possible misapplication of the law in sentencing; (9) the indictment and all the pleadings in the record; (10) any possible ineffective-assistance-of-counsel issues; and (11) other possible reviewable issues. Id. at 748 (¶ 18) (citations omitted); see also Turner v. State , 818 So.2d 1186 (Miss. 2001).

¶ 7. Taylor's attorney complied with Lindsey 's requirements. He examined the record and found no arguable appellate issues. Taylor's attorney sent a copy of the Lindsey brief to Taylor, stating that, while he found no arguable issues, Taylor had the right to file a pro se supplemental brief. Taylor was given forty days to file a brief. She did not. We have independently reviewed the record and find no arguable issues that require supplemental briefing. Therefore, we affirm Taylor's conviction and sentence.

¶ 8. AFFIRMED.

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

      Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: GRIFFIS, P.J., FOR THE COURT:

license: Public Domain

text:
    Conway E. DENNIS a/k/a Conway Earl Dennis a/k/a KC, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00815-COA
    Court of Appeals of Mississippi.
    November 27, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA H. TEDDER, JACKSON
    BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Conway E. Dennis appeals his conviction of aggravated assault and argues the circuit court failed to properly instruct the jury regarding the elements of the crime. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On the night of September 22, 2015, Jerome Wolfe was injured when he was run over by a minivan driven by Dennis. Dennis's girlfriend, Shayla Williams, once dated Wolfe, and the two were the parents of a daughter. Earlier that evening, Williams went to see Wolfe to pick up some money for their daughter. According to Wolfe, he and Williams were "intimate." While with Wolfe, Williams received a phone call from Dennis. Williams and Dennis began to argue, and Williams subsequently left Wolfe's apartment.

¶ 3. Shortly thereafter, Dennis and Williams returned to the apartment. Dennis was driving a blue minivan, and Williams was in the passenger seat. When Dennis and Williams arrived at the apartment, Wolfe and his friend Damien Dawkins were outside. Dennis parked the vehicle about ten feet from the apartment door, blocking the exit to the apartment complex. As Dennis exited the vehicle, he and Wolfe began to argue. A verbal altercation occurred with threats of a "one-on-one" fight.

¶ 4. As Wolfe was walking toward the street in preparation for a fight, he heard Dawkins yell. Wolfe turned around and saw Dennis in the minivan. Wolfe was standing behind the minivan and could see Dennis's eyes in the vehicle's side mirror. According to Wolfe, Dennis was looking directly at him. Dennis backed up the minivan and ran over Wolfe. Dennis then drove the minivan forward and, once again, backed over Wolfe. Dennis subsequently sped off. As a result of the incident, Wolfe suffered injuries including a broken hip, two sprained ankles, and an abrasion to his left ear.

¶ 5. Following the incident, Dennis was apprehended and interviewed by Detective Jeremy Dunaway with the Hattiesburg Police Department. Dennis provided a statement to Detective Dunaway. According to Dennis, when he arrived at the apartment, two men, one being Wolfe, approached the minivan. Dennis felt threatened and thought he was being "ambushed." As a result, Dennis proceeded to back up the vehicle in order to leave the apartment complex. Dennis stated he knew he had hit something but did not know that he had hit Wolfe.

¶ 6. At trial, Williams testified on behalf of Dennis. Williams denied that Dennis intended to hit Wolfe. When Williams told Dennis that he had hit Wolfe, Dennis responded, "[O]h my God, baby, I didn't mean to."

¶ 7. Dennis was convicted of aggravated assault and sentenced to fifteen years, with seven years suspended, leaving eight years to serve in the custody of the Mississippi Department of Corrections, followed by five years of postrelease supervision. Dennis subsequently filed a motion for a judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial, which the circuit court denied. Dennis now appeals and argues the circuit court improperly instructed the jury regarding the elements of aggravated assault.

STANDARD OF REVIEW

¶ 8. "Jury instructions are generally within the discretion of the [circuit] court[,] and the settled standard of review is abuse of discretion." Bailey v. State , 78 So.3d 308, 315 (¶ 20) (Miss. 2012). "The instructions are to be read together as a whole, with no one instruction to be read alone or taken out of context." Id. "When read together, if the jury instructions fairly state the law of the case and create no injustice, then no reversible error will be found." Id.

ANALYSIS

¶ 9. Pursuant to Mississippi Code Annotated section 97-3-7(2)(a)(ii) (Rev. 2014), a person is guilty of aggravated assault if he "attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm." The indictment alleged that Dennis "did unlawfully, feloniously, willfully, and purposely cause bodily injury to ... Wolfe, by means likely to produce death or serious bodily injury, to-wit: by driving over ... Wolfe with a car ...." It is undisputed that the indictment did not allege that Dennis caused bodily injury to Wolfe with a deadly weapon.

¶ 10. Jury Instruction S-3 was given by the circuit court and advised the jury as follows:

[I]t is a question of fact for you to determine whether the vehicle claimed to have been used by [Dennis] was a deadly weapon in the manner it was used in this case.
A deadly weapon may be defined as any object, article, or means which, when used as a weapon is, under the existing circumstances, reasonably capable of or likely to produce death or serious bodily harm to a human being upon whom the object, article, or means is used as a weapon.

¶ 11. Dennis argues the circuit court erred in giving Jury Instruction S-3. Specifically, Dennis argues the circuit court "improperly instructed the jury in giving an instruction on an automobile as a deadly weapon where deadly weapon was not part of the indictment and where said instruction instructed the jury to presume an element of the crime." He claims Jury Instruction S-3 constructively amended the indictment, deprived him of a defense, and created an impermissible presumption that an automobile is automatically a deadly weapon. As a result, Dennis claims his conviction should be reversed and his case remanded for a new trial. We disagree.

¶ 12. Dennis failed to object to Jury Instruction S-3 at trial. "Normally, failure to object to a jury instruction serves as a procedural bar to appellate review." Heidelberg v. State , 976 So.2d 948, 949 (¶ 8) (Miss. Ct. App. 2007). However, "[w]here a party has forfeited an objection by failing to urge it at trial, an appellate court may exercise discretion to correct the error-but only where the error is clear or obvious and affects the party's substantial rights." Faulkner v. State , 109 So.3d 142, 146-47 (¶ 15) (Miss. Ct. App. 2013). "An appellate court should correct a plain forfeited error affecting substantial rights if the error seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. at 147 (¶ 15) (internal quotation marks omitted).

¶ 13. According to Dennis, the aggravated assault statute "makes it plain that it is an either or situation ...; [i]njury may be caused by a deadly weapon or by means likely to produce death or serious bodily injury." He argues that "[w]hen the State chose to indict only upon 'other means likely to produce death or serious bodily injury' without specifying or including 'deadly weapon,' it then was precluded from introducing 'deadly weapon' as an element in the jury instructions."

¶ 14. However, the State did not "introduc[e] 'deadly weapon' as an element in the jury instructions." Indeed, the elements instruction, Jury Instruction S-1, did not include "deadly weapon" as an essential element of aggravated assault. Instead, Jury Instruction S-1 instructed the jury as follows:

If you find from the evidence beyond a reasonable doubt that:
1. Conway Dennis, on or about September 22, 2015, in Forrest County, Mississippi;
2. knowingly caused bodily injury to ... Wolfe, by means likely to produce death or serious bodily injury, to wit: by running over ... Wolfe with a car; and
3. that such behavior was not done in necessary self defense, accident, or misfortune; then you shall find ... Dennis, guilty of aggravated assault.
If the State has failed to prove any one or more of the above listed elements beyond a reasonable doubt, then you shall find ... Dennis, not guilty of aggravated assault.

¶ 15. Jury Instruction S-1 was the only instruction that advised the jury of the essential elements of the crime. Jury Instruction S-1 tracked the language of the indictment and the aggravated assault statute and accurately followed the requisite elements of the crime.

¶ 16. The "deadly weapon" language at issue in Jury Instruction S-3 was not included in the elements instruction. In other words, the jury was not instructed that in order to find Dennis guilty of aggravated assault, it must find beyond a reasonable doubt that the minivan was a deadly weapon. Thus, Jury Instruction S-3 did not alter the elements of proof necessary for conviction and did not affect the verdict. Moreover, Jury Instruction S-3 did not affect Dennis's defense. Indeed, Dennis's defense of accident was equally available to him with or without Jury Instruction S-3.

¶ 17. "[F]ailure to submit to the jury the essential elements of the crime is fundamental error." Heidelberg , 976 So.2d at 949 (¶ 9) (internal quotation marks omitted). Here, Jury Instruction S-1 instructed the jury regarding the essential elements of the crime of aggravated assault, as alleged in the indictment. Despite Dennis's assertion, Jury Instruction S-3 did not constructively amend the indictment and did not adversely affect his defense. Thus, no fundamental error occurred.

¶ 18. Dennis further argues Jury Instruction S-3 is "peremptory in nature" and "allowed [the jury] to simply presume a van is automatically a deadly weapon and therefore did cause serious bodily injury." In support thereof, Dennis relies on Henry v. State , 816 So.2d 443 (Miss. Ct. App. 2002), and Caldwell v. State , 381 So.2d 591 (Miss. 1980). However, we find both cases distinguishable.

¶ 19. In Henry , the circuit court refused an instruction which advised the jury that the defendant had "declared his innocence" and "testified that he did not commit the crime which he [wa]s accused." Henry , 816 So.2d at 447 (¶ 16). On appeal, this Court found the circuit court properly refused the instruction since it "appear[ed] to comment on the weight of the evidence" and "improperly direct[ed] the jury's attention to [the defendant's] declaration of innocence." Id. at 447-48 (¶ 18).

¶ 20. Additionally, in Caldwell , the circuit court refused multiple instructions which advised the jury that an officer's attempted arrest of the defendant was unlawful. Caldwell , 381 So.2d at 595. On appeal, the court found the instructions were properly refused since the instructions were peremptory in form and excluded from consideration the jury's right to find that the officer was doing a lawful act. Id. at 596.

¶ 21. Here, Jury Instruction S-3 does not comment on the weight of the evidence or allow the jury to make certain presumptions. Additionally, Jury Instruction S-3 is not peremptory in nature. It does not direct the jury to make a specific finding in favor of a party. Instead, Jury Instruction S-3 unnecessarily advises the jury of the definition of "deadly weapon."

¶ 22. In Harrell v. State , 134 So.3d 266, 270 n.1 (Miss. 2014), the court noted "that the capital-murder instruction incorrectly stated that the killing had to have been done with malice[,]" despite no such requirement for capital murder. However, the court found that because the error favored the defendant by increasing the State's burden of proof, no reversible error occurred. Id.

¶ 23. Here, as in Harrell , the unnecessary language in Jury Instruction S-3 does not prejudice Dennis. The instruction does not direct the jury to a conclusion regarding any element of the crime and does not deprive Dennis of his defense of accident. Dennis's defense of accident was equally available to him whether the vehicle was considered a "deadly weapon" or "other means likely to produce death or serious bodily harm."

CONCLUSION

¶ 24. Upon review, we do not find Jury Instruction S-3 prejudiced Dennis's defense or affected his substantial rights or the fairness, integrity, or public reputation of the judicial proceeding. When read together as a whole, the instructions fairly state the law of the case and create no injustice. Accordingly, we affirm the circuit court's judgment.

¶ 25. AFFIRMED.

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


text:
    Julie Den HERDER, Marshall Jackson, Patti Jackson and Krisstel P. Hunt, Appellants v. MADISON COUNTY BOARD OF SUPERVISORS, Appellee
    NO. 2017-CA-01608-COA
    Court of Appeals of Mississippi.
    November 27, 2018
    ATTORNEYS FOR APPELLANTS: JOHN HOWARD SHOWS, RICHARD A. EISENBERGER JR., FLOWOOD
    ATTORNEY FOR APPELLEE: KATHERINE BRYANT SNELL
    BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Julie Den Herder, Marshall Jackson, Patti Jackson, and Krisstel P. Hunt (collectively referred to as "Herder") appeal the Madison County Board of Supervisors' approval of two site plans, one for a mini-storage facility and one for an office warehouse. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In April 2006, the owner of twenty-three acres of real property in Madison County (the "subject property") filed a petition to rezone and reclassify real property (the "petition"). The petition sought to rezone the subject property from R-1 (residential) to C-2 (commercial).

¶ 3. On June 8, 2006, a hearing on the petition was held before the Madison County Planning and Zoning Commission (the "Commission"). At the conclusion of the hearing, the Commission unanimously recommended approval of the petition to rezone with the appropriate amendments to the land-use plan. Thereafter, on June 26, 2006, the Madison County Board of Supervisors (the "Board") acknowledged and approved the Commission's recommendation to rezone the subject property from R-1 to C-2.

¶ 4. In 2016, two developers, L & J Holdings LLC and Cedarstone Commercial presented site plans to the Commission regarding the subject property. Specifically, L & J Holdings requested approval to build a mini-storage facility, and Cedarstone Commercial requested approval to build an office warehouse.

¶ 5. On several occasions, the developers, nearby property owners, and attorneys appeared before the Commission to discuss the proposed site plans. At each meeting, the Commission tabled the site-plan review and encouraged the parties to work out an agreement regarding the contested issues.

¶ 6. On August 11, 2016, the parties appeared before the Commission for another hearing and advised that they were able to agree on some, but not all, of the conditions. After hearing from the parties, the Commission recommended approval of the site plans for both the mini-storage facility and the office warehouse subject to the agreed-upon conditions identified in the minutes. As to the mini-storage facility, the Zoning Administrator advised L &

J Holdings that it would need to return with a request for a conditional use to have any outside storage on the site. Herder subsequently appealed the Commission's decisions to the Board.

¶ 7. The parties appeared before the Board on October 17, 2016, and presented arguments related to the site-plan approvals. Following a lengthy discussion, the Board accepted the Commission's recommendation and approved the site plans for both the mini-storage facility and the office warehouse.

¶ 8. Herder timely appealed the Board's decisions to the Madison County Circuit Court. On October 26, 2017, the circuit court found that the Board's decisions were not arbitrary, capricious, discriminatory, illegal, or without substantial evidentiary basis. As a result, the circuit court affirmed the Board's decisions to approve the site plans.

¶ 9. In this appeal, Herder argues that the original 2006 rezoning of the subject property from R-1 to C-2 was void and unenforceable. Alternatively, if the 2006 rezoning of the subject property was not void, then Herder argues: (1) the rezoning was conditioned upon restrictive covenants that prohibit the proposed mini-storage facility and office warehouse, and (2) L & J Holdings's site plan regarding a mini-storage facility should not have been approved without a written request for a conditional use.

STANDARD OF REVIEW

¶ 10. "The standard of review in zoning cases is whether the action of the board or commission was arbitrary or capricious and whether it was supported by substantial evidence." Drews v. City of Hattiesburg , 904 So.2d 138, 140 (¶ 5) (Miss. 2005). "Thus, zoning decisions will not be set aside unless clearly shown to be arbitrary, capricious, discriminatory, illegal or without substantial evidentiary basis." Id. "There is a presumption of validity of a governing body's enactment or amendment of a zoning ordinance[,] and the burden of proof is on the party asserting its invalidity." Id. "Where the point at issue is 'fairly debatable,' we will not disturb the zoning authority's action." Id. Questions of law are reviewed de novo. Id. at (¶ 6).

ANALYSIS

I. 2006 Rezoning

A. Notice and Public Hearing

¶ 11. Herder claims that the 2006 rezoning of the subject property was void as a matter of law since proper notice was not given and a public hearing was not held. Mississippi Code Annotated section 17-1-15 (Rev. 2003) provides for the manner in which a zoning ordinance is determined, established, enforced, and amended. Pursuant to section 17-1-15, "[N]o ... ordinance ... shall become effective until after a public hearing ... [a]t least fifteen (15) days' notice of the time and place of such hearing shall be published in an official paper, or a paper of general circulation, in such municipality or county."

¶ 12. Here, the record shows a "Notice of Public Hearing on Petition for Rezoning" was published on May 18, 2006, in the Madison County Herald. The notice described the subject property and notified the public that a hearing would be held before the Madison County Planning and Zoning Commission on June 8, 2006, at 9:00 a.m., at the Madison County Circuit Court Building, in the Law Library, located at 128 West North Street, Canton, Madison County, Mississippi, to consider and act upon the petition.

¶ 13. Additionally, the minutes from the June 8, 2006 hearing reflect that the petition was considered and ultimately approved by the Commission at the date, time, and location identified in the notice. Thus, despite Herder's assertion, the record shows that proper notice was given and a public hearing was held regarding the 2006 rezoning of the subject property.

B. Change in the Character of the Neighborhood

¶ 14. Herder also argues that the 2006 rezoning of the subject property was void since there was no finding of a manifest error in the original rezoning or a change in the character of the neighborhood to support the rezoning. "To reclassify property, there must be proof, by clear and convincing evidence, that either: (1) a mistake in the original zoning occurred; or (2) a change occurred in the character of the neighborhood to justify rezoning and a public need." Edwards v. Harrison Cty. Bd. of Supervisors , 22 So.3d 268, 274 (¶ 20) (Miss. 2009).

¶ 15. As noted in the petition, the subject property consisted of twenty-three acres, two of which were already zoned and classified as C-2. Additionally, the subject property is adjacent to both residential and commercial properties, including a mini-storage facility and an Entergy substation. The owner of the subject property asserted that the "[e]xisting C-2 designations and the electric sub-station adjoining [the] subject site, along with its access off Yandell Road render[ed] the property as undesirable for [r]esidential purposes."

¶ 16. The minutes from the June 8th hearing show that the Commission considered the petition and the arguments therein related to the change in the character of the neighborhood and ultimately recommended approval of the request. Simply because the Commission did not specifically state that there had been a change of conditions does not invalidate the rezoning. Indeed, the zoning authority is not required to "specifically say there has been a change of conditions. The essential thing is that there be evidence of a change of conditions." Paine v. Underwood , 203 So.2d 593, 597 (Miss. 1967). Here, the record shows sufficient evidence of a change of conditions was presented to support the rezoning.

¶ 17. We find Herder has failed to show that the 2006 rezoning of the subject property from R-1 to C-2 was void as a matter of law.

II. Restrictive Covenants

¶ 18. Alternatively, Herder argues that if the 2006 rezoning was not void, then its approval was conditioned upon restrictive covenants. According to paragraph four of the petition, "[u]se of the subject property shall be ... subject to restrictions as designated by [r]estrictive [c]ovenants to be recorded." The proposed restrictive covenants were attached to the petition and included mini-storage facilities. Thus, Herder claims the construction of a mini-storage facility such as the one proposed by L & J Holdings is prohibited.

¶ 19. However, while the petition included language suggesting that the property would be "subject to restrictions as designated by [r]estrictive [c]oventants to be recorded," such restrictive covenants were never recorded. Pursuant to Mississippi Code Annotated section 89-5-5 (Rev. 2011), in order for a covenant to "take effect," it must be recorded.

¶ 20. Additionally, neither the minutes of the Commission or the Board reference the restrictive covenants or any conditions to be placed on the subject property. Moreover, the minutes do not reflect that the 2006 rezoning was conditioned on the covenants or the recording of the covenants.

¶ 21. As additional support for their argument, Herder relies on Woodland Hills Conservation Ass'n Inc. v. City of Jackson , 443 So.2d 1173 (Miss. 1983). There, the developer and owners of the subject property entered into a protective covenant agreement with the residents of the area. Id. at 1178. In finding that the requested zoning should be approved, the Jackson City Council specifically acknowledged the protective covenant agreement. Id. Here, unlike in Woodland Hills , neither the Commission nor the Board mentioned the restrictive covenants or any conditions on the subject property in their approval of the 2006 rezoning.

¶ 22. Herder claims that the unrecorded covenants and "the failure to put the covenants in the minutes is not fatal" because "the Board had actual notice of the restrictive covenants and [wa]s thus equitably estopped from challenging their validity." In support of its equitable estoppel claim, Herder relies on PMZ Oil v. Lucroy , 449 So.2d 201, 208 (Miss. 1984).

¶ 23. In PMZ , a real estate subdivision developer advised all potential lot purchasers that its sixteen-lot subdivision would be restricted to one single-family dwelling per lot. Id. at 203. Relying on this representation, certain buyers purchased a lot and built a home. Id. Thereafter, the developer attempted to build six townhouse condominiums on one of the lots it retained. Id. The buyers subsequently filed suit in the chancery court seeking to enjoin the developer from the construction of the townhouses. Id. at 204. The chancery court ultimately found that the developer should be equitably estopped from violating the unrecorded covenants communicated to and relied upon by the homeowners. Id. at 207-09.

¶ 24. We find Herder's reliance on PMZ is misplaced, as PMZ is distinguishable from the case before us. PMZ did not involve a zoning authority such as the Commission or the Board. Instead, PMZ involved a private dispute between a developer and residents of a subdivision. Additionally, PMZ did not involve conditional zoning, nor did it find that a zoning authority was bound by suggested covenants.

¶ 25. Herder contends that based upon the restrictive covenants outlined in the petition to rezone, the Commission's and the Board's actions approving the two site plans were arbitrary and capricious. We disagree.

¶ 26. "An act is arbitrary when it is not done according to reason or judgment, but depending on the will alone." Burks v. Amite Cty. Sch. Dist ., 708 So.2d 1366, 1370 (¶ 14) (Miss. 1998). An act is capricious when "done without reason, in a whimsical manner, implying either a lack of understanding of or a disregard for the surrounding facts and settled controlling principles." Id.

¶ 27. The record shows the parties appeared before the Commission numerous times and ultimately appeared before the Board. At those meetings, the residential property owners argued that the subject property was limited by the restrictive covenants and that the covenants were part of the conditional rezoning. Following a lengthy discussion, the Board found the covenants were not binding on the property and approved the site plans based on the Commission's recommendation.

¶ 28. There is no evidence to suggest that the Board's actions were arbitrary or capricious. Instead, there is substantial evidence to support the decision.

III. Conditional Use

¶ 29. Following a hearing, the Commission approved L & J Holdings's storage-facility site plan subject to the agreed upon conditions identified in the minutes. At the hearing, the Zoning Administrator advised L & J Holdings that any outdoor storage would require a request for a conditional use. Thus, if it wanted outdoor storage on the site, then L & J Holdings "would need to come back with a request for a conditional use ...."

¶ 30. Herder argues that the L & J Holdings site plan should not have been approved until a written request for the conditional use of outdoor recreational storage was filed, a public hearing was held, and such conditional use was determined by the Commission. In other words, Herder argues the conditional use issue should have been "decided together with the site plan approval" and that "[b]ecause it was not ... the Commission's actions were arbitrary and capricious."

¶ 31. However, the approved portions of L & J Holdings's site plan did not require a conditional use. Only the outdoor recreational storage portion of the plan, which was not part of the site-plan approval, required a conditional use. Simply because the Commission required L & J Holdings to come back before the Commission and the Board at a later date for approval of outdoor recreational storage was not arbitrary or capricious.

¶ 32. AFFIRMED.

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

      The Commission noted during the hearing that the land-use plan reflected residential zoning and would therefore need to be amended.


text:
    Ira Joseph CLAYTON a/k/a Ira Clayton a/k/a Ira J. Clayton a/k/a Ira Wilson, Appellant v. STATE of Mississippi, Appellee
    NO. 2018-KA-00132-COA
    Court of Appeals of Mississippi.
    November 27, 2018 Rehearing Denied April 2, 2019
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, Jackson
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA M. AINSWORTH, Jackson
    BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶1. Ira Joseph Clayton appeals his conviction of the unlawful possession of a motor vehicle and argues there is insufficient evidence to support the conviction and the verdict is against the overwhelming weight of the evidence. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. In March 2017, Clayton moved in with his girlfriend, Rikiesha Williams, at her apartment in Southaven. Williams owned a 2012 Volkswagen Jetta. Since Clayton did not have a vehicle, he would use Williams's car.

¶3. On the morning of May 26, 2017, Clayton and Williams went to Memphis for an appointment and subsequently returned to Southaven. Clayton drove them to and from the appointment in Williams's car.

¶4. When they returned home, Clayton and Williams got into a series of arguments. During the second argument, Williams told Clayton she no longer wanted to be in the relationship and asked him to pack his belongings and leave. Clayton began to pack but subsequently left the apartment and walked to Williams's aunt's house.

¶5. Approximately two to three hours later, Clayton called Williams and asked her to come pick him up so he could get the rest of his belongings. Williams agreed. When they returned to Williams's apartment, Clayton and Williams got into another argument. During the physical altercation, a gun discharged and Williams was shot twice, once in her right leg, and once in her left leg. Williams's phone was also broken.

¶6. Following the shooting, Clayton grabbed Williams's car keys and left the apartment complex in Williams's car. According to Williams's neighbor, Queen Rice, Clayton ran out of the apartment to the car, jumped in, and sped off.

¶7. Clayton was indicted as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2015) on Count 1, possession of a weapon as a convicted felon; Count 2, aggravated assault; and Count 3, unlawful possession of a motor vehicle. Clayton was convicted of Count 3 only. The jury was unable to reach a unanimous verdict as to Count 1, and found Clayton not guilty on Count 2. Clayton was sentenced as a habitual offender to serve ten years in the custody of the Mississippi Department of Corrections, to run consecutively to any current sentence. He was further ordered to pay a $1,000 fine and $503.83 in restitution to the Southaven Police Department. Clayton subsequently filed a motion for a judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial, which the circuit court denied.

¶8. Clayton timely appealed. Clayton's appellate counsel filed a brief and raised the following assignments of error: (1) the evidence is insufficient to support the conviction of unlawful possession of a motor vehicle, and (2) the verdict is contrary to the weight of the evidence. Clayton filed a pro se supplemental brief and asserted eight additional assignments of error. We separately address each issue.

ANALYSIS

I. Sufficiency of the Evidence

¶9. Clayton first argues the evidence is insufficient to support his conviction of the unlawful possession of a motor vehicle. In considering whether the evidence is sufficient to sustain a conviction, "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." Williams v. State , 35 So.3d 480, 485 (¶ 16) (Miss. 2010) (citation omitted). Where the facts and inferences "point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render." Id. (citations omitted). However, if "reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense, the evidence will be deemed to have been sufficient." Id. (citations omitted).

¶10. Pursuant to Mississippi Code Annotated section 97-17-42(1), it is unlawful for "[a]ny person [to] willfully and without authority, take possession of or take away a motor vehicle of any value belonging to another ...." Clayton argues there is insufficient evidence to show that he took possession of Williams's vehicle "without authority." He claims that because he shared the vehicle with Williams and Williams had not revoked his permission to use the vehicle, he had the authority to take possession of the vehicle following the shooting. We disagree.

¶11. The record shows Williams and Clayton had been fighting throughout the day. Williams told Clayton she no longer wanted to be in the relationship and asked Clayton to get his stuff and leave. Clayton began to pack up his belongings and eventually left the apartment. Importantly, when Clayton left Williams's apartment, he did not take the car. Instead, Clayton walked. Clayton subsequently called and asked Williams to come pick him up so he could get the rest of his belongings.

¶12. Following the shooting, Clayton did not leave on foot, as he had done earlier that day. Instead, he grabbed Williams's car keys and took her car. Thus, although Clayton had previously left the apartment on foot, it was only after Williams had been shot twice and her phone broken during the altercation that Clayton grabbed the keys and took the car.

¶13. Although Williams explained that she and Clayton shared her car, Williams specifically testified that she did not give Clayton permission to take her car on that day. Williams subsequently advised the police that they could call the financial company to try to locate Clayton in the vehicle.

¶14. Considering the evidence in the light most favorable to the State, we find sufficient evidence was presented to support Clayton's conviction of the unlawful possession of a motor vehicle. Thus, Clayton's motion for a JNOV was properly denied.

II. Weight of the Evidence

¶15. Clayton next argues the verdict is against the overwhelming weight of the evidence. "In reviewing the denial of a motion for a new trial based on an objection to the weight of the evidence, this Court 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." Kirk v. State , 160 So.3d 685, 697 (¶ 31) (Miss. 2015) (citation and internal quotation marks omitted). The evidence is weighed in the light most favorable to the verdict. Id. "A new trial should be granted on the basis of the weight of the evidence 'only in exceptional circumstances, when the evidence weighs heavily against the jury's verdict.' " Hughes v. State , 983 So.2d 270, 277 (¶ 22) (Miss. 2008) (quoting Wilson v. State , 936 So.2d 357, 363 (¶ 16) (Miss. 2006) ).

¶16. Clayton asserts the verdict is contrary to the weight of the evidence "because the [S]tate failed to show a lack of authority to use Williams's vehicle." However, the record shows the jury heard all of the testimony and resolved any conflicts in the evidence. See Williams v. State , 64 So.3d 1029, 1033 (¶ 13) (Miss.Ct. App. 2011) ("Conflicts in the evidence are for the jury to resolve."). "Any factual disputes [we]re properly resolved by the jury and do not mandate a new trial." Sneed v. State , 31 So.3d 33, 43 (¶ 33) (Miss.Ct. App. 2009) (quoting Moore v. State , 859 So.2d 379, 385 (¶ 26) (Miss. 2003) ).

¶17. Having considered the evidence presented, we do not find the verdict to be so contrary to the overwhelming weight of the evidence that to allow the verdict to stand would sanction an unconscionable injustice. Accordingly, the circuit court did not err in denying Clayton's motion for a new trial.

III. Ineffective Assistance of Counsel

¶18. Clayton further argues he received ineffective assistance of counsel. Specifically, Clayton claims his trial counsel was ineffective for: (1) "not showing the routine habit of ... Williams fighting and [accus]ing Clayton of messing with other women," (2) not objecting to Williams's failure to identify her live-in cousin, (3) "not demanding a medical expert's testimony [regarding the] hospital treatment of [Williams] [or] any medical records of [Williams]," (4) not objecting to the instructions regarding a directed verdict, and (5) "not objecting to [the] Southaven police officer['s] [failure to] giv[e] [a] gunshot residue test."

¶19. To prove ineffective assistance of counsel, Clayton must show: (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "We look at the totality of the circumstances to determine whether counsel's [performance was] both deficient and prejudicial." Dartez v. State , 177 So.3d 420, 423 (¶ 19) (Miss. 2015). "[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). "Only where it is reasonably probable that, but for the attorney's errors, the outcome would have been different, will we find that counsel's performance was deficient." Dartez , 177 So.3d at 423 (¶ 19).

¶20. "[G]enerally, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings." Bell v. State , 202 So.3d 1239, 1242 (¶ 12) (Miss. 2016). This Court may address "ineffective-assistance-of-counsel claims on direct appeal only where (1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate and the Court determines that findings of fact by a trial judge able to consider the demeanor of witnesses, etc., are not needed." Id.

¶21. The record does not affirmatively show ineffectiveness of constitutional dimensions. Additionally, there is no stipulation by the parties that the record is adequate to address this claim. In fact, the State asserts that "[Clayton's] claims are not ripe for direct appeal." Thus, we are unable to adequately and properly address Clayton's ineffective-assistance-of-counsel claim on direct appeal. We therefore deny this issue without prejudice to afford Clayton the option to pursue his claim in a post-conviction proceeding. See Williams v. State , 228 So.3d 949, 952-53 (¶ 14) (Miss.Ct. App. 2017) ("[Appellant]'s ineffective-assistance-of-counsel claim is more appropriately brought during postconviction proceedings, and we therefore deny relief without prejudice as to [his] right to pursue this claim during postconviction proceedings.").

IV. Brady Violation

¶22. Clayton next argues the circuit court violated Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) by refusing to admit into evidence a post from Williams's social-media page. In the social-media post, Williams stated that she had recently considered suicide and had "picked up a gun and almost ended her life." Clayton claims the post "shows that [Williams] had an altered mental state" and was "a danger to herself [and] the people around her ...."

¶23. In Brady , the U.S. Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87, 83 S.Ct. 1194. Thus, pursuant to Brady , suppression of material evidence by the prosecution, not the circuit court, violates due process.

¶24. Here, there is no evidence of a Brady violation by the State. The transcript shows the State did not suppress the social-media post or information regarding the post. In fact, the transcript makes clear that Clayton was aware of the social-media post and provided a copy of it to the prosecution prior to trial. As Clayton fails to show that the State suppressed material evidence, his claim regarding an alleged Brady violation is without merit.

¶25. Assuming Clayton intended to argue that the circuit court erroneously excluded the social-media post on other grounds, he fails to state those grounds or cite any case law in support thereof. "[A]n appellant must present to us a record sufficient to show the occurrence of the error he asserts and also that the matter was properly presented to the [circuit] court and timely preserved." Byrom v. State , 863 So.2d 836, 853 (¶ 35) (Miss. 2003). "Failure to cite relevant authority obviates the appellate court's obligation to review such issues." Id.

V. Inconsistent Testimony

¶26. Clayton next argues "that the testimony of State's witness Queen Rice was inconsistent and perjured." "The credibility of witness testimony is the province of the jury." Doe v. Stegall , 900 So.2d 363, 366 (¶ 15) (Miss.Ct. App. 2003). "[T]he jury is responsible for judging the credibility of witnesses and the weight that should be attached to their testimony." Id. at 367 (¶ 15). Thus, any inconsistent statements made by Rice were matters for the jury to determine. Id.

VI. Medical Expert Testimony

¶27. Clayton further argues the State "erred in not having a doctor give an opinion of the angle of the gunshot wounds." However, Clayton was convicted of the unlawful possession of a motor vehicle, not aggravated assault. Clayton fails to show how such opinion testimony is relevant to his conviction. Accordingly, this issue is without merit.

VII. Directed Verdict

¶28. Clayton next argues the circuit court "erred in not giving instructions for a directed verdict." "A directed verdict, judgment notwithstanding the verdict[,] and a request for peremptory instruction all challenge the legal sufficiency of the evidence presented at trial." Woods v. State , 242 So.3d 47, 54 (¶ 24) (Miss. 2018). For reasons already discussed, we find sufficient evidence was presented at trial to support Clayton's conviction. Thus, the circuit court did not err in denying Clayton's motion for a directed verdict and motion for a JNOV, nor did it err in refusing to give a peremptory instruction.

VIII. Sharplin Instruction

¶29. During its deliberations, the jury sent a note to the circuit court stating, "We are unable to reach an unanimous agreement on Counts 1 and 2." Over defense counsel's objection, the circuit court gave an instruction pursuant to Sharplin v. State , 330 So.2d 591, 596 (Miss. 1976). Clayton argues the circuit court "erred in trying to make the jury members return a guilty verdict against [him]." We disagree.

¶30. Pursuant to Sharplin , if the circuit court feels that there is a likelihood that the jury might reach a verdict, it may return the jury for further deliberations. Id. Here, the record shows that the jury had deliberated less than two hours regarding a multi-count indictment and had reached a verdict as to Count 3. Because there was a likelihood that the jury would reach a verdict on the two remaining counts, the circuit court did not err in instructing the jury to continue its deliberations.

¶31. Additionally, as previously noted, the jury had reached a unanimous verdict as to Count 3; thus, the Sharplin instruction was given as to Counts 1 and 2. Clayton was convicted of Count 3 only. Therefore, even if the circuit court erred in giving a Sharplin instruction, no prejudice resulted, as the Sharplin instruction did not affect the charge on which Clayton was convicted.

IX. Indictment

¶32. Clayton was indicted as a habitual offender pursuant to section 99-19-81. Clayton argues the "indictment was erroneous when the State only used one conviction, the 1995 aggravated assault conviction[,] and did not inform the defen[s]e of the second conviction being ... robbery until the sentencing phase of the trial ...." Clayton asserts that as a result of this error, his constitutional rights to due process and equal protection were violated.

¶33. The indictment clearly includes both of Clayton's prior convictions. Thus, Clayton had notice of the habitual-offender charge and the basis of the charge. Accordingly, this issue is meritless.

X. Police Report

¶34. During deliberations, the jury sent a note to the circuit court requesting a copy of the police report. With no objection by the State or Clayton, the circuit court responded and advised the jury that it "ha[d] all the evidence [it] w[ould] receive in the case." Clayton last argues the circuit court erred when "it refused to let the jury examine [the] police report after [the] jury sent a note ... asking for it." In support of his argument, Clayton relies on U.S. v. Bagley , 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). However, Clayton's reliance on Bagley is misplaced.

¶35. As previously discussed, pursuant to Brady , the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to either guilt or punishment. Brady , 373 U.S. at 87, 83 S.Ct. 1194. In Bagley , the Court explained that "evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley , 473 U.S. at 682, 105 S.Ct. 3375.

¶36. Here, Clayton does not allege, and there is no evidence to suggest, that the police report was suppressed or withheld by the prosecution. Thus, neither Brady nor Bagley apply.

¶37. Moreover, the record reflects that the police report was not admitted into evidence at trial. Instead, an officer and an investigator with the Southaven Police Department testified regarding the incident between Clayton and Williams. Since the police report was not admitted into evidence, the circuit court's response to the jury was proper.

¶38. AFFIRMED.

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


author: IRVING, P.J., FOR THE COURT:

text:
    Showanda PALMER, ON BEHALF OF the WRONGFUL DEATH BENEFICIARIES and Estate of Nathaniel Moore, Appellant v. CLARK CLINIC, INC., Scott Regional Medical Center, Inc. and Dr. Georgios Ziakas, Appellees
    NO. 2017-CA-01048-COA
    Court of Appeals of Mississippi.
    December 4, 2018 Rehearing Denied March 26, 2019
    ATTORNEYS FOR APPELLANT: DAVID NEIL MCCARTY, GREGORY JOHN BOSSELER
    ATTORNEYS FOR APPELLEES: MILDRED M. MORRIS, WILLIAM T. MAY, KACEY GUY BAILEY, TIMOTHY LEE SENSING
    BEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. In this appeal, we are tasked with deciding whether the Scott County Circuit Court abused its discretion in denying Showanda Palmer's motion for an extension of time to file her notice of appeal. After a thorough consideration of the facts, we find no abuse of discretion. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Palmer filed a medical malpractice suit as the executrix of the estate of her deceased father, Nathaniel Moore, against defendants Dr. Georgios Ziakas, Scott Regional Medical Center Inc., and Clark Clinic Inc. She alleged that the medical providers were negligent in the care of her father.

¶ 3. On January 3, 2017, the circuit court, finding that the statute of limitations had run, dismissed Palmer's suit. On January 13, 2017, Palmer filed a Rule 59 motion to amend the judgment, which the circuit court denied on April 11, 2017. Neither side contests that the deadline to file the notice of appeal was May 11, 2017.

¶ 4. According to Palmer, her counsel unexpectedly left his firm without filing the notice of appeal in her case. On May 17, 2017, six days after the limitations period had expired, another attorney, in her previous counsel's firm, filed a motion for an extension of time to file a notice of appeal pursuant to Rule 4(g) of the Mississippi Rules of Appellate Procedure. On June 5, 2017, as an alternative to the Rule 4(g) motion, her new counsel filed a second motion-a motion to reopen time to appeal-under Rule 4(h) of the Mississippi Rules of Appellate Procedure. On June 30, 2017, the circuit court denied both motions. It is from these two judgments that Palmer now appeals.

DISCUSSION

¶ 5. Excusable-neglect determinations are reviewed with a bifurcated standard. Nunnery v. Nunnery , 195 So.3d 747, 751 (¶ 12) (Miss. 2016). Abuse of discretion is applied to "findings of fact concerning the existence or lack of good cause or excusable neglect." Id. (citing Long v. Mem'l Hosp. at Gulfport , 969 So.2d 35, 38 (¶ 5) (Miss. 2007) ). Abuse of discretion means that the court has a "limited right to be wrong." Burkett v. Burkett , 537 So.2d 443, 446 (Miss. 1989). A reversal of the circuit court's factual determination will only occur if the determination is not supported by substantial evidence. Nunnery , 195 So.3d at 751 (¶ 12). However, this Court will conduct a de novo review if the circuit court's determination involves the interpretation of legal principles. Id.

¶ 6. In the instant case, the proper standard of review is abuse of discretion. Therefore, if the circuit court's findings are supported by substantial evidence, we must affirm.

DISCUSSION

¶ 7. "[A] trial court may, in its discretion, extend the time for filing a notice of appeal upon a showing of excusable neglect." Odom v. Pub. Emps. Ret. Sys. of Miss ., 906 So.2d 797, 798 (¶ 4) (Miss. Ct. App. 2004). As noted, a notice of appeal "shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from." M.R.A.P. 4(a). "The trial court may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time...." M.R.A.P. 4(g) (emphasis added). "[T]he motion shall be granted only upon a showing of excusable neglect." Id. (emphasis added).

¶ 8. We now turn to Nunnery v. Nunnery to determine if the circuit court's decision was supported by substantial evidence. In Nunnery , the Mississippi Supreme Court addressed the excusable-neglect standard in some detail, which provides guidance for its application. Nunnery , 195 So.3d at 752 (¶ 15). "An excusable-neglect determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission." Id. (internal quotation mark omitted). The excusable-neglect factors to be considered are:

(1) the danger of prejudice to the non-movant, (2) the length of the delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith.

Id. (alterations and internal quotation marks omitted) (citing Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd. P'ship , 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) ).

¶ 9. In the current case, Palmer maintains that the circuit court erred in denying her motion for an extension of time to file her notice of appeal because the court made no "reference to equity and no reference to the four factors [discussed in] Nunnery [.]" She argues that her failure to timely file a notice to appeal was due to excusable neglect.

¶ 10. We reject Palmer's argument that the circuit court was required to address the Nunnery factors in its judgment. The circuit court is not required to delineate in detail the reasons for denying the motion. This Court has previously held that the circuit court does not abuse its discretion when it fails to specifically delineate its reasons for denying an applicant's motion to extend time to file a notice of appeal. Odom , 906 So.2d at 798. For example, in Odom , "[t]he parties were aware of the issues the trial judge was ruling on as they had previously argued the issues before the trial judge." Id. This Court found no merit to the issue of delineating its reasons for denial. Id.

¶ 11. In the instant case, the parties knew of the argued issues, and the circuit court denied the motion after having "considered the Plaintiff's [m]otion and submissions and the responses thereto[.]" Palmer claims that the circuit court did not reference Nunnery in its decision, but neither Nunnery nor Odom requires a trial court to delineate its reasons for denying a motion for extension of time. We find this issue without merit.

¶ 12. In Nunnery , the Mississippi Supreme Court did not find excusable neglect after considering all aspects of the case. The supreme court noted that equity helps those who are vigilant, but it does not help those who sleep on their rights. Nunnery , 195 So.3d at 753. Specifically, the appellant's attorney failed to timely appeal due to the impending death of his brother. Id. at 749. The attorney learned of his brother's impending death twenty-one days into the thirty-day deadline to appeal. Id. He also slept on his rights for fifteen months when he failed to request a hearing on his motion for a new trial. Id. at 753.

¶ 13. First, Palmer argues that the defendants have suffered no prejudice because they have "never claimed anything more than a generic opposition to having to deal with the appeal." We note that the defendants claimed as an affirmative defense that the statute of limitations had run on the underlying medical-malpractice suit. Based on the facts as pleaded, we cannot say that such defense is clearly without merit. Moreover, there exists a risk that evidence and witnesses may not be available. See Miss. Dep't of Pub. Safety v. Stringer , 748 So.2d 662, 665 (¶ 13) (Miss. 1999) (noting that the statutory-time-limitation statutes were designed to suppress stale claims).

¶ 14. Palmer also argues that the length of the delay was minimal. She claimed her motion was only six days late, and noted "[t]he minor delay had no potential impact on judicial proceedings." We agree that the length of delay is minimal, but we cannot agree that judicial proceedings will not be impacted. In this regard, we point out that the underlying medical-malpractice claim is over four years old. Memories fade, and facts become incapable of being produced. Id.

¶ 15. Palmer further argues that the reason for the delay was out of her control. She points out that the delay occurred because her previous counsel quit his firm twenty-eight days into the thirty-day deadline for executing the appeal, that counsel's exit was "wholly unexpected," and that he failed to notify the firm's leadership of the pending deadlines in her case.

¶ 16. As noted, in Nunnery , the attorney failed to meet his deadline because of the impending death of his brother. The attorney was a solo practitioner whose legal secretary was his wife, and when tragedy struck, he was unable to delegate duties to another.

¶ 17. In the instant case, Palmer's counsel was part of a large firm, and it remains unexplained why the task was not delegated to another in order to avoid the delay. Furthermore, it remains unexplained why her previous counsel did not file for an extension during the twenty-eight days that he remained with the firm following the dismissal of Palmer's complaint. See Almasri v. Hyde-Smith , 246 So.3d 84, 89 (¶ 19) (Miss. Ct. App. 2018) (finding no excusable neglect; the appellant did not offer evidence to show why he was unable to file within the thirty-day period following judgment). Filing a motion is a simple act. Byrd v. Biloxi Reg'l Med. Ctr ., 722 So.2d 166, 169 (¶ 13) (Miss. Ct. App. 1998). "[A] party must do all it could reasonably be expected to do to perfect the appeal in a timely fashion." Id.

¶ 18. Finally, Palmer argues that she acted in good faith because her new counsel entered his appearance on the same day the delay was discovered. We agree, but it remains unexplained why the simple act of filing the motion was not delegated to another attorney sooner, in order to avoid such a misfortunate delay. The firm handling Palmer's case certainly had the resources available to it as it is a large firm.

¶ 19. For the reasons discussed, and based on our supreme court's holding in Nunnery , we can find no abuse of discretion on the part of the circuit court in denying Palmer's motion for an extension of time to file her appeal. Therefore, the judgment appealed from is

AFFIRMED.

LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, GREENLEE AND TINDELL, JJ., CONCUR. WILSON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. FAIR, J., NOT PARTICIPATING.

      Palmer also brought suit against Dr. Lepercival Griffin and Rush Health Systems, Inc., but those defendants were dismissed from the suit.

      Rule 4(g) provides:
      The trial court may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time otherwise prescribed by this rule. Any such motion which is filed before expiration of the prescribed time may be granted for good cause and may be ex parte unless the court otherwise requires. Notice of any such motion which is filed after expiration of the prescribed time shall be given to other parties, and the motion shall be granted only upon a showing of excusable neglect. No such extension shall exceed 30 days past such prescribed time or 10 days from the date of entry of the order granting the motion, whichever occurs later.

      Rule 4(h) provides:
      The trial court, if it finds (a) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry and (b) that no party would be prejudiced, may, upon motion filed within 180 days of entry of the judgment or order or within 7 days of receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.

      Neither of Palmer's attorneys on appeal was her trial attorney. However, Mr. Bosseler entered his appearance on the same date that the Rule 4(g) motion was filed.


text:
    Charles E. BLAKE a/k/a Charles Blake a/k/a Charles Edward Blake a/k/a Charles Ed Blake, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-01345-COA
    Court of Appeals of Mississippi.
    December 4, 2018 Rehearing Denied March 26, 2019
    ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES, JACKSON, PHILLIP BROADHEAD, OXFORD
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JEFFREY A. KLINGFUSS, ABBIE EASON KOONCE, JACKSON
    BEFORE IRVING, P.J., GREENLEE AND WESTBROOKS, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. A jury sitting before the Coahoma County Circuit Court found Charles Edward Blake guilty of sexual battery of a child while in a position of trust or authority. The circuit court sentenced Blake to thirty years in the custody of the Mississippi Department of Corrections (MDOC). According to Blake, (1) he experienced double jeopardy because he was convicted incident to a second trial that occurred after his previous trial ended in a mistrial; (2) his trial counsel was ineffective for a number of reasons; (3) there was insufficient evidence that he was guilty of the conduct alleged in the indictment; and (4) the jury's verdict was contrary to the overwhelming weight of the evidence. Finding no error, we affirm the circuit court's judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. While walking home from school during late 2012, five-year-old John told his father that he did not want to go home because Blake might be there. John then described Blake's attempt to perform oral sex on him and other forms of inappropriate touching. John's parents immediately called authorities, and John was eventually interviewed by Meredith Rawl, the "Program Director of Victim Services and Outreach out of Family Crisis Services in Oxford." John was initially apprehensive during Rawl's "forensic interview," but he ultimately told Rawl that Blake had performed oral sex on him and that he had sat on Blake's lap while Blake was undressed.

¶ 3. Blake was indicted and charged with sexual battery of a child while in a position of "trust and authority." According to the indictment, Blake "plac[ed] his mouth, lips, and/or tongue" on John's genitals. Blake pleaded "not guilty" and went to trial.

¶ 4. Blake's first trial began in late January 2016. John's parents and Rawl all testified and relayed John's claims that Blake had put his mouth on John's penis. Rawl also testified as an expert forensic interviewer that John's behavior and statements were "consistent with that of a child who's been sexually abused." When John testified, he described anal penetration. Blake's attorney successfully moved for a mistrial because the prosecution had not disclosed during discovery that John was expected to describe anal penetration.

¶ 5. After the prosecution provided a supplemental discovery response outlining John's previously undisclosed anticipated testimony, Blake went to trial again. John's father testified that while Blake was staying with his family for a couple of days, he found Blake in John's room, and Blake was only wearing boxer shorts. John's father and Rawl both testified that John had described what amounted to Blake's performance of oral sex on John. That testimony contrasted with John's subsequent testimony that Blake had orally penetrated him.

¶ 6. During cross-examination, John admitted that he did not tell Rawl that Blake had orally penetrated him, and he explained that he "[m]ight've forgot [to tell Rawl that] when [he] was five" that Blake orally penetrated him. He also admitted that during the interview, he initially refused to say that Blake had touched him inappropriately. But on redirect, he reiterated: "[Blake] licked me in my ear when I was ... I was in the bed.... And then he put his private part over on my butt and then in my mouth."

¶ 7. The State rested after John testified. Blake's attorney moved for a directed verdict because the indictment alleged that Blake had performed oral sex on John, and John testified that Blake had orally penetrated him. The prosecution responded that there was a dispute between John's testimony and the hearsay testimony presented by Rawl and John's father, and it was up to the jury to resolve that dispute. The circuit judge denied Blake's motion.

¶ 8. Blake chose to testify. He admitted that he had spent a couple of days with John's family during the middle of September 2012, and he stayed with them again around October 2, 2012. But he denied that he was only wearing boxer shorts when John's father found him in John's room. Blake also said that nothing inappropriate happened between him and John. During cross-examination, Blake said he had a good relationship with John's family. He also said that John's allegations were somehow related to the fact that Blake's brother "brought all this -- this stuff up telling about I'm a child molester and all this kinda stuff ...." The defense rested after Blake testified.

¶ 9. After deliberating for approximately thirty minutes, which included the time that it took to watch the video of Rawl's forensic interview of John, the jury found Blake guilty. After a subsequent sentencing hearing, the circuit court sentenced Blake to thirty years in MDOC custody. Blake appeals.

DISCUSSION

I. Double Jeopardy

¶ 10. Blake claims that because his first trial ended in a mistrial after the jury was selected and sworn to try the case, his second trial resulted in double jeopardy.

¶ 11. The Fifth Amendment to the United States Constitution prohibits the government from putting a defendant in jeopardy twice for the same offense. Arizona v. Washington , 434 U.S. 497, 503, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). The Mississippi Constitution also provides that "[n]o person's life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution." Miss. Const. art. 3, § 22. "But the federal constitutional right is broader, attaching even if the first trial is not completed." Montgomery v. State , 253 So.3d 305, 310 (¶ 22) (Miss. 2018) (internal quotation mark omitted). The Mississippi Supreme Court has "recognized that the Fifth Amendment protection against double jeopardy attaches in any criminal proceeding in Mississippi at the moment the trial jury is selected and sworn to try the case." Id. (internal quotation mark omitted).

¶ 12. "[D]ischarging the jury before trial is complete does not always lead to a double-jeopardy bar." Id. at (¶ 23).

Because of the variety of circumstances that may make it necessary to discharge a jury before a trial is concluded, and because those circumstances do not invariably create unfairness to the accused, a criminal defendant's valued right to have the trial concluded by a particular tribunal is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury.

Id. at 310-11 (¶ 23). "Yet in view of the importance of the right, and the fact that it is frustrated by any mistrial, the prosecutor must demonstrate 'manifest necessity' for any mistrial declared over the objection of the defendant if he is to avoid the double-jeopardy bar." Id. at 311 (¶ 23).

¶ 13. But Blake's first trial did not end in a mistrial declared over Blake's objection. It ended with a mistrial granted on Blake's motion . "Generally, criminal defendants who request the mistrial are barred from subsequently asserting double jeopardy violations." Roberson v. State , 856 So.2d 532, 534 (¶ 9) (Miss. Ct. App. 2003) (citing Jenkins v. State , 759 So.2d 1229, 1234 (¶ 17) (Miss. 2000) ). "In such circumstances, there is no double jeopardy defect in a new trial unless the governmental conduct in question is intended to 'goad' the defendant into asking for a mistrial." Id. (internal quotation marks omitted). Said differently, Blake must show that the prosecution purposefully committed an error to force him to move for a mistrial. Jenkins , 759 So.2d at 1234 (¶ 17). Blake has not satisfied that burden.

¶ 14. According to Blake, "the conscious decision of the prosecutor to not interview [John] was ... a 'purposeful attempt' that directly resulted in the defense motion for a mistrial" and "the State created this set of circumstances through its planned inaction ...." We disagree. The prosecutor explained that it was his policy never to interview a child witness in such a case. It would be unreasonable and illogical to conclude that the prosecutor's policy was somehow intended to provoke defense counsel's motion for a mistrial in the event that John did not testify consistently with the statements he gave during Rawl's forensic interview. There was nothing to suggest that the prosecutor knew that John would describe anal penetration during Blake's first trial. There is nothing to support a conclusion that the prosecutor did not interview John prior to Blake's first trial in order to goad Blake's motion for a mistrial when John gave unanticipated testimony. Accordingly, "there [was] no double jeopardy defect in [Blake's] new trial ...." Roberson , 856 So.2d at 534 (¶ 9).

II. Assistance of Counsel

¶ 15. Blake claims that his trial counsel was ineffective:

by failing to (a) file a motion to dismiss the case on grounds of Double Jeopardy before the second trial, (b) move, agree to, or not oppose at least six continuances, (c) ... impeach the key witness for the prosecution on his prior inconsistent statements, (d) ... challenge the State's MRE 803(25) hearsay testimony in the second trial, (e) ... ask for an instruction to the jury on prior inconsistent statements, (f) ... submit any jury instructions for the trial court's consideration, (g) ... provide the jury with the promised testimony from an expert witness to testify that there was no evidence of anal penetration, and (h) ... get a definite ruling on an objection to the prosecuting attorney in closing argument.

Blake further argues that "this string of errors and omissions by defense counsel" results in cumulatively reversible ineffective assistance of counsel.

¶ 16. "Ordinarily, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings." Jones v. State , 252 So.3d 574, 589 (¶ 60) (Miss. 2018). "A claim of ineffective assistance of counsel may be raised on direct appeal 'if such issues are based on facts fully apparent from the record.' " Id. (quoting M.R.A.P. 22(b) ). We find that this issue must be dismissed without prejudice. Blake may apply for the Supreme Court's leave to raise his ineffective-assistance claims through a motion for post-conviction relief. See Miss. Code Ann. § 99-39-7 (Rev. 2015).

III. Sufficiency of the Evidence

¶ 17. Next, Blake claims there was insufficient evidence to find him guilty of sexual battery. Blake notes that the indictment charged him with performing oral sex on John, but John testified that Blake committed the oral penetration. Blake reasons that he should not have been found guilty of sexual battery.

¶ 18. Our appellate courts have consistently reviewed such challenges under the following standard:

A motion for directed verdict challenges the sufficiency of the evidence, and the critical inquiry is whether the evidence shows beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed. In judging the sufficiency of the evidence, the trial judge is required to accept as true all evidence that is favorable to the State, including reasonable inferences that may be drawn therefrom, and to disregard evidence favorable to the defendant.

Jackson v. State , 68 So.3d 709, 719 (¶ 32) (Miss. Ct. App. 2011) (citations and internal quotation marks omitted).

¶ 19. It was the jury's place to resolve matters regarding weight and credibility of witness testimony. The jury saw the video of John's forensic interview, and at that time John said that Blake had put his penis in John's mouth. The jury could have found that John's memory was fresher then than it was five years later when John was ten. Even if the jury found that John's trial testimony was more credible than his statements during the forensic interview, the variance between the conduct alleged in the indictment and the proof at trial was immaterial.

¶ 20. The Mississippi Supreme Court reviewed a very similar set of circumstances in Burrows v. State , 961 So.2d 701 (Miss. 2007). In that case, an indictment alleged that Horace Paul Burrows had committed sexual battery of the victim by digitally penetrating her, but the evidence showed that Burrows penetrated the victim with an object. Id. at 705-06 (¶¶ 12-15). The Supreme Court found that "[t]he variance between the language of the indictment ... and the proof presented at trial was not a fatal error" because Burrows "was provided sufficient notice that he was being charged with the crime of sexual battery" and "his defense [that there was no form of sexual penetration at all] would still have been the same" regardless of whether he had been charged with digital penetration or penetration with an object. Id. at 706 (¶¶ 14-15).

¶ 21. Similarly, Blake's defense was that there was no inappropriate contact between him and John. Consequently, the variance between the indictment and the evidence at trial did not impact Blake's defense. In the light most favorable to the prosecution, there was evidence of sexual penetration, John's age, Blake's age, and Blake's status as John's great uncle. Thus, there was sufficient evidence to find Blake guilty of sexual battery of a child while in a position of trust or authority. See Miss. Code Ann. § 97-3-95(2) (Rev. 2014). We find no error based on this issue.

IV. Weight of the Evidence

¶ 22. Finally, for the same reasoning as in the previous issue, Blake claims the jury's verdict is contrary to the overwhelming weight of the evidence. In reviewing this issue, "we defer to the discretion of the trial judge, and we will not order a new trial unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would be to sanction an unconscionable injustice." Jackson , 68 So.3d at 720 (¶ 37) (internal quotation marks omitted). As we do not find that allowing the verdict to stand would sanction an unconscionable injustice, it follows that we find no merit to this issue, and the trial court did not err by denying Blake's request for a new trial.

¶ 23. AFFIRMED.

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

      We substitute a pseudonym for the child's name to protect his identity.

      Phillip W. Broadhead, clinical professor and director of the University of Mississippi School of Law Criminal Appeals Clinic, was appointed as Blake's appellate counsel.


author: TINDELL, J., FOR THE COURT:

text:
    Donald Keith SMITH a/k/a Donald Smith a/k/a Donald K. Smith, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00893-COA
    Court of Appeals of Mississippi.
    December 11, 2018
    ATTORNEY FOR APPELLANT: DONALD KEITH SMITH (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER
    BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.
   TINDELL, J., FOR THE COURT:

¶ 1. Donald Keith Smith filed a 2017 post-conviction relief (PCR) motion challenging his 2016 guilty plea and conviction in Jackson County Circuit Court, cause number 2008-10,145, for the charges of attempted kidnapping, armed carjacking, and fleeing and eluding a police officer. The circuit court dismissed portions of Smith's 2017 PCR motion after determining those portions to be successive-writ barred. Because Smith's 2017 PCR motion was his first one following his 2016 guilty plea, it was not successive. We therefore must reverse and remand.

FACTS

¶ 2. On September 2, 2007, Smith entered into Dr. Evalyn Jerkins's car in Jackson County, Mississippi. While using a switchblade knife approximately five-inches long, he grabbed Dr. Jerkins by the arm and threatened Dr. Jerkins and another woman, Rebecca Alleneder. Smith held the women at knifepoint in Dr. Jerkins's car. He drove the car away and thereafter failed to stop the car when requested to do so by the police. Fortunately for Dr. Jerkins, she was able to jump out of the car as Smith backed out of a Walgreens parking lot.

¶ 3. On March 28, 2008, Smith was indicted under cause number 2008-10,145 on two counts of kidnapping, one count of carjacking while armed with a knife, and one count of felonious evasion of a police officer (2008 indictment). After numerous trial continuances, on June 3, 2009, Smith filed a petition to plead guilty to one count of the kidnapping of Dr. Jerkins, one count of armed carjacking, and one count of felonious evasion. As part of the plea agreement, the State agreed to nolle prosequi the remaining count of kidnapping Alleneder.

¶ 4. On December 14, 2011, Smith filed his first pro se PCR motion attacking his armed-carjacking conviction and the 2008 indictment. The circuit court found no merit to Smith's claims and denied his 2011 PCR motion. On January 30, 2012, Smith appealed that decision. On February 22, 2012, Smith filed a second pro se PCR motion. In Smith's 2012 PCR motion, he argued there was no factual basis for his armed-carjacking charge and that he was entitled to a court-ordered mental evaluation prior to pleading guilty on the charges stemming from his September 2007 crimes. In denying Smith's 2012 PCR motion, the circuit court noted that it previously ruled on the issues surrounding his armed-carjacking conviction, and it denied Smith's motion as a successive-writ. Miss. Code Ann. § 99-39-23(6) (Rev. 2007). The circuit court also found no error in its failure to provide Smith with a mental evaluation prior to accepting his guilty plea. Smith appealed the circuit court's denial of his 2012 PCR motion.

¶ 5. In October 2013, this Court consolidated Smith's appeals, found Smith's armed-carjacking arguments to be without merit, and affirmed the circuit court's judgment. However, the supreme court reversed the judgments of this Court and the circuit court, and sent the case back to the circuit court for an evidentiary hearing on Smith's claim that a mental evaluation regarding his competency was required. Smith v. State , 149 So.3d 1027 (¶ 20) (Miss. 2014), overruled by Pitchford v. State , 240 So.3d 1061, 1035 (¶ 19) (Miss. 2017).

¶ 6. In June 2015, again before the circuit court, Smith filed a motion to quash Count III of the 2008 indictment charging him with carjacking. Smith's motion challenged the sufficiency of the indictment insomuch as the State was attempting to convict him of "armed carjacking" when the indictment itself labeled the crime as "carjacking." In response, the State filed a motion to amend Count III of the 2008 indictment to reflect the charge of "armed carjacking" under Mississippi Code Annotated section 97-3-117(2). The circuit court denied Smith's motion to quash, granted the State's motion, and amended Count III of the 2008 indictment to set out the crime of armed carjacking. It was also at this time, and for reasons unknown, the State re-indicted Smith for the same charges in a new multi-count indictment in cause number 2015-10,430(2).

¶ 7. Although Smith had been re-indicted in cause number 2015-10,430(2), he agreed to plead guilty under the amended 2008 indictment. In December 2016, Smith entered a new guilty plea to attempted kidnapping, armed carjacking, and fleeing and eluding a police officer as set forth in cause number 2008-10,145. The circuit court accepted Smith's guilty plea to the 2008 amended indictment and on that same day sentenced him. In exchange for his guilty plea in cause number 2008-10,145, the State nolle prossed the 2015 indictment.

¶ 8. After pleading guilty and being sentenced, Smith filed his 2017 PCR motion, challenging Count III of the indictment charging him with armed carjacking, the subject-matter jurisdiction of the circuit court to convict him of the armed carjacking, and his sentence because it exceeded the statutory authority for attempted kidnapping. The circuit court agreed that Smith was sentenced outside the statutory limits for attempted kidnapping, but it dismissed Smith's remaining claims as successive-writ barred. Thereafter, the circuit court resentenced Smith for attempted kidnapping. Smith now appeals the circuit court's order dismissing, in part, his 2017 PCR motion.

STANDARD OF REVIEW

¶ 9. We will not reverse a circuit court's dismissal of a PCR motion unless it is found to be clearly erroneous. Hughes v. State , 106 So.3d 836, 838 (¶ 4) (Miss. Ct. App. 2012). We review the circuit court's legal conclusions de novo. Id.

DISCUSSION

¶ 10. On appeal, Smith argues (1) the circuit court erred in dismissing his PCR motion as successive-writ barred; (2) the circuit court erred in sentencing him for armed carjacking; and (3) issues with the amended indictment for armed carjacking deprived the circuit court of subject-matter jurisdiction over the armed-carjacking charge.

¶ 11. The circuit court's earlier judgments, accepting Smith's guilty pleas and sentencing him were reversed by the supreme court in October 2014. Smith , 149 So.3d at 1035 (¶ 20). Therein, the supreme court specifically found:

Smith presented sufficient evidence[,] supporting the denial of his fundamental right not to be convicted while incompetent[,] to survive the summary dismissal of his motion for PCR. Therefore, we reverse the judgments of the Court of Appeals and the Circuit Court of Jackson County and remand the case to the trial court for an evidentiary hearing.

Upon remand, the circuit court set aside Smith's 2009 guilty plea and sentence. The State also amended Counts I and II of Smith's indictment in cause number 2008-10,145. Smith then entered a new guilty plea to the charges set forth in the amended indictment, and the circuit court entered a new sentence.

¶ 12. Because Smith was improperly sentenced on the attempted-kidnapping charge, the circuit court granted the 2017 PCR motion on that issue and resentenced Smith for that crime. However, the circuit court dismissed the armed-carjacking portions of Smith's 2017 PCR motion and ruled that "under section 99-39-23(6), a motion is barred as successive if the prisoner previously filed a PCR motion that was subsequently denied and raises the same issues in a later motion."

¶ 13. Mississippi Code Annotated section 99-39-23(6) (Rev. 2007) provides that "any order dismissing the petitioner's motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article." A review of the record and the handling of Smith's case upon remand reflects that Smith's 2017 PCR motion takes issue with a new, separate and distinct, plea, conviction, and sentence. Nothing in the record reflects any previous proceeding in which Smith requested relief from this new conviction and sentence. Consequently, Smith's 2017 PCR motion is not successive. Miss. Code Ann. § 99-39-23(5) - (6).

CONCLUSION

¶ 14. Because Smith's 2017 PCR motion is not successive, we decline to address the merits, or lack thereof, of Smith's claims. We conclude that the circuit court erred in dismissing Smith's 2017 PCR motion as successive. We therefore must reverse the circuit court's summary dismissal of Smith's 2017 PCR motion and remand this case to the circuit court for consideration of the issues presented by Smith's motion.

¶ 15. REVERSED AND REMANDED.

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

      Smith previously raised the same or similar issues in 2011 and 2012 PCR motions challenging an earlier 2009 guilty plea and sentencing under the same indictment in cause number 2008-10,145. The circuit court denied those PCR motions. However, in Smith v. State , 149 So. 3d 1027, 1035 (¶ 20) (Miss. 2014), the supreme court reversed those judgments and remanded the case to the circuit court.


text:
    Andre J. JONES, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-01510-COA
    Court of Appeals of Mississippi.
    December 11, 2018 Rehearing Denied April 2, 2019
    ATTORNEY FOR APPELLANT: ANDRE J. JONES (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT, JACKSON
    BEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ.
    FACTS AND PROCEDURAL HISTORY
   TINDELL, J., FOR THE COURT:

¶ 1. A Jones County jury found Andre Jones guilty of murder, and the circuit court sentenced Jones to life imprisonment in the custody of the Mississippi Department of Corrections. The Mississippi Supreme Court confirmed Jones's conviction and sentence in Jones v. State , 39 So.3d 860, 868 (¶ 42) (Miss. 2010). Since then, Jones has filed six applications with the supreme court requesting leave to file a post-conviction relief (PCR) motion with the circuit court. The supreme court denied the first application on April 4, 2011. The supreme court dismissed five subsequent applications as untimely or successive.

¶ 2. Nine years after his conviction, Jones filed a "Motion for Production of Biological Evidence" with the circuit court on October 6, 2017, and requested the State produce: (1) inventory of biological evidence preserved in connection with his criminal case; (2) any results of reports or scientific tests or experiments connected with that evidence; and (3) certified copies of any results from the testing, analysis, or comparison of any biological evidence. The circuit court considered Jones's motion to be a PCR motion. Because the supreme court affirmed Jones's conviction on direct appeal, and Jones failed to obtain leave to file a PCR motion, the circuit court found it lacked jurisdiction to consider Jones's motion. The circuit court therefore dismissed the motion.

¶ 3. On appeal, Jones asserts the circuit court erred (1) in treating his motion as a PCR filing and (2) by dismissing his motion for lack of jurisdiction. Finding no error, we affirm the circuit court's dismissal of Jones's motion.

STANDARD OF REVIEW

¶ 4. We decline to reverse a circuit court's dismissal of a PCR motion unless the circuit court's decision was clearly erroneous. Thompson v. State , 10 So.3d 525, 527 (¶ 3) (Miss. Ct. App. 2009). We review issues of law de novo. Id.

DISCUSSION

¶ 5. Jones filed a motion with the circuit court for the production of biological evidence that was used in connection with his conviction. He is not challenging his conviction or sentence, just the dismissal of his motion for production. The supreme court has held that "pleadings cognizable under the Uniform Post Conviction Collateral Relief Act [ (UPCCRA) ] will be treated as ... motions for [PCR] that are subject to the procedural rules promulgated therein, regardless of how the plaintiff has denominated or characterized the pleadings." May v. State , 116 So.3d 1107, 1109 (¶ 4) (Miss. Ct. App. 2013) (quoting Knox v. State , 75 So.3d 1030, 1035 (¶ 12) (Miss. 2011) ). In May , May filed a motion with the circuit court requesting the production of documents from his court proceeding. Id. at 1108 (¶ 3). The circuit court interpreted May's motion as a PCR motion and dismissed it. Id. Similar to May , Jones's motion for the production of biological evidence is subject to the UPCCRA's procedural rules. Though titled a motion for the production of biological evidence, in his motion, Jones states that he is requesting the evidence based off of his indictment. Thus, Jones's filing amounts to a PCR motion that seeks to circumvent the supreme court's earlier denial of such relief, and the circuit court correctly dismissed it.

¶ 6. Further, Jones did not have permission from the supreme court to file his current motion. Under Mississippi Code Annotated section 99-39-7 (Rev. 2015), a prisoner cannot file a PCR motion without permission from the supreme court if that prisoner's conviction has previously been affirmed by the court on appeal. Additionally, a circuit court lacks jurisdiction if the petitioner fails to request the supreme court's permission to file a PCR motion. Cortez v. State , 9 So.3d 445, 446 (¶ 6) (Miss. Ct. App. 2009). In Minor v. State , Minor's conviction was affirmed by this Court on direct appeal. Minor v. State , 186 So.3d 437, 438 (¶ 2) (Miss. Ct. App. 2016). Therefore, Minor sought permission to file multiple PCR motions, but the supreme court repeatedly denied permission. Id. at (¶ 3). Minor then filed a motion to compel the Mississippi Crime Laboratory to produce evidence found at the crime scene. Minor , 186 So.3d at 439 (¶ 4). However, the circuit court lacked jurisdiction because Minor did not file his motion to compel as a PCR motion and did not seek permission from the supreme court before filing his motion; thus, the circuit court dismissed it. Id. Here, similar to Minor , the supreme court affirmed Jones's conviction on direct appeal in 2010. Jones then filed numerous unsuccessful requests with the supreme court for permission to file a PCR motion. However, without permission from the supreme court to file his current motion, the circuit court lacked jurisdiction to consider it. Thus, the circuit court properly denied the motion for lack of jurisdiction.

¶ 7. There are circumstances under which a prisoner may be entitled to certain transcripts and documentation. Under the UPCCRA, a prisoner, who shows good cause and with the discretion of the circuit court, may be entitled to trial transcripts and other documents if he filed a proper motion that "withstood summary dismissal." Fleming v. State , 553 So.2d 505, 506 (Miss. 1989). However, the supreme court has stated:

[N]othing in the [UPCCRA] or elsewhere gives a prisoner the right to institute an independent, original action for a free transcript or other documents, and then if dissatisfied with the trial court's ruling, to directly appeal that ruling to this court as a separate and independent action.

Id. In Fleming , Fleming did not request the production of documents with a PCR motion or on direct appeal. Id. at 505. Instead, Fleming filed an independent motion with the circuit court and asked for the production of the sentencing transcript and other court records. Id. Overall, the circuit court "denied" Fleming's motion for the production of documents. Id. at 506. Like Fleming, Jones filed his motion for the production of biological evidence separate from a PCR motion and not as part of a direct appeal. None of Jones's previous PCR motions withstood summary dismissal; as a result, Jones is now seeking an independent action for a free copy of biological evidence. Thus, Jones is not entitled to the production of the documents.

CONCLUSION

¶ 8. The circuit court correctly interpreted Jones's motion as a PCR motion and dismissed it. Even though Jones states he is not filing a PCR motion or challenging his conviction or sentence, as a prisoner he is not entitled to the production of documents through an independent civil action separate from a direct appeal or a PCR motion. Further, the circuit court lacked jurisdiction to consider Jones's motion because he never sought the supreme court's permission to file such relief. We therefore affirm the circuit court's dismissal of Jones's motion for production of biological evidence.

¶ 9. AFFIRMED.

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