author: WESTBROOKS, J., FOR THE COURT:

text:
    Corey Ray CAGLE a/k/a Corey Cagle, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00448-COA
    Court of Appeals of Mississippi.
    August 7, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH BRIGGS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. Corey Cagle was convicted on one count of possession of a controlled substance within a jail facility in violation of Mississippi Code Annotated section 47-5-198(1) (Rev. 2015) and sentenced to seven years in the custody of Mississippi Department of Corrections (MDOC). Cagle filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The Attala County Circuit Court denied Cagle's motion. Cagle timely appeals. Finding no error, we affirm.

FACTS

¶ 2. On March 5, 2016, Cagle contends that he was contacted by Blake Rice, an inmate in the Attala County Jail, through Shawn James, another inmate, to do him a favor. Rice wanted Cagle to go by his mother's home and pick up money in anticipation of his release. Additionally, Rice wanted Cagle to meet a woman, whom Cagle did not know, to get clothing for him. In his statement to police, Cagle stated that he picked up the money and met the woman for the clothes. Cagle asserted that the woman handed him a bag, and although he felt the bag, he never looked inside.

¶ 3. When Cagle arrived at the jail to drop off the bag and money, Deputies Scott Walters and Hugh Curry were standing outside of the jail, and Officer Darren Fleming was sitting in his car. Rice had instructed Cagle to give the bag to Tanya Roby, the jailer-on-duty, and leave it in Jordan Ickom's name. Cagle stated that Rice told him that Roby would know what to do with the money. Cagle dropped the bag off with Roby and immediately left the jail.

¶ 4. At trial, Walters testified that he first smelled marijuana when Cagle walked past him while entering the jail. Although in Walters's written incident report, which he wrote the same day as the incident, he states he did not smell marijuana until after Cagle exited the jail on his way back to his vehicle. Walters testified that seconds after Cagle exited, he went inside of the jail and asked Roby who brought the bag. Roby stated she did not know who he was and pointed to a name on a board of inmates, Emmanuel Wilkes.

¶ 5. Walters inspected the bag, found a towel inside, and opened the towel, discovering a plastic baggie and a gray duct-taped item wrapped inside. Walter stated that he cut open the baggie and the duct tape, revealing marijuana in both. Roby testified that in the moments between Cagle exiting the jail and Walters inspecting the bag, she had opened the bag, saw the towel, smelled the marijuana, removed the money, and threw the bag on a stand by a television. Additionally, Roby said that after removing the thirty dollars, she placed it in a property bag and locked the money in a cabinet. Later, Roby was asked by the sheriff about removing the money, and she denied doing so, stating that she thought she was being set-up by Cagle.

¶ 6. Before entering the jail, Walters had instructed Fleming to wait in his car and watch which direction Cagle went. After finding the marijuana, Walters and Fleming followed and arrested Cagle down the street. Cagle allowed Walters to drive his vehicle back to the county jail and willingly gave a statement to the police. Cagle told an investigator he was unaware there was marijuana in the towel.

¶ 7. After a jury trial, Cagle was convicted on one count of possession of a controlled substance within a jail facility as a habitual offender and sentenced to seven years in the custody of MDOC. After the circuit court denied Cagle's motion for a judgment notwithstanding the verdict or, in the alternative, a motion for a new trial, he appeals.

STANDARD OF REVIEW

¶ 8. "In reviewing a challenge to the legal sufficiency of the evidence, we consider all of the evidence in the light most favorable to the prosecution and accept all evidence supporting the verdict as true." Dampeer v. State , 989 So.2d 462, 464 (¶ 7) (Miss. Ct. App. 2008). "The State is given the benefit of all favorable inferences that may reasonably be drawn from the evidence." Id. (internal quotation mark omitted). This Court may only reverse where "with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty." Id.

DISCUSSION

¶ 9. On appeal, Cagle argues that there was insufficient evidence to sustain his conviction of possession of a controlled substance in a correctional facility because the State did not establish Cagle knowingly possessed the marijuana.

¶ 10. Cagle's indictment charged him with "wilfully, unlawfully, feloniously, and knowingly or intentionally, and without authority of law, bring to, or be in possession of, a controlled substance in the Attala County Jail, in violation of Mississippi Code Ann. section 47-5-198(1)...." However, Mississippi Code Annotated section 47-5-198(1) does not require the defendant to "knowingly" be in possession of a controlled substance. Here, the State produced evidence, through Walters's and Roby's testimonies, that Cagle was in possession of the bag and brought the bag into the Attala County Jail. Despite Walters's conflicting testimony, "the jury is the final arbiter of a witness's credibility." Robinson v. State , 227 So.3d 423, 426 (¶ 14) (Miss. Ct. App. 2017) (citing Williams v. State , 794 So.2d 1019, 1028 (¶ 59) (Miss. 2001) ).

¶ 11. Similarly positioned is Woods v. State , 19 So.3d 817 (Miss. Ct. App. 2009). In Woods , Roshun Woods was convicted of possession of a controlled substance within a correctional facility. Id. at 818 (¶ 1). Woods purchased deodorant, soap, and toothpaste from a local Dollar General store for her husband who was an inmate in the Tunica County Jail. Id. at (¶ 2). Woods left the items with the jailer-on-call, and when the items were examined, two rolls of marijuana, aluminum foil, and a blunt cigar were found inside of the deodorant container. Id. at 819 (¶ 3). Woods, like Cagle, maintained that she was unaware of the drugs' presence. Id. at (¶ 4).

¶ 12. On appeal, Woods challenged the sufficiency and the weight of the evidence placing emphasis on her husband's godmother's (Eunice Odums) testimony in support of her assertions. Id. at 820 (¶ 9). Odums testified that she was with Woods at Dollar General and when Woods went to drop off the items at the jail. Id. at 819 (¶ 4). However, Odums stated that she remained in the car and did not go into the jail with Woods. Id. Like the case at hand, the Woods jury served as "the final arbiter" of credibility and ultimately did not give much weight to Odums's testimony, finding Woods guilty. See id. at 821 (¶ 14) ; Robinson , 227 So.3d at 426 (¶ 14). At Cagle's trial, the jury heard and weighed the evidence. They balanced Walters's testimony regarding smelling marijuana as Cagle passed him. The jury also considered Cagle's statement as well as Roby's testimony. After a brief period of deliberation, the jury returned with a guilty verdict.

¶ 13. This Court has held that "[w]e do not reverse criminal cases where there is a straight issue of fact, or a conflict in the facts; juries are impaneled for the very purpose of passing upon such questions of disputed fact, and we do not intend to invade the province and prerogative of the jury." Woods , 19 So.3d at 821 (¶ 13) (quoting Hales v. State , 933 So.2d 962, 968-69 (¶ 24) (Miss. 2006) ). Here, in reviewing the evidence in a light most favorable to the verdict, we find that reasonable jurors could have found that Cagle brought marijuana into a correctional facility in violation of Mississippi Code Annotated section 47-5-198. Therefore, finding no error, we affirm.

¶ 14. AFFIRMED.

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

      "It is unlawful for any person to sell within, bring to, or be in possession of, in any correctional facility or convict camp within the state or any county, municipal or other jail within the state, except as authorized by law, any controlled substance or narcotic drug."

      Dampeer , 989 So.2d at 465 (¶ 12).


source: Caselaw Access Project

author: TINDELL, J., FOR THE COURT:

license: Public Domain

text:
    Armond Rakeem LEWIS a/k/a Armond Lewis a/k/a Armond Raheem Lewis, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00406-COA
    Court of Appeals of Mississippi.
    August 14, 2018 Rehearing Denied October 30, 2018
    ATTORNEY FOR APPELLANT: ARMOND RAKEEM LEWIS (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD, JACKSON
    BEFORE LEE, C.J., BARNES AND TINDELL, JJ.
   TINDELL, J., FOR THE COURT:

¶ 1. Armond Raheem Lewis appeals the Jackson County Circuit Court's denial of his motion for post-conviction relief (PCR). He claims the circuit court improperly revoked his post-release supervision (PRS) and imposed the remainder of his original sentences for aggravated assault and possession of a controlled substance. In those cases, he was originally sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC) with twelve years suspended and eight years to serve. On appeal, we find no error and affirm the circuit court's judgment.

FACTS

¶ 2. Lewis pled guilty to aggravated assault and possession of a controlled substance on August 12, 2011. He was sentenced to twenty years for the aggravated assault with twelve years on PRS and eight years to serve in the custody of the MDOC. He was sentenced to serve eight years for possession of a controlled substance. The possession sentence was ordered to run concurrently with the aggravated assault sentence.

¶ 3. At some point in time after his incarceration, Lewis was released on PRS. The State's notification of its intent to revoke Lewis's PRS was dated March 13, 2016. In support of its request for revocation of Lewis's PRS, the State alleged that: (1) Lewis was charged with domestic violence simple assault on August 13, 2015; (2) Lewis was arrested for false identification (ID) and possession of marijuana on March 7, 2016; (3) Lewis failed to report to the MDOC for over eight months; (4) Lewis failed to pay his MDOC supervision fees as directed; and (5) Lewis failed to pay all court ordered fines and fees as directed. While the State alleged Lewis violated his PRS in a number of ways, Lewis, through his counsel at the revocation hearing, denied committing only one of the enumerated violations-the August 2015 charge of domestic violence. To the remaining alleged violations of his PRS, Lewis made no denial. The circuit court held a revocation hearing on May 5, 2016. In its revocation order, the circuit court delineated that Lewis "[m]ore likely than not" violated his PRS on each of the grounds alleged. Lewis was ordered to serve the remainder of his two original sentences.

¶ 4. Lewis filed a PCR motion that was subsequently denied by the circuit court. Therein, Lewis claimed the circuit court erred in that: (1) the trial judge never asked Lewis why he did not pay his ordered restitution; (2) the trial court failed to hold Lewis's revocation hearing within seventy-two hours of his arrest; (3) the trial court failed to recognize that Lewis's alleged violations were only technical violations; and (4) the trial court unconstitutionally revoked Lewis's PRS. The circuit court found Lewis's claims to be meritless and denied his PCR motion. On appeal, Lewis claims that he is entitled to relief based on the same four grounds presented to the trial court.

STANDARD OF REVIEW

¶ 5. A trial court's denial of a PCR motion will not be reversed unless it is found to be clearly erroneous. Stokes v. State , 199 So.3d 745, 748 (¶ 7) (Miss. Ct. App. 2016). The trial court's legal conclusions, however, are reviewed under a de novo standard of review. Hughes v. State , 106 So.3d 836, 838 (¶ 4) (Miss. Ct. App. 2012).

DISCUSSION

¶ 6. First, Lewis states that the trial judge violated the guarantees of the Fourteenth Amendment to the United States Constitution in failing to ask Lewis why his restitution payments had not been made. However, he provides no authority requiring any such inquiry from the trial court. "It is the appellant's duty to provide authority and support for the issues he presents." Edwards v. State , 856 So.2d 587, 599 (¶ 45) (Miss. Ct. App. 2003) (citing Rigby v. State , 826 So.2d 694, 707 (¶ 44) (Miss. 2002) ); accord Hoops v. State , 681 So.2d 521, 526 (Miss. 1996). Even without the required authority from Lewis, we note that this Court in Mayfield v. State stated: "if a trial judge is considering revoking probation because of failure to make required payments, the United States Supreme Court has suggested that it is the judge's affirmative duty to inquire into the reasons for the failure." Mayfield v. State, 822 So.2d 332, 335 (¶ 15) (Miss. Ct. App. 2002) (emphasis added) (citing Bearden v. Georgia , 461 U.S. 660, 667-68, 103 S.Ct. 2064, 76 L.Ed.2d 221, (1983) ).

¶ 7. Here, as in Mayfield , Lewis did not allege an inability to pay the fine and supervision fees at the revocation hearing. And, as in Mayfield , we do not need to decide whether Lewis was able to pay because even if he was not, as will be discussed herein, there are other "and central reason[s] why [Lewis's] probation was revoked." Id. Thus, here and in the Mayfield case, the trial court's "failure to inquire into ability to pay ... was at most harmless error." Id. Finding no support for this claim, we deny it as meritless.

¶ 8. Second, Lewis argues that the circuit court violated his due process rights because of the timing of his revocation hearing. He cites Mississippi Code Annotated section 47-7-37(3) (Rev. 2015) for authority that an informal preliminary revocation hearing is required within seventy-two hours of arrest and, further, that should a revocation hearing not be held within twenty-one days, the offender should be released from custody and returned to PRS status.

¶ 9. A plain reading of the statute reflects that both the seventy-two-hour and twenty-one-day deadlines are triggered by an arrest obtained pursuant to a warrant for alleged violation of probation. Miss. Code Ann. § 47-7-37(3). It reads:

Whenever an offender is arrested on a warrant for an alleged violation of probation as herein provided, the department shall hold an informal preliminary hearing within seventy-two (72) hours of the arrest ... [and] the offender may be confined no more than twenty-one (21) days....

(Emphasis added). On March 7, 2016, Lewis was a passenger in a vehicle stopped for a traffic offense. When asked to identify himself, Lewis provided a false name to the officer. Lewis admitted to smoking marijuana in the vehicle, leading to a search of the vehicle. When a marijuana cigarette was found on the floorboard between the door and passenger seat, Lewis was charged with possession of marijuana. This charge prompted his March 7, 2016 arrest. Thereafter, the State notified Lewis of its intent to revoke his PRS. Lewis was not detained simply pending a decision on the revocation of his PRS. Rather, he was arrested on another charge. Thus the deadlines of section 47-7-37(3) were not triggered, and this issue is without merit.

¶ 10. As to Lewis's third point of error, we agree that the trial court considered at least one of Lewis's violations to be more than a technical violation. The trial court stated, "I'm finding that the false ID [charge] certainly is more than a technical violation." However, even with that agreement, we find the trial court was within its authority when it ordered Lewis to serve the remainder of his suspended sentences. The trial court based Lewis's revocation upon: (1) a charge of false ID; (2) a charge of domestic violence; (3) an arrest for possession of marijuana; and (4) his failure to report to the MDOC.

¶ 11. If we consider each of the remaining charges to be technical violations of Lewis's PRS, at the revocation hearing, the State established and the trial court found that Lewis committed at least three separate technical violations-three separate acts or omissions that violated a condition of his PRS. Mississippi Code Annotated section 47-7-37(5)(a) provides in relevant part:

If the court revokes probation for a technical violation, the court shall impose a period of imprisonment to be served in either a technical violation center or a restitution center not to exceed ninety (90) days for the first technical violation and not to exceed one hundred twenty (120) days for the second technical violation. For the third technical violation , the court may impose a period of imprisonment to be served in either a technical violation center or a restitution center for up to one hundred eighty (180) days or the court may impose the remainder of the suspended portion of the sentence . For the fourth and any subsequent technical violation, the court may impose up to the remainder of the suspended portion of the sentence.

(Emphasis added). Therefore, under the plain language of the statute, the trial court was entitled to impose the remainder of the suspended portion of Lewis's sentence, with or without considering the false ID charge. Thus, this issue is without merit.

¶ 12. Mississippi Code Annotated section 47-7-37.1 provides an additional basis entitling the trial court to impose the remainder of Lewis's sentence:

Notwithstanding any other provision of law to the contrary, if a court finds by a preponderance of the evidence, that a probationer or a person under post-release supervision has committed a felony or absconded, the court may revoke his probation and impose any or all of the sentence. For purposes of this section, "absconding from supervision" means the failure of a probationer to report to his supervising officer for six (6) or more consecutive months.

The trial court had before it evidence that Lewis wholly failed to report to his supervising officer for nearly one year.

¶ 13. In his final point of error, Lewis states simply that "[his] supervised release was unlawfully revoked ... for a technical violation." He claims the statute under which his PRS was revoked is unconstitutional, yet he provides no support for this claim. On questions of constitutionality, this Court's review is limited by: (1) a strong presumption of constitutionality; (2) the challenging party's burden to prove the statute unconstitutional beyond a reasonable doubt; and (3) resolving all doubts in favor of a statute's validity. Atwood v. State , 183 So.3d 843, 845 (¶ 5) (Miss. 2016) ; Johnson v. Sysco Food Servs. , 86 So.3d 242, 243-44 (¶ 3) (Miss. 2012). Again, "[i]t is the appellant's duty to provide authority and support for the issues he presents." Edwards , 856 So.2d at 599 (¶ 45) (quoting Rigby , 826 So.2d at 707 (¶ 44) ); accord Hoops , 681 So.2d at 526. On this, Lewis offers no support or authority and wholly fails to create any doubt as to the constitutionality of the statute. And therefore, we find this claim also to be without merit.

¶ 14. As Lewis has failed to offer any merit in support of his claims, he has failed to show cause for his revocation to be set aside, and we affirm the trial court's order.

¶ 15. AFFIRMED.

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

WESTBROOKS, J., CONCURRING IN PART AND IN RESULT:

¶ 16. I concur, but write separately because I disagree with the majority's analysis on the trial court's failure to make an affirmative inquiry into whether Lewis could pay his fines and fees at his revocation hearing. The majority states that Lewis alleged no inability to pay; however, it is the court's duty to make the inquiry, not the defendant's.

¶ 17. The United States Supreme Court has held that "in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay." Bearden v. Georgia , 461 U.S. 660, 672, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) (emphasis added). This Court has held the same. See Mayfield v. State , 822 So.2d 332, 335 (¶ 15) (Miss. Ct. App. 2002).

¶ 18. The majority cites to Mayfield in support of assertions that the error was harmless, however, the primary reasons Mayfield was revoked was because he tested positive for cocaine and failed to report to his probation officer, not because he failed to pay his fines. In affirming the trial court's decision, this Court stated that "[w]e conclude that the cocaine use was an independent and adequate basis on which probation was revoked." Id. at 336 (¶ 16). Here, Lewis's revocation was based on five reasons, two being "failure to pay probation supervision fee" and "failure to pay all court-ordered fines and fees." While there was testimony given by Lewis's parole officer, during the revocation hearing, about Lewis's failure to pay and the amount owed, the trial court never asked Lewis or anyone else why he did not pay.

Q: In addition, you also allege that he's violated Conditions K, N, O, P and Q. That has to do with the payment of fines and fees. It says that he has not paid since October the 4th of 2007. Since you've been employed with the Mississippi Department of Corrections, have you received a payment to the account of Mr. Armond Raheem Lewis?
A: No.
Q: And so you were employed in June of 2015, so you have personal knowledge that you have not received a payment from Mr. Lewis since at least June of 2015?
A: I've not received a payment, no.
Q: In addition, can you tell the Court the arrearage that Mr. Armond Raheem Lewis owes at this point in time?
A: We've got a total balance of $1,485 zero cents.
....
Q: And can you tell me how much he - - the paperwork that he signed up for, how much he was supposed to pay per month.
A: That would be in his intake package, which I do not have on me.
Q: All right. So at this point today, you can't say what he was supposed to pay per month; correct?
A: That's correct.

¶ 19. No further testimony regarding the fines and fees was given by the parole officer or any other witnesses. Therefore, I believe that the trial court had an affirmative duty to inquire why Lewis failed to pay his fines and fees before including it in its determination to revoke his probation.

IRVING, P.J., FAIR AND WILSON, JJ., JOIN THIS OPINION.

      Although a charge of domestic violence was included in the trial court's revocation order, the State concedes that it asked the trial court, at the revocation hearing, to proceed with consideration of Lewis's revocation without presenting evidence regarding this charge. As such, this charge should not be a basis for a technical violation of Lewis's PRS.

      These reasons include (1) marijuana, (2) false identification, (3) failure to report, (4) failure to pay fines, and (5) failure to pay supervision fees.


author: FAIR, J., FOR THE COURT:

text:
    Eric YOUNG a/k/a Eric D. Young, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01760-COA
    Court of Appeals of Mississippi.
    August 14, 2018
    ATTORNEY FOR APPELLANT: ERIC YOUNG (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE, JACKSON
    BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. In January 2010, Eric Young pled guilty to armed robbery. He was sentenced to twenty years in the custody of the Mississippi Department of Corrections, with fifteen years to serve, five years suspended, and two years of supervised probation. Young filed a motion for "reconsideration of guilty plea and sentence" two weeks later. The circuit court entered an order denying the motion in 2014.

¶ 2. Young then filed a petition for post-conviction relief (PCR), claiming that his sentence violated the Equal Protection Clause because his co-defendant had received a more lenient sentence, with just ten years to serve. The circuit court dismissed the petition, noting that Young's sentence was legal and substantially below the maximum penalty for armed robbery, which is life in prison. Miss. Code Ann. § 97-3-79 (Rev. 2014). The court also noted that disparate sentences for co-defendants do not, by themselves, suggest any constitutional infirmity in either sentence. It quoted our decision in Young v. State , 919 So.2d 1047, 1049-50 (¶ 7) (Miss. Ct. App. 2005), where this Court held:

There are no statutes or case law stating that a defendant must receive a sentence proportionate to a sentence imposed on an accomplice. Sentences between co-defendants are, often times, different. Also, the recommendations in regards to sentencing come from the district attorney's office, and each judge makes an independent determination as to what the sentence should be. The duty of this Court is not to determine the working mind of the sentencing judge or to determine the reasons why the judge gave that sentence to the defendant.

(Quoting Booker v. State , 840 So.2d 801, 805 (¶ 10) (Miss. Ct. App. 2003) ).

¶ 3. On appeal, Young abandons his original claim and raises four new issues: (1) his counsel was ineffective; (2) there has been an intervening decision which would have adversely affected the outcome of his sentence; (3) the circuit court failed to establish that his plea was voluntary; and (4) his constitutional rights were violated. Since Young did not raise these issues in the trial court, we are precluded from reviewing them on appeal. See Fluker v. State , 17 So.3d 181, 183 (¶ 5) (Miss. Ct. App. 2009). Thus, we affirm the circuit court's dismissal of Young's PCR petition.

¶ 4. AFFIRMED.

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


author: BARNES, J., FOR THE COURT:

text:
    Tommie Gonzalez JORDAN a/k/a Tommie Jordan a/k/a Tommie G. Jordan a/k/a Tommie Gonzales Jordan, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00664-COA
    Court of Appeals of Mississippi.
    August 14, 2018 Rehearing Denied December 11, 2018
    ATTORNEY FOR APPELLANT: TOMMIE GONZALEZ JORDAN (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS
    BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. On September 16, 2008, Tommie Jordan pleaded guilty to burglary of a dwelling. The Monroe County Circuit Court sentenced him to twenty-five years, with five years to be served in the custody of the Mississippi Department of Corrections (MDOC), twenty years suspended, and five years of post-release supervision (PRS). He was also ordered to pay fines and restitution and to complete an adult basic-education program to obtain a general education degree (GED).

¶ 2. After Jordan violated several PRS conditions, the State filed a petition to revoke his PRS and impose Jordan's suspended sentence. A revocation hearing was held on February 28, 2011. Jordan was cited for the following violations: failure to report to his probation officer, possession of cocaine and paraphernalia, operation of a vehicle under the influence, operation of a vehicle with no drivers license, disorderly conduct, failure to comply, failure to use a turn signal, delinquency of fines, and the failure to obtain his GED. The trial court accepted the State's recommendation that Jordan be placed in MDOC custody for twenty years, but upon successful completion of a long-term drug and alcohol rehabilitation program, the remainder of Jordan's sentence would be suspended and he would be placed on five years of PRS.

¶ 3. Jordan completed his rehabilitation program and was again released to PRS, but he was later jailed for failure to pay court costs, fees, and restitution. Jordan also failed a drug test and did not notify his probation officer as to a change in residence. After a hearing on October 15, 2014, the trial court again revoked Jordan's sentence and, based on the State's recommendation, ordered Jordan to be placed in a technical violation center for ninety days. After serving the ninety days, the remainder of Jordan's sentence was to be suspended, and he was to serve five years of PRS.

¶ 4. When Jordan failed to report to his probation officer on several occasions, failed to register as a sex offender, and was arrested and charged with breaking and entering a dwelling and strong-arm robbery, the State filed a third petition for revocation. After a revocation hearing on October 16, 2016, the court revoked his suspended sentence and ordered Jordan to serve the remainder of his sentence (nineteen years) in MDOC custody.

¶ 5. On January 20, 2017, Jordan filed a motion for post-conviction relief (PCR), claiming the trial court erred in revoking his sentence because it was only his second technical violation; therefore, he argued he should have been sentenced to no more than 120 days in a technical violation center. See Miss. Code Ann. § 47-7-37(5)(a) (Rev. 2015). The trial court denied the motion, holding that the court "had authority to impose any and all of the sentence since it found that [Jordan] had committed a felony[.]" Jordan appeals the court's decision.

¶ 6. We find no merit to Jordan's claim and affirm the judgment.

STANDARD OF REVIEW

¶ 7. In reviewing the denial of a PCR motion by a trial court, we "will only disturb the trial court's factual findings if they are clearly erroneous." Kennedy v. State , 179 So.3d 82, 83 (¶ 5) (Miss. Ct. App. 2015) (citing Doss v. State , 19 So.3d 690, 694 (¶ 5) (Miss. 2009) ). "Matters of law, however, are reviewed de novo." Id.

DISCUSSION

¶ 8. Jordan argues that the trial court's revocation of his sentence was erroneous for two reasons. First, he contends that this was only his second technical violation; therefore, the court should have imposed a sentence of 120 days in a technical violation center. Section 47-7-37(5)(a) provides in part:

If the court revokes probation for a technical violation, the court shall impose a period of imprisonment to be served in either a technical violation center or a restitution center not to exceed ninety (90) days for the first technical violation and not to exceed one hundred twenty (120) days for the second technical violation. For the third technical violation, the court may impose a period of imprisonment to be served in either a technical violation center or a restitution center for up to one hundred eighty (180) days or the court may impose the remainder of the suspended portion of the sentence .

(Emphasis added). As the State observes, however, the record clearly shows that this was Jordan's third revocation hearing, each of which involved multiple technical violations. In response, Jordan claims in his reply brief that he should only have been sentenced to 180 days. We find the statute clearly affords the trial court discretion to impose the remainder of a defendant's suspended sentence upon a finding that a probationer has committed a third or subsequent technical violation. See Walker v. State , 230 So.3d 703, 706 (¶ 13) (Miss. 2017). Therefore, this argument is without merit.

¶ 9. Jordan also contends that the two 2016 felony charges for burglary and strong-arm robbery were dismissed before his revocation hearing; therefore, there was no third violation, and the court had no basis for revocation. We find no evidence in the record that these charges were dismissed. Also, at the October 16, 2016 revocation hearing, the State explicitly informed the trial court that it intended to pursue the charges before a grand jury.

¶ 10. Moreover, Mississippi Code Annotated section 47-7-37.1 (Rev. 2015) states that "if a court finds by a preponderance of the evidence, that a probationer or a person under post-release supervision has committed a felony or absconded, the court may revoke his probation and impose any or all of the sentence." At the revocation hearing, a police officer testified that Jordan's neighbor called to report a break-in and robbery, and she identified Jordan, who was spotted a block away by police. When asked to stop, Jordan fled from the officers. The Mississippi Supreme Court has held: "A probationer does not have to be convicted of a crime to be in violation of his probation but, rather, probation may be revoked when it is more likely than not that a violation occurred." McCalpin v. State , 166 So.3d 24, 26-27 (¶ 7) (Miss. 2013).

¶ 11. Finding the trial court did not err in denying Jordan's PCR motion, we affirm the judgment.

¶ 12. AFFIRMED.

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


text:
    Andrew C. CRUSE, Jr. a/k/a Andrew Clinton Cruse, Jr. a/k/a Andrew Clinton Cruse a/k/a Andrew C. Cruse a/k/a Andrew Cruse a/k/a Sparky a/k/a Clint, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00314-COA
    Court of Appeals of Mississippi.
    August 14, 2018 Rehearing Denied November 6, 2018
    ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: BENJAMIN ALLEN SUBER, GEORGE T. HOLMES, JACKSON, ERIN E. BRIGGS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. Andrew Clinton Cruse Jr. was indicted as a violent habitual offender by the Harrison County Grand Jury for kidnapping, aggravated assault, forcible sexual intercourse, and sexual battery. After a jury trial, Cruse was found guilty of kidnapping, aggravated assault, and forcible sexual intercourse but was acquitted of sexual battery. Cruse was sentenced to life without parole in the custody of the Mississippi Department of Corrections (MDOC) for each of the convictions, with the sentences to run concurrently. Cruse filed a motion for a judgment notwithstanding the verdict (JNOV), or in the alternative, for a new trial, which the trial court denied. Cruse timely appeals. After review of the record, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On February 23, 2015, Tina Ivy was spotted naked running from a nearby wooded area to a Lowe's parking lot in Gulfport, Mississippi. Ivy was naked, her head was covered in blood, and her arms were bound behind her back with duct tape and zip ties. Witnesses at trial testified that Ivy stated that she had been held against her will in a tent and raped. Ivy also stated that Cruse tried to drug her, but she refused to swallow the pills. Ivy named her assailant as "Clint." However, the assailant was later identified as Andrew Clinton Cruse Jr., whose nickname is "Clint."

¶ 3. Sergeant Christopher Werner, a detective with the Gulfport Police Department, testified that he arrived at the campsite in the wooded area that Ivy had described and noticed two open tents. Sergeant Werner stated that he found paperwork with both Cruse's and Ivy's names inside one of the tents. Cruse was later arrested approximately one-half of a mile away from the campsite on an unrelated bench warrant. Ivy picked out Cruse's photo and identified him as her attacker, and Cruse was arrested for kidnapping, aggravated assault, forcible sexual intercourse, and sexual battery.

¶ 4. At trial, Cruse testified that he and Ivy had consensual sex, and bruises she sustained were the result of an altercation Ivy had with her boyfriend. However, Cruse admitted to slapping Ivy with an open hand and tying her up with duct tape during their sexual encounter. However, Cruse stated that Ivy asked to be bound while they engaged in sexual intercourse, and that his girlfriend was also with them during their sexual encounter.

¶ 5. The jury did not find Cruse's testimony persuasive as to three of the four indicted offenses, and Cruse was convicted of kidnapping, aggravated assault, and forcible sexual intercourse. After the denial of Cruse's JNOV motion, or in the alternative, a new trial, Cruse timely appeals.

STANDARD OF REVIEW

¶ 6. "A denial of a judgment notwithstanding the verdict is subject to de novo review on appeal." Kirk v. State , 160 So.3d 685, 695 (¶ 24) (Miss. 2015). "[The reviewing] Court will affirm the denial of a motion for [a] JNOV if there is substantial evidence to support the verdict." Id. at (¶ 25).

DISCUSSION

I. Denial of Davis's Motion to Withdraw

¶ 7. Cruse asserts that the trial court erred in refusing to allow his attorney, James "Jim" Davis, to withdraw. We disagree.

¶ 8. The trial court noted that Cruse filed complaints against his previous attorney appointed to his case. Cruse also filed complaints against Davis alleging that he was trying to sabotage his case. As a result, Davis filed a motion to withdraw as Cruse's counsel. The trial court found that Cruse was trying to manipulate the legal system and reasoned that Cruse would likely file a complaint against his next attorney if Davis was allowed to withdraw. Moreover, at the hearing regarding Davis's motion to withdraw, Cruse acknowledged that there was no longer a conflict with Davis. The following is an excerpt of Cruse's statement during the hearing:

THE COURT: Do you think there is an actual conflict between you and he? I understand you said some pretty scandalous things about him.
CRUSE: Possibly later. At this time it is not really no conflict between me and Mr. Davis. It depends on I guess that judgment whether he wants to proceed as my attorney or not.

¶ 9. Cruse also acknowledged that he would not pursue the bar complaint he filed against Davis during that hearing. As a result, the trial court denied Davis's motion to withdraw. This Court has held that "[t]he trial court has complete discretion when considering a motion to withdraw as counsel." Strickland v. State , 220 So.3d 1027, 1037 (¶ 35) (Miss. Ct. App. 2016) (citing Hill v. State , 134 So.3d 721, 725 (¶ 15) (Miss. 2014) ).

¶ 10. Cruse maintains that the facts of his case are somewhat analogous to the facts in Hill v. State , 134 So.3d 721 (Miss. 2014). In Hill , "[the attorney] was granted her request to withdraw as counsel because of a conflict of interest but simultaneously was assigned to remain in an advisory-counsel capacity." Id. at 725 (¶ 16). The Mississippi Supreme Court held that "the trial court erred by assigning [an attorney] as Hill's advisory counsel while, at the same time, allowing her to withdraw as his counsel because of a conflict of interest." Id. at 726-27 (¶ 24). The Supreme Court also held that "the trial court again erred when [the attorney] was required to remain as advisory counsel once a conflict arose between her duty to the court and her duty to Hill." Id. at 727 (¶ 24).

¶ 11. Here, Cruse reported to the trial court that he would keep Davis as his attorney, and he explained that the supposed reason why he filed a bar complaint against Davis was due primarily to their communication issues. Furthermore, Davis did not have a conflict with the trial court. Also during the hearing, the following exchange took place between Cruse and the trial court:

THE COURT: Is it a communication thing or do you really, truly, honestly under your oath right now believe that he is trying to sabotage your defense?
CRUSE: I think it might be more of a communication thing. I do realize that Mr. Davis has got an extremely high caseload and been doing a lot of trials lately.
THE COURT: And being successful. You know Mr. Davis has been a practicing attorney for, I think, over 30 years.
CRUSE: I know he has a very good reputation as a trial attorney.

Moreover, "[l]imitations must be enforced when considering appointing new counsel to circumvent any maneuvers that interfere with the 'orderly procedure in the courts or the fair administration of justice.' " Id. at 725 (¶ 15). As a result, Davis's motion to withdraw was denied.

¶ 12. The record reflects that Davis filed timely motions, cross examined witnesses, and adequately represented Cruse; as well, this Court notes that Cruse was also acquitted of sexual battery. After review of the record in its entirety, we find no abuse of discretion, and this issue is without merit.

II. Sufficiency of the Evidence

¶ 13. Cruse challenged the sufficiency of the evidence in his motion for a directed verdict at the end of the State's case, and later in his posttrial JNOV motion. "On review of the sufficiency of the evidence, this Court considers the trial court's ruling at the last time the sufficiency of the evidence was challenged." Warren , 187 So.3d at 627 (¶ 29). Further, "[i]n reviewing the denial of a motion for JNOV, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (internal quotation mark omitted).

¶ 14. Ivy testified that Cruse hit her in the head with a hammer, bound her with duct tape, held her against her will, and engaged in sexual intercourse with her without her consent. Dr. Levin, an expert in emergency room medicine, testified that Ivy's skull fracture was consistent with being hit in the head with an object, such as a hammer. Johnathon Bowles, a witness at Lowe's, testified that Ivy informed him that she met a man in the Walmart parking lot who offered her shelter, then struck her with a hammer. Russell Jones also testified that Ivy stated that she had been kept in the woods in a tent that was either blue or had blue tarp over it against her will.

¶ 15. Ivy testified that no one else other than Cruse was present inside the tent and that she never consented to sexual intercourse with him. Furthermore, Ivy's blood was found on the pair of jeans Cruse was wearing shortly after he was apprehended. Other witnesses from the parking lot testified that they also encountered Ivy while she was naked, bloody, and bound with zip ties and duct tape. Cruse, nevertheless, maintains that Ivy was not a credible witness because of certain inconsistencies within her testimony. However, "the jury is the final arbiter of a witness's credibility ... [and] the jury weighs the weight and worth of any conflicting testimony." Robinson v. State , 227 So.3d 423, 426 (¶ 14) (Miss. Ct. App. 2017) (citation omitted).

¶ 16. Considering the evidence in the light most favorable to the verdict, the evidence was sufficient to enable a reasonable jury to find Cruse guilty of the indicted offenses.

III. Overwhelming Weight of the Evidence

¶ 17. Cruse asserts that the verdict was against the overwhelming weight of the evidence. "When reviewing a 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." Id. at 425 (¶ 10). "In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence presented as supportive of the verdict, and we will disturb a jury verdict only when convinced that the circuit court has abused its discretion in failing to grant a new trial or if the final result will constitute an unconscionable injustice." Id.

¶ 18. Based on the evidence presented, we find that the State adequately proved that Cruse bound Ivy against her will, assaulted her with a hammer, and had sexual intercourse with Ivy against her will. Accordingly, we cannot find that the verdict was so contrary to the overwhelming weight of the evidence that to allow Cruse's conviction to stand would sanction an unconscionable injustice. Therefore, we find this issue is without merit.

IV. Cumulative Error

¶ 19. Cruse argues that he is entitled to relief based on cumulative error. "The cumulative error doctrine stems from the doctrine of harmless error, which holds that individual errors, which are not reversible in themselves, may combine with other errors to make up reversible error, where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial." Rogers v. State , 205 So.3d 660, 664-65 (¶ 17) (Miss. Ct. App. 2015). Here, Cruse alleges that the crime-lab report and the denial of his motion for continuance created cumulative error.

A. Crime-Lab Report

¶ 20. Cruse contends that the DNA results within the crime-lab report were "arguably" withheld from him until later at trial. However, he concedes that there was no actual proof that the evidence was withheld, but it appears to be a huge coincidence. Further, Cruse asserts that this report would not have impacted the case one way or another. Accordingly, we find this issue without merit.

B. Motion for a Continuance

¶ 21. Cruse argues that the trial court erred in denying his motion for continuance. Cruse requested that the trial court allow time to investigate Ivy's other allegations of sexual assaults. "The decision to grant or deny a motion for a continuance is within the sound discretion of the trial court and will not be grounds for reversal unless shown to have resulted in manifest injustice." Pilgrim v. State , 19 So.3d 148, 152 (¶ 13) (Miss. Ct. App. 2009).

¶ 22. Here, the trial court found that Cruse failed to demonstrate that he was prejudiced by the denial of his motion for a continuance. Accordingly, we find no error.

V. Cruse's Additional Claims

¶ 23. Cruse filed a twenty-two page pro se brief, which Cruse refers to as an "amendment" to his principal brief, in January 2018. In this brief, Cruse alleged eighteen different violations of his rights. While several of these alleged violations listed were mere recitations of the issues in his principal brief, we note that Cruse mentioned a claim for ineffective assistance of counsel.

¶ 24. In Johnson v. State , 196 So.3d 973, 975 (¶ 7) (Miss. Ct. App. 2015), this Court held that:

A claim of ineffective assistance of counsel on direct appeal "should be addressed only when (1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge. Therefore, ineffective assistance claims are more appropriately brought during post-conviction proceedings ... because, during direct appeals, the Court is limited to the trial court record in its review of the claim, and there may be instances in which insufficient evidence exists within the record to address the claim adequately. However, a claim may be brought on direct appeal if such issues are based on facts fully apparent from the record.

(Citations and internal quotation marks omitted).

¶ 25. Moreover, "[w]here the record cannot support an ineffective assistance of counsel claim on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant's right to argue the same issue through a petition for post-conviction relief." Id. at (¶ 8). Here, the State did not stipulate that the record was adequate enough to address Cruse's claim that his trial counsel was ineffective. Additionally, the record does not affirmatively show ineffectiveness of constitutional dimensions. Therefore, we decline to address this issue, leaving Cruse free to seek relief through a post-conviction relief motion if he desires to do so.

¶ 26. Also in the January 2018 brief, Cruse raised two new issues: (1) the legality of the search of his tent, and (2) venue. Additionally, Cruse filed a pro se reply brief in February 2018, reiterating several issues listed in his brief in January 2018.

¶ 27. But, Cruse did not raise these new issues in his principal brief before this Court, and "[w]e will not consider issues raised for the first time in an appellant's reply brief." Nelson v. State , 69 So.3d 50, 52 (¶ 8) (Miss. Ct. App. 2011). Therefore, we decline to address any new issues submitted in Cruse's reply briefs. Accordingly, we find no error in the circuit court's denial of Cruse JNOV motion, or in the alternative, a new trial.

¶ 28. AFFIRMED.

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

      Cruse testified that he was homeless due to hard times he endured after the death of his wife, and that he had set up two tents in a wooded area close to Lowe's. Ivy testified that she lived in Alabama, but she ended up in Gulfport, Mississippi, after spending the night with a friend.

      Prior to trial, an attorney with the Harrison County Public Defender's Office was was appointed as Cruse's trial counsel. However, Cruse filed a number of bar complaints against the attorneys in the Public Defender's Office and submitted a letter indicating that he did not want anyone from the Public Defender's Office to represent him. As a result, the trial court appointed Davis as Cruse's counsel. Cruse also filed a motion accusing the judge presiding over his trial of conspiring against him with the District Attorney's Office and requested that he recuse. However, the motion for recusal was denied.

      Cruse alleged that Ivy perjured herself, the trial judge refused to recuse himself although a conflict of interest arose, a mistrial should have been declared after Dr. Levin's testimony, malicious prosecution, there should have been a change in venue, and a number of other allegations against his attorney, the judge, and the police department.

      We acknowledge that Cruse filed an addendum in this matter. We find, however, that the addendum is a mere recitation of his other claims before this Court. Accordingly, we have already addressed Cruse's claims. The State's motion to strike the new issues in Cruse's pro se reply brief is dismissed as moot.


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

text:
    Brenda Harness THORNTON, Appellant v. Timothy Terrell THORNTON Sr., Appellee
    NO. 2016-CA-01773-COA
    Court of Appeals of Mississippi.
    August 14, 2018
    ATTORNEY FOR APPELLANT: AMELIA SHA'METTA CARTER
    ATTORNEY FOR APPELLEE: EDWIN L. BEAN JR., McComb
    BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. On August 26, 2016, Tim and Brenda Thornton obtained a divorce in the Pike County Chancery Court. The chancellor entered an order distributing the marital property and awarding alimony to Brenda. Brenda appeals the chancellor's judgment and raises seven assignments of error: (1) whether the chancellor analyzed the factors set forth in Ferguson v. Ferguson , 639 So.2d 921, 928 (Miss. 1994), when he distributed the marital property; (2) whether the chancellor erred in his distribution of Tim's Sanderson Farms retirement account; (3) whether the chancellor erred in not awarding Brenda lump sum alimony; (4) whether Brenda should be charged with paying the outstanding loan on a 2009 Dodge Ram; (5) whether the chancellor should have classified and equitably divided the $90,000 insurance policy; (6) whether the chancellor erred in crediting Tim with $1,600 in child support payments; and (7) whether the nature of the entire award by the chancellor can be considered equitable. Finding error, we reverse and remand the chancellor's judgment.

FACTS

¶ 2. Tim and Brenda Thornton were married on February 26, 2000. They separated on June 9, 2014. Their union resulted in two children. Tim works as a supervisor at Sanderson Farms, and did so at the time of the chancellor's decision. Brenda is disabled and unemployed.

¶ 3. Brenda filed a motion for divorce on August 19, 2015, on the grounds of adultery or, in the alternative, habitual cruel and inhuman treatment, desertion, or irreconcilable differences. The trial court entered a temporary order on November 2, 2015, ordering Tim to pay child support in the amount of seven hundred dollars.

¶ 4. The matter was heard on August 3, 2016. While in chancery court, Tim's attorney disclosed to the court that Tim had committed adultery and was willing to admit those allegations to the court. A judgment was entered by the chancellor on August 26, 2016, granting Brenda a divorce on the ground of adultery. The chancellor also determined that Tim failed to pay the previously ordered child support on time and found him in contempt. Furthermore, the record reflects that the chancellor altered the child support payments to six hundred and seventy-eight dollars per month until the children reach the age of twenty-one or are emancipated.

¶ 5. The record reflects a lack of appraisal of the marital property by either party. During the hearing on August 3, 2016, Tim agreed to Brenda's estimation of value for the marital home at $112,000. The tax appraisal proposed by the new attorney of record for Brenda set the home's value at $56,699. The chancellor determined the value of the marital home to be $84,349.50, leaving the equity value of the home at $32,633.80.

¶ 6. The record indicates the chancellor listed and considered the marital property - both real and personal - in his determination of an equitable distribution. The chancellor ordered that $7,123.90 be transferred from Tim's retirement account to Brenda. Concerning the vehicles purchased during the marriage, the chancellor found that a 2000 Dodge Durango and a 2015 Chrysler 2000 would be the sole property of Tim, while Brenda would retain the 2009 Dodge Ram for her own personal property.

¶ 7. Concerning the parties' personal property, the chancellor divided it as follows:

(I) Timothy Thornton Sr. A. Samsung Refrigerator $ 1,000.00 B. Bedroom/Living Room Set (purchased post-separation) $ 1,200.00 C. Collectibles $ 6,500.00 D. Airbrush Equipment $ 1,500.00 E. Vizio Home System $ 400.00 F. Craftsman Cutter and Weed Eater $ 450.00 G. DVD Collection $ 2,000.00 H. Car Stereo and Amp $ 1,000.00 I. 2000 Dodge Durango $ 950.00 TOTAL $15,000.00 (II) Brenda Harness Thornton A. Whirlpool Stove $ 200.00 B. 55" Samsung TV $ 400.00 C. Stainless Steel Refrigerator $ 300.00 D. 5 Bedroom Sets $ 3,000.00 E. Home Entertainment $ 400.00 F. Living Room Suite $ 1,500.00 G. 4 TVs $ 1,200.00 H. 2009 Dodge Truck (net value) $14,800.00 TOTAL $21,800.00

¶ 8. While the record does reflect the chancellor's intention in distributing the marital property, the chancellor does not mention the factors set forth in Ferguson , 639 So.2d at 928. Furthermore, the record is silent on the chancellor's reasoning behind the distribution except for one line of the judgment entered on August 26, 2016: "[T]he [c]ourt finds that based upon the testimony and the estimated values of personal and real property that the division is equitable. The [c]ourt also took into consideration the adulterous affair by [Tim]."

¶ 9. Regardless of the omission of the Ferguson factors, the chancellor specifically outlined the Hemsley factors in the question of alimony. Hemsley v. Hemsley , 639 So.2d 909, 913 (Miss. 1994). The record reflects a thorough analysis of the factors under Hemsley , supporting the chancellor's decision to find that Brenda was entitled to permanent alimony in the amount of $200 per month.

¶ 10. On September 6, 2016, Brenda filed a timely motion to reconsider the judgment or to alter or amend the judgment pursuant to Mississippi Rules of Civil Procedure 52(b) and 59(e), respectively. On October 31, 2016, Brenda filed a Rule 60(b) motion to set aside the judgment, claiming that Tim committed fraud on the court.

¶ 11. On November 10, 2016, the chancellor held a hearing on Brenda's motion to reconsider or to alter or amend the judgment. During the hearing, the chancellor declined to address Brenda's Rule 60(b) motion at that time, explaining that "you have to have a final judgment in place before you can set it aside."

¶ 12. After the hearing, the chancellor entered an order on November 21, 2016, amending the final judgment in part. The chancellor deemed the child-support award to be inaccurate and amended the amount of child support to $737 per month. After noticing his error in not setting forth a start date for child-support payments, the chancellor ordered that the child-support payments be made on the first day of each month. The chancellor also increased the award of permanent alimony to $250 per month. Regarding Brenda's Rule 60(b) motion, the chancellor opined that it was not ripe for hearing in his opinion and therefore postponed ruling on the motion.

¶ 13. Regarding the issues not specifically addressed in his order, the chancellor held that "all remaining terms and provisions of the [j]udgment dated August 26, 2016 will remain in full force and effect."

¶ 14. On December 1, 2016, Brenda filed a petition asking that the chancellor find Tim in contempt of court. Brenda claimed that Tim failed to provide her with the transportation she was ordered to receive in the temporary order and failed to pay her attorney's fees in the sum of $4,000. Furthermore, Brenda claimed that Tim failed to pay any child support or alimony for the months of September, October, November, or December of 2016, leaving him in arrears in the amount of $2,948 for child support and $1,000 for alimony.

¶ 15. On December 19, 2016, Brenda filed a timely notice appealing the chancellor's August 26, 2016 final judgment and the November 21, 2016 order partially amending the judgment.

¶ 16. On April 7, 2017, several months after Brenda filed her notice of appeal in this matter, the chancellor entered an order determining that Tim was not in contempt and declining to rule on Brenda's Rule 60(b) motion.

STANDARD OF REVIEW

¶ 17. The Mississippi Supreme Court has long held that a chancellor's findings of fact will not be disturbed unless they are manifestly wrong or clearly erroneous. Sanderson v. Sanderson , 824 So.2d 623, 625 (¶ 8) (Miss. 2002). Specifically in cases concerning alimony, the chancellor's decision "will not be disturbed on appeal unless it is found to be against the overwhelming weight of the evidence or manifestly in error." Tilley v. Tilley , 610 So.2d 348, 351 (Miss. 1992). Likewise, when the equitable division of the marital estate is at issue, the Court has determined that "the chancellor's ruling on the division and distribution will be upheld if it is supported by substantial creditable evidence." Mabus v. Mabus , 890 So.2d 806, 824 (¶ 72) (Miss. 2003).

DISCUSSION

¶ 18. As stated, Brenda presents seven issues on appeal: (1) whether the chancellor analyzed the factors set forth in Ferguson when he distributed the marital property; (2) whether the chancellor erred in his distribution of Tim's Sanderson Farms retirement account; (3) whether the chancellor erred in not awarding Brenda lump sum alimony; (4) whether Brenda should be charged with paying the outstanding loan on the 2009 Dodge Ram; (5) whether the chancellor should have classified and equitably divided the $90,000 insurance policy; (6) whether the chancellor erred in crediting Tim with $1,600 in child-support payments; (7) whether the nature of the entire award by the chancellor can be considered equitable.

¶ 19. In her appellate brief, Brenda refers to issues set forth in an order entered by the chancellor nearly four months after she filed her notice of appeal. In this April 7, 2017 order, the chancellor declined to rule on Brenda's Rule 60(b) motion in which Brenda asserted that Tim committed fraud upon the court regarding the loan on the 2009 Dodge Ram and also denied her petition asking that the chancellor find Tim in contempt. The chancellor declined to rule on the Rule 60(b) motion and stated that he "would hear the Rule 60(b) [motion] after it returns from the appellate court."

¶ 20. Mississippi Rule of Appellate Procedure 3(c) requires the notice of appeal to designate as a whole or in part the judgment or order from which appealed. Although Brenda's notice of appeal only specifies that she is appealing the final judgment and order partially granting her motion for reconsideration, Brenda's appellate brief also discusses issues pertaining to her Rule 60(b) motion and petition for contempt. The chancellor disposed of Brenda's petition for contempt in an order entered after Brenda filed her notice of appeal.

¶ 21. "Ordinarily, once a notice of appeal is filed, jurisdiction transfers from the trial court to the appellate court, thereby removing the trial court's authority to amend, modify, or reconsider its judgment." McNeese v. McNeese , 129 So.3d 125, 128 (¶ 7) (Miss. 2013). However, Rule 60 "confer[s] limited concurrent jurisdiction on the trial court to grant relief from a judgment even though an appeal has been perfected." Id. at (¶ 8) (internal quotation marks omitted) (quoting Griffin v. Armana , 679 So.2d 1049, 1050 (Miss. 1996) ). As long as a party complies with the requirements of Rule 60(b), the trial court retains authority to entertain a Rule 60(b) motion in the action, even after a notice of appeal has been filed. Id. Brenda timely filed her Rule 60(b) motion in the trial court "not more than six months after the judgment." M.R.C.P. 60(b) ; McNeese , 129 So.3d at 128 (¶ 8). Accordingly, the chancellor herein maintained jurisdiction to rule on Brenda's Rule 60(b) motion. The supreme court has held that in cases "where ... the Rule 60 motion is filed and disposed of within the time allowed for appeal from the underlying judgment and the notice of appeal speaks to the judgment and the order disposing of the motion, one notice of appeal is sufficient to bring to this court both the judgment and the Rule 60 order." Brame v. Brame , 796 So.2d 970, 973 (¶ 11) (Miss. 2001). However, because the chancellor declined to rule on the Rule 60(b) motion after Brenda filed her notice of appeal, Brenda's related assignments of error are not properly before us and should have been raised in a separate notice of appeal. Id.

¶ 22. Additionally, regarding Brenda's assignment of error attacking the chancellor's ruling on her petition for contempt, we recognize that "[a]lthough contempt proceedings in divorce cases often are filed in the same cause number and proceed with the underlying divorce case, they are held to be separate actions, requiring new and special summons under Mississippi Rules of Civil Procedure 81." Shavers v. Shavers , 982 So.2d 397, 402 (¶ 25) (Miss. 2008). We therefore find that Brenda's argument regarding the contempt proceedings is not properly before this Court because "the contempt action [is] separate from the divorce judgment cited in the notice of appeal." Williamson v. Williamson , 81 So.3d 262, 277 (¶ 34) (Miss. Ct. App. 2012). We now turn to address Brenda's other issues before us on appeal.

¶ 23. Brenda's remaining claims are extensive and overlapping. Because issues 1, 2, and 5 all hinge on the chancellor's distribution of property under Ferguson , we will consider them together as one issue. Brenda first claims that the chancellor failed to consider her contributions as a homemaker and breadwinner in the property distribution because the chancellor failed to provide on-the-record findings as to the Ferguson factors. She further claims that this led to the chancellor failing to properly categorize and divide the Sanderson Farms retirement account and insurance policy valued at $90,000. Additionally, Brenda claims that this omission of a proper Ferguson analysis leaves the chancellor's distribution in question on the grounds of equity. Finally, Brenda claims that she should not be charged with the $4,000 remaining loan on the 2009 Dodge Ram that she was awarded in the divorce.

¶ 24. The record reveals that although the chancellor articulated the factors in tests like Albright v. Albright , 437 So.2d 1003, 1005 (Miss. 1983), and Hemsley , 639 So.2d at 913, when determining child custody and alimony, the record does not indicate any specific analysis by the chancellor regarding the factors set forth in Ferguson to support the chancellor's equitable division of marital property or the findings set forth. As a result, the record fails to show how the chancellor applied the law and factors to the facts of this case when dividing the marital property. The judgment entered on August 26, 2016, simply states: "The [c]ourt finds that based upon the testimony and the estimated values of personal and real property that the division is equitable. The [c]ourt also took into consideration the adulterous affair by [Tim]," but there is no mention of the specific factors. While the chancellor distributed the property in the judgment, the chancellor failed to provide any on-the-record findings or analysis utilizing the Ferguson factors to explain how he came to his distribution and for this Court to review on appeal.

¶ 25. The Mississippi Supreme Court has dealt with issues involving the failure of chancellors to conduct on-the-record analysis of factor-based tests. Lowrey v. Lowrey , 25 So.3d 274, 280 (¶ 7) (Miss. 2009). Specifically, Lowrey held as follows:

Factor tests, such as provided in Ferguson for property division and Armstrong [v. Armstrong , 618 So.2d 1278, 1280 (Miss. 1993) ] for alimony, must be considered on the record in every case ... [t]hese factor considerations are not only essential for appellate purposes, but also for trial courts, as they provide a checklist to assist in the accuracy of their rulings. Following these guidelines reduces unintended errors that may affect the court's ultimate decision. The absence of an analysis of these factors and failure to apply the law to the facts at hand create error.

Lowrey , 25 So.3d at 280 (¶ 7) (citations omitted); see generally Heimert v. Heimert , 101 So.3d 181 (Miss. Ct. App. 2012).

¶ 26. While the supreme court has determined that these factor tests serve as a check-list in determining their rulings, the court has also said that "not every case requires consideration of all eight of the [ Ferguson ] factors." Owen v. Owen , 798 So.2d 394, 399 (¶ 13) (Miss. 2001) ; see also Vassar v. Vassar , 228 So.3d 367, 378 (¶ 40) (Miss. Ct. App. 2017) (holding that failure to address any Ferguson factors was error that required reversal); Lee v. Lee , 78 So.3d 326, 329 (¶ 10) (Miss. 2012). This Court found in Seghini v. Seghini , 42 So.3d 635, 641 (¶ 21) (Miss. Ct. App. 2010), that a chancellor's "failure to make an explicit factor-by-factor [ Ferguson ] analysis does not necessarily require reversal where we are satisfied that the chancellor considered the relevant facts."

¶ 27. Regardless of the fact that the chancellor in this matter considered the distribution of marital property in the judgment, the record reflects no findings or recognition of the factors set forth in Ferguson and their applicability in the distribution of marital property in this case. Even though this Court has found that the specific analysis demanded in Lowrey is not always appropriate, the record is silent as to the chancellor's basis, relative to the Ferguson factors, for the distribution of marital property in this case.

¶ 28. Because the record lacks sufficient Ferguson findings to allow for appellate review of the chancellor's equitable division of marital property, we reverse and remand the chancellor's judgment.

¶ 29. Brenda also claims that the chancellor erred in failing to award her lump sum alimony. This Court has held that in a divorce proceeding, "[t]he final step requires that the chancellor decide if an equitable division of marital property, considered with each party's nonmarital assets, leaves a deficit for one party; if so, then alimony should be considered." Rodrigue v. Rodrigue , 172 So.3d 1176, 1187 (¶ 42) (Miss. Ct. App. 2014). Furthermore, this court has considered that alimony and the equitable distribution of marital property are "distinct concepts, but together they command the entire field of financial settlement of divorce. Therefore, where one expands, the other must recede." Strickland v. Strickland , 102 So.3d 1216, 1221 (¶ 12) (Miss. Ct. App. 2012) (citing Lauro v. Lauro , 847 So.2d 843, 848 (¶ 13) (Miss. 2003) ).

¶ 30. In order for the chancellor to properly award alimony, he must first complete a proper equitable division of the marital estate to determine if either spouse suffers a deficit that would warrant an award of alimony. See Strickland , 102 So.3d at 1221 (¶ 12) ; Lowrey , 25 So.3d at 292 (¶ 44) ; Godwin v. Godwin , 758 So.2d 384, 387 (¶ 9) (Miss. 1999) (holding that "after an equitable division of [marital] property, the final step the chancellor must complete is a consideration of the need, if any, for alimony"). In the present scenario, because the chancellor failed to provide adequate findings to support his Ferguson analysis in the equitable distribution of marital property, it is unclear to us whether Brenda is entitled to lump sum alimony and if any amount awarded is appropriate. We therefore reverse and remand this case to the chancellor for further proceedings consistent with this opinion.

¶ 31. REVERSED AND REMANDED.

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

GRIFFIS, P.J., DISSENTING:

¶ 32. This Court is not required to reverse a chancellor's "failure to make an explicit factor-by-factor [ Ferguson ] analysis ... where we are satisfied that the chancellor considered the relevant facts." Seghini v. Seghini , 42 So.3d 635, 641 (¶ 21) (Miss. Ct. App. 2010). The majority and I seem to agree that the "relevant facts" require a certain substance - those facts drawn from considering the relevant Ferguson factors when dividing the marital assets. See Ferguson v. Ferguson , 639 So.2d 921, 928 (Miss. 1994). Yet, we disagree on how that substance appears in the chancellor's division of marital property in the record, or in the majority's opinion, if that substance appears in the record.

¶ 33. The majority finds that the chancellor extensively considered the distribution of marital property, and I agree. But, the majority fails to determine that this satisfies "consider[ing] the relevant facts." Seghini , 42 So.3d at 641 (¶ 21). Essentially the majority determines to reverse the chancellor's judgment because the record lacks explicit and specific mention to any of the Ferguson factors. See Ferguson , 639 So.2d at 928. With this reasoning, the majority finds that the chancellor's judgment cannot reflect a consideration of the relevant Ferguson factors without explicitly analyzing them on the record. Id.

¶ 34. This Court has the authority to review the record to determine if the chancellor's division recognizes a consideration of the substance intended by the Ferguson factors, even absent an explicit Ferguson - factor analysis. Seghini , 42 So.3d at 641 (¶ 21). Thus, in reviewing, I find that the chancellor's extensive consideration reflects this, although he does not explicitly mention these factors on the record.

¶ 35. Similar to this Court's determination in Seghini , the record supports that the chancellor extensively considered the estimated value of the marital assets based on the parties' 8.05 financial statements. See Seghini , 42 So.3d at 641 (¶ 21) (finding that chancellor did consider relevant facts when he considered marital property provided on parties' 8.05 financial statements, property's estimated value, and whether parties disputed that property was marital). The record also indicates that the chancellor heard extensive testimony regarding the parties' economic and domestic contributions to the marriage, financial and health needs, disability, tax consequences, and contributions to the stability of the home and marriage.

¶ 36. The Lowrey requirement intends "to assist in the accuracy of [the trial court's] rulings ... [and] reduce[ ] unintended errors that may affect the court's ultimate decision." Lowrey v. Lowrey , 25 So.3d 274, 280 (¶ 7) (Miss. 2009). In our case, the parties shared less than twenty marital assets, and they provided valuations to nearly all assets listed on the respective 8.05 financial statements. This together with the extensive trial testimony indicates that it was not necessary for the chancellor to conduct a full, on-the-record Ferguson analysis to convey his substantial consideration of those factors. Remanding this case for the chancellor to write out his analysis of the Ferguson factors will be a wasteful and unnecessary exercise.

¶ 37. I respectfully find that reversal is not warranted, and thus remand is judicially inefficient. I would affirm the chancellor's judgment.

FAIR AND GREENLEE, JJ., JOIN THIS OPINION.

      This original figure was a typo in Brenda's financial statement. While the record reflects it was corrected by a line scratching through the amount, Tim still agreed that the home was valued at $112,000.

      Three days later, on September 9, 2016, Brenda filed an amended motion to reconsider the judgment or to alter or amend the judgment.

      The record reflects that at the time that Brenda filed her Rule 60(b) motion, her motion to reconsider or alter or amend the judgment was still pending before the chancellor, and therefore the judgment was not final. Rule 60(b) provides an avenue for relief from a final judgment.

      After review of the prior order, the chancellor found that it failed to add Tim's net pay to the initial order granting child support.

      Mississippi Rule of Appellate Procedure 4(a) requires that a notice of appeal be filed "within 30 days after the date of entry of the judgment or order appealed from." However, Mississippi Rule of Appellate Procedure 4(d) states that if a party timely files a Rule 52(b) motion to amend or make additional findings of facts, a Rule 59 motion to alter or amend the judgment, or a motion for relief pursuant to Rule 60, if the motion is filed no later than ten days after the entry of judgment, then the time for appeal "runs from the entry of the order disposing of the last such motion outstanding." Brenda timely filed her motion to reconsider the judgment or to alter or amend the judgment within ten days of the chancellor's judgment, which "tolls the thirty-day time period to file a notice appeal until disposition of the motion by the trial court." Ford v. Miss. Dep't of Human Servs. , 158 So.3d 1241, 1244 (¶ 8) (Miss. Ct. App. 2015). After the chancellor entered his order disposing of Brenda's motion to reconsider the judgment, Brenda filed her notice of appeal within thirty days.

      However, we recognize that the Mississippi Supreme Court has held that if the appellant's statement of issues and brief "clearly show the basis for the appeal, then the issue can be addressed on the merits." Herndon v. Miss. Forestry Comm'n , 67 So.3d 788, 795 (¶ 9) (Miss. Ct. App. 2010) (citing Fletcher v. Lyles , 999 So.2d 1271, 1277 (¶ 25) (Miss. 2009) ).

      Brenda's Rule 60(b) motion therefore "[did] not toll ... the enforceability of [the] judgment" before us on appeal. Ice Plant Inc. v. Grace , 133 So.3d 379, 382 (¶ 5) (Miss. Ct. App. 2014) (quoting Sweet Valley Missionary Baptist Church v. Alfa Ins. Corp. , 124 So.3d 643, 645 (¶ 9) (Miss. 2013) ).