text:
    GENERAL MOTORS, LLC, Appellant v. RYAN MOTORS, INC., Appellee
    NO. 2017-CC-00312-COA
    Court of Appeals of Mississippi.
    November 13, 2018
    ATTORNEYS FOR APPELLANT: THOMAS A. CASEY JR., New Orleans, J. ANDREW GIPSON, KAYTIE MICHELLE PICKETT, Jackson
    ATTORNEY FOR APPELLEE: S. ROBERT HAMMOND JR., Hattiesburg
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. Ryan Motors Inc. (Ryan), a Chevrolet dealer in Hattiesburg, Mississippi, filed an administrative complaint with the Mississippi Motor Vehicle Commission (Commission) after General Motors LLC (GM) approved the relocation request of another Chevrolet dealer to a location ten miles from its dealership. The complaint asserted that by failing to give Ryan notice of the other dealer's relocation, GM violated statutory authority and its franchise agreement with Ryan. The Commission dismissed the complaint, finding that GM was not required to provide notice and that there was no violation. Ryan appealed the dismissal to the Forrest County Chancery Court, which reversed the Commission's decision. Finding the Commission's decision was not "arbitrary or capricious" and was supported by the evidence, we reverse and render the chancery court's judgment, reinstating the Commission's findings.

FACTS AND PROCEDURAL HISTORY

¶ 2. Chevrolet dealer Pine Belt Motors (Pine Belt) was located in Purvis, Mississippi, approximately thirteen miles south of Ryan's location. Pine Belt and Ryan each had a franchise agreement with GM, termed a GM Dealer Sales and Service Agreement (SSA). The SSA assigns each dealer a specific geographic territory known as an "Area of Primary Responsibility" or "APR." Although the two dealers' APRs were contiguous, they did not overlap. Under Article 4.2 of the SSA, GM may revise a dealer's APR "if [GM] determines that marketing conditions warrant a change," but GM is required to give thirty to sixty days' notice to the dealer and allow the dealer to submit information either for or against the change during that period.

¶ 3. In 2015, Pine Belt sought to move its dealership from Purvis to a location outside of the Hattiesburg city limits on Highway 98, ten miles west of Ryan's current location. The proposed location was still within Pine Belt's APR. On June 10, 2015, GM approved Pine Belt's request to relocate its dealership. Aggrieved, Ryan filed a complaint with the Commission on September 3, 2015, alleging GM had violated Article 4.2 of the SSA and Mississippi Code Annotated section 63-17-113 (Rev. 2013) by failing to give Ryan notice of Pine Belt's relocation. Section 63-17-113(1) states:

No person shall modify a franchise agreement during the term of such agreement or upon its renewal if the modification substantially and adversely affects the motor vehicle dealer's rights, obligations, investment, or return on investment without giving sixty (60) days['] written notice of the proposed modification to the motor vehicle dealer and without showing good cause to the commission.

Ryan's argument was that GM's approval of Pine Belt's relocation had effectively modified its SSA since GM may, in the future, propose a change to Ryan's APR due to market conditions, and the failure to give the dealer notice was a violation of due process. GM denied that Ryan's SSA had been modified, noting Pine Belt was merely relocating to an area inside its existing APR; thus, it was not required to give Ryan notice under the statute or the terms of the SSA.

¶ 4. The Commission held a hearing on November 18, 2015. Ryan presented two witnesses: Mickey Ryan, the company's president, and Joe Roesner, an expert witness in dealer network analysis. Mickey Ryan testified that GM's approval of Pine Belt's relocation would negatively impact Ryan's sales. He also claimed that the relocation of Pine Belt effectively modified Ryan's APR and SSA and speculated that once Pine Belt began operations in its new location, GM would change Ryan's APR. Roesner's testimony concerned standard procedures typically utilized by GM in determining whether to approve dealer relocation requests, such as market analyses.

¶ 5. GM brought its Regional Network Manager, David Bott, to the hearing but did not call any witnesses. Instead, GM submitted Bott's affidavit into evidence, in which he testified that Ryan's SSA had not been changed, and GM moved to dismiss Ryan's complaint. On rebuttal, Ryan requested that it be allowed to cross-examine Bott on his affidavit and Roesner's testimony. The hearing officer said that questions concerning Roesner's testimony would not be allowed, but because Bott's affidavit was in evidence, Ryan could cross-examine him on its contents. Ryan decided not to cross-examine Bott and rested its case.

¶ 6. The Commission entered its order on December 16, 2015, concluding there was no evidence that Ryan's SSA had been modified. Although it did not "condone or approve of the manner in which GM approved the relocation" of Pine Belt in opposition to the other dealer's wishes, the Commission found that GM did not violate section 63-17-113(1) and dismissed the complaint.

¶ 7. Ryan filed an appeal with the chancery court, asserting the Commission's findings were "arbitrary and capricious." Noting the Commission's "cryptic" disapproving language toward GM's actions and its failure to allow Ryan the opportunity to "adequately cross-examine" Bott, the court reversed the Commission's decision and awarded Ryan attorney's fees. Ryan filed a motion to amend the judgment, requesting that the court "order GM to withdraw its permission for relocation of Pine Belt," or alternatively, that the court remand the case and require GM to show "it has good cause to allow the relocation" of Pine Belt. Opposing Ryan's motion, GM argued that Ryan's motion was not proper under Mississippi Rules of Civil Procedure 59 or 60 and its "request to enjoin Pine Belt from relocating [was] contrary to law." On February 6, 2017, the chancery court denied Ryan's motion, finding its request for injunctive relief "improper" because the court was "sitting in an appellate posture, and not as a fact finder."

¶ 8. GM appeals the chancery court's reversal of the Commission's decision and requests that the agency's dismissal of Ryan's complaint be reinstated.

DISCUSSION

I. Whether the chancery court erred in ruling that the Commission's findings were "arbitrary and capricious."

¶ 9. The chancery court determined that the Commission had no choice under the statute; its "hands were essentially tied" to rule in GM's favor. Therefore, the court found that the Commission's decision was "arbitrary and capricious," as the "narrow[ ] tailor[ing]" of the rules made it so Ryan had "no way to adequately challenge them." Addressing the Commission's language that it did not "condone or approve" of GM's actions, the court concluded that not requiring GM to give Ryan notice until after the Pine Belt's building was completed "appears to be fundamentally deceptive, misleading and unfair." GM argues the chancery court improperly substituted its judgment for that of the Commission in finding the agency's actions were "arbitrary and capricious."

¶ 10. In reviewing an agency's decision, the appellate court determines "whether or not the order of the administrative agency (1) was unsupported by substantial evidence, (2) was arbitrary or capricious, (3) was beyond the power of administrative agency to make, or (4) violated some statutory or constitutional right of the complaining party." Tillmon v. Miss. State Dep't of Health , 749 So.2d 1017, 1020-21 (¶ 15). The Mississippi Supreme Court has held:

"Arbitrary" means fixed or done capriciously or at pleasure. An act is arbitrary when it is done without adequately determining principle; not done according to reason or judgment, but depending upon the will alone,-absolute in power, tyrannical, despotic, non-rational,-implying either a lack of understanding of or a disregard for the fundamental nature of things.
"Capricious" means freakish, fickle, or arbitrary. An act is capricious when it is 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.

McGowan v. Miss. State Oil & Gas Bd. , 604 So.2d 312, 322 (Miss. 1992).

A. Whether GM violated statutory authority and the terms of the SSA .

¶ 11. One reason given by the chancery court for reversing the Commission's findings was the Commission's "cryptic" language that it did not approve or "condone" GM's actions. However, GM's counsel provided a frank and honest explanation of those comments to the chancellor at the hearing:

I think the reason is because let's face it; this [C]ommission is made up of dealers. These are Mr. Ryan's business colleagues and friends. I don't think it was an easy decision for them to rule in favor of [GM]. I don't - and I mean no disrespect for the [C]ommission whatsoever, but it is a [C]ommission made up of car dealers, and as a manufacturer, it's always somewhat difficult to appear in front of the Commission like that. I think that Mr. Ryan ... [is] an acquaintance of most of the people who were ruling against him.

But despite its disapproval of GM's failure to give notice, the Commission still found that based on the evidence, there was no modification of Ryan's SSA, and therefore, no notice to the dealer was required under the statute or SSA.

¶ 12. When presented with the latest notice of the APR dated November 1, 2015, only two weeks before the hearing, Mickey Ryan admitted to the Commission there had been no written modification to the dealer's APR. Furthermore, a letter sent from Mickey Ryan to GM on November 10, in which he requested a relocation of Ryan Motors to Highway 98, acknowledged there had been no such modification, stating: "As my APR has not been modified by our November 2015 [SSA ], I trust that my request can be reviewed and quickly approved." (Emphasis added). Ryan's expert witness, Roesner, also conceded that he had not seen any modification to Ryan's APR.

Q. Have you seen a written contract that has modified the APR?
A. I haven't seen a new - no, I have not seen such a written contract.
Q. Well, so I'm just having trouble understanding how the franchise agreement has been changed if you haven't seen it and no one in this room has seen it.
A. I haven't seen such a contract, sir.
Q. Who told you that it exists?
A. Nobody told me it exists, sir.
....
Q. And is there any change in [Ryan Motors'] APR from January 2014 to November 2015?
A. I don't think so, no.
Q. Are you aware of any other addendum to the franchise agreement in the past two weeks?
A. I'm not, sir.

¶ 13. We find the evidence or, in this case, the lack thereof, supports the Commission's findings. The only basis for Mickey Ryan's testimony that a modification of his dealership's SSA had occurred was GM's letter approving Pine Belt's relocation and his speculation that Ryan's APR "will change if th[at] facility is relocated." We find this insufficient to conclude that a modification of Ryan's SSA had occurred. See Van Wie Chevrolet Inc. v. General Motors LLC , 145 A.D. 3d 1, 8, 38 N.Y.S.3d 662 (N.Y. App. Div. 2016) (rejecting Van Wie's argument that GM's approval of another dealer's relocation request "ipso facto result[ed] in a modification of [its] franchise for which notice may be required" under the applicable statute). Therefore, because Ryan failed to produce any evidence that GM modified Ryan's franchise agreement, GM was under no obligation to provide the dealer with notice, either under section 63-17-113 or the terms of the SSA.

B. Whether the Commission's decision to restrict the cross-examination of Bott violated Ryan's statutory and constitutional rights .

¶ 14. At the hearing before the chancery court, counsel for Ryan asserted for the first time that the Commission violated Mississippi Annotated Code section 63-17-95 (Rev. 2013), which states that "[a]ll parties whose rights may be affected at any hearing before the Commission shall have the right ... to cross-examine witnesses appearing against them[.]" The chancery court held that not allowing Ryan "the opportunity to adequately cross-examine Mr. Bott" was "essentially a violation of constitutional rights; again leading the [c]ourt to determine that the Commission's ruling is arbitrary and capricious."

¶ 15. GM argues that this issue was waived because Ryan did not raise the issue of due process and section 63-17-95 in the briefs to the chancery court. However, Ryan did assert in its reply brief: "Ryan tried to call Mr. Bott as a witness[,] and the Commission refused to allow him to be questioned on anything but the affidavit. Ryan had no need to ask any questions regarding the affidavit because GM had already confirmed that it was relying on Ryan's witnesses." Therefore, we will address the merits of this issue.

¶ 16. "Administrative hearings are not trials and are thereby not governed by the same rules which are applicable to courts of law." Pub. Emps. Retirement Sys. v. Stamps , 898 So.2d 664, 677 (¶ 45) (Miss. 2005) (citing United Cement Co. v. Safe Air for the Env't Inc. , 558 So.2d 840, 842 (Miss. 1990) ). Ryan argues section 63-17-95 provided a statutory right to cross-examine a witness at a hearing "appearing against them" before the Commission. However, Bott did not testify against Ryan at the hearing; only his affidavit was admitted into evidence. The Commission's hearing officer allowed Ryan to cross-examine Bott. Cross-examination was simply limited to the contents of Bott's affidavit. At that point, Ryan made the choice not to cross-examine Bott, and counsel rested. Therefore, we cannot find that Ryan was denied the opportunity to cross-examine the witness.

¶ 17. We find that there was nothing "arbitrary or capricious" about the Commission's findings and that the chancery court substituted its judgment for that of the agency. We reverse and render the court's findings and reinstate the Commission's order.

II. Whether the chancery court erred in awarding Ryan attorney's fees.

¶ 18. GM also argues the court lacked a legal basis for awarding Ryan attorney's fees and costs under Mississippi Code Annotated section 63-17-101 (Rev. 2013), which provides:

Any licensee suffering pecuniary loss because of any willful failure by any other licensee to comply with any provision of the Mississippi Motor Vehicle Commission Law or with any rule or regulation promulgated by the commission under authority vested in it by said law may recover reasonable damages and attorney fees therefor in any court of competent jurisdiction.

Based on our decision to reverse and reinstate the Commission's finding that GM did not violate any rules or regulations, we likewise reverse the chancery court's award of attorney's fees to Ryan.

¶ 19. REVERSED AND RENDERED.

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

      Ryan had filed an earlier complaint on August 19, which the dealer later withdrew, conceding it lacked legal standing under the statutory authority relied upon in the complaint.

      This assertion was the basis for Ryan's claim that Bott's affidavit had been waived and was not properly in evidence because GM said it was calling him as a witness at the hearing and failed to do so.


source: Caselaw Access Project

author: BARNES, J., FOR THE COURT:

license: Public Domain

text:
    Clifton Dale CRAYS, Appellant v. PSL NORTH AMERICA and Berkley National Insurance Company, Appellees
    NO. 2017-WC-01720-COA
    Court of Appeals of Mississippi.
    November 13, 2018
    ATTORNEY FOR APPELLANT: JAMES KENNETH WETZEL, GULFPORT
    ATTORNEY FOR APPELLEES: M. REED MARTZ
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. Clifton Dale Crays had a work-related accident on September 25, 2013. Although his employer, PSL North America, and its carrier, Berkley National Insurance Company (Appellees), compensated Crays for his neck injury, they denied compensability for his lower back/lumbar condition, claiming it was pre-existing and not causally related to the accident. After a hearing, the Mississippi Worker's Compensation Commission's (the Commission) administrative judge (AJ) determined that Crays's lumbar injury "arose out of and in the course of his employment." On appeal, the full Commission reversed the AJ's order, finding that "the greater weight of the medical proof fails to establish the necessary causation between Claimant's work injury and his alleged lumbar injury claim." Because the Commission's decision is based on substantial evidence, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On September 25, 2013, Crays "was lifting water coolers from [a] forklift to [a] deck[,] and as [he] lifted one of the coolers[, he] felt a burning from [his] neck to [his] right shoulder and dropped the cooler." A witness confirmed that when Crays dropped the cooler, he "grabbed his right shoulder and [win]ced in pain." On the job-injury report, Crays identified the location of his injury as the neck area of his upper "front" torso. Crays was treated at Hancock Medical Center by Jamie Rutherford, NP-C. His chief complaint was "shoulder pain ... [and r]eports picking up [a] heavy object with sudden onset of neck pain and radiation to right arm." Although Crays reported no back pain during his exam, his medical history did note "[c]hronic back pain." The medical assessment was of "cervicalgia" and "unspecified essential hypertension."

¶ 3. Crays had previously undergone two lumbar surgeries-one on July 14, 2009, and one on October 19, 2011-and had been taking Lortab and Soma several times daily since January 2010 to manage his pain. On September 19, 2013, days before the accident, Crays went to his neurosurgeon, Dr. Eric H. Wolfson, complaining of "increased back pain" and "neck and right arm pain." Dr. Wolfson ordered CT scans of Crays's cervical and lumbar spine; however, the scans were not performed until October 1, 2013, six days after the accident. The MRI of the cervical spine revealed "multilevel cervical degenerative changes ... most severe at C5-6 where diffuse disc bulge, uncovertebral joint, and facet arthropathy, result in effacement of the right aspect of the ventral cord, moderate central canal stenosis, moderate right, and mild to moderate left neural foraminal stenosis." The lumbar-spine MRI was compared to one from November 13, 2012, and revealed that his lumbar condition was essentially "unchanged," but the comparison did note that mild neural foraminal stenosis was "present on the left at L4-5 and bilaterally at L3-4." Dr. Wolfson diagnosed Crays with "herniated disc, cervical w/o myelopathy" and ordered physical therapy (PT) three times a week for four weeks.

¶ 4. Crays saw his pain-management specialist, Dr. Ramakrishna Settipalli, on October 3, noting pain in the "lower back, right side of neck and shoulder." The "history of present illness" reported:

[G]radual onset of constant episodes of severe bilateral lower back pain, described as sharp, burning and tingling, radiating to the bilateral buttock, bilateral thigh, bilateral lower leg and bilateral foot. Episodes started about 6 years ago .... Symptoms are unchanged . Risk Factors: smoking, but not ... recent trauma ... Medical History: herniated disc (s), but not depression, DJD of back, spondylosis, malignancy, sciatica and spinal fracture.... ( [Patient] states has right side of neck and shoulder, lower back pain).... [G]radual onset of constant episodes of severe bilateral anterior upper, bilateral posterior upper and bilateral anterior lower leg pain, described as stinging, radiating to the bilateral thigh, bilateral knee and bilateral lower leg. Episodes started about 6 years ago . His symptoms are caused by no known event .... Symptoms are unchanged. ... 46 y/o [C]aucasian male c/o severe back and leg pain caused by degenerative disc disease and wear and tear referred by Dr. Wolfson. He has tried [PT] and it didn't help much. He has had cortisone shots in his back and it didn't help. He then had [two] back surgeries afterwards. He currently takes Lortab, Flexeril [,] and Soma for the pain and it helps a little with the pain.

(Emphasis added). After reviewing the recent MRIs and conducting a physical examination, Dr. Settipalli's assessment was cervical and lumbar neuritis (L6-S1), lumbar radiculopathy (A1-L4), lumbar spondylosis, segmental dysfunction of the sacrococcygeal region, and failed back syndrome. With regard to the lumbar condition, Dr. Settipalli noted that an injection on March 6, 2013, had given Crays "relief without any complications," that Crays had hardware in his lumbar spine, and that the "[l]umbar [p]ain duration [and] intensity improved with Lortab." He recommended repeating both a sacroiliac joint injection and left greater trochanteric bursitis (GTB) injection "done on June 6th, [20]12, April 2nd, 2012 with good relief."

¶ 5. On January 10, 2014, Crays reported to Dr. Wolfson and complained of neck and lower back pain and that PT provided no relief. Dr Wolfson's assessment was cervical radiculitis, and the treatment plan was for a Cervical Epidural Steroid Injection (CESI). On January 17, 2014, Dr. Wolfson ordered an Anterior Cervical Diskectomy and Fusion with instrumentation (ACDF).

¶ 6. Crays filed a petition to controvert with the Commission on January 30, 2014, alleging the September 25, 2013 accident caused injury to his "[n]eck, shoulders, arms, back and legs." On March 14, 2014, Crays was given an independent employee medical examination (EME) by Dr. Terry Smith, who noted Crays's two prior back surgeries and that he routinely sees Dr. Settipalli to manage his pain. Dr. Smith further noted the presence of neck and back pain and diagnosed neck pain, shoulder pain and cervical disc displacement. Reviewing the MRI, Dr. Smith found "C5-6 disc protrusion" and recommended a CESI, or surgery, if the CESI failed to give relief.

¶ 7. After Crays saw Dr. Wolfson on June 3, 2014, complaining of neck pain and pain intensity of eight of ten, the neurosurgeon ordered an ACDF for C5-6. On June 20, 2014, the AJ entered an order, noting that the Appellees admitted compensability for the cervical surgery and "all temporary total disability benefits ... from the date of the accident through the present ... until [Crays] reaches maximum medical improvement." After the June 2014 surgery, Dr. Settipalli examined Crays's cervical spine and the shoulder joint on July 23, 2014, and recommended an x-ray and MRI of the lumbar spine "to evaluate the source of pain." In Dr. Settipalli's September 23, 2014 notes, he recommended "considering [PT,] including deep myofascial release, deep massage, mobilization, hot moist heat, home exercise program, TENS units[,] or ultrasound for his lower back [and n]eck pain if needed."

¶ 8. On January 6, 2015, Crays reported severe and debilitating neck pain to Dr. Wolfson, but "[n]o back pain" was indicated in the clinical notes. Dr. Wolfson's summary reflects that compensation for post-operative PT was denied and that an MRI was needed to evaluate whether the fusion had a possible disk fragment, scar tissue, or seroma. Dr. Wolfson ordered an electromyogram and nerve-conduction study to evaluate nerve damage and referred Crays to Behavior Health for "severe depression" and "decreased quality of life secondary to injury at work."

¶ 9. On May 22, 2015, Crays filed a motion for medical treatment with the Commission, alleging he continued to suffer "severe and disabling neck, shoulder, arm, back and leg pain and severe depression." On June 1, 2015, Crays reported to Dr. Wolfson "severe neck pain radiating to right greater than left upper extremity." As Crays had failed conservative management and symptoms interfere[d] with his usual daily activities," Dr. Wolfson recommended ACDF at C6-7 with instrumentation and possible removal of instrumentation at C5-6. Crays also complained "of low back pain with occasional bilateral lower extremity weakness." On June 24, 2015, the AJ ordered that the Appellees pay for all treatment recommended by Dr. Wolfson and Memorial Behavioral Center (for Crays's depression).

¶ 10. On July 7, 2015, Crays again complained to Dr. Wolfson of neck pain; the only reference to the lumbar area was: "No pain on palpation and percussion of spine. Straight leg raise test 90 degrees painless bilaterally." On July 10, 2015, Crays had the ACDF C6-7 surgery. The July 20, 2015 notes of his post-operative visit made no reference to the lumbar spine other than the same report of no pain. The physical exam at his second post-operative visit on August 24, 2015, evidenced lumbar pain on palpitation and percussion. The second assessment, after cervical neuritis, was degeneration of lumbar intervertebral disc.

¶ 11. In November 2015, Crays reported neck and lower-back pain to Dr. Wolfson after a "fall last week." Dr. Wolfson ordered an x-ray of the cervical and lumbar spine and an MRI of the lumbar spine "[i]n view of worsening low back pain." The MRI was performed January 4, 2016, and compared to the October 1, 2013 image. The report stated:

Overall vertebral alignment is intact. There is mild anterior wedging of the L1 and T12 vertebral bodies, stable from the 2013 MRI . Vertebral body heights are otherwise maintained. The skeletal structures are otherwise intact. Lateral osteophytes are most pronounced at L2-L3 and L3-L4. [D]iscogenic sclerosis is noted at L3-L4.

(Emphasis added). The report's conclusion was "multilevel degenerative disease," but found "otherwise no acute radiographic abnormality." On January 11, 2016, Dr. Wolfson's medical assessment was "[l]umbar spinal stenosis, moderate to severe L3-4," and he recommended a "L3-4 decompressive laminectomy and possible fusion with instrumentation."

¶ 12. Crays filed another motion with the Commission for medical treatment on April 7, 2016. The Appellees requested that a hearing be held on the compensability of Crays's lumbar condition. Crays received an EME by Dr. Eric Graham on May 31, 2016, who opined that although lumbar surgery was indicated, as the MRI showed worsening stenosis, the condition was pre-existing and "not worsened by the work injury of [September 2013]." Dr. Graham based his opinion "on [Crays's] subjective complaints at the time of the injury as recorded by all of his providers" and no change in his medications immediately following the injury. Further, Dr. Graham noted that Crays did not mention his lower back pain becoming worse to Dr. Wolfson and that the MRI at that time "showed no real interval change from [November 2012]. There was also moderate L3-4 stenosis notes at this time." Crays was under treatment by Dr. Settipalli for pain services for the lumbar spine at the time of the work injury, yet there was no mention of the accident or worsening of condition in those records.

¶ 13. A hearing was held before the AJ on July 19, 2016, on the issue of whether Crays's lower back condition was causally related to the September 25, 2013 accident. After the hearing, Dr. Wolfson reviewed Dr. Graham's report but was still of the opinion that the industrial accident precipitated, contributed, or accelerated the lumbar condition at L3/4, and that surgery was medically reasonable and necessary as a result of the injury Crays sustained. No explanation was given as to the failure of his notes to reflect worsening of the lumbar spine after the accident. The AJ entered her order on February 28, 2017, finding Crays had "proven that his injury arose out of and in the course of his employment and that causal connection ha[d] been shown between the employment and the injury."

¶ 14. On December 4, 2017, the Commission reversed the AJ's order and dismissed Crays's lumbar-injury claim based on Crays's history of chronic back pain prior to 2013 and the lack of evidence that his lumbar condition was worsened by the September 2013 work injury. Aggrieved by the Commission's decision, Crays appeals.

STANDARD OF REVIEW

¶ 15. Our review of a Workers' Compensation appeal "is limited to a determination of whether the decision of the Commission is supported by substantial evidence." Casino Magic v. Nelson , 958 So.2d 224, 228 (¶ 13) (Miss. Ct. App. 2007). The Commission is "the ultimate finder of facts[, and] its findings are subject to normal, deferential standards upon review." Id. (citing Natchez Equip. Co. v. Gibbs , 623 So.2d 270, 273 (Miss. 1993) ). "We will only reverse the Commission's rulings where [the] findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious." Id. (citing Westmoreland v. Landmark Furniture , 752 So.2d 444, 448 (¶ 8) (Miss. Ct. App. 1999) ).

DISCUSSION

¶ 16. Crays argues that the Commission's order is not supported by substantial evidence. "In order to prevail on a claim for workers' compensation benefits, the claimant must prove by a preponderance of the evidence that he suffered 'an accidental injury arising out of and in the course of his employment, and a causal connection between the injury and the claimed disability.' " Bryan Foods Inc. v. Ewing , 127 So.3d 280, 284 (¶ 18) (Miss. Ct. App. 2013) (quoting S. Miss. Elec. Power Ass'n v. Graham , 587 So.2d 291, 294 (Miss. 1991) ). Crays claims that "the factual circumstances and medical evidence supported a finding of a compensable injury," noting that after his lumbar surgery in 2011, he was able to return to work without limitations or restrictions until the date of his injury. He also cites Dr. Wolfson's opinion that the work injury accelerated Crays's lumbar condition.

¶ 17. We find there is substantial evidence to support the Commission's finding that Crays's lumbar injury was not caused by, or aggravated by, the September 2013 accident. As stated, the Commission is the "ultimate" fact-finder in a Workers' Compensation case. Before the accident, Crays had two back surgeries and had been routinely taking prescription pain medication for years for his back condition, even providing his employer with a list of those medications. Days before the accident, he saw Dr. Wolfson for increasing back pain, acknowledging at the hearing: "The stinging just seemed like it was just accelerating in my back." Additionally, he was receiving pain-management treatment from Dr. Settipalli for his back before the accident. Dr. Settipalli's medical notes from October 2013, days after the incident occurred, stated that Crays had lower back pain for six years and his symptoms were "unchanged."

¶ 18. Dr. Wolfson, Crays's treating physician, opined that the injury accelerated Crays's back condition. However, "Mississippi law does not require deference be given to the claimant's treating physician." Eaton Corp. v. Brown , 130 So.3d 1131, 1139 (¶ 40) (Miss. Ct. App. 2013). Dr. Graham's opinion, although acknowledging that "surgery was indicated," concluded that the worsening of the stenosis was "related to the pre-existing condition." He noted that Crays did not report any back issues to the nurse practitioner who examined him after the accident, and the MRI conducted by Dr. Wolfson in October 2013 "showed no real interval change from [November 2012]." This Court has held:

[T]he Commission is also the ultimate judge of the credibility of witnesses." Barber Seafood Inc. v. Smith , 911 So.2d 454, 461 (¶ 27) (Miss. 2005). When the evidence presented by witnesses on a particular issue is conflicting, we are not empowered to determine where the preponderance of evidence lies. Id. Instead, "this Court must affirm the decision of the Commission where substantial credible evidence supports the Commission's order." Id.

Manning v. Sunbeam-Oster Household Prod. , 979 So.2d 736, 740 (¶ 13) (Miss. Ct. App. 2008). Because there was substantial and credible evidence to support the Commission's findings, we affirm the order.

¶ 19. AFFIRMED.

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

      The October 2, 2013 "history of present illness" reported that Crays had continued pain in his neck and lower back, with the neck pain becoming severe after his accident. His pain was rated a six out of ten on the pain-intensity scale.

      This same history was included without change in Crays's records of his visits to Dr. Settipalli from November 2013 through October 2015.

      On October 15, 2013, Crays also consulted Dr. Basil Shah, for neck pain and numbness. Dr. Shah assessed Crays with arthritis and cervical neuritis and recommended a cervical epidural injection. The only mention of back pain was in his medical history.

      These are the notes from 10:58 a.m. There are also notes from 4:29 p.m. that do not refer to current lumbar or back pain. Dr. Wolfson's notes of January 13, 2014, also failed to reference lumbar or lower back pain.

      Dr Settipalli's notes of November 24, 2014, indicate that he "did bilateral GTB injections ..., recommend BS Injections. [Crays] complains of severe hip pain on abduction of hip joints recommended trochanteric bersa injection." On December 22, 2014, Dr. Settipalli performed a steroid injection to Crays's sacroiliac joint, right and left. A bilateral sacroiliac joint steroid injection was again performed on May 13, 2015. In his June 18, 2015 assessment, Dr. Settipalli listed "failed neck syndrome" instead of "failed back syndrome."

      A cervical-spine MRI was performed on February 2, 2015, and compared to the MRI of October 1, 2013, revealing stenosis "significantly improved" at C5-6. An electromyogram was performed on March 20, 2015 due to complaints "of neck pain with bilateral upper extremity pain and numbness." Everything was within normal limits.


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

text:
    Earl BATES, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-01316-COA
    Court of Appeals of Mississippi.
    November 13, 2018
    ATTORNEY FOR APPELLANT: EARL BATES (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN
    BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Earl Bates appeals the dismissal of his motion for post-conviction collateral relief (PCCR). We find no error and affirm. We additionally render sanctions in the amount of $100 for the repetitive and frivolous filings of motions, to be paid before Bates may file any subsequent motions.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 1995, Bates was convicted in the Circuit Court of Pike County of one count of murder and two counts of aggravated assault. Bates was sentenced as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2014) to life for the murder conviction and twenty years for each aggravated-assault conviction, to be served consecutively to his life sentence.

¶ 3. In 1997, Bates's convictions and sentences were affirmed on direct appeal. In the years following the affirmance, Bates has filed numerous motions for PCCR in both the circuit court and the supreme court.

¶ 4. On March 13, 2017, Bates filed an application for leave to proceed in the circuit court. On May 5, 2017, the supreme court entered an order dismissing Bates's request for leave to proceed in the circuit court. Specifically, the supreme court found that Bates's motion was untimely, barred as a successive writ, and without merit. Despite the dismissal, Bates filed his motion for PCCR in the circuit court on June 19, 2017.

¶ 5. Bates filed another application for leave to proceed in the circuit court on June 28, 2017. But on August 2, 2017, the supreme court, once again, dismissed Bates's application.

¶ 6. On October 2, 2017, the circuit court dismissed Bates's motion for PCCR for a lack of jurisdiction due to Bates's failure to obtain leave. Bates timely appealed.

¶ 7. The State subsequently moved to dismiss Bates's appeal and for sanctions due to his continued filing of frivolous motions. Both the motion to dismiss and the motion for sanctions were passed for consideration with the merits of Bates's appeal.

STANDARD OF REVIEW

¶ 8. The circuit court may dismiss a motion for PCCR when "[i]t plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief ...." Miss. Code Ann. § 99-39-11(2) (Rev. 2015). We review a circuit court's denial or dismissal of a PCCR motion for abuse of discretion. Wallace v. State , 180 So.3d 767, 769 (¶ 7) (Miss. Ct. App. 2015). Questions of law are reviewed de novo. Id.

ANALYSIS

I. Jurisdiction

¶ 9. As the procedural history of this case reflects, Bates's convictions and sentences were affirmed on direct appeal in 1997. See Bates v. State , 205 So.3d 1126, 1128 (¶ 9) (Miss. Ct. App. 2016). Pursuant to Mississippi Code Annotated section 99-39-7 (Supp. 2014), permission must be obtained from the Mississippi Supreme Court in order to seek post-conviction relief in the circuit court when a case is affirmed on direct appeal. Bradford v. State , 158 So.3d 1202, 1204 (¶ 9) (Miss. Ct. App. 2015).

¶ 10. Here, Bates filed two applications for leave to proceed in the circuit court. The supreme court subsequently dismissed both applications. Because Bates filed his motion for PCCR without permission from the supreme court, the circuit court lacked jurisdiction to consider the motion. Id. Thus, we affirm the circuit court's dismissal of Bates's motion for PCCR.

II. Motion to Dismiss Appeal

¶ 11. Because we have addressed Bates's appeal and affirmed the circuit court's judgment, we dismiss the State's pending motion to dismiss the appeal as moot.

III. Motion for Sanctions

¶ 12. The State requests that we sanction Bates for filing repetitive and frivolous motions, arguing that Bates's filings are a waste of court personnel, materials, and time. This Court, as well as the circuit court, is vested with the authority to impose sanctions on pro se litigants for frivolous filings. Walker v. State , 35 So.3d 555, 560 (¶ 21) (Miss. Ct. App. 2010). The sanctions may take the form of monetary sanctions and appropriate restrictions on future filings, or forfeiture of an inmate's accrued and earned time. See id. ; see also Haynes v. State , 174 So.3d 953 (¶ 3) (Miss Ct. App. 2015) (citing court order where pro se appellant was sanctioned $100 for frivolous filings).

¶ 13. The record shows that in February 2012, the supreme court warned Bates that "the filing of additional frivolous filings [would] subject [him] to sanctions." Thereafter, in December 2012, the supreme court sanctioned Bates $100 for the continued filing of frivolous motions.

¶ 14. In its May 5, 2017 order dismissing Bates's application for leave to proceed in the circuit court, the supreme court noted that Bates had filed six previous motions for post-conviction relief. Moreover, the supreme court found that Bates's present motion for PCCR was untimely, successive, and without merit. Yet, despite the supreme court's dismissal of his application and the supreme court's comments regarding his motion, Bates proceeded to file his motion for PCCR in the circuit court. We find Bates's motion for PCCR exhibits a blatant disregard of the procedural rules and the orders of the court and therefore grant the State's motion for sanctions.

¶ 15. Bates is hereby ordered to pay a sanction in the amount of one hundred dollars ($100). The Mississippi Supreme Court Clerk and the Mississippi Department of Corrections are to make all necessary accommodations for the proper receipt of the sanction.

CONCLUSION

¶ 16. Bates failed to obtain leave to proceed in the circuit court pursuant to section 99-39-7. As a result, the circuit court lacked jurisdiction and properly dismissed Bates's motion for PCCR. We therefore affirm the circuit court's judgment.

¶ 17. Additionally, due to Bates's disregard of the procedural rules and court orders, we grant the State's motion for sanctions and render sanctions in the monetary amount of $100 to be paid before Bates may file an additional motion.

¶ 18. AFFIRMED.

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

      In 1982, Bates pleaded guilty to the charge of aggravated assault and was sentenced to serve eight years in the custody of the Mississippi Department of Corrections (MDOC). Thereafter, in 1990, Bates pleaded guilty to the charge of carrying a concealed weapon by a convicted felon and was sentenced to serve one year in the custody of the MDOC. These two prior felony convictions served as the factual basis for Bates's indictment as a habitual offender in 1995.

      The circuit court additionally dismissed Bates's motion for PCCR on October 23, 2017. It is unclear why the circuit court filed two orders for Bates's single motion for PCCR; however, this order is written verbatim to the October 2, 2017 order.


author: WILSON, J., FOR THE COURT:

text:
    Victor L. MCBEATH a/k/a Victor McBeath, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-01090-COA
    Court of Appeals of Mississippi.
    November 13, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: W. DANIEL HINCHCLIFF, CLARKSDALE
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER, JACKSON
    BEFORE LEE, C.J., WILSON AND WESTBROOKS, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. Following a jury trial in the Neshoba County Circuit Court, Victor McBeath was convicted of first-degree murder and first-degree arson. On appeal, McBeath argues that his trial counsel provided ineffective assistance by failing to investigate or present an insanity defense and by failing to object to certain opinion testimony from law enforcement officers. We conclude that the present record is insufficient to address McBeath's claim. Therefore, we dismiss the claim without prejudice. McBeath may assert the claim in a properly filed motion for post-conviction relief. McBeath's convictions and sentences are affirmed.

FACTS AND PROCEDURAL HISTORY

¶ 2. On the evening of November 25, 2015, McBeath and his brother Demonta were "chilling" with some friends at a house in Walnut Grove. Between 9 and 10 p.m., McBeath drove back to his father's house in Neshoba County, where he and Demonta lived. Fifteen to thirty minutes later, Demonta did the same. When Demonta arrived home, McBeath was on the couch in the living room, where he usually slept. Demonta testified that McBeath was "acting delusional, psychotic, and he was talking out of his head." Demonta briefly talked to McBeath and then went to his bedroom, locked his door, and went to sleep. Demonta testified that when he went to bed, McBeath was still pacing in the living room and talking to himself. Their father, Ozie, was already asleep in his bedroom.

¶ 3. Around 3:30 or 4 a.m., Demonta awoke to a gunshot and a scream. He jumped out of bed and ran into the hallway. He then saw McBeath walking toward him with a shotgun. McBeath did not say anything at first, but he seemed "angry"-"[h]is eyes were bulged and he seemed dysfunctional." Demonta testified that McBeath then said to "get the baby," although there was no baby in the house. When McBeath pointed the gun at him, Demonta "tried to make a run for it." He knocked over a dresser, broke out a window, and tried to climb out. But McBeath still had the gun pointed at him. Demonta begged McBeath not to shoot him. When McBeath paused briefly, Demonta charged at him, knocked him down, and took the gun. Demonta asked McBeath what he had done, and McBeath said, "Monta, I'm sorry."

¶ 4. Demonta, now holding the shotgun, ran to Ozie's bedroom. He saw blood on a pillow but did not see Ozie, so he began searching other rooms. While Demonta looked for Ozie, McBeath found a rifle. Demonta and McBeath ran into each other outside Ozie's bedroom. Demonta hit McBeath with his shotgun, and a fight ensued. Demonta was able to take the rifle from McBeath, and he then continued his search for Ozie. Demonta finally found Ozie on a daybed in the living room. Ozie had been shot in the back of the head and appeared to be dead. Demonta then used a padlock to lock the shotgun and rifle in a bedroom, and he left the house in Ozie's Chevy Tahoe. As Demonta drove away, McBeath was pacing in the yard and still "talking out of his head."

¶ 5. Neshoba County deputy sheriffs Colby Clay and Greg Tubby went to the house to investigate. Clay knew McBeath because he had been called to the house several times on "disturbance calls" involving McBeath and Ozie. Clay and Tubby initially knocked on the door and waited, but after they saw fire coming out of a window, they kicked open the front door and entered the house. Once inside, they saw Ozie on the daybed. They tried to look for others, but there was too much smoke, so Tubby retrieved a fire extinguisher from their car and used it to put out the fire. Clay found a space heater in the dining room near the spot where the fire appeared to have started. Clay testified that he did not smell any accelerants at the time.

¶ 6. Clay and Tubby then moved to the backyard. There was a tree line fifty feet or so behind the house, and Clay shined his flashlight into the trees and called, "Victor, come out." After he called two or three times, McBeath responded, "Mr. Clay, I'm coming out." McBeath then came out of the trees, and Clay handcuffed and arrested him. Clay testified that McBeath's "demeanor was a bit spacey." McBeath was responsive as long as Clay could keep "his attention," but he was also "mumbling" to himself incoherently. Clay testified that McBeath "was acting different" that night than during their prior encounters, but Clay did not smell any alcohol on McBeath. Clay said it was "possible" that McBeath was under the influence of drugs.

¶ 7. Investigator Ralph Sciple determined that Ozie was shot in his bedroom while still lying down in his bed and then dragged through the house to the daybed. Sciple found the rifle and shotgun, a Winchester, in a locked bedroom and a pistol under Ozie's pillow. Sciple, who was also the arson investigator for Neshoba County, examined the dining room and the space heater and determined that the fire was set intentionally because "[t]here was nothing else there that would ... set it on fire." He testified that the space heater was not turned on at the time of the fire, so it could not have caused the fire.

¶ 8. Sciple was unable to interview McBeath at the time of his arrest because he seemed to be "under the influence of something." However, Sciple and Sheriff Tommy Waddell interviewed McBeath in jail a few days later. McBeath waived his Miranda rights and agreed to talk to Sciple and Waddell without an attorney. Sciple testified that McBeath did not appear to be under the influence of drugs or alcohol at the time of the interview. McBeath told Sciple and Waddell that he could not remember much about killing Ozie. McBeath said repeatedly that he was "on some bad dope and went crazy." He told Sciple that the "bad dope" was methamphetamine.

¶ 9. McBeath told Sciple that he remembered shooting Ozie, but he did not know why he did it. He said that he moved Ozie to the living room to try to get help. McBeath also admitted that he started the fire, but he said he could not remember what he used to start it. The interview was not recorded, and McBeath declined to make a written statement.

¶ 10. McBeath was indicted for first-degree murder and first-degree arson. His attorney, James E. Smith III, filed a motion for a psychiatric evaluation to determine his competence to stand trial. In his motion, Smith stated that he believed that McBeath was mentally ill and unable to assist in his own defense. The court ordered an evaluation and directed the psychiatrist to assess McBeath's present ability to assist in his own defense and competence to stand trial. The court's order also directed the psychiatrist to assess McBeath's ability to know the difference between right and wrong at the time of the offense.

¶ 11. Dr. Mark Webb evaluated McBeath. In his report, Webb noted that McBeath denied killing Ozie and claimed that "they have the wrong person." McBeath told Webb that he had "fired [Smith]" and wanted a new attorney because Smith "was not listening to [him]." Webb noted that McBeath had no history of mental illness and was not taking any medications, although he claimed to have smoked "a lot of marijuana" prior to his arrest. Webb described McBeath as "cooperative, logical and coherent, [and] fairly cheerful." McBeath told Webb that he had not experienced any hallucinations, delusions, or manic episodes. Webb found that McBeath's insight, judgment, memory, and concentration were all "good." Webb further noted that "McBeath laugh[ed] and joke[d] a good bit during the interview," and McBeath was adamant that he was "not crazy." Webb's only diagnosis was "Alcohol and Marijuana Use Disorder," which he based on McBeath's own descriptions of his alcohol and drug use. Webb concluded, "McBeath is competent to stand trial and is not criminally insane."

¶ 12. At a subsequent hearing, Webb reaffirmed the substance and conclusions of his report. Webb testified that McBeath understood his legal situation and the charges against him. Indeed, Webb testified that McBeath was "actually a fairly intelligent person" with no history of mental health issues. Webb testified that McBeath was competent to stand trial. He also testified that there was no evidence of any M'Naghten issue and that McBeath had no mental health issues other than alcohol and marijuana use. Webb testified that he found "no reason to suggest that [McBeath] was insane at the time of the [offense]." He found McBeath to be "stone cold psychiatrically normal, except for his history of alcohol and drug abuse."

¶ 13. McBeath did not testify or call any witnesses at his competency hearing. At the end of the hearing, the trial judge ruled that McBeath was competent to stand trial.

¶ 14. Smith also filed a pretrial motion to withdraw as McBeath's counsel on the ground that McBeath had refused to cooperate or discuss the facts of the case. According to Smith's motion, McBeath also claimed during one meeting that Sheriff Waddell had "stolen his mind." The circuit court held a hearing on Smith's motion to withdraw on the same day as McBeath's competency hearing. Two lawyers testified. Both had accompanied Smith to meet with McBeath and corroborated the substance of Smith's motion. One confirmed that McBeath had said something to the effect that the sheriff had stolen his mind.

McBeath declined to testify during the hearing on Smith's motion to withdraw. At the conclusion of the hearing, the trial judge found-based on Dr. Webb's report and testimony-that McBeath clearly had the ability to cooperate with counsel. The judge then admonished McBeath to start cooperating with Smith, and he denied Smith's motion to withdraw.

¶ 15. McBeath's case proceeded to trial on July 5-6, 2017. Demonta, Clay, Sciple, and three expert witnesses testified in the State's case-in-chief. Expert testimony established, among other things, that Ozie's DNA was on the shirt that McBeath wore on the night of the murder; that shotgun hulls found in Ozie's bedroom matched the Winchester shotgun; that Ozie died from a single shot to the back of the head; and that the shotgun was in direct contact with Ozie's head when it was fired. After the State rested, McBeath declined to testify and rested without calling any witnesses. The jury found McBeath guilty of first-degree murder and first-degree arson. The court sentenced McBeath to life imprisonment for murder and twenty years in the custody of the Department of Corrections for arson, with the sentences to run consecutively. McBeath filed a motion for judgment notwithstanding the verdict or a new trial, which was denied, and a timely notice of appeal.

ANALYSIS

¶ 16. On appeal, McBeath asserts that his trial counsel provided ineffective assistance by "failing to raise an insanity defense and/or present an insanity defense instruction" and by failing to interview witnesses to "investigate" a potential insanity defense. McBeath also argues that trial counsel was ineffective because he "fail[ed] to object to speculative opinion testimony by police officers." We address these issues in turn below.

¶ 17. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on such a claim, the defendant must show both (1) "that counsel's performance was deficient"-i.e., "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"-and (2) that he was prejudiced as a result-i.e., "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 104 S.Ct. 2052. Stated differently, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. "If either prong [of the Strickland test] is not met, the claim fails." Havard v. State , 928 So.2d 771, 781 (¶ 8) (Miss. 2006).

¶ 18. Ordinarily, a claim of ineffective assistance should be raised in a motion for post-conviction relief, not on direct appeal. We have explained that

[i]t is unusual for this Court to consider a claim of ineffective assistance of counsel when the claim is made on direct appeal because there is usually insufficient evidence within the record to evaluate the claim. Because an appellate court is limited to the trial record on direct appeal, issues of ineffective assistance of counsel are more appropriate in a motion for post-conviction relief. We may address such claims on direct appeal only if (a) the issues are based on facts fully apparent from the record or (b) the parties stipulate that the record is adequate, and we determine that additional findings of fact by a trial judge are not needed. If the record is not sufficient to address the claims on direct appeal, we dismiss the claims without prejudice, preserving the defendant's right to raise the claims later in a properly filed motion for post-conviction relief.

Shinn v. State , 174 So.3d 961, 965 (¶ 11) (Miss. Ct. App. 2015) (citations, quotation marks, and alterations omitted); see also Taylor v. State , 167 So.3d 1143, 1146 (¶ 5) (Miss. 2015) ("While post-conviction proceedings are often the most appropriate forum for review of ineffective assistance of counsel, we may nevertheless reach the merits of the ineffectiveness issue where the record affirmatively shows ineffectiveness of constitutional dimensions." (alterations and quotation marks omitted) ).

I. Insanity Defense

¶ 19. As noted above, McBeath claims that his trial counsel was ineffective because he failed to pursue an insanity defense and failed to offer a jury instruction on the defense. Under this heading, McBeath also asserts that his trial counsel was ineffective because he "fail[ed] to investigate" a potential insanity defense. However, the State does not "stipulate that the record is adequate" to address this claim. Nor is a constitutional violation apparent from the face of the record. Therefore, we hold that McBeath's claim cannot be decided on direct appeal. The claim must be addressed, if at all, in a motion for post-conviction relief.

¶ 20. To begin with, although McBeath did not testify, the record suggests that he did not want to pursue an insanity defense. McBeath made clear to Dr. Webb that he was "not crazy," and he complained that his lawyer "was not listening to" his claim that he was innocent. As discussed above, Webb and the trial judge both concluded that McBeath was competent to stand trial, and the judge's ruling has not been challenged on appeal. Competence to stand trial and sanity at the time of the offense are distinct issues. But it is unclear that an attorney can assert an insanity defense without his client's consent. This appears to be an open issue in Mississippi, but most jurisdictions hold that defense counsel may not assert an insanity defense over the objection of a competent defendant. See, e.g. , McLaren v. State , 407 P.3d 1200, 1212 (Wyo. 2017) (collecting cases). We need not and do not address that legal issue in this case. Rather, we simply note that the record in this appeal does not even show that McBeath was willing to assert an insanity defense. In fact, the record suggests that he was opposed to it.

¶ 21. More important, the record on appeal does not establish any reasonable probability that the jury would have found McBeath not guilty by reason of insanity. As discussed above, the trial judge specifically directed Dr. Webb to evaluate McBeath's sanity "at the time of the alleged offense." Webb subsequently testified that he found no evidence of psychosis or any other possible M'Naghten issues. Webb noted that McBeath had no history of mental illness and was not taking any medications at the time of the offense. McBeath told Webb that "[h]e was smoking a lot of marijuana and drinking prior to his arrest." But Webb testified that those are "intoxication issues and not psychosis or things like that." Webb's testimony is consistent with the law in this State, as well as the jury instructions given in this case. "[V]oluntary intoxication is not a defense to a specific intent crime, such as murder." Lanier v. State , 533 So.2d 473, 478 (Miss. 1988). "An amplified restatement of the rule is: a defendant, capable of distinguishing between right and wrong when sober, is not entitled to an instruction submitting to the jury his inability to form the specific intent to commit an offense because of his voluntary intoxication at the time the offense was committed." Lee v. State , 403 So.2d 132, 134 (Miss. 1981).

¶ 22. On appeal, McBeath ignores Dr. Webb's uncontradicted testimony that there was no evidence of psychosis or any other M'Naghten issue in this case. Instead, McBeath cites Demonta's testimony that he was "acting delusional, psychotic, and he was talking out of his head." McBeath also relies on Demonta's hearsay testimony about a prior incident when their sister allegedly "tried to tell [police] that [McBeath] was psychotic." McBeath also cites Clay's testimony that he was "spacey" and mumbling incoherently at the time of his arrest. Finally, McBeath relies on trial counsel's concerns about his ability to assist in his own defense and his bizarre statements about the sheriff stealing his mind. Relying on this lay testimony, McBeath's appellate counsel asserts that "[p]roper preparation" by trial counsel could have established that McBeath killed Ozie because of "a severe psychotic episode."

¶ 23. However, most of the lay testimony that McBeath cites on appeal is consistent with Dr. Webb's conclusion that McBeath was sane at the time of the offense and was not suffering from psychosis or any other mental illness. Moreover, there is no evidence in the record to show that McBeath's unusual behavior was caused by a mental illness, much less a mental illness that would satisfy the M'Naghten test. That is, there is nothing to show that McBeath was incapable of distinguishing "right from wrong at the time of the offense." Hearn , 3 So.3d at 738 (¶ 46). Given Dr. Webb's uncontradicted testimony that McBeath was sane and not suffering from any mental illness at the time of the offense, there is no "reasonable probability" that a jury would have found McBeath not guilty by reason of insanity. Strickland , 466 U.S. at 694, 104 S.Ct. 2052. Therefore, based on the evidence in the record on appeal, McBeath cannot establish "prejudice" under the second prong of the Strickland test. Id. ; see Epps v. State , 984 So.2d 1042, 1048-50 (¶¶ 22-27) (Miss. Ct. App. 2008) (holding that the defendant was not prejudiced by his attorneys' failure to pursue an insanity defense because "[h]e could not fulfill the requirements of M'Naghten "). Because McBeath cannot satisfy Strickland 's second prong on the present record, it follows that he cannot prevail on his ineffective assistance claim in this appeal. Havard , 928 So.2d at 781 (¶ 8).

¶ 24. Rather than reject McBeath's ineffective assistance claim on the merits, we follow our usual practice and dismiss the claim without prejudice. As discussed above, we ordinarily decline to consider ineffective assistance claims on direct appeal. See Shinn , 174 So.3d at 965 (¶ 11). In this appeal, McBeath argues in part that his counsel failed to interview witnesses to investigate a possible insanity defense. By its nature, such a failure-to-investigate claim cannot be evaluated on direct appeal because it alleges that counsel failed to discover evidence that is not in the record. See Page v. State , 987 So.2d 1035, 1037-38 (¶¶ 7-12) (Miss. Ct. App. 2008). The mere fact that an insanity defense was not asserted does not mean that defense counsel did not investigate the issue. Id. at 1038 (¶ 11). "[D]efense counsel could have investigated [McBeath's] mental state and been unable to glean any useful evidence for [McBeath's] defense." Id.

¶ 25. Moreover, McBeath's appellate counsel effectively concedes that his claim needs some support from outside the present record. In a footnote, appellate counsel states that his assertion that McBeath experienced a psychotic episode is based on his own review of "several medical sources" (i.e., websites) that do not appear in the record. The present record contains no such support for McBeath's allegation that he suffered from a mental illness at the time of the offense. See id. (declining to address a claim of ineffective assistance based on counsel's failure to pursue an insanity defense because the claim relied on a publication that did "not appear in the record"). Finally, as noted above, the State specifically declines to stipulate that the record on appeal is adequate to permit consideration of McBeath's claim. Accordingly, we dismiss McBeath's ineffective assistance claim without prejudice to his right to assert such a claim in a properly filed motion for post-conviction relief.

II. Failure to Object

¶ 26. McBeath also complains on appeal that trial counsel failed to object to "speculative opinion testimony" by law enforcement officers. He refers to three such opinions. First, Clay testified that although McBeath did not appear to be under the influence of alcohol at the time of his arrest, it was "possible" that he was under the influence of drugs. Second, Sciple testified that the fire in the house was set intentionally because "[t]here was nothing else [where the fire started] that would ... set it on fire." Sciple explained that the space heater was not turned on, so it could not have started the fire. Third, Sciple testified when McBeath told him he had taken some "bad dope" (methamphetamine), he understood McBeath to mean that he "had mixed meth with some other kind of chemical that he wasn't used to."

¶ 27. McBeath devotes less than a page to this issue. He fails to develop any argument or cite any authority to show that a timely objection to the testimony at issue would have been sustained. That is, he simply asserts, without support, that the testimony was objectionable. We could hold that the issue is waived for that reason. See Randolph v. State , 852 So.2d 547, 558 (¶ 29) (Miss. 2002).

¶ 28. Instead, because the issue is related to McBeath's claim that trial counsel should have investigated and asserted an insanity defense, we also dismiss this claim without prejudice. McBeath may raise this allegation of ineffective assistance in a properly filed motion for post-conviction relief.

CONCLUSION

¶ 29. McBeath's convictions and sentences are affirmed. His allegation that trial counsel provided ineffective assistance of counsel is dismissed without prejudice.

¶ 30. AFFIRMED.

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

      During trial, McBeath made an ore tenus motion to suppress his oral statements to Sciple and Waddell. The court held a suppression hearing outside the presence of the jury, and both Sciple and Waddell testified. McBeath did not testify. The trial judge then denied McBeath's motion, finding that his Miranda waiver was valid and that his statement was free and voluntary. McBeath does not raise this issue on appeal.

      "Mississippi follows the M'Naghten test for determining whether a person was sane at the time of the crime. Under the M'Naghten test, the accused must be laboring under such defect of reason from disease of the mind as (1) not to know the nature and quality of the act he was doing or (2) if he did know it, that he did not know that what he was doing was wrong. In sum, the accused must not have known right from wrong at the time of the offense." Hearn v. State , 3 So.3d 722, 738 (¶ 46) (Miss. 2008) (citations and quotation marks omitted).

      Dr. Webb testified that McBeath did not make any such claim when they met.

      "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Strickland , 466 U.S. at 697, 104 S.Ct. 2052. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed." Id.

      McBeath may not file such a motion in the circuit court unless he obtains permission from the Mississippi Supreme Court. See Miss. Code Ann. § 99-39-7 (Rev. 2015).


text:
    Kenneth READUS, Appellant v. STATE of Mississippi, Appellee
    NO. 2018-CA-00008-COA
    Court of Appeals of Mississippi.
    November 13, 2018
    ATTORNEY FOR APPELLANT: KENNETH READUS (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, JACKSON
    BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. Following a jury trial in the Madison County Circuit Court, Kenneth Readus was convicted of murder and aggravated assault and sentenced to life imprisonment and twenty years to run concurrently. His conviction and sentence were affirmed on appeal. Readus v. State , 997 So.2d 941 (Miss. Ct. App. 2008), cert. denied , 999 So.2d 852 (Miss. 2009).

¶ 2. Readus later filed an application in the Mississippi Supreme Court for leave to file a motion for post-conviction relief. The Supreme Court denied his application. See Readus v. State , No. 2010-M-01047 (Miss. July 21, 2010).

¶ 3. Seven years later, Readus filed an "Out of Time Appeal" in the Mississippi Supreme Court. He attached a "Motion for Correction of Sentence," which he proposed to file in the circuit court. The Court treated the filing as an application for leave to proceed in the circuit court. The Court denied the application as without merit, barred by the statute of limitations, and barred as a successive application. Readus v. State , No. 2017-M-01545 (Miss. Feb. 21, 2018) (citing Miss. Code Ann. §§ 99-39-5(2) & 99-39-27(9) (Rev. 2015) ).

¶ 4. Six days after he filed his "Out of Time Appeal" in the Supreme Court, Readus filed a "Motion for Correction of Sentence" in the circuit court. This was the same document that Readus had submitted to the Supreme Court, but the Supreme Court had not ruled on his application for leave. (And, as noted above, the Supreme Court later denied his application.) Readus's motion alleged ineffective assistance of counsel and an illegal sentence. The circuit court dismissed the motion because the Supreme Court had not granted Readus permission to file it. See Miss. Code Ann. § 99-39-7 (Rev. 2015). Readus appealed.

¶ 5. We affirm. When a prisoner's conviction and sentence have been affirmed on direct appeal, he may not file a motion for post-conviction relief in the circuit court without first obtaining permission from the Mississippi Supreme Court. Id. In such a case, the circuit court lacks jurisdiction to consider the motion for post-conviction relief. Jones v. State , 64 So.3d 478, 479-80 (¶ 4) (Miss. 2011). Accordingly, the circuit court correctly dismissed Readus's motion.

¶ 6. AFFIRMED.

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

      Readus seems to allege that his sentence is illegal under Parker v. State , 30 So.3d 1222, 1227-28 (¶¶ 15-18) (Miss. 2010) (holding that a defendant convicted of murder should be sentenced to "life imprisonment," not "life imprisonment without parole"). However, Readus was sentenced to life imprisonment for murder, which is consistent with Parker .