author: WINDHORST, J.

text:
    STATE of Louisiana v. Roy R. DIXON
    NO. 18-KA-79
    Court of Appeal of Louisiana, Fifth Circuit.
    August 29, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Andrea F. Long, Blair C. Constant, Lynn Schiffman
    COUNSEL FOR DEFENDANT/APPELLANT, ROY R. DIXON, Gwendolyn K. Brown
    Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Marion F. Edwards, Judge Pro Tempore
   WINDHORST, J.

Defendant, Roy Dixon, appeals his convictions of production of pornography involving juveniles under the age of thirteen (count one) and sexual battery upon a juvenile under the age of thirteen (counts two and three). For the reasons that follow, we affirm defendant's convictions, vacate defendant's sentences, and remand this matter for resentencing in accordance with instructions.

Facts and Procedural History

On March 26, 2013, defendant was charged by bill of information with one count of production of pornography involving juveniles under the age of seventeen in violation of La. R.S. 14:81.1 (count one), and with two counts of sexual battery upon a juvenile under the age of thirteen in violation of La. R.S. 14:31.1 (counts two and three). Defendant pled not guilty on all counts on April 14, 2013. On September 24, 2013, defense counsel filed a motion for the appointment of a sanity commission, which was granted by the trial court. On November 11, 2013, the trial court conducted a competency hearing and found defendant competent to proceed to trial. On May 16, 2016, the State amended the bill of information to reflect the correct date of the offense on all counts. The bill of information was further amended on May 15, 2017, correcting the offense in count one to production of pornography involving a juvenile under the age of thirteen.

On May 16, 2017, a twelve-person jury found defendant guilty on all counts. On May 17, 2017, defendant filed a motion for new trial and a motion for post-verdict judgment of acquittal, which the trial court denied. On August 24, 2017, defendant was sentenced to 20 years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on count one, and 99 years at hard labor without the benefit of parole, probation, or suspension of sentence on counts two and three, with all counts to be served concurrently. Defendant filed a motion to reconsider sentence which was denied. This appeal followed.

Facts

Defendant was often the caretaker of his two-year old sister, L.D., when his mother, C.D., worked. On January 26, 2013, while watching L.D., defendant invited Rayan Badeaux, a man he met on the Internet, to his house located at 1402 Hancock Street in Gretna, where defendant engaged in sexual intercourse with Mr. Badeaux. Afterwards, defendant left the room to check on L.D. While defendant was out of the room, Mr. Badeaux looked through defendant's cell phone and located a video of a young toddler and an adult male who was touching the toddler's vagina. Mr. Badeaux immediately left defendant's house with defendant's cell phone and went to the New Orleans Police Department's (NOPD) Fourth District Station in New Orleans. Because the aforesaid residence is located in the City of Gretna, the Gretna Police Department was contacted regarding the pornographic video on the cell phone.

Detective Jeffrey Laborie with the Gretna Police Department met Mr. Badeaux at NOPD and obtained the cell phone from him. Mr. Badeaux showed Detective Laborie one video of a small female toddler, approximately one or two years old, with a pacifier in her mouth. The video showed a female toddler who was unclothed, and an adult man's hand touching her vagina. Detective Laborie testified that he believed, based on experience, that there was additional contraband on the cell phone.

During his investigation, Detective Laborie developed a potential suspect, "Allen," and went to 1402 Hancock Street where he spoke with C.D. about the cell phone and the number associated with it. C.D. told him that the cell phone belonged to her son, Roy, not "Allen." C.D. stated that she confronted defendant about videos on his phone, and told defendant that he was no longer welcome at her house. At that point, defendant became the potential suspect. While speaking with C.D., defendant approached the residence on his bicycle. Detective Laborie noticed that defendant was wearing the same clothing and matched the description he was previously given. Based on his corroborated observation, Detective Laborie approached defendant. Defendant appeared upset and was crying. Defendant spontaneously stated that he wanted to tell his side of the story. Detective Laborie transported defendant to the police station and placed him in a holding cell. While defendant was in the holding cell, Detective Laborie wrote his report in a nearby room equipped with a monitor which allowed him to view and hear defendant. Detective Laborie overheard defendant crying and saying to himself, "I'm so stupid. I can't believe I did that. I'm so lazy. I should have deleted those files. I lost my family. I will never be able to make up for this." Detective Laborie transcribed this statement "word for word" into his report as defendant was talking. At that point, Detective Laborie turned over his investigation to Sgt. Lewis Alvarez, who was a detective at the time.

Before interviewing defendant, Sgt. Alvarez obtained a search warrant for defendant's cell phone, on which three videos were found. Sgt. Alvarez stated that it was too dark to see anything on the first video. The second video depicted a black adult male's penis ejaculating on a toddler's vagina. The third video showed a black adult male's hand "playing with [toddler's] vagina." Sgt. Alvarez testified that he believed that there was more contraband on the phone, and he brought defendant from the holding cell to interview him. After being advised of his Miranda rights, defendant agreed to voluntarily give a recorded statement. In his statement, defendant admitted to "sexting" "Brad Howard," who asked him about his family. Defendant told Brad about his sister, L.D., and her age. Brad wanted defendant to touch L.D.'s vagina and ejaculate on her on video, and to send the videos to him. Although defendant initially refused, defendant stated that he did take the videos of L.D. as Brad requested. Defendant stated that he "knew it was wrong" but he wanted to keep communicating with Brad, and believed that if he did as requested, Brad would continue sending him photographs and videos of himself. Defendant stated that one video depicted him rubbing the outside of L.D.'s vagina with his finger. In a third video, he was rubbing L.D.'s vagina, but the lighting was too dark. He stated that he did not "insert" his finger into her vagina. Defendant also stated he took a video of himself ejaculating on L.D. Both videos were done in his mom's house located 1402 Hancock Street while he was changing L.D.'s diaper, and were sent to Brad. After further questioning, defendant also admitted to taking and sending approximately ten pornographic photographs of L.D.'s vagina to Brad, including one in which defendant inserted a Q-tip into L.D.'s vagina.

When defendant was asked if he inserted his penis into L.D., defendant stated emphatically that he "never" put his penis in her vagina or anus, and "never" licked either. Defendant stated that he knew what he did was not right because L.D. could not protect herself, but stated that he did not hurt her. Defendant stated that he was "in jail because of the stuff that was on my memory card that I thought I deleted."

After his statement, defendant was placed under arrest. Sgt. Alvarez went to 1402 Hancock Street to locate L.D. and meet with C.D. He observed a toddler that was one or two years old, and learned that L.D. was born February 20, 2011, which corroborated what he was told by defendant.

Discussion

In his first assignment of error, defendant contends for the first time on appeal that his counsel failed to provide effective assistance of counsel at a critical stage in the proceeding against him. Specifically, defendant contends that counsel was ineffective when he participated in his competency hearing by telephone.

A criminal defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution. To prove ineffective assistance of counsel, a defendant must show both that his counsel's performance was deficient, and that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Defendant contends that he was denied counsel during a critical stage of the proceedings and that prejudice should be presumed under United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Defendant contends that a competency hearing is a critical stage of the proceeding and counsel's failure to be physically present in court for the hearing constitutes prejudice under Cronic and State v. Haider, 00-231 (La. App. 3 Cir. 10/11/00), 772 So.2d 189. Defendant also contends that he was denied ineffective assistance of counsel because he was not able to meaningfully interact with his counsel.

In Cronic, the Supreme Court established that in limited circumstances prejudice could be presumed and the Strickland test would not be applicable. Cronic, 466 U.S. at 658, 104 S.Ct. at 2046. Prejudice may be presumed when a defendant is completely denied counsel at a critical stage of proceedings. Id. at U.S. at 659, 104 S.Ct. at 2047.

In Wright v. Van Patten, 552 U.S. 120, 128 S.Ct. 743, 169 L.Ed.2d 583 (2008), the United States Supreme Court held that an attorney participating in a hearing via telephone, although physically absent, does not necessarily deny a defendant's right to counsel. The Supreme Court rejected the defendant's argument that counsel's telephone participation should be treated as a "complete denial of counsel," and held that counsel's participation by telephone did not constitute the complete denial of counsel as contemplated under Cronic. Id.

In the case before us, defendant's counsel participated via telephone at defendant's competency hearing, and thus defendant was not completely denied counsel as contemplated under Cronic. Therefore, Strickland governs this ineffective assistance of counsel claim.

Based on a review of the record, defendant failed to establish that counsel was ineffective under Strickland 's two-prong test. Counsel actively participated in defendant's competency hearing, albeit by telephone. Defendant's counsel stated he received the doctor's report the day before and he reviewed it, even though he did not have time to discuss it with defendant. The report's contents provided that there were no grounds to find defendant incompetent and that he was competent to proceed with trial. Counsel joined the State's stipulation that if Dr. Rafael Salcedo and Dr. Richard Richoux were called to testify, they would qualify as experts in psychology and would testify consistently with the contents of their report. The trial court asked defendant if he understood the stipulation and he responded that he understood. Based on the joint stipulation, the trial court accepted the report into evidence and found defendant competent to proceed to trial. This Court also notes that defendant's motion for competency did not contain a memorandum or any facts supporting a theory of defendant's alleged incompetence. Further, defendant does not contend that if defense counsel had been physically present, the outcome would have been different. Under the circumstances of this case, we find that defendant was not prejudiced or denied effective assistance of counsel by counsel's participation in the competency hearing via telephone.

In his second assignment of error, defendant contends that the trial court erred by imposing excessive sentences on all three convictions. Defendant contends that while the facts of the offense are disturbing, (1) these offenses are not the worst in their class of offenses; (2) he is not the worst offender; (3) he is young; and (4) he is a first felony offender. Therefore, defendant contends maximum sentences are not appropriate. In his third assignment of error, defendant contends that the trial court erred in denying his motion to reconsider sentence.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even if it is within the statutory limits, if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Horne, 11-204 (La. App. 5 Cir. 2/14/12), 88 So.3d 562, 569, writ denied, 2012-0556 (La. 06/01/12), 90 So.3d 437 ; State v. Nguyen, 06-969 (La. App. 5 Cir. 04/24/07), 958 So.2d 61, 64, writ denied, 2007-1161 (La. 12/07/07), 969 So.2d 628. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hill, 12-495 (La. App. 5 Cir. 12/18/12), 106 So.3d 1209, 1212 ; State v. Lawson, 04-334 (La. App. 5 Cir. 09/28/04), 885 So.2d 618, 622, writ denied, 2005-0244 (La. 12/09/05), 916 So.2d 1048.

When imposing sentences, a trial court has vast discretion in imposing a sentence within statutory limits. State v. Williams, 03-3514 (La. 12/13/04), 893 So.2d 7, 16-17. An appellate court cannot set aside a sentence as excessive absent a manifest abuse of discretion. Id. On appeal, the issue is not whether a different sentence might have been more appropriate, but whether the trial court abused its vast discretion. Id.; State v. Bonilla, 15-529 (La. App. 5 Cir. 02/24/16), 186 So.3d 1242, 1261, writ denied, 2016-0567 (La. 05/02/16), 206 So.3d 881. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pearson, 07-332, 07-333, 07-539 (La. App. 5 Cir. 12/27/07), 975 So.2d 646, 656. Maximum sentences are generally reserved for cases involving the most serious violations of the offense charged and the worst type of offender. Id. In determining whether a sentence is excessive, an appellate court considers: (1) the nature of the crime; (2) the nature and background of the offender; and (3) the sentences imposed for similar crimes by the same and other courts. State v. Le, 98-1274 (La. App. 5 Cir. 06/30/99), 738 So.2d 168, 171, writ denied, 2000-2174 (La. 04/12/01), 789 So.2d 587.

Sexually Battery of a Juvenile Under the Age of Thirteen (counts two and three) :

While we do not discount the seriousness of this offense or condone the repugnant behavior of defendant, we find that the trial court abused its sentencing discretion and that defendant's 99-year sentences for his convictions for sexual battery of a juvenile under the age of thirteen (counts two and three) under these facts and this first-time offender are constitutionally excessive. We find that defendant's conduct does not fit the class of the most serious violations of the offense charged, nor is he considered to be the worst type of offender committing the charged offense, which are necessary for the imposition of a maximum sentence. As discussed herein, we explain our reasons based on the application and consideration of each of the three factors used to determine whether a sentence is constitutionally excessive.

In addressing the first factor, the nature of the crime, this Court has held that a maximum, or nearly maximum sentence for sexual battery of a minor may not be excessive if a defendant exploits a position of trust to commit the crime. State v. Wilmot, 13-994 (La. App. 5 Cir. 05/14/14), 142 So.3d 141, 149 (citing State v. Badeaux, 01-406 (La. App. 5 Cir. 09/25/01), 798 So.2d 234, writ denied, 2001-2965 (La. 10/14/02), 827 So.2d 414 ). The evidence established that defendant appeared to have a good, trusting relationship with L.D., because he often watched her when his mother was working. C.D. testified that she trusted defendant with L.D. and there were times when defendant was L.D.'s caretaker. The facts of this case, however, are extremely different from those of Wilmot, which involved heinous ongoing abuses. We also find that the other factors, as discussed below, weigh heavily against a maximum sentence for this defendant under these particular circumstances.

In this circuit, Wilmot, supra, is the only case in which a defendant, with no previous criminal record, was convicted of sexual battery of a juvenile under the age of thirteen, and yet was sentenced to the maximum of 99 years hard labor. Wilmot involved abuses which were particularly abominable and horrifying, and the sexual abuse continued for several years. In that case, the victim was six years old when defendant started sexually abusing the victim, including acts of oral, anal, and vaginal sex with his mouth and penis. Id. at 145. Defendant was living with the victim's mother, his girlfriend, and the victim. Id. After his arrest, defendant gave a voluntary statement to police admitting to oral and vaginal sex with the victim, but maintained that the sexual contact was initiated by the victim. Id. At trial, defendant denied any sexual contact with the victim. Id. Defendant was found guilty of aggravated rape and sexual battery of a juvenile under the age of thirteen. Id. at 144. Wilmot was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on the aggravated rape conviction, and 99 years on the sexual battery of a juvenile under the age of thirteen. Id.

In Wilmot, this Court affirmed defendant's 99-year sentence for sexual battery of a juvenile under the age of thirteen. Id. at 149. In finding that the trial court did not abuse its discretion, this Court considered the facts of the case, specifically: (1) the victim was six when the sexual abuse began; (2) the abuse lasted for several years; (3) the victim looked at defendant as a father figure; (4) a letter from the victim stating how the sexual abuse negatively impacted her and her family; and (5) a letter from the victim's mom regarding the impact on victim's life. Id. Considering the circumstances, this Court found that the trial court did not abuse its discretion in imposing the maximum sentence. Id. It was also noted that defendant received a mandatory life sentence without benefit of parole, probation, or suspension of sentence on his aggravated rape conviction; therefore, the "imposition of the ninety-nine year sentence for sexual battery will not practically affect the duration of defendant's sentence." Id. While two acts in this case are disgusting, the acts committed by Wilmot, for which his maximum 99-year sentence was upheld, inflicted years of torture, and were many times worse.

Jurisprudence from other Louisiana circuits confirms that maximum sentences or near maximum sentences are reserved for crimes where the nature of the crime is one of long-term repeated abuse of the victim. See State v. Morgan, 97-997 (La. App. 3 Cir. 02/04/98), 706 So.2d 1084, 1086-1087 (defendant was sentenced to the maximum sentence, at that time, for abusing two young victims, one of whom had a mental disability, and the court found that the sentence was not excessive); State v. Penn, 93-0174 (La. App. 1 Cir. 11/24/93), 633 So.2d 337, 337-338 (defendant, a teacher at victim's school, was sentenced to the near maximum sentence at that time, for indecent behavior with a juvenile, after eight months of daily abuse which included teaching the twelve-year-old victim to masturbate, kissing the victim, fondling the victim's breasts and vaginal and oral sex).

Considering defendant's lack of any prior criminal record, that he apparently had never done anything like this before, and other circumstances of this case, we do not believe defendant is typical of sexual offenders who receive the maximum sentence. Unlike the facts in Wilmot, supra, there is no history of long term, repeated abuse by defendant towards L.D. Additionally, while defendant admitted in his statement to taking the photographs and videos of L.D., he was adamant that he did not penetrate L.D. with his mouth or penis orally, anally, or vaginally. There is nothing in the record which indicates anything to the contrary. Defendant, a young, homosexual male, stated that he knew what he was doing was wrong, but he took the photographs and videos and sent them to Brad in exchange for photographs and videos of Brad himself.

As to the second factor, the nature and background of the offender, defendant had no prior felony criminal record. Defendants with extensive criminal records are more likely to receive a maximum or near maximum sentence for sexual battery of a juvenile under the age of thirteen. In State v. Blake, 50,732 (La. App. 2 Cir. 06/22/16), 198 So.3d 181, at 185, the Second Circuit found that defendant's 99-year sentence for sexual battery of a juvenile under the age of thirteen was not excessive because, among other factors, Blake was a seventh felony offender, and had failed to comply with any of his prior parole restrictions.

Defendants with less extensive criminal records than the defendant in Blake, supra, generally receive sentences above the statutory minimum of 25 years, but less than the maximum sentence. In State v. Pontiff, 14-1049 (La. App. 3 Cir. 05/06/15), 166 So.3d 1120, 1149-1152, defendant's sentence of 35 years for sexual battery was affirmed after considering the facts of the case and the PSI report which showed that defendant had a previous conviction of indecent behavior with a juvenile and conviction for simple burglary. In State v. Evans, 48,471 (La. App. 2 Cir. 12/18/13), 130 So.3d 965, defendant's sentence of 50 years at hard labor, with the first twenty-five without the benefit of parole, probation, or suspension of sentence, was affirmed after considering a PSI report, which revealed two prior felony convictions for contributing to the delinquency of juveniles and molestation of juveniles, three prior misdemeanor convictions and fourteen previous arrests. In Badeaux, 798 So.2d at 239, defendant's maximum sentence was affirmed, but at that time, the maximum sentence was ten years at hard labor for sexual battery. Defendant was a first felony offender, but according to PSI report, defendant was previously accused of molesting his former stepdaughters and defendant's brother testified that defendant was "an exhibitionist, pedophile, and a manic-depressant." In State v. Firth, 30,555 (La. App. 2 Cir. 04/08/98), 711 So.2d 388, 389-92, defendant pled guilty and his maximum sentence, at the time, of ten years at hard labor for the sexual battery of a seven-year old male after twice inserting his finger in the child's anus was affirmed in part because of defendant's two prior felony convictions, which included one conviction for sexual battery of a five-year old, and two misdemeanor convictions for theft and burglary. Again, while the maximum sentence in Badeaux was affirmed, it was only ten years at the time.

In addressing the third factor, sentences imposed for similar but somewhat more serious crimes by defendants convicted for crimes involving limited instances of abuse by offenders who have no criminal record, received sentences between 35 to 45 years. In State v. Lilly, 2012-0008 (La. App. 1 Cir. 09/21/12), 111 So.3d 45, 49-50, the court affirmed a fifty-seven year old defendant's first felony offender's conviction and sentence of 35 years at hard labor without benefit of parole. In State v. Greenberry, 2014-0335 (La. App. 4 Cir. 11/19/14), 154 So.3d 700, 703-706, the defendant's conviction for two counts of touching the vagina of his live-in girlfriend's ten-year old daughter and sentence of 45 years at hard labor, with the first twenty-five years without benefits, was affirmed. In State v. Redfearn, 44,709 (La. App. 2 Cir. 09/23/09), 22 So.3d 1078, 1082, 1088-1089, the defendant's sentence of 40 years at hard labor, with the first 30 years without benefit of parole, probation, or suspension of sentence for touching his five-year old victim's vagina with his penis and finger, was affirmed.

Considering the above factors, the jurisprudence, and the particular facts in this case, we find the evidence does not support a conclusion that this crime was the most serious violation of the offense charged, and that it was committed by the worst type offender. While we do not condone or excuse defendant's disgusting behavior, we do not believe defendant is a typical sex offender of these classes. At the time of the offense, defendant was a young homosexual male adult, who appears to have performed these repugnant acts on his sister solely in exchange for nude photographs of an individual named Brad. Defendant admitted to taking the photographs and videos of L.D. wherein he touched her vagina with his hand and ejaculated on her, but did not touch or penetrate L.D. with his mouth and/or penis. Defendant has no prior felony criminal record, he graduated from high school and was gainfully employed at the time of the instant offense. Under the atypical facts of this case, defendant's maximum sentence of 99 years without the benefit of probation, parole, or suspension of sentence is grossly disproportionate to the offense charged, and far greater than other affirmed sentences for more serious crimes, or committed by multiple offenders, or both. Therefore, we vacate defendant's sentences for sexual battery of a juvenile under the age of thirteen (counts two and three) and remand this matter for resentencing.

Pursuant to La. C.Cr.P. art. 881.4A, this Court may provide direction regarding a constitutionally reasonable sentence in a given case. Considering the factors enumerated above and the unique facts of this case, we suggest that a sentence of thirty-five to forty years imprisonment at hard on counts two and three to run concurrently with defendant's sentence on count one would be the longest sentence we could conclude to be not constitutionally excessive on appeal.

Production of Pornography Involving Juvenile Under the Age of Thirteen (count one):

Defendant was sentenced to 20 years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence for production of pornography involving juvenile under the age of thirteen. At the time of this offense, La. R.S. 14:81.1E(5)(b) provided that offenders over the age of seventeen who produced pornography involving juveniles under the age of thirteen shall be imprisoned at hard labor for not less than 25 years nor more than 99 years, with at least twenty-five years without the benefit of parole, probation, or suspension of sentence. Therefore, we find defendant's 20-year sentence for production of pornography involving juvenile under the age of thirteen to be illegally lenient.

Appellate courts may correct an illegal sentence at any time. La. C.Cr.P. art. 882. However, illegally lenient sentences may be corrected only on appeal by the state, or when such illegality is discoverable by mere inspection of the pleadings. State v. Kelly, 2015-0484 (La. 06/29/16), 195 So.3d 449. Defendant's sentence is illegally lenient in that it does not comply with the statutory minimum sentence of 25 years, thus, this defect is discoverable by mere inspection of the record. Therefore, defendant's sentence for production of pornography involving a juvenile under the age of thirteen is hereby vacated, and the matter is remanded to the trial court for resentencing in accordance with the statutory range of La. R.S. 14:81.1E(5)(b).

In accordance with La. C.Cr.P. art. 881.4A, and considering the facts of this case as stated above, we suggest that a sentence of 35 to 40 years imprisonment at hard labor for the conviction of production of pornography involving a juvenile under the age of thirteen, to run concurrently with defendant's sentences for sexual battery, would not be constitutionally excessive.

Errors Patent Discussion

The record was reviewed for errors patent, according to the mandates of La. C.Cr.P. art. 920 ; State v. Oliveaux, 312 So.2d 337 (La. 1975) ; and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). The following errors patent require correction.

We find there are discrepancies between the Louisiana Uniform Commitment Order (UCO), the commitment, and the transcript. If "there is a discrepancy between the minutes and the transcript, the transcript must prevail." State v. Lynch, 441 So.2d 732, 734 (La. 1983).

The UCO reflects the offense date as August 1, 2012, when the record reflects that the offense dates were on or between July 1, 2012 and January 26, 2013. Additionally, the commitment and UCO reflect that defendant was convicted of pornography involving juveniles under the age of thirteen. However, the record and evidence show that defendant was charged by bill of information with, and convicted of, production of pornography involving juveniles under the age of thirteen. This Court has previously remanded a case for correction of the commitment and the UCO in its error patent review. See State v. Lyons, 13-564 (La. App. 5 Cir. 1/31/14), 134 So.3d 36, writ denied, 2014-0481 (La. 11/07/14), 152 So.3d 170 (citing State v. Long, 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142 ). Accordingly, we remand this matter and hereby order the district court to correct the noted discrepancies in the UCO and commitment. Further, the Clerk of Court for the Twenty-Fourth Judicial District Court is ordered to transmit the original of the corrected UCO to the appropriate authorities in accordance with La. C.Cr.P. art. 892B(2) and the Department of Corrections' legal department. See Long, supra (citing La. C.Cr.P. art. 892B(2) ).

Conclusion

For the reasons stated herein, defendant's convictions are affirmed, his sentences are vacated, and this matter is remanded for resentencing and compliance with this Court's instructions.

CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED

      To preserve the confidentiality of the minor victim's identity in this case, the victim, the victim's family members, and other related witnesses will be referred to by their initials. La. R.S. 46:1 ; 844 W.

      Detective Laborie testified that he was a patrol officer at the time of the incident.

      Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).

      Sgt. Alvarez testified that they subsequently learned that defendant was referring to Brad Case, not "Brad Howard," who pled guilty to distribution of child pornography in April 2013.

      Sgt Alvarez obtained another search warrant for the Samsung cell phone requesting a "dump of the phone." A search warrant was also obtained for 1402 Hancock Street for any additional electronic devices belonging to defendant. A laptop was located in defendant's bedroom and a search warrant was obtained for its contents. The Samsung cell phone and laptop were sent to the digital forensics unit.

      In Haider, supra, the court found that defendant's competency hearing was a critical stage in the prosecution in which defendant was entitled to a right to counsel because defendant's only defense was insanity. Haider, 772 So.2d at 192. Defendant's mental competency was the focus of his defense trial strategy throughout the proceedings. Id. Defendant was prejudiced under Cronic by counsel's complete failure to attend the hearing and thus, his right to counsel under the Sixth Amendment of the United States Constitution and Article 1, § 13 of the Louisiana Constitution was violated. Id. at 193-194. The court found reversible error and vacated defendant's conviction and sentence and remanded for further proceedings. Id. at 194.

      In his motion to reconsider sentence, defendant contended that his sentence was "excessive and improper in violation of the Constitution of the State of Louisiana and the United States Constitution." A motion to reconsider sentence must set forth specific grounds upon which the motion is based. La. C.Cr.P. art. 881.1. The failure to state the specific grounds upon which a motion to reconsider is based precludes a defendant from raising issues relating to statutory errors or deficiencies, such as compliance with C.Cr.P. art. 894.1, and limits a defendant to review of the sentence for constitutional excessiveness only. State v. Hunter, 11-787 (La. App. 5 Cir. 4/24/12), 94 So.3d 797, 800. Here, defendant only argued that his sentences were constitutionally excessive. Thus, defendant is limited to a review of each sentence for constitutional excessiveness.

      The United States Supreme Court held that it is " 'Highly relevant-if not essential-to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics.' Permitting sentencing courts to consider the widest possible breadth of information about a defendant 'ensures that the punishment will suit not merely the offenses, but the individual defendant.' " Pepper v. United States, 562 U.S. 476, 488, 131 S.Ct. 1229, 1240, 179 L.Ed.2d 196 (2011) (internal citations omitted), quoting Wasman v. United States, 468 U.S. 559, 564, 104 S.Ct. 3217, 82 L.Ed. 2d 424 (1984).

      The trial court uses a different criteria to determine the length of a sentence. First, the trial court must consider the aggravating and mitigating circumstances enumerated in La. C.Cr.P. art. 894.1. State v. Evans, 48,471 (La. App. 2 Cir 12/18/13), 130 So.3d 965, 967. There are two requirements to be considered. The first is La. C.Cr.P. art. 894, specifically, "the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense, and the likelihood of rehabilitation." Evans, 130 So.3d at 967. The second requirement is that the sentence must not be so grossly out of proportion with the offense that it represents nothing more than a purposeless infliction of pain and when viewed from the light of harm to society, it shocks the sense of justice. Id. Here, the trial court complied with the requirements of La. C.Cr.P. art. 894.1 by considering defendant's lack of remorse and responsibility for committing the offense (defendant's statement), the age of L.D., stating that a PSI was ordered, and the videos which the trial court stated were the "most disturbing thing that I have ever seen and the jurors certainly shared that" opinion.

      In Blake, the victim was five years old at the time of the abuse. Blake, supra. The victim stated that the defendant "kiss[ed] her down there," "licked [her] tee-tee," and made her watch a pornographic movie with him while he masturbated. Id. Defendant was a friend of the victim's father that was staying with the family. In considering defendant's extensive criminal record, the court found that defendant posed "an obvious threat to the public's safety and well-being." Id. Thus, the court found that considering "defendant's extensive criminal history and the harm done to his very young victim, the sentences imposed do not shock the sense of justice." Id.

      In Evans, the defendant was 51 years old and the father of the victim, who was six-years old. Evans, supra. Evidence showed that defendant touched victim between her legs on her private area, "coo-coo," with his hands and his "thing," and put his "thing" in her mouth. Id. The victim was examined at the hospital and it was noted that she had redness and swelling on her external genitalia and her hymen was completely missing. Id.

      Defendant and his wife were babysitting his wife's grandchildren, when defendant touched the four-year old victim's vagina with his fingertip one time during a hug. Defendant gave a statement that he touched the victim, but at trial stated the police coerced him into making the statement. Lilly, supra.

      In Redfearn, the mother walked in on the defendant/father naked on top of their five year old victim/daughter. Testimony established that defendant touched victim with his penis and finger while there two young boys were in bed watching. Redfearn, supra. Trial court considered the PSI report, defendant's use of Lortab and Xanax and drinking day of incident, defendant's lack of remorse and belief he did not do anything wrong, lack of criminal record, and court noted that defendant was watching pornographic DVDs prior to the crime. Id. On appeal, the court found that sentence was not excessive because it was less than half the maximum sentence. Id.

      R.S. 14:81.1, in pertinent part:
      * * *
      E(4) Whoever engages in the promotion, advertisement, or production of pornography involving juveniles shall be fined not more than fifteen thousand dollars and be imprisoned at hard labor for not less than ten years or more than twenty years, without benefit of probation, parole, or suspension of sentence.
      (5) * * *
      (b) Whoever commits the crime of pornography involving juveniles punishable by the provisions of Paragraph (4) of this Subsection when the victim is under the age of thirteen years, and the offender is seventeen years of age or older, shall be punished by imprisonment at hard labor for not less than twenty-five years nor more than ninety-nine years. At least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.


source: Caselaw Access Project

author: BEAM, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    MISSISSIPPI BAPTIST MEDICAL CENTER, INC., Premier Medical Group of Mississippi, LLC, Mississippi Sports Medicine and Orthopedic Center, PLLC, Jeffery K. LeDuff, M.D. and Jeff Almand, M.D. v. Janice PHELPS
    NO. 2017-IA-00826-SCT
    Supreme Court of Mississippi.
    October 11, 2018
    ATTORNEYS FOR APPELLANTS: GAYE NELL LOTT CURRIE, D. COLLIER GRAHAM, JR., MILDRED M. MORRIS, TIMOTHY LEE SENSING, STEPHEN P. KRUGER, Jackson
    ATTORNEY FOR APPELLEE: ALTON LAMAR WATTS, Jackson
    BEFORE RANDOLPH, P.J., KING AND BEAM, JJ.
   BEAM, JUSTICE, FOR THE COURT:

¶ 1. This medical-malpractice suit comes before the Court on Defendants' interlocutory appeal from the Hinds County Circuit Court's order denying Defendants' motions for summary judgment. Finding that the plaintiff, Janice Phelps, failed to support her medical-malpractice claims with sworn expert testimony on whether Defendants breached any applicable standard of care owed to Phelps, we reverse the trial court's denial of summary judgment and render judgment in favor of Defendants.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 2, 2013, Dr. Jeff Almand performed a left-knee arthroscopy on Phelps at Mississippi Baptist Medical Center ("MBMC"). Shortly after surgery, Phelps experienced shortness of breath, and Dr. Jeffrey LeDuff ordered a chest x-ray and placed her on oxygen. Dr. LeDuff subsequently discharged her on May 4, 2013. Two days later, Phelps's shortening of breath worsened, and she went to the emergency room at Southwest Mississippi Regional Medical Center ("SMRMC"). There, she was diagnosed with pneumonia. After being placed on a ventilator, she exhibited signs of a stroke. On May 24, 2013, SMRMC discharged Phelps with a diagnosis of Cebrovascular Accident and Ventilator Dependence and transferred her to Baton Rouge Rehabilitation Hospital.

¶ 3. On April 30, 2015, Phelps filed suit against MBMC, Drs. Almand and LeDuff and others (collectively, "Defendants") alleging medical malpractice arising out of her care and treatment at MBMC. After Defendants answered Phelps's complaint by denying the allegations, they served her with written discovery requests. Fourteen months later, when Defendants filed motions for summary judgment, Phelps answered the discovery, providing the name of her expert witness and a brief description of his expected testimony. The day before the hearing on the motions, Phelps responded to Defendants' motions for summary judgment, again providing only the name of her expert witness and a brief description of his expected testimony.

¶ 4. On May 25, 2017, Judge Kidd entered an order, without opinion, denying Defendants' motions for summary judgment. Defendants thereafter petitioned this Court for interlocutory appeal, claiming that the trial court erred in denying their motion for summary judgment and in providing Phelps additional time to provide her medical-expert affidavit without a specific request. Although Defendants raised these two issues on appeal, we find the second issue moot because, even with the extension of time, Phelps never submitted a medical-expert affidavit. Therefore, the sole issue on appeal is whether the court erred in failing to grant summary judgment in favor of Defendants despite Phelps's failure to provide any sworn expert testimony to support her medical-malpractice claim.

LAW AND ANALYSIS

I. Standard of Review

¶ 5. A trial court's grant or denial of summary judgment is reviewed de novo.

Leffler v. Sharp , 891 So.2d 152, 156 (Miss. 2004). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact[.]" Miss. R. Civ. P. 56(c). "When a motion for summary judgment is made and supported as provided in Rule 56, 'an adverse party may not rest upon the mere allegations or denials of [the] pleadings[; rather, the] response must set forth specific facts showing that there is a genuine issue for trial.' " Allen v. Jackson Square Apartment Homes, LLC , 231 So.3d 251, 256 (Miss. Ct. App. 2017) (quoting Karpinsky v. Am. Nat'l Ins. , 109 So.3d 84, 88 (Miss. 2013) ). All evidence will be viewed in the light most favorable to the nonmoving party. Estate of Northrop v. Hutto , 9 So.3d 381, 384 (Miss. 2009) (citations omitted). If no genuine issue of material fact exists to be resolved, "then the moving party is entitled to judgment as a matter of law." Neely v. N. Miss. Med. Ctr., Inc. , 996 So.2d 726, 728-29 (Miss. 2008) (quoting Heigle v. Heigle , 771 So.2d 341, 345 (Miss. 2000) ).

II. Whether the Circuit Court erred in failing to grant summary judgment in favor of Defendants when Phelps failed to provide any sworn expert testimony.

¶ 6. We consistently have held in cases involving claims of medical malpractice that the plaintiff must prove the following elements in order to establish a prima facie case: (1) a duty existed requiring the defendant to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) a failure to conform to the required standard occurred; and (3) such breach of duty by the defendant proximately caused an injury to the plaintiff. Crosthwait v. S. Health Corp. of Houston, Inc. , 94 So.3d 1070, 1073 (Miss. 2012) (citations omitted).

¶ 7. Expert testimony is essential in medical malpractice cases "because the expert testimony demonstrates how the required standard of care was disregarded, and the testimony certifies that the defendant's 'failure was the proximate cause, or proximate contributing cause' of the injury." Vicksburg Healthcare LLC v. Dees , 152 So.3d 1171, 1174 (Miss. 2014) (quoting Crosthwait , 94 So.3d at 1073 ). When a plaintiff fails to provide expert testimony establishing a prima facie case of medical malpractice, generally, a grant of summary judgment is required. Kuiper v. Tarnabine , 20 So.3d 658, 661 (Miss. 2009) (citing Hutto , 9 So.3d at 384 ).

¶ 8. In Kuiper , 20 So.3d at 658, we held that because the plaintiffs failed to provide any expert evidence by affidavit or otherwise, summary judgment properly had been granted in favor of the defendants.

¶ 9. Likewise, in Abdrabbo v. Johnson , 220 So.3d 952 (Miss. 2017), we reversed the trial court's denial of the defendants' motion for summary judgment because the plaintiff had failed to provide expert testimony to rebut the motion, despite having ample time to engage in discovery.

¶ 10. In Scales v. Lackey Memorial Hospital , the plaintiff alleged that summary judgment was premature due to the lack of discovery and that additional discovery would have revealed a genuine issue of material fact. Scales v. Lackey Mem'l Hosp. , 988 So.2d 426, 429 (Miss. Ct. App. 2008). The plaintiff supplemented her answer to the expert interrogatory acknowledging the identity of her experts and describing their proposed testimony, but she did not state that either expert would opine that there had been a breach in the standard of care. Id. At the hearing on the motion for summary judgment, the defendant successfully argued that summary judgment was proper due to the plaintiff's failure to produce any sworn testimony from an expert witness. Id. at 430. The Court of Appeals affirmed. Id. at 431.

¶ 11. In reviewing the trial court's denial of Defendants' motions for summary judgment, we find that the trial court erred because Phelps did not produce any sworn expert testimony establishing the essential elements of her medical-malpractice claim. Phelps had the burden to come forth with sworn expert testimony stating that her physicians had breached the applicable standard of care; she failed to meet this burden. See Karpinsky at 88-89. While Phelps argues she retained a medical expert prior to filing suit and she responded to discovery requests identifying her expert and providing a summary of opinions, she failed to produce any sworn expert testimony by affidavit or otherwise.

¶ 12. In Walker v. Skiwski , 529 So.2d 184, 187 (Miss. 1988), we found that listing expert witnesses in interrogatories without providing any sworn testimony of such witnesses was the "fatal deficiency in [the plaintiffs'] opposition to summary judgment." The record is clear that the trial court erred in denying Defendants' motions for summary judgment. Without expert testimony establishing a prima facie case of medical malpractice, Phelps cannot meet her burden of proof. Neely, 996 So.2d at 729.

CONCLUSION

¶ 13. We find that the trial court erred and that Defendants are entitled to summary judgment. The judgment of the Hinds County Circuit Court is reversed and rendered.

¶ 14. REVERSED AND RENDERED.

WALLER, C.J., RANDOLPH, P.J., KING, COLEMAN, MAXWELL, CHAMBERLIN AND ISHEE, JJ., CONCUR. KITCHENS, P.J., NOT PARTICIPATING.


text:
    Curtis Giovanni FLOWERS a/k/a Curtis Flowers a/k/a Curtis G. Flowers, Petitioner v. STATE of Mississippi, Respondent
    No. 2015-DR-00591-SCT
    Supreme Court of Mississippi.
    December 12, 2016
    ORDER
   Now before the Court, en banc, is the Motion to Extend Stay of Post-Conviction Proceedings filed by Petitioner and the Response filed by Respondent. Petitioner asks that consideration of his Petition for Post-Conviction Relief be stayed until the Court issues its decision on Petitioner's direct appeal in light of Flowers v. Mississippi , 578 U.S. ----, 136 S.Ct. 2157, 195 L.Ed.2d 817 (Mem.) (2016). After due consideration, the Court finds that the Motion to Extend Stay of Post-Conviction Proceedings is well taken and should be granted.

IT IS THEREFORE ORDERED that the Motion to Extend Stay of Post-Conviction Proceedings filed by Petitioner is granted. Proceedings in Petitioner's post-conviction case are stayed until this Court issues its decision on Petitioner's direct appeal.

SO ORDERED

/s/ Josiah Dennis Coleman

JOSIAH DENNIS COLEMAN, JUSTICE FOR THE COURT

TO GRANT: WALLER, C.J., DICKINSON AND RANDOLPH, P.J., LAMAR, KITCHENS, KING, COLEMAN, MAXWELL AND BEAM, JJ.

RANDOLPH, P.J., CONCURS WITH SEPARATE WRITTEN STATEMENT.

¶ 1. I offer no objection to this Court's order granting Curtis Giovanni Flowers's Motion to Extend Stay of Post-Conviction Proceedings. With all due respect, I write separately because I am uncertain that all of the justices of the U.S. Supreme Court fully appreciate how Mississippi and this state's Supreme Court administer and adjudicate post-conviction relief (PCR) proceedings. The Mississippi Uniform Post-Conviction Collateral Relief Act ( Miss. Code Ann. §§ 99-39-1 to 99-39-119 (Rev. 2015)) and Mississippi Rule of Appellate Procedure 22 are more generous in many ways than the Act's federal counterpart, the Antiterrorism and Effective Death Penalty Act (AEDPA) ( 28 U.S.C.A. § 2244 ).

¶ 2. In Flowers v. Mississippi , 578 U.S. ----, 136 S.Ct. 2157, 195 L.Ed.2d 817 (2016), the U.S. Supreme Court granted Flowers's petition for certiorari in his direct appeal, vacated this Court's well-reasoned judgment, and remanded his case with instructions to further consider Flowers's Batson claims in light of Foster v. Chatman , 578 U.S. ----, 136 S.Ct. 1737, 1742, 195 L.Ed.2d 1 (2016). Flowers , 578 U.S. ----, 136 S.Ct. 2157. In my humble opinion, Flowers's petition was not ripe for review for a putative Foster violation. Foster was based on case-specific factors that are not present in Flowers's direct appeal, although those factors might be developed in his PCR action which is being delayed by their decision. I agree with Justices Alito and Thomas who stated that the Supreme Court "misuse[d] the GVR vehicle" in this case. Flowers , 136 S.Ct. at 2158. "Our decision in Foster postdated the decision of the Supreme Court of Mississippi in the present case, but Foster did not change or clarify the Batson rule in any way." Flowers , 136 S.Ct. at 2158.

¶ 3. In its one-paragraph opinion, the U.S. Supreme Court failed to identify a "compelling reason" why certiorari was granted. The U.S. Supreme Court failed to identify any error by this Court in vacating this Court's decision in Flowers v. State , 158 So.3d 1009, 1057-58 (Miss. 2014), reh'g denied (Mar. 26, 2015), cert. granted, judgment vacated , --- U.S. ----, 136 S.Ct. 2157, 195 L.Ed.2d 817 (2016). Finally, the U.S. Supreme Court failed to identify a single conflict with a prior decision by either the U.S. Supreme Court or this Court of last resort, and/or any "erroneous factual findings or ... misapplication of a properly stated rule of law" by this Court. See Sup. Ct. R. 10. Every member of this Court has fully studied and considered the record presented in Flowers's direct appeal, and the majority of this Court found insufficient grounds to overturn the learned trial judge's findings that the contested strikes were not the result of purposeful discrimination. Flowers , 158 So.3d at 1057-58.

¶ 4. The Supreme Court's directive in Flowers v. Mississippi injects an unnecessary delay in Flowers's attempt to advance his PCR claims and leaves the proverbial Sword of Damocles dangling over his head. The U.S. Supreme Court should not require this Court to cast aside Mississippi's statutory scheme or carve out an exception for Flowers. The U.S. Supreme Court's command to review in light of Foster reveals a lack of appreciation of how the Mississippi Legislature has established protections, enforced regularly by this Court, for persons under the sentence of death. Under our body of law, it is inappropriate to consider evidence outside the record on a direct appeal. This Court is limited to the record presented on direct appeal. The record evidence which was before this Court on Flowers's direct appeal did not include any prosecutorial notes, as were produced in Foster . Such notes allowed Foster to factually demonstrate purposeful discrimination. Flowers offered no prosecutorial notes or any other evidence of purposeful discrimination during his direct appeal, but Flowers is not foreclosed from acquiring evidence and providing proof of purposeful discrimination in his PCR.

¶ 5. In the absence of identifying any error that would call for a reversal and vacation of our judgment of his direct appeal, the most direct path for Flowers to be afforded relief is for his direct appeal to be completed, so that he may proceed with discovery for Foster evidence through his PCR. Should he establish such evidence demonstrating purposeful discrimination, he would be entitled to relief. However, he cannot get to that phase until this direct appeal is concluded.

¶ 6. Everyone on this Court understands his or duties, responsibilities, and obligations. In the absence of a justice on this Court desiring to change his or her vote, I would enter an order post haste that this Court stands by its judgment in Flowers v. State . I also would ask the U.S. Supreme Court to consider recalling its opinion, as Foster did not change any law, as recognized in the dissent to the opinion. See Flowers v. Mississippi , 136 S.Ct. at 2158 (Alito, J., dissenting).

      Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      "This Court often 'GVRs' a case-that is, grants the petition for a writ of certiorari, vacates the decision below, and remands for reconsideration by the lower court-when we believe that the lower court should give further thought to its decision in light of an opinion of this Court that (1) came after the decision under review and (2) changed or clarified the governing legal principles in a way that could possibly alter the decision of the lower court."
      Flowers v. Mississippi , 578 U.S. ----, 136 S.Ct. 2157, 195 L.Ed.2d 817 (2016) (Alito, J., dissenting).

      Rule 10 of the Rules of the Supreme Court of the United States reads in pertinent part:
      Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons . The following, although neither controlling nor fully measuring the Court's discretion, indicate the character of the reasons the Court considers:
      ...
      (b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;
      (c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.
      A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.
      Sup. Ct. R. 10 (emphasis added).

      "To satisfy Batson , '[t]he trial court must ... determine whether the objecting party has met their burden to prove there has been purposeful discrimination in the exercise of peremptory challenges.' " Booker v. State , 5 So.3d 356, 358-59 (Miss. 2008) (quoting Carter v. State , 799 So.2d 40, 46 (Miss. 2001) and Stewart v. State , 662 So.2d 552, 557-58 (Miss.1995) ) (emphasis added).


author: TINDELL, J., FOR THE COURT:

text:
    Jason CAISSIE a/k/a Jason Cullen Caissie, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KM-00973-COA
    Court of Appeals of Mississippi.
    March 6, 2018 Rehearing Denied July 17, 2018
    JASON CAISSIE (PRO SE), ATTORNEY FOR APPELLANT
    DAVID GARNER, ATTORNEY FOR APPELLEE
    BEFORE GRIFFIS, P.J., WESTBROOKS AND TINDELL, JJ.
   TINDELL, J., FOR THE COURT:

¶ 1. The Raleigh Municipal Court found Jason Caissie guilty of operating a motor vehicle without a valid driver's license and failing to maintain or provide proof of insurance. See Miss. Code Ann. §§ 63-1-5 & -7 & 63-15-4 (Rev. 2013). Caissie unsuccessfully appealed his two misdemeanor convictions to Smith County Circuit Court. On appeal from the circuit court's judgment affirming his convictions, Caissie raises numerous issues, which we restate as follows: (1) whether numerous due-process violations rendered the municipal court's judgment void; (2) whether the circuit court erred by allowing an appeal from a void judgment; (3) whether the circuit court erred by allowing his prosecution based on "an illegal roadblock and false arrest"; (4) whether the circuit court erred by failing to grant him discovery; (5) whether the circuit court erred by quashing the subpoenas he issued to the Commissioners of the Mississippi Department of Revenue and the Mississippi Department of Public Safety; (6) whether the circuit court erred by failing to accept his plea of "non assumpsit by way of confession and avoidance"; (7) whether error occurred because the prosecution failed to provide the statutory law he was charged with violating; (8) whether error occurred because the prosecution failed to provide him with a charging instrument; (9) whether the circuit court erred by denying his request to voir dire his court-appointed armchair counsel; (10) whether the circuit court erred by refusing his request for "next friend" counsel; (11) whether error occurred because the prosecution failed to answer or address several of his pretrial filings; and (12) whether the circuit court erred by excluding an audio recording he attempted to admit into evidence.

¶ 2. Finding no error in the circuit court's judgment, we affirm.

FACTS

¶ 3. While driving through the town of Raleigh, Mississippi (the Town), on April 25, 2015, Caissie encountered a safety checkpoint conducted by Officer Ricky Hand of the Raleigh Police Department. Officer Hand asked Caissie to produce a valid driver's license and proof of insurance. When Caissie failed to comply with the request, Officer Hand arrested Caissie and issued him one ticket for operating a motor vehicle without a valid driver's license and a separate ticket for failing to maintain or provide proof of insurance.

¶ 4. The municipal court found Caissie guilty of both offenses. Caissie then appealed to the circuit court, which tried the charges de novo. Following a bench trial on May 12, 2016, the circuit court found Caissie guilty of both charges and ordered him to pay a $500 fine for each offense, for a total fine of $1,000. Caissie filed an unsuccessful new-trial motion. Aggrieved by the circuit court's judgment, Caissie now appeals his misdemeanor convictions to this Court. As needed, we will relate any additional facts during our discussion of the issues Caissie raises on appeal.

STANDARD OF REVIEW

¶ 5. The appellate courts affirm a trial judge's decision in a bench trial where substantial, credible, and reasonable evidence supports the decision. Parish v. State , 176 So.3d 781, 785 (¶ 13) (Miss. 2015). We only reverse the findings of a trial judge sitting without a jury when the trial judge was clearly wrong or committed manifest error. Harvey v. State , 195 So.3d 231, 232 (¶ 5) (Miss. Ct. App. 2016).

DISCUSSION

I. Whether numerous due-process violations rendered the municipal court's judgment void.

II. Whether the circuit court erred by allowing an appeal from a void judgment.

¶ 6. Caissie first contends that numerous due-process violations occurred prior to and during his municipal-court trial and rendered the municipal court's judgment void. Related to this argument, Caissie asserts that the circuit court committed reversible error by allowing a void judgment to form the basis of an appeal.

¶ 7. Uniform Rule of Circuit and County Court 5.01 establishes that a direct appeal from justice or municipal court to circuit court "shall be by trial de novo." This remains true even where the appellant pled guilty in justice or municipal court. Jones v. State , 972 So.2d 579, 580 (¶ 3) (Miss. 2008). Even if defects exist in the justice or municipal court's judgment, such defects amount to harmless error when a defendant appeals and receives a trial de novo. Stidham v. State , 750 So.2d 1238, 1245 (¶ 31) (Miss. 1999) ; see also Hitt v. State , 149 Miss. 718, 718, 115 So. 879, 883 (1928) (recognizing that a de novo trial in circuit court "was as if there had never been a trial before a justice of the peace, and was effectual to correct any and all errors committed by the justice of the peace either as to a ruling of law, or as to a ruling on facts " (emphasis added) ). Because Caissie appealed his misdemeanor convictions and received a de novo trial in circuit court, we find no merit to his claims regarding the alleged defects in and the validity of the municipal court's judgment against him.

III. Whether the circuit court erred by allowing Caissie's prosecution based on "an illegal roadblock and false arrest."

¶ 8. The evidence and testimony presented at trial established that Caissie encountered a safety checkpoint while driving through Mississippi on his way home to Tennessee. In response to Officer Hand's requests, Caissie failed to produce either a valid driver's license or proof of insurance. As a result, Officer Hand arrested Caissie and issued him two traffic citations. On appeal, Caissie claims that the safety checkpoint, as well as his arrest and subsequent misdemeanor convictions, violated his constitutional rights. Caissie further alleges the circuit court erred by allowing "an illegal roadblock and false arrest" to form the basis of his prosecution. However, "[t]his Court has consistently held that the State does arguably have an interest in ensuring that drivers are properly licensed." Field v. State , 28 So.3d 697, 705 (¶ 27) (Miss. Ct. App. 2010) (citing Johnston v. State , 853 So.2d 144, 146 (¶ 5) (Miss. Ct. App. 2003) ). Furthermore, "[a] checkpoint set up for the specific purpose of checking driver's licenses, valid tags, and insurance serves a legitimate public safety purpose; therefore, it does not violate a defendant's right of protection against unreasonable searches and seizures." Id. (citing Hampton v. State , 966 So.2d 863, 866 (¶ 13) (Miss. Ct. App. 2007) ). We therefore find Caissie's assertions regarding this issue lack merit.

IV. Whether the circuit court erred by failing to grant all Caissie's discovery requests.

V. Whether the circuit court erred by quashing the subpoenas Caissie issued to the Commissioners of the Mississippi Department of Revenue and the Mississippi Department of Public Safety.

¶ 9. The circuit court granted the Town a protective order against several of Caissie's discovery requests and quashed subpoenas Caissie issued to the Commissioners of the Mississippi Department of Revenue and the Mississippi Department of Public Safety. Caissie claims that his discovery requests were outcome determinative and that the circuit court erred by failing to grant all the requested discovery. He also argues the circuit court erred by quashing the two subpoenas because the commissioners were "principles" to his misdemeanor action in circuit court. We review a trial court's ruling on discovery matters for abuse of discretion. Myers v. State , 145 So.3d 1143, 1147 (¶ 10) (Miss. 2014).

¶ 10. In this criminal case, former Uniform Rule of Circuit and County Court 9.04 governs discovery procedures. Id. at 1148 (¶ 11). Rule 9.04(A) requires the prosecution to disclose the following to a defendant:

(1) Names and addresses of all witnesses in chief proposed to be offered by the prosecution at trial, together with a copy of the contents of any statement, written, recorded[,] or otherwise preserved[,] of each such witness and the substance of any oral statement made by any such witness;
(2) Copy of any written or recorded statement of the defendant and the substance of any oral statement made by the defendant;
(3) Copy of the criminal record of the defendant, if proposed to be used to impeach;
(4) Any reports, statements, or opinions of experts, written, recorded[,] or otherwise preserved, made in connection with the particular case and the substance of any oral statement made by any such expert;
(5) Any physical evidence and photographs relevant to the case or which may be offered in evidence; and
(6) Any exculpatory material concerning the defendant.

¶ 11. Following its receipt of Caissie's discovery requests, the Town filed an October 22, 2015 motion for a protective order. In the motion, the Town argued it would experience undue burden and expense if required to respond to all of Caissie's discovery requests. The Town further asserted that Caissie had propounded civil discovery requests that exceeded Rule 9.04's scope, including thirty-nine requests for admissions under Mississippi Rule of Civil Procedure 36 and sixteen other requests that "appear[ed] to be a mixture of interrogatories and request[s] for production of documents[.]"

¶ 12. On November 12, 2015, the Town filed a copy of the discovery served to Caissie. As required by Rule 9.04, the Town's discovery disclosures included: (1) a copy of the municipal-court record and the two tickets for the charges against Caissie; (2) a brief statement of the relevant facts; (3) the names, addresses, and phone numbers of potential witnesses; and (4) the substance of the potential witnesses' testimonies. On November 20, 2015, the Town supplemented its discovery disclosures and provided Caissie with the statutory law he was charged with violating. The Town also provided the name and contact information of an additional potential witness, as well as the substance of the witness's proposed testimony. On December 4, 2015, the circuit court entered an order granting the Town a protective order against Caissie's civil discovery requests that exceeded the scope of Rule 9.04.

¶ 13. In April 2016, Caissie attempted to subpoena the commissioners of both the Mississippi Department of Revenue and the Mississippi Department of Public Safety. Both agencies filed a motion to quash, which the circuit court granted. At the beginning of Caissie's trial, the circuit court explained that it quashed the subpoenas because the commissioners were not present at the time Caissie received his traffic tickets and because the court saw no evidence that the commissioners could provide testimony relevant to Caissie's traffic tickets.

¶ 14. Upon review, we find no abuse of discretion in the circuit court's decisions on Caissie's discovery matters. The Town complied with Rule 9.04's mandatory discovery disclosures for criminal matters, and Caissie fails to show the Town was obligated to respond to his civil discovery requests. In addition, before a defendant can subpoena records, he must obtain the court's leave. See URCCC 2.01. Because Caissie failed to do so here, he failed to follow the appropriate court procedure for the issuance of his subpoenas. Furthermore, as the circuit court noted in quashing Caissie's two subpoenas, no evidence existed to show that the commissioners possessed personal knowledge or relevant testimony related to Caissie's traffic tickets. We therefore find these issues lack merit.

VI. Whether the circuit court erred by failing to accept Caissie's plea of "non assumpsit by way of confession and avoidance."

¶ 15. Prior to his trial, Caissie attempted to enter a plea of "non assumpsit by way of confession and avoidance." The circuit court instructed Caissie that he could plead guilty, not guilty, or nolo contendere. Over Caissie's objection, the circuit court refused to accept his plea of "non assumpsit by way of confession and avoidance" and entered Caissie's plea as not guilty. On appeal, Caissie argues the circuit court committed reversible error. We disagree.

¶ 16. Mississippi has its applicable criminal-procedural rules, which allow a defendant to "plead not guilty, or guilty, or with the permission of the court, nolo contendere." URCCC 8.04(A)(1). When a defendant "refuses or neglects to plead, stands mute, or pleads evasively," the court should "enter a plea of not guilty and ... proceed to trial." URCCC 8.03. Thus, upon review, we find no error in the circuit court's refusal to accept Caissie's plea of "non assumpsit by way of confession and avoidance" and to instead enter Caissie's plea as not guilty before proceeding to a de novo trial on the charges facing Caissie.

VII. Whether error occurred because the Town failed to provide the statutory law Caissie was charged with violating.

VIII. Whether error occurred because the Town failed to provide Caissie with a charging instrument.

¶ 17. Caissie argues that his traffic tickets were not competent charging instruments and that the circuit court "erred by moving forward to trial without an indictment or some formal charging instrument stating the statute or ordinance relied upon after [Caissie] was arrested[.]" Caissie further asserts that reversible error occurred because the Town failed to provide him with "the law imposing a duty on [him]."

¶ 18. This Court has previously recognized that, in misdemeanor cases, a uniform traffic ticket may serve as an affidavit to put the defendant on notice of the charges against him. Scott v. City of Booneville , 962 So.2d 698, 701-02 (¶ 8) (Miss. Ct. App. 2007). Mississippi Code Annotated section 63-9-21(3)(c) (Rev. 2013) sets forth the following requirements for a traffic ticket:

Every traffic ticket shall show, among other necessary information, the name of the issuing officer, the name of the court in which the cause is to be heard, and the date and time the person is to appear to answer the charge. The ticket shall include information that will constitute a complaint charging the offense for which the ticket was issued, and when duly sworn to and filed with a court of competent jurisdiction, prosecution may proceed thereunder.

"Such a traffic ticket constitutes a sworn affidavit sufficient to charge a defendant in municipal court." Scott , 962 So.2d at 701-02 (¶ 8) (citing Wheeler v. Stewart , 798 So.2d 386, 390 (¶ 8) (Miss. 2001) ).

¶ 19. In Loveless v. City of Booneville , 972 So.2d 723, 732-33 (¶ 26) (Miss. Ct. App. 2007), this Court addressed the defendant's argument that the charging affidavits' failure to cite applicable statutory law or local ordinances rendered the affidavits deficient. We acknowledged in Loveless that Uniform Rule of Circuit and County Court 7.06 "governs indictments and other criminal complaints such as the affidavits at issue[.]" Loveless , 972 So.2d at 733 (¶ 27). Although the charging affidavits in Loveless referenced no statutory law or local ordinances, we still held the affidavits complied with Rule 7.06 by "plainly and concisely set[ting] forth the essential facts underlying the respective charges with sufficient clarity and definiteness such that Loveless was adequately notified of the 'nature and cause of the accusations' against him." Id. at (¶ 28) (quoting URCCC 7.06 ). As a result, we found no merit to Loveless's arguments that the charging affidavits were insufficient. Id.

¶ 20. In the present case, the two traffic tickets (charging affidavits) Officer Hand issued to Caissie met the requirements established by section 63-9-21(3)(c). Furthermore, as in Loveless , the traffic tickets at issue complied with Rule 7.06's mandate to "plainly and concisely set forth the essential facts underlying the respective charges with sufficient clarity and definiteness ... that [Caissie] was adequately notified of the 'nature and cause of the accusations' against him." Loveless , 972 So.2d at 733 (¶ 28) (quoting URCCC 7.06). In addition, despite Caissie's assertions, the Town supplemented its discovery disclosures on November 20, 2015. In so doing, the Town explicitly informed Caissie that he was charged with operating a motor vehicle without a valid driver's license in violation of sections 63-1-5 and 63-1-7 and failing to maintain or provide proof of insurance in violation of section 63-15-4. Thus, the record clearly refutes Caissie's claims that the Town failed to provide him with "the law imposing a duty on [him]." We therefore find no merit to Caissie's arguments that the Town failed to provide him with charging instruments or the law applicable to his misdemeanor charges.

IX. Whether the circuit court erred by denying Caissie's request to voir dire his court-appointed armchair counsel.

X. Whether the circuit court erred by refusing Caissie's request for "next friend" counsel.

¶ 21. After ascertaining that Caissie wished to represent himself at trial, the circuit court, over Caissie's objection, appointed a public defender to be Caissie's armchair counsel. The circuit court explained that the armchair counsel would not interfere with Caissie's presentation of his case but would simply be available should Caissie need assistance. Caissie unsuccessfully sought to voir dire his court-appointed armchair counsel. Caissie also unsuccessfully requested "next friend" counsel. On appeal, Caissie argues the circuit court's denial of these two requests amounted to reversible error.

¶ 22. Upon review, we find substantial, credible, and reasonable evidence supported the circuit court's decisions. The circuit court appointed the public defender as Caissie's armchair counsel. As a licensed attorney familiar with the legal rules, procedure, and protocol applicable to circuit court, the public defender was competent to assist Caissie in the trial of his misdemeanor charges. Thus, we find no manifest error in the circuit court's denial of Caissie's request to voir dire the public defender.

¶ 23. As previously discussed, Caissie also requested that the circuit court grant him "next friend" counsel. The circuit court agreed to grant the request as long as the person was a licensed attorney, but Caissie objected to that requirement. Explaining that the unauthorized practice of law is a crime in Mississippi, the circuit court denied Caissie's request for "next friend" counsel. Because Mississippi Code Annotated section 73-3-55 (Rev. 2012) specifically prohibits "any person [from] engag[ing] in the practice of law in this state who has not been licensed according to law[,]" we find no error in the circuit court's denial of Caissie's request for a "next friend" counsel who was not a licensed attorney. See also Darby v. Miss. State Bd. of Bar Admissions , 185 So.2d 684, 687 (Miss. 1966) (providing that "any exercise of intelligent choice in advising another of his legal rights and duties brings the activity within the practice of the legal profession" (citation omitted) ). We therefore find that these assignments of error lack merit.

XI. Whether error occurred because the Town failed to answer or address several of Caissie's pretrial filings.

¶ 24. Prior to his trial de novo in circuit court, Caissie filed a pretrial brief, facts of which he wished the court to take judicial notice, and "notice to [the] circuit court of relevant facts and law." Caissie alleges the Town's failure to respond to or rebut these pretrial filings amounts to agreement with their content. He further claims that the Town's failure to respond to and the circuit court's failure to rule on his filings violated his constitutional rights. However, Caissie cites no relevant legal authority to support his arguments. As the appellant, Caissie bears the responsibility to provide authority and support for his assignments of error. See Hoops v. State , 681 So.2d 521, 526 (Miss. 1996). "If a party does not provide this support[, the appellate court] is under no duty to consider assignments of error when no authority is cited." Id. As we recently recognized:

An appellant cannot give cursory treatment to an issue and expect this Court to uncover a basis for the claims, either in the record or in the law. Simply put, we will not act as an advocate for one party to an appeal. The appellant must affirmatively demonstrate error in the court below, and failure to do so waives an issue on appeal.

Satterfield v. State , 158 So.3d 380, 383 (¶ 6) (Miss. Ct. App. 2015) (quoting Jefferson v. State , 138 So.3d 263, 265 (¶ 9) (Miss. Ct. App. 2014) ). We therefore decline to further address this issue.

XII. Whether the circuit court erred by excluding an audio recording Caissie attempted to admit into evidence.

¶ 25. During his trial, Caissie cross-examined Officer Hand and then informed the circuit court and the Town for the first time that he wished to introduce into evidence an audio recording. Caissie alleged the recording showed that Officer Hand failed to ask for proof of insurance during the traffic stop. The Town objected on the ground that Caissie had not produced the recording during discovery as required by the Uniform Rules of Circuit and County Court. See URCCC 9.04(C) (discussing the defendant's disclosure obligations during discovery).

¶ 26. Although Caissie argues on appeal that the circuit court erroneously excluded the audio recording, the record reflects that the circuit court never actually entered a ruling on the Town's objection. Instead, the record shows that Caissie took issue with a statement the Town's attorney made during the objection, and the exchange between the parties and the court never returned to Caissie's attempt to admit the audio recording into evidence. "An appellate court cannot review a matter which was not ruled upon by the trial court." Dedeaux Util. Co. v. City of Gulfport , 938 So.2d 838, 845 (¶ 22) (Miss. 2006) ; see also Hemmingway v. State , 483 So.2d 1335, 1337 (Miss. 1986) ("There was no ruling by the trial court and, therefore, nothing preserved for review by the appellate court[.]"). Because the circuit court never ruled on this matter, we refuse to address it for the first time on appeal.

CONCLUSION

¶ 27. Because we find no error in the circuit court's judgment, we affirm Caissie's misdemeanor convictions for operating a motor vehicle without a valid driver's license and failing to maintain or provide proof of insurance.

¶ 28. AFFIRMED.

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

      A few examples of the due-process violations Caissie alleges include the following: (1) after his attempt to remove the case to federal court and the Town's attempt to remand, the Town failed to respond to his "petition for a show[-]cause hearing to challenge the sufficiency of the attempted remand"; (2) the lack of municipal-court rules prevented him from conducting discovery and receiving notice of the "nature and cause of the action" against him in municipal court; (3) his municipal-court trial amounted to a trial by ambush; (4) the Town failed to provide sufficient pleadings to invoke the municipal court's jurisdiction; (5) the municipal court's failure to follow the law deprived the court of jurisdiction and rendered its judgment void; and (6) as the Town's officers, the municipal-court judge and the prosecuting attorney possessed a pecuniary interest in the litigation's outcome that disqualified them and voided the judgment.

      Effective July 1, 2017, the Mississippi Rules of Criminal Procedure supplanted the Uniform Rules of Circuit and County Court relating to criminal practice. However, the former rules remained in effect at the time of Caissie's trial, and we therefore cite and discuss these rules as necessary throughout our opinion.


author: WESTBROOKS, J., FOR THE COURT:

text:
    Angela WRIGHT, Appellant v. MINACT LOGISTICAL SERVICES, LLC and Companion Property and Casualty Insurance Company, Appellees
    NO. 2017-WC-00644-COA
    Court of Appeals of Mississippi.
    May 1, 2018 Rehearing Denied August 14, 2018
    ATTORNEY FOR APPELLANT: ANGELA WRIGHT (PRO SE)
    ATTORNEY FOR APPELLEES: BRYAN GRAY BRIDGES
    BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. Angela Wright was employed by Minact Logistical Services at the Nissan Plant located in Canton, Mississippi. On July 9, 2012, Wright was involved in an incident where she fell off a crate she was seated on in the back of a Fed-Ex truck driven by a supervisor. Wright and Minact agreed to a settlement on October 21, 2016. On February 22, 2017, Wright requested the Mississippi Workers' Compensation Commission re-open her claim. The Commission denied her request. Wright, appearing pro se, appeals from that order. Finding no error, we affirm.

FACTS

¶ 2. On July 9, 2012, Wright, employed by Minact, was instructed to ride in the back of a Fed-Ex truck by two supervisors at the Nissan Plant in Canton, Mississippi. The back of the truck did not have any seats, nor did it have any seatbelts, and Wright was instructed to sit on a crate. During the ride, Wright was thrown off the crate and injured her back. Over the span of four years, Wright saw at least nine different doctors regarding her work-related injuries. While it was undisputed between the parties that Wright had a compensable physical injury, it was disputed as to what extent she was disabled and whether her psychological injuries were related to her physical injuries. Due to the varying opinions of the physicians and at the encouragement of the Administrative Judge, both sides agreed to mediation.

¶ 3. At first, Wright seemed to have many hesitations to mediate, but ultimately she agreed to a settlement on October 21, 2016. Four months later, on February 22, 2017, Wright wrote a letter requesting the Full Commission to re-open her claim. In her letter, Wright stated that she felt her attorney did not do his job properly, she also stated she did not read the settlement herself, and she was forced into mediation by the Administrative Judge. On April 13, 2017, the Commission denied her request, stating that she had "failed to present any evidence to establish 'a change in conditions' or 'a mistake in determination of fact' as grounds for this matter to be reopened." Now, Wright timely appeals from the order denying her claim to re-open. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 4. The Commission "sits as the ultimate finder of facts in deciding compensation cases, and therefore, its findings are subject to normal, deferential standards upon review." Pilate v. Int'l Plastics Corp. , 727 So.2d 771, 774 (¶ 12) (Miss. Ct. App. 1999) (internal quotation marks omitted). This Court will only reverse the findings of the Commission if the findings are "clearly erroneous." J.R. Logging v. Halford , 765 So.2d 580, 583 (¶ 13) (Miss. Ct. App. 2000) (citing Evans v. Cont'l Grain Co., 372 So.2d 265, 269 (Miss. 1979) ). A finding is clearly erroneous if, "although there is some slight evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made by the Commission in its findings of fact and in its application of the [Workers' Compensation] Act." Id.

DISCUSSION

Whether the Commission erred in denying Wright's request to re-open her claim.

¶ 5. This Court finds that the Commission did not err in denying Wright's request to reopen her claim. Under Mississippi Code Annotated section 71-3-53,

Upon its own initiative or upon the application of any party in interest on the ground of a change in conditions or because of a mistake in a determination of fact , the commission may ... review a compensation case, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation.

(Emphasis added).

¶ 6. Here, Wright raises seven issues in her principal brief but does not make any arguments in support of a change in circumstance or a mistake in determination of fact as required by the statute. Additionally, in her request to re-open, Wright raises the issues that she "felt rushed and forced," she was unaware of who the notary was, she had not read the final medical report, and the mediator had been previously employed as an attorney for the insurance carrier. However, Wright does not fully develop these arguments in her brief.

¶ 7. This Court has held that "a change in conditions means a change in physical conditions due to the original injury which affects an employee's earning capacity or ability to work." Smith v. CompFirst/L.C. Indus. , 186 So.3d 873, 877 (¶ 14) (Miss. Ct. App. 2015) (internal quotation marks omitted). Wright states that she is entitled to benefits for her psychological injuries; however, those were in dispute at the time of the settlement and were encompassed in the petition for approval of the final compromise settlement.

¶ 8. Furthermore, "[t]he burden of proof for showing a change in conditions is on the party, whether claimant or employer, asserting the change." Id. "If this preponderance of the evidence burden is not met, the petition to reopen should be denied and the original order maintained." Id. (internal quotation marks omitted). Wright does not provide any additional documentation on her change in circumstances regarding her injuries. Therefore, the Commission did not err in finding there was no change in circumstances.

¶ 9. Additionally, the Commission did not find a mistake in determination of fact. As stated above, Wright did not demonstrate any mistake in determination of fact regarding her settlement. Although these issues are not dispositive of her appeal, we will address them briefly.

¶ 10. In her letter to the Commission, Wright states that she felt her attorney did not provide adequate representation during the settlement hearing on October 21, 2016. Wright stated that she asked him if he was going to read the settlement contract that day, and he responded that he was not. Other than this claim, Wright does not give any other evidence of deficient counsel.

¶ 11. Wright also states that the Administrative Judge forced her into mediation.

However, there is nothing in the record that indicates the Administrative Judge forced Wright into mediation. Moreover, Wright was represented by counsel who, according to the record, was engaged in every step of the process. Therefore, we do not find that these two issues or the others raised demonstrate a mistake in determination of fact.

CONCLUSION

¶ 12. After review of the record, we do not find the Administrative Judge erred in accepting the settlement agreement provided by Wright and Minact. Moreover, Wright did not demonstrate a change in circumstances or a mistake in determination of fact in accordance with section 71-3-53. Therefore, this Court finds that the Commission did not err in its denial of Wright's request to re-open her claim.

¶ 13. AFFIRMED.

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

      Wright claims the following issues in her principal brief: (a) the Administrative Judge's decision was arbitrary and capricious in approving a 9I Settlement; (b) the Administrative Judge forced her into mediation; (c) the two B31s had different signatures; (d) the employer-carrier paid her incorrectly for temporary disability; (e) she is entitled to benefits for psychological injuries that caused post-traumatic stress disorder ; (f) she was denied due process; and (g) the full Commission should have weighed in and reviewed the evidence that was presented before the judge made a final decision.