author: LEE, C.J., FOR THE COURT:

text:
    Pasquale SOLITRO a/k/a Pascal Solitro, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KM-00401-COA
    Court of Appeals of Mississippi.
    May 8, 2018
    ATTORNEY FOR APPELLANT: MICHAEL DUANE MITCHELL, LAUREL
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, JACKSON
    BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. Pasquale Solitro was found guilty of driving under the influence (DUI), first offense, in the Jasper County Justice Court. He appealed his conviction to the Jasper County Circuit Court for a trial de novo. Following a bench trial in the circuit court, Solitro was convicted of common law DUI first offense and was sentenced to two days in jail; fined $1,000; ordered to attend and complete the Mississippi Alcohol Safety Education Program; and given a 90-day suspension of driving privileges. Finding no arguable issue for appeal, Solitro's appellate counsel filed a brief pursuant to Lindsey v. State , 939 So.2d 743 (Miss. 2005). Solitro was given additional time to file a supplemental brief, which he has not done.

FACTS AND PROCEDURAL HISTORY

¶ 2. At trial, Mississippi Highway Patrol Trooper Kevin Bentley testified as the only witness on behalf of the State. Trooper Bentley testified that on November 15, 2014, he was dispatched to a wreck on Highway 15 North in Jasper County. When he arrived on the scene, he found a vehicle with significant front-end damage off the road and in the bushes of a private residence's yard. Trooper Bentley encountered a deputy sheriff, who pointed him toward the driver-Solitro. Trooper Bentley testified that when he approached Solitro, he immediately detected the presence of an alcoholic beverage coming from Solitro's person and breath. He also noticed that Solitro had urinated on himself. As he attempted to gather information and question Solitro about what happened, Solitro became belligerent and did not want to answer any questions. Trooper Bentley testified that it was at this point that the disorderly conduct came about, and he realized that Solitro was intoxicated. Subsequently, Trooper Bentley informed Solitro he was under arrest and placed him in handcuffs. Trooper Bentley then went over to the vehicle to examine its condition and noticed there were empty beer cans in the rear of the vehicle and in the passenger-side floorboard. At this time, Solitro attempted to run away, and Trooper Bentley then placed Solitro in the back of the patrol car.

¶ 3. Trooper Bentley testified that Solitro was unable to stand up and even at one point fell down. He stated he did not offer Solitro a field sobriety test and did not recall whether he offered Solitro a portable breath test at the scene. Trooper Bentley then transported Solitro to the county jail to process him, and stated that on the way, Solitro was spitting on him, cursing, and slurring his words. Because of this, Trooper Bentley pulled Solitro's shirt over his head while in the patrol car and took a picture of Solitro which was shown at trial. At the jail, Trooper Bentley offered Solitro the Intoxilizer 8000, which Solitro refused. Trooper Bentley testified he could not recall whether any other law enforcement officers witnessed him offer the Intoxilizer to Solitro and that he did not have a video recording of him offering Solitro the Intoxilizer.

¶ 4. Solitro testified in his own defense. He stated that on the day of the wreck, he was driving to his uncle's house to watch a football game on television, and he had purchased a case of beer, which was in the back seat of the vehicle. Solitro stated that while driving, a couple of deer came out, and he overcorrected, consequently running off the road into the gully. He stated he was knocked out for a few minutes, and when he came to, he was covered with beer which had come forward from the back seat and exploded on impact. He stated he had not been drinking. He also stated that he suffered a concussion. Though offered, Solitro did not receive any medical attention at the scene. He did go to the doctor seven or eight days later with complaints of headaches, where he was diagnosed with a concussion.

¶ 5. Solitro further testified that despite his concussion, he could clearly recall his interaction with Trooper Bentley. Solitro denied that he attempted to run away at the scene and that he spit on Trooper Bentley. He also denied that he had urinated on himself, but rather that he was covered with beer from the cans exploding on impact. The trial court noted, however, that the photograph Trooper Bentley had taken of Solitro revealed that Solitro's shirt was dry and Trooper Bentley had testified that Solitro's shirt was dry. Solitro also stated that Trooper Bentley did not offer him the Intoxilizer on the date of the incident.

¶ 6. Following the bench trial, the judge found that Solitro's testimony was not credible and that Trooper Bentley's testimony was credible. Based on Trooper Bentley's testimony and the evidence in the case, the judge found Solitro guilty of first offense DUI. Again, Solitro's counsel filed an appellate brief but represents to this Court that there are no arguable issues for appeal.

DISCUSSION

¶ 7. On appeal, where the appellant's counsel does not find any arguable issues for review, the Mississippi Supreme Court has instructed:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(1) -[ (5), (8) ].
(2) As part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client's appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining:
(a) the reason for the arrest and the circumstances surrounding arrest;
(b) any possible violations of the client's right to counsel;
(c) the entire trial transcript;
(d) all rulings of the trial court;
(e) possible prosecutorial misconduct;
(f) all jury instructions;
(g) all exhibits, whether admitted into evidence or not; and
(h) possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant's success on appeal.
(5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Windless v. State , 167 So.3d 277, 278 (¶ 5) (Miss. Ct. App. 2015) (quoting Lindsey , 939 So.2d at 748 (¶ 18) ).

¶ 8. In the instant case, Solitro's appellate counsel filed a brief pursuant to the requirements set forth in Lindsey and represents to this Court that

he has diligently searched the procedural and factual history of this criminal action and scoured the record searching for any arguable issues which could be presented to the Court on [Solitro's] behalf in good faith for appellate review, and upon conclusion, found no errors which were ultimately prejudicial to [Solitro.]

Solitro's appellate counsel further asserts that

[t]he entire record and transcript were scrupulously reviewed and matters considered in counsel's search for error included: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of the defendant's right to counsel; (c) the sufficiency of the indictment; (d) the weight and sufficiency of the evidence; (e) speedy trial issues; (f) all rulings of the trial court; (g) possible issues of ineffective counsel; (h) all jury instructions; (i) the admission or exclusion of all exhibits; (j) possible prosecutorial misconduct; and (k) possible misapplication of the law in sentencing.

Solitro's appellate counsel concludes that he is "unable to argue, in good faith, any prejudicial error."

¶ 9. Accordingly, Solitro's appellate counsel has complied with the requirements set forth in Lindsey . After examining the record, he found no arguable issues for appeal. Also, Solitro's counsel sent a copy of the Lindsey brief to Solitro, advising him that he found no arguable issues in the record and informing Solitro that he had the right to file a pro se supplemental brief. This Court granted Solitro an additional forty days to file a pro se brief, which he has not done.

¶ 10. Our independent review of the record has not revealed any arguable issues that would require supplemental briefing, and we find there was sufficient evidence to support the trial court's finding that Solitro was guilty of the charged offense of common law DUI first offense. "Common law DUI is proven when a defendant's blood alcohol results are unavailable but there is sufficient evidence to show that the defendant operated a motor vehicle under circumstances indicating his ability to operate the vehicle was impaired by the consumption of alcohol." Jefferson v. State , 151 So.3d 261, 265-66 (¶ 10) (Miss. Ct. App. 2014). We also note that "[t]he trial judge has sole authority to determine the credibility of a witness when sitting as the trier of fact in a bench trial" and this Court "will affirm a trial judge sitting without a jury on a question of fact unless substantial evidence shows the trial judge was manifestly wrong." Matthews v. City of Madison , 143 So.3d 571, 573 (¶ 4) (Miss. 2014). Therefore, we affirm Solitro's conviction and sentence.

¶ 11. AFFIRMED.

IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.


source: Caselaw Access Project

author: CARLTON, J., FOR THE COURT:

license: Public Domain

text:
    Marcia Lopez ROBLES, Appellant v. Jose Francisco GONZALEZ, Appellee
    NO. 2016-CA-01727-COA
    Court of Appeals of Mississippi.
    May 15, 2018
    ATTORNEYS FOR APPELLANT: JOHN MICHAEL DUNCAN, CHRISTOPHER TYLER KENT
    ATTORNEYS FOR APPELLEE: NATHAN HENRY ELMORE, JANE E. TUCKER
    BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. Marcia Robles filed a complaint for divorce against her husband, Jose Gonzalez. The Rankin County Chancery Court entered a judgment granting Robles and Gonzalez an irreconcilable-difference divorce. In his judgment, the chancellor also made an equitable division of the marital property and awarded Robles and Gonzalez joint legal and physical custody of their two minor children.

¶ 2. Robles now appeals the chancellor's final judgment, arguing that the chancellor erred by failing to make an on-the-record finding of each applicable Albright factor when awarding Robles and Gonzalez joint custody of the minor children. Finding error in the chancellor's final judgment, we reverse this case and remand to the chancellor for further proceedings consistent with this opinion.

FACTS

¶ 3. Robles and Gonzalez were married in Mexico in September 2006. After their marriage ceremony, Robles and Gonzalez resided in Rankin County, Mississippi. On October 28, 2015, Robles filed a complaint for divorce against Gonzalez based on irreconcilable differences and habitual cruel and inhuman treatment. She also requested sole legal and physical custody of the parties' two minor children, J.P. and J. The record reflects that Robles has two additional biological children from a previous relationship, and Gonzalez has three additional biological children from a previous relationship. Robles's two additional biological children lived in the marital home along with Robles, Gonzalez, J.P., and J. Gonzalez filed his answer and counterclaim to the complaint on December 17, 2015.

¶ 4. On August 3, 2016, the parties executed a stipulation where they withdrew all enumerated fault grounds for divorce and agreed for the entry of a divorce on the grounds of irreconcilable differences. At a trial on the matter held August 3, 2016 and October 31, 2016, the chancellor heard testimony from Robles and Gonzalez, as well as Maribel Valdez and Liliana Alcazar Cepeda.

¶ 5. At the trial, Robles testified that during her marriage to Gonzalez, she stayed home and cared for the children. Robles explained that after that she and Gonzalez separated, she obtained employment performing roofing work and cleaning houses, but she maintained a flexible work schedule. Robles testified that J.P. and J. had a good relationship with Robles's two older biological children, and she stated that J.P. and J. would be upset if they had to live apart from their older half-siblings.

¶ 6. Robles testified that due to a no-contact order issued by the justice court, Gonzalez had only restricted visitation with J.P. and J. Robles explained that she sought the no-contact order after an incident on September 10, 2015, when Gonzalez hit her and "grabbed [her] ... and ... threw [her] against a fence." Robles stated that as a result of the alleged assault, she suffered bruising and scrapes on her arms. Robles also stated that she believed that Gonzalez had an anger problem, and she did not feel safe around him. Counsel for Robles entered photographs into evidence, and Robles testified that the photographs depicted the injuries she suffered as a result of Gonzalez's alleged assault on September 10, 2015. Robles denied that she was seeking immigration status based on Gonzalez's alleged assault.

¶ 7. During cross-examination, Robles confirmed that surrounding the time of the alleged assault, she "commonly text[ed]

people up to a hundred or more times a day" and made "sometimes 40, 50 telephone calls a day." When questioned about her parenting skills, Robles admitted that J., who was almost six years old at the time of trial, suffered several injuries, including head and leg injuries and a broken arm, while in her care. Robles testified that J. also suffered extensive tooth decay which resulted in dental work, including nineteen crowns placed on his decayed teeth. Robles admitted that she has slapped one of her older children across the face on one occasion, but she denied ever slapping J.P. or J.

¶ 8. Robles also testified that when she attends parties, "the children always go with [her]." Robles admitted that people often consume alcohol at the parties, which often last past midnight. Robles stated that on occasion, she drove home with her children after she had consumed alcohol, but she denied ever driving while intoxicated. Robles also testified that she has a Mexican driver's license, but does not have a Mississippi driver's license. The following exchange occurred during cross-examination:

Q. So you are not licensed to drive in the State of Mississippi.
A. Yes.
Q. And yet you drink and drive. Correct?
A. I haven't done it recently.
Q. You've done it before.
A. Yes.
Q. And you did it with your kids in the vehicle.
A. Yes.
Q. Sometimes after midnight.
A. Sí.

Robles also admitted to possessing and firing a firearm, in violation of 18 U.S.C. § 922(g)(5), which prohibits undocumented immigrants from possessing firearms.

¶ 9. At trial, Robles admitted that Gonzalez had filed assault charges against her alleging that on September 8, 2015, Robles became angry at Gonzalez, yelled at him, and punched him in the mouth several times. Robles also admitted that another woman had filed stalking charges against her, and the stalking and assault charges were still pending at the time of trial. When asked about the September 8, 2015 assault charge that Gonzalez filed against her, Robles denied assaulting Gonzalez. She claimed that Gonzalez "hit himself because [Robles] was going to call the police and ... his lips are very sensitive because he's got braces. He hit himself." Robles also denied striking Gonzalez above the eye on another occasion and claimed that he "made that cut with a bottle cap." Robles asserted that one of Gonzalez's coworkers informed her that Gonzalez is intentionally injuring himself "so he can take [Robles] to court and ... put [Robles] at fault."

¶ 10. Maribel Valdez, one of Robles's friends, testified that she had known the parties for about seven years. Valdez stated that she also supervised Gonzalez's visitations with J.P. and J. Valdez estimated that she performed this duty approximately four times. Valdez testified that after she was late to a visitation, Gonzalez "spoke to [her] in a strong voice, strong way, strong manner." Valdez testified that Robles cared for the children "more often" than Gonzalez, and she would trust Robles to care for her own children.

¶ 11. Liliana Cepeda testified that she worked for the parties for the duration of their marriage cleaning the house and caring for their children. Cepeda stated that even though Robles and Gonzalez were separated, she still takes care of the children. Cepeda testified that after the parties had separated, Robles called Cepeda on the telephone and informed her that she and Gonzalez had had an argument. Robles asked Cepeda to pick her up at the Walgreen's pharmacy in Brandon. Cepeda picked up Robles and brought her to Cepeda's house. While at her home, Cepeda testified that Robles "asked [Cepeda's] cousin to mark her so that she could go [file] charges. She was going to [file] charges for domestic violence so that she could get immigration status here in the United States." Cepeda testified that she witnessed her cousin, Raul Cepeda, making "marks" on Robles. Cepeda also testified that she has witnessed Robles drinking alcohol at parties until 2:00 or 3:00 in the morning, and she then drove home afterwards with her children in the car.

¶ 12. Cepeda opined that Gonzalez "is a good father. He would take the children to work even when [Robles] was at home. I know that he-he didn't strike [Robles]." Cepeda testified that Gonzalez also played with the children, cooked for them, and took care of them. Cepeda stated that she believed that Gonzalez would do a better job than Robles of taking care of J.P. and J.

¶ 13. Gonzales testified that he is a legal permanent resident of the United States and that he has worked in construction doing roofing work for twenty years. Gonzalez stated that he earns approximately $50,000 a year. Gonzalez testified that he works Monday through Friday. Gonzalez estimated that he arrives at work each day between 7:00 or 8:00 a.m. and leaves work between 4:00 and 7:00 p.m. Gonzalez testified that he usually does not work on the weekends. Gonzalez admitted that he drinks alcohol on occasion, but he denied that he had ever driven a vehicle after consuming alcohol.

¶ 14. Gonzalez stated that he spends a lot of time with his children, including the two children from Robles's prior relationship. Gonzalez also testified that he often cooked meals for the family. Gonzalez expressed concern that Robles was not providing J.P. and J. with proper nutrition because the two boys had gained a significant amount of weight after he and Robles separated.

¶ 15. Gonzalez testified about the assault charge he filed against Robles, and he informed the chancellor that on September 8, 2015, he and Robles had an argument regarding a meal for the children. Gonzalez stated that the argument resulted in a physical altercation where Robles hit him in the mouth and scratched him with her fingernails. Gonzalez also testified that on April 18, 2016, he ran into Robles and another man at a club. Gonzalez stated that Robles's date, Luis Garza, "came over to provoke [him]" and that Robles then approached Gonzalez and punched him in the face.

¶ 16. Regarding the assault charges Robles filed against him, Gonzalez admitted to having an argument with her on September 10, 2015, but he denied assaulting her. Gonzalez denied that he had ever hit or assaulted Robles or his children. Gonzalez stated that he had seen Robles hit J.P. and J. on "occasions that they make her mad." Gonzalez also denied Robles's allegations that he had punctured the tires of her vehicle.

¶ 17. On November 1, 2016, the chancellor entered his final judgment of divorce. Regarding custody of the minor children, the chancellor held that "[a]fter considering and balancing the factors set forth by the Mississippi Supreme Court in Albright v. Albright , the Court finds that the parties are comparatively equal and neither party is favored over the other." The chancellor provided that Robles and Gonzalez "shall be granted joint physical and legal custody of the minor children," and he set forth a custody schedule. The chancellor then divided the marital property.

¶ 18. Robles filed her notice of appeal on December 1, 2016. On appeal, Robles argues that the chancellor's failure to specifically discuss the Albright factors when making his determination of child custody constitutes reversible error.

STANDARD OF REVIEW

¶ 19. This Court's standard of review regarding child custody is limited. C.W.L. v. R.A. , 919 So.2d 267, 270 (¶ 8) (Miss. Ct. App. 2005). On appeal, this Court will reverse a chancellor's child-custody decision "only if a chancellor is manifestly wrong or applied an erroneous legal standard. This Court will not reverse a chancery court's factual findings, where there is substantial evidence in the record supporting these findings of fact." Lowrey v. Lowrey , 25 So.3d 274, 294-95 (¶ 51) (Miss. 2009). However, "[a] chancellor's conclusions of law are reviewed de novo." Id. at 285 (¶ 26).

DISCUSSION

¶ 20. On appeal, Robles argues that the chancellor committed reversible error by failing to specifically discuss or make on-the-record findings of the factors set forth in Albright for child-custody determinations. The Mississippi Supreme Court has established that "[t]he best interest of the child is paramount in any child-custody case." Wilson v. Davis , 181 So.3d 991, 995 (¶ 7) (Miss. 2016) (quoting Smith v. Smith , 97 So.3d 43, 46 (¶ 8) (Miss. 2012) ). In determining the child's best interests, the trial court considers the following factors:

(1) age, health and sex of the child; (2) a determination of the parent [who] has had the continuity of care prior to the separation; (3) which has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) emotional ties of parent and child; (7) moral fitness of the parents; (8) the home, school[,] and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) stability of home environment and employment of each parent and other factors relevant to the parent-child relationship.

Powell v. Ayars , 792 So.2d 240, 244 (¶ 7) (Miss. 2001) (citing Albright , 437 So. 2d at 1005).

¶ 21. We recognize that "[t]he chancellor is required to address each of the Albright factors that is applicable to the case[.]" Blakely v. Blakely , 88 So.3d 798, 803 (¶ 17) (Miss. Ct. App. 2012). "A determination of child custody will be held erroneous where a chancellor is not thorough in his discussion" of the Albright factors. Powell , 792 So.2d at 249 (¶ 33). "However, the chancellor need not decide that every factor favors one parent over the other." Blakely , 88 So.3d at 803 (¶ 17). "Instead, the Albright factors exist to ensure the chancellor considers all the relevant facts before [he] reaches a decision. All the factors are important, but the chancellor has the ultimate discretion to weigh the evidence the way [he] sees fit in determining where the child's best interest lies." Id. (quoting Johnson v. Gray , 859 So.2d 1006, 1013-14 (¶ 36) (Miss. 2003) ) (internal quotation marks omitted).

¶ 22. In this case before us, after the parties rested their cases, the chancellor provided his ruling on the record. The chancellor held as follows:

The court finds that there were two minor sons born to this marriage: [J.P.], who is presently ten; and [J.], who is presently six. The court when making-making a ruling regarding custody of minor children has been directed by the Supreme Court of Mississippi to consider the factors outlined in the Albright v. Albright case. In order to reach that determination, the polestar consideration of this court, being what is in the best interest of the minor children of the parties-not necessarily what is in the best interest of the parents pursuing custody, but what the court determines is in the best interest of these two minor children.
The court has considered all of the evidence and testimony in light of the enumerated Albright factors and finds that these two parents are comparatively equal regarding those factors-or put another way, that neither party is favored over the other party in employing the Albright balancing test-and, therefore, the court will and does hereby order joint legal and physical custody to be exercised by both of these parents with regard to the two children that are the subjects of this lawsuit.

The chancellor then set forth a custody schedule that was intended to obviate the need for either party to pay child support.

¶ 23. On November 1, 2016, the chancellor entered his final judgment memorializing his bench ruling. The judgment also reflects that the chancellor "consider[ed] and balanc[ed] the factors set forth ... in Albright " and determined that "the parties are comparatively equal and neither party is favored over the other."

¶ 24. In Adoption of Wright v. Wright , 160 So.3d 737, 742-43 (¶ 16) (Miss. Ct. App. 2015), this Court followed the supreme court's prior holding in Powell , 792 So.2d at 249 (¶ 33), in determining that a chancellor erred by failing to make specific findings regarding each applicable Albright factor. This Court found that "the chancellor's opinion arguably discussed several of the Albright factors" but explained that "it did so unintentionally and did not address all of the factors applicable in this case." Id. at 742 (¶ 16). This Court then reversed the chancellor's judgment and remanded the case with instructions for "the chancellor to support his decision with an on-the-record Albright analysis." Id. at 743 (¶ 16).

¶ 25. However, in Sobieske v. Preslar , 755 So.2d 410, 413 (¶ 12) (Miss. 2000), the supreme court affirmed the chancellor's judgment despite its determination that the chancellor failed to make any express findings as to the Albright factors. In Sobieske , the chancellor provided only the following language in his custody determination:

Considering the factors set forth in Albright , it appears that both parents have the desire and capacity to have the primary custody of [the minor child], however, [the minor child] has close ties to the home she has lived in since birth as well as to her friends and family in Alcorn County, Mississippi. [The minor child] has close ties to Mrs. Sobieske's twin sister, Mary Allred, and to Ms. Allred's daughter, Meagan, who is approximately the same age as [the minor child]. [The minor child] also has, in Alcorn County, other family and friends who she is close to. Mrs. Sobieske and her new husband are living in Atlanta, Georgia, and since [the minor child] does not have any other family in that area, there are uncertainties for her there.

Id. at 411-12(¶ 4). In Sobieske , the chancellor's ruling "appears to recognize that both parents are fit under Albright [.]"

Id. at 412 (¶ 4). The supreme court held "it can be inferred from his citation to Albright that [the chancellor] felt that both parents were fit under Albright " but expressed that "it certainly would have been preferable for the [c]hancellor to have expressly considered each Albright factor[.]" Id. at 412, 413 (¶¶ 4, 12). However, the Sobieske Court explained that "it is perhaps understandable that [the chancellor] did not do so in the present case, given that the testimony established that both [parents] were fit and loving[.]" Id. at 412 (¶ 4). In affirming the chancellor's judgment, the Sobieske Court recognized the deference that an appellate court "must show to the [c]hancellor in the exercise of his discretion." Id. at 413 (¶ 12).

¶ 26. In the more recent case of Huseth v. Huseth , 135 So.3d 846, 858 (¶ 36) (Miss. 2014), the supreme court again affirmed a chancellor's judgment awarding physical custody of the minor child to the mother despite finding that the chancellor failed to conduct a detailed, on-the-record analysis of the Albright factors. The supreme court recognized that the chancellor "state[d] that she had weighed the [ Albright ] factors, ... [plus] significant evidence was adduced by each party [that] was relevant to the Albright factors and the determination of custody." Id. Finding its prior precedent in Sobieske controlling, the supreme court affirmed the chancellor's custody determination and held as follows:

In light of the amount of evidence adduced at trial that was relevant to the Albright factors, the fact that each parent was shown to be a good parent, and the chancellor's indication that she had considered the factors by noting the stability achieved by the child's staying with his mother, we find that Sobieske is controlling, and consequently, we affirm the chancellor's custody determination.

Id. at 859 (¶ 39).

¶ 27. In the case before us, although the chancellor failed to provide an express, on-the-record determination regarding each Albright factor in his final judgment, the chancellor did state that in making his child-custody determination, he "consider[ed] and balanc[ed] the factors set forth by the Mississippi Supreme Court in Albright [.]" The trial transcript also reflects that the chancellor explained that he "considered all of the evidence and testimony in light of the enumerated Albright factors." However, the chancellor's ruling reflects only his determination that Robles and Gonzalez "are comparatively equal regarding those factors-or put another way, that neither party is favored over the other party in employing the Albright balancing test." Unlike Sobieske , the chancellor made no additional finding that both parties were loving and fit, and the record does not reflect on its face that both parents are loving and fit so as to support an award of joint custody. Therefore, we must remand this case to the chancellor to provide findings in accordance with Albright to support his custody determination.

¶ 28. Additionally, when awarding joint custody, the supreme court has held that "unless the parents are capable of sharing joint custody cooperatively, it is incumbent upon a chancellor not to award joint custody." Crider v. Crider , 904 So.2d 142, 147 (¶ 13) (Miss. 2005). The supreme court instructed that "[t]his is for the chancellor to determine as he or she is in the best position to evaluate the credibility, sincerity, capabilities[,] and intentions of the parties." Id. The chancellor failed to make on-the-record findings regarding his application of the various Albright factors and as to whether the parties were capable of cooperatively sharing joint custody. We cannot properly review the chancellor's child-custody determination without findings in support of his determination. Based upon the foregoing, we reverse the chancellor's judgment and remand the case to the chancellor for further proceedings consistent with this opinion.

¶ 29. REVERSED AND REMANDED.

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

      Albright v. Albright , 437 So.2d 1003, 1005 (Miss. 1983).

      For anonymity purposes, this Court has chosen to use the initials of the children.

      Robles served Gonzalez with a copy of her complaint for divorce on November 10, 2015. Gonzalez filed his answer and counterclaim on December 17, 2015, more than thirty days after he had been served with the complaint for divorce. Robles filed a motion to strike Gonzalez's answer and counterclaim as untimely filed. Gonzalez filed a response to Robles's motion to strike, wherein he alleged that Robles "did not file her Affidavit of Service, dated November 10, 2015, until January 6, 2016 ...; therefore, [Gonzalez's] counsel had no way of knowing on which date the summons was actually served." The record contains no ruling on this motion. The Mississippi Supreme Court has held that "the affirmative duty to obtain a ruling on a motion rests upon the party filing the motion to follow up his action by bringing it to the attention of the trial court." Ramsey v. Auburn Univ. , 191 So.3d 102, 112 (¶ 37) (Miss. 2016). Since Robles failed to obtain a ruling on her motion to strike, we find that she abandoned her argument and failed to preserve for review any issue as to this motion.

      In Powell , 792 So.2d at 249 (¶ 33), the supreme court reversed the chancellor's judgment after finding that the chancellor failed to make specific findings for each Albright factor when making his custody determination.

      "The chancellor is only required to address those Albright factors that are applicable to the case before him." Rayner v. Sims , 228 So.3d 353, 357 (¶ 12) (Miss. Ct. App. 2017).


text:
    Gary Dewayne ALLEN a/k/a Gary Allen a/k/a Gary D. Allen, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01706-COA
    Court of Appeals of Mississippi.
    May 15, 2018
    ATTORNEY FOR APPELLANT: GARY DEWAYNE ALLEN (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA McCLINTON, JACKSON, MS.
    BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. A George County jury convicted Gary Dewayne Allen of sexual battery and sentenced him to serve twenty-five years in the custody of the Mississippi Department of Corrections (MDOC). Allen appealed his conviction and sentence in 2006. This Court affirmed his conviction and sentence in Allen v. State , 960 So.2d 489 (Miss. Ct. App. 2006). Allen filed his first motion for postconviction relief (PCR) in 2013 and his second in 2014. Both were dismissed. This appeal addresses Allen's third PCR motion, filed in 2016. As set forth in this opinion, we affirm the trial court's dismissal for lack of jurisdiction.

¶ 2. On November 14, 2016, Allen filed his third PCR motion, which the George County Circuit Court dismissed on November 15, 2016. The trial court, in its order of dismissal, found that Allen's claims were time barred, barred as a successive writ, barred under the doctrine of res judicata, and were capable of determination at trial or on direct appeal. The trial court also found that Allen failed to seek permission from the Mississippi Supreme Court to file his PCR motion pursuant to Mississippi Code Annotated section 99-39-7 (Rev. 2015). Allen now appeals the trial court's dismissal of his PCR motion. Finding no error, we affirm the trial court's dismissal for lack of jurisdiction.

FACTS

¶ 3. On July 1, 2003, Allen was indicted for sexual battery. A George County jury convicted Allen of the offense, and the trial court sentenced Allen to serve twenty-five years in the custody of the Mississippi Department of Corrections (MDOC). On direct appeal of his sentence and conviction, this Court affirmed the holding of the trial court. Allen , 960 So.2d at 490 (¶ 1).

¶4. In January 2011, Allen filed a motion for reconsideration, which the Mississippi Supreme Court dismissed. In February 2013, Allen filed a subsequent application for leave with the supreme court to proceed in the trial court. The supreme court dismissed his application on March 2, 2013.

¶ 5. Allen then filed a PCR motion and another application for leave with the supreme court to proceed in the trial court. The trial court dismissed his motion in August 2014. As a result, Allen filed two writs of mandamus. The supreme court dismissed them without prejudice, and the supreme court also dismissed Allen's application for leave to file his PCR motion as moot.

¶ 6. Following the supreme court's dismissal of his prior motions, Allen filed a PCR motion on December 7, 2015. The supreme court entered an order denying his motion, finding Allen's claims "time barred, barred as a successive writ, barred under the doctrine of res judicata, and/or were capable of determination at trial or on direct appeal ... [and that Allen failed] to make a substantial showing of the denial of a state or federal right."

¶ 7. On November 14, 2016, Allen nonetheless filed the instant motion to show cause in the trial court, which the trial court treated as a PCR motion. The trial court responded with a dismissal and bar to future in forma pauperis status. The trial court took issue with Allen's motion, finding the motion to be an "obvious attempt at postconviction relief," despite its title. Additionally, the trial court found that Allen failed to seek permission of the supreme court to proceed in the trial court, which deprived the trial court of jurisdiction. The trial court cited section 99-39-7 that states the following: "[w]here the conviction and sentence have been affirmed on appeal or the appeal has been dismissed, the motion under this article shall not be filed in the trial court until the motion shall have first been presented to a quorum of the Justices of the Supreme Court of Mississippi ... and an order granted allowing the filing of such motion in the trial court." Allen now appeals the dismissal of his third PCR motion.

STANDARD OF REVIEW

¶ 8. "An appellate court will not reverse the circuit court's dismissal of a PCR motion absent a finding that the decision was clearly erroneous." Whetstone v. State , 109 So.3d 616, 618 (¶ 6) (Miss. Ct. App. 2013). Jurisdictional "[q]uestions of law, however, are reviewed de novo." Id. ;see also Crosby v. State , 66 So.3d 161, 165 (¶ 7) (Miss. Ct. App. 2010).

DISCUSSION

¶ 9. Allen seeks exception from the time bar and successive-writ bar by asserting that his claims involve violations of his fundamental rights, and therefore should be excepted from the procedural bars. Specifically, Allen argues: (1) he was denied effective assistance of counsel guaranteed to him by the Sixth Amendment of the Constitution of the United States and Article III, section 26 of the Constitution of the State of Mississippi ; (2) his conviction rests on illegally obtained evidence; (3) he was denied due process of law because the State withheld favorable evidence and continues to possess that evidence; and (4) he is innocent of the convicted crime.

¶ 10. Mississippi Code Annotated section 99-39-7 provides that:

Where a conviction and sentence have been affirmed on appeal or the appeal has been dismissed, the motion under this article shall not be filed in the trial court until the motion shall have first been presented to a quorum of the justices of the Supreme Court of Mississippi, convened for said purpose either in termtime or in vacation, and an order granted allowing the filing of such motion in the trial court.

See Wardley v. State , 37 So.3d 1222, 1224-25 (¶ 8) (Miss. Ct. App. 2010) ; McKenzie v. State , 66 So.3d 1274, 1275-76 (¶¶ 4-5) (Miss. Ct. App. 2001).

¶ 11. While there are exceptions to the procedural time bar found in Mississippi Code Annotated section 99-39-5(2) (Supp. 2011) and successive-writ bar in Mississippi Code Annotated section 99-39-23(6) (Supp. 2011), there is no relief provided to Allen for not complying with the requirements of section 99-39-7. Without a motion for leave filed and permission from the Mississippi Supreme Court granted, Allen's PCR motion cannot properly be filed in the trial court.

¶ 12. In the present case, Allen filed a motion to show cause in the trial court, which the trial court treated as a PCR motion. Regardless of its title, the trial court found that the motion was an "obvious attempt at postconviction relief." Accordingly, and based upon the foregoing, the trial court was deprived of jurisdiction to hear Allen's motion because he failed to receive permission from the supreme court as statutorily required in section 99-39-7.

¶ 13. We therefore affirm the trial court's dismissal for lack of jurisdiction.

¶ 14. AFFIRMED.

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

      The motion and order from Mississippi Supreme Court Cause No. 2010-M-00920 is absent from the record.

      The motion and order from Mississippi Supreme Court Cause No. 2015-M-01261 is absent from the record.


text:
    Valerie J. YERKS, individually and on behalf of her minor son, Appellant v. Elizabeth A. TREST, M.D. and Woman's Group of Meridian PLLC, Appellees
    NO. 2016-CA-00931-COA
    Court of Appeals of Mississippi.
    June 12, 2018
    BRADLEY S. CLANTON, for Appellant
    JAMES H. HEIDELBERG, Pascagoula, RICHARD WILLIAM FRANKLIN, WHITMAN B. JOHNSON III, Jackson, APRIL LEIGH MCDONALD, LORRAINE WALTERS BOYKIN, for Appellees
    BEFORE LEE, C.J., BARNES AND TINDELL, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. In this medical-malpractice case, we must determine whether the trial court erred when it granted Dr. Elizabeth Trest's and Woman's Group of Meridian's motions for summary judgment, finding that Valerie Yerks's medical expert failed to establish the necessary element of causation. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On January 2, 2004, Yerks, who was 40-weeks pregnant, was seen by her OBGYN, Dr. Trest, at Woman's Group of Meridian. Dr. Trest evaluated Yerks at the clinic, and then sent her to Riley Memorial Hospital for an additional work-up. She then determined that Yerks's labor should be induced because she was a few days past 40-weeks gestation and had oligohydramnios, or low amniotic fluid. Yerks was admitted to the hospital and her labor induced on January 2, 2004, around 4:30 p.m. External fetal monitoring was performed throughout the labor and at times revealed heart decelerations (decreased or drop in heart rate) and bradycardia (slow heart rate). Dr. Trest was informed by medical staff via phone of Yerks's symptoms and progress throughout the labor including the decelerations and bradycardic heartrate. Yerks went into active labor around 1:00 a.m. on January 3, 2004, and complete cervical dilation occurred at 4:05 a.m. Dr. Trest arrived to the hospital at 4:26 a.m., and delivered the baby at 4:43 a.m. via vacuum-assisted extraction. Yerks gave birth to a male child, Tyler, weighing 7 pounds 9 ounces.

¶ 3. After Tyler was born, it was noted that he suffered from macrocephaly (abnormally large head); severe hearing loss (profound deafness); and optic nerve hypoplasia with nystagmus (legal blindness ).

¶ 4. On December 29, 2011, Yerks, individually and on behalf of her minor son, Tyler, filed a complaint for medical negligence against Dr. Trest and Woman's Group (collectively "Dr. Trest"). Yerks claimed that Dr. Trest committed medical negligence by failing to properly monitor and provide appropriate medical treatment during Yerks's labor and Tyler's birth, causing Tyler's life-long injuries, including deafness; vision impairment; walking disability; and emotional, behavioral, and intellectual disability.

¶ 5. On November 21, 2013, after various motions to dismiss and motions for summary judgment, the parties stipulated that Yerks's individual claims were time-barred, and the trial court entered an order accordingly. The trial court also found that Dr. Trest's motion for summary judgment was premature and additional discovery was necessary. The summary-judgment motions were held in abeyance until discovery was complete. On May 26, 2016, the trial court, finding that Yerks failed to establish the essential element of causation, issued a memorandum opinion and order granting summary judgment in favor of Dr. Trest. From this order, Yerks, on behalf of Tyler, now appeals.

STANDARD OF REVIEW

¶ 6. "A trial court's grant of summary judgment is reviewed de novo." Johnson v. Pace , 122 So.3d 66, 68 (¶ 8) (Miss. 2013). "Summary judgment is proper if '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 and that the moving party is entitled to a judgment as a matter of law.' " Id. (quoting M.R.C.P. 56(c) ). "The evidence must be viewed in the light most favorable to the party opposing the motion." Id.

DISCUSSION

¶ 7. The trial court granted Dr. Trest's motion for summary judgment based on the ground that Yerks failed to establish the essential element of causation between Dr. Trest's alleged negligence and Tyler's injuries. "In a medical[-]malpractice case, as in all claims for negligence, causation must be proven in order to establish a prima facie case." Hubbard v. Wansley , 954 So.2d 951, 964 (¶ 42) (Miss. 2007).

¶ 8. "A plaintiff in a medical-malpractice case has the burden of proving '(1) the existence of a duty by 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; and (3) an injury to the plaintiff proximately caused by the breach of such duty by the defendant.' " Johnson , 122 So.3d at 68 (¶ 8) (quoting Hubbard , 954 So.2d at 956-57 (¶ 12) ). "Expert testimony establishing these elements generally is required for the nonmoving party to survive summary judgment." Id. "Not only must this expert identify and articulate the requisite standard that was not complied with, the expert must also establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries." Id. (quoting Barner v. Gorman , 605 So.2d 805, 809 (Miss. 1992) ).

¶ 9. The trial court found that Yerks was unable to establish the essential element of causation because Yerks's expert, Dr. Kevin Stephens, testimony regarding causation was unreliable and therefore, inadmissible. "In regard to the admissibility of expert witness testimony, the trial judge is to act as a gatekeeper, ensuring that expert testimony is both relevant and reliable." Barrow v. May , 107 So.3d 1029, 1035 (¶ 14) (Miss. Ct. App. 2012) (internal quotation mark omitted). "A trial court's admission or exclusion of expert testimony is reviewed for abuse of discretion." Worthy v. McNair , 37 So.3d 609, 614 (¶ 13) (Miss. 2010). "The trial court's decision will stand unless the reviewing court concludes that the decision was arbitrary and clearly erroneous, amounting to an abuse of discretion." Id.

¶ 10. In his affidavit and deposition, Dr. Stephens opined that Dr. Trest committed multiple breaches of the standard of care by failing to properly monitor Tyler's symptoms throughout Yerks's labor and delivery; failing to perform a cesarean-section delivery; and using the vacuum extractor in light of the fetal heart rate and oligohydramnios. Dr. Stephens further opined that he believed these multiple breaches contributed to or caused Tyler's injuries, including macrocephaly, deafness, and blindness. Dr. Trest challenged Dr. Stephens's opinions regarding causation as unreliable, and therefore inadmissible. Specifically, Dr. Trest challenged Dr. Stephens's opinion as contrary to the scientific and medical community.

¶ 11. Yerks argues that this case is a "battle of the experts" presenting a question to be resolved by the jury. However, "[a]n attack based on lack of acceptance within the scientific community (an issue for the trial judge) is not the same as one expert's opinion disagreeing with the opinion of another, which generally creates a dispute of fact to be decided by the jury." Hill v. Mills , 26 So. 3d 322, 331 (¶ 134) n.7 (Miss. 2010). In this case, Dr. Trest specifically attacks Dr. Stephens's opinion on causation as not accepted within the scientific and medical community and contrary to peer-reviewed literature on the subject matter.

¶ 12. In Mississippi, "[m]edical experts are not required to support their opinions with medical literature." Mem'l Hosp. at Gulfport v. White , 170 So.3d 506, 509 (¶ 12) (Miss. 2015). But, "[a]n expert whose opinions are under scrutiny may not ignore allegations of unreliability and nonacceptance within the scientific community, but rather must respond with some evidence that the opinions are, in fact, accepted within the scientific community." Hill , 26 So.3d at 330 (¶ 30). "[W]hen an expert (no matter how qualified) renders an opinion that is attacked as not accepted within the scientific community, the party offering that expert's opinion must, at a minimum, present the trial judge with some evidence indicating that the offered opinion has some degree of acceptance in the scientific community." Mem'l Hosp. , 170 So.3d at 509 (¶ 12) (quoting Hill , 26 So.3d at 331 (¶ 34) ).

¶ 13. In the instant case, Dr. Trest attacked Yerks's expert's opinion as not accepted within the scientific or medical community. Dr. Stephens testified that the several alleged breaches of standard of care resulted in a traumatic birth event, stating that "part of the birth trauma contributed to his neurological deficits" and that "the total experience of the infant in the delivery process ... was traumatic." Specifically, Dr. Stephens testified that:

With the loss of fluid in the labor process, you can have either head compression or cord compression. And the prolonged severe head compression and cord compression can lead to fetal bradycardia or placenta insufficiency, which can cause fetal distress, which can cause sequelae in terms of neurological sequelae.
[I]t started off with the reduced amniotic fluid. And with reduced amniotic fluid, there appeared to have been both head compression and cord compression, which contributed to the change in the fetal baseline heart rate, and which then progressed to the deceleration-the heart decelerations, and that remained until the delivery. And along-when you add vacuum extraction on top of that, then that contributed even more so towards the neurological deficits.

¶ 14. Dr. Trest challenged these opinions as unreliable and not scientifically or medically accepted. To support the challenge, Dr. Trest presented affidavit testimony from several medical experts.

¶ 15. Dr. Stephens had stated that the placenta-pathology report showed small areas of fibrosis, calcification, and scattered hyalinized villi, which "could be somewhat problematic[,] I'm not sure." But upon further questioning, Dr. Stephens admitted he would defer to a placental pathologist. One of Dr. Trest's experts, Dr. Carolyn Salafia, a placental pathologist, board certified in pediatric pathology and anatomic and clinical pathology, reviewed tissue samples from the placenta and testified that "the placenta does not reveal edema, congestion, hemorrhage, or capillary bursting which is what one would see if there had been abnormal pressure on the cord as opined by plaintiff's expert." She further opined, "This event was not a birth trauma case as alleged by the plaintiff's expert and plaintiff's causation theories are wrong and not supported by the placental pathology."

¶ 16. Dr. Stephens had also opined that with low amniotic fluid "you can have head compression ... which can cause fetal distress ... which can cause ... neurological sequelae." But, Dr. Stephens admitted he had not looked at any of Tyler's brain-imaging studies and would defer to a board-certified pediatric neuroradiologist to interpret those imaging studies. In response, Dr. Trest submitted the affidavit of Dr. Robert Zimmerman, a professor of radiology who is board certified in radiology and neuroradiology. Dr. Zimmerman's affidavit stated that "nothing in the images suggest an injury as described by [Dr. Stephens]." After reviewing Tyler's medical records, including MRI and CT scans, Dr. Zimmerman opined that:

For a term infant with partial or prolonged asphyxia to explain the clinical symptoms, certain anatomical conditions will be seen on the radiological imaging. Those conditions do not appear on [Tyler's] radiological images. This effectively rules out hypoxic and ischemic brain insult to [Tyler] at birth and rules out a birth trauma case as alleged by the plaintiff's expert.

¶ 17. Dr. Trest also submitted the affidavits of Dr. Jay Goldsmith, a professor of pediatrics specializing in neonatal medicine and neonatal-perinatal medicine; Dr. Aubrey Milunsky, a board certified physician in internal medicine, pediatrics, and clinical genetics; and Dr. Elias G. Chalhub, a pediatric neurologist. These experts' affidavits, together with supporting medical literature, also challenged the reliability of Dr. Stephen's opinions as contrary to the scientific and medical community, and contrary to the evidence in the case. Upon review of these affidavits, the trial court noted the following:

Dr. Elias G. Chalhub, M.D.... offer[ed] the opinion that the medical records indicate the child's Apgar scores of 8/8 at 5 minutes which negates any opinion of a significant hypoxic event having occurred.
This opinion is supported by medical literature.
According to Executive Summary: Neonatal Encephalopathy , submitted by Defendants in support of their motion for summary judgment, "if the Apgar score at 5 minutes is greater than or equal to 7, it is unlikely that peripartum hypoxic-ischemia played a major role in causing neonatal encephalopathy." Dr. Stephens agreed with this statement in his deposition and also agreed that [Tyler's] Apgar score at 5 minutes was greater than 7.... However, when asked if that meant it was unlikely that peripartum hypoxic-ischemia played a major role in causing [Tyler's] neonatal encephalopathy, Dr. Stephens disagreed stating "not in this case." ... Dr. Stephens gave no further explanation as to why it was not unlikely "in this case."
....
Dr. Goldsmith opined that [Tyler's] condition is not related to and is inconsistent with an acute intrapartum hypoxic event. The Apgar scores, the cord blood gasses and the MRI scans of the brain are inconsistent with an acute intrapartum hypoxic event. Dr. Goldsmith stated this event was not a birth trauma case and the causation theories asserted by Plaintiff are unsupported by peer reviewed literature.
....
Dr. Milunsky state[d] he w[ould] testify regarding the laboratory work, blood work, the Apgar test results and the results of the cord blood gas, all of which dispute plaintiff's theory as to causation. Dr. Milunsky also opined that this event was not a birth trauma case and Plaintiff's theories as to causation are unsupported by the peer review literature.

The trial court found that "these affidavits ... corroborate[d] [Dr. Trest's] argument that Dr. Stephens['s]" opinion [was] contrary to the scientific community and not supported by peer reviewed literature." The trial court also found that these experts' opinions were aligned with the peer-review medical literature submitted in support of the opinions.

¶ 18. For both his affidavit and deposition, Dr. Stephens cited Clinical Obstetrics: A Public Health Perspective (Benjamin P. Sachs & David Acker eds., 1986), as the basis for his opinion testimony. However, the document was not part of the record before the trial court, and Yerks did not submit it for the court to review whether it supported Dr. Stephens's opinions as reliable, or scientifically and medically sound. Dr. Stephens also cited to Marlene M. Corton et al., Williams Obstetrics (23d ed. 2009), but the trial court found that the document only discussed the standard of care, not causation, and that the document actually supported the opinions advanced by Dr. Trest's experts and their supporting medical literature.

¶ 19. Additionally, as the trial court noted in its opinion, Dr. Stephens repeatedly responded with "I don't know" when questioned about the causation of Tyler's specific impairments:

When questioned as to what caused [Tyler's] impairments during his deposition, Dr. Stephens could not specifically identify the cause(s). Dr. Stephens was asked what caused [Tyler's] severe hearing loss. Dr. Stephens testified "I don't know." ... Dr. Stephens was asked what caused [Tyler's] optic nerve hypoplasia with nystagmus or blindness. Dr. Stephens testified "I'm not sure what caused it." ... Further, Dr. Stephens testified "the hypoplasis is the failure to develop. The active birth process is most likely not related to that formulation of hypoplasia." ... Dr. Stephens went on to testify that "I'm not sure what caused the severe vision and hearing loss, but I can say hypoxic episodes can contribute to it."

¶ 20. Again, "when the reliability of an expert's opinion is attacked with credible evidence that the opinion is not accepted within the scientific community, the proponent of the opinion under attack should provide at least a minimal defense supporting the reliability of the opinion." Hill , 26 So.3d at 332-33 (¶ 41). "The proponent of the expert cannot sit on the side lines and assume the trial court will ignore the unrebutted evidence and find the expert's opinion reliable." Id. Here, Yerks failed to contradict the evidence of unreliability and failed to offer any rebuttal evidence of reliability or acceptance of Dr. Stephens's opinions within the scientific and medical community. The trial court found that Dr. Stephens's opinions were "nothing more than mere speculative testimony, unsupported by any of the evidence presented." Consequently, the trial court found Dr. Stephens's testimony regarding causation was unreliable and therefore inadmissible.

¶ 21. After reviewing the record and the evidence before the trial court, which demonstrated a significant probative challenge to the reliability of Dr. Stephens's expert opinion, along with Yerks's failure to come forward with any rebuttal evidence to dispute the challenge or otherwise support the reliability of Dr. Stephens's opinion, we find that the trial court did not abuse its discretion in finding that Dr. Stephens's testimony as to causation was unreliable, and as a result, inadmissible.

¶ 22. In medical-malpractice cases, as is the case here, "expert testimony is generally required to survive summary judgment." Cates v. Woods , 169 So.3d 902, 909 (¶ 20) (Miss. Ct. App. 2014). Because Dr. Stephens's testimony as to causation was excluded as unreliable, Yerks failed to establish a prima facie case of medical malpractice and failed to present evidence sufficient to create a genuine issue of material fact as to causation. Therefore, the trial court did not err in granting summary judgment. Accordingly, we affirm.

¶ 23. AFFIRMED.

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

      A fictitious name is used to protect the identity of the minor child.

      Yerks also named Riley Memorial Hospital, now Anderson Regional Medical Center, and Health Management Associates Inc. as defendants to the lawsuit. Those parties were dismissed while the case was before the trial court and are not parties to this appeal.


author: DONALDSON, Judge.

text:
    A.S. v. T.R.B., JR., T.R.B., Sr., and P.B.
    2150996
    Court of Civil Appeals of Alabama.
    June 9, 2017 Certiorari Denied August 11, 2017
    Alabama Supreme Court 1160840
    Lisa M. Ivey, Jasper, for appellant.
    Jeffrey A. Mobley and Matthew LeDuke of Lowe Mobley Lowe & LeDuke, Haleyville, for appellees.
   DONALDSON, Judge.

A.S. ("the mother") appeals from an order of the Winston Juvenile Court ("the juvenile court") denying her motion filed pursuant to Rule 60(b)(4), Ala. R. Civ. P., seeking relief from the juvenile court's order entered on March 4, 2014, which we determine was interlocutory, and its final judgment entered on November 25, 2014. Despite any procedural deficiencies that might have been present regarding the entry of the March 4, 2014, order, the mother has not established that she was deprived of procedural due process regarding the entry of the November 25, 2014, judgment. Therefore, we affirm the order denying relief from the judgment.

Facts and Procedural History

On July 5, 2006, H.C.B. ("the child") was born to the mother and T.R.B., Jr. ("the father"), who were not married. The mother and the father continued to live together for approximately one or two years after the child's birth, when the mother and the child moved out of the home they had shared. After the mother and the child moved out, the father exercised visitation with the child every weekend until the mother and the father began having issues communicating with each other in 2013. In June 2013, the mother filed a petition in the juvenile court to establish paternity, child support, and custody of the child. The father filed an answer admitting paternity of the child and counterclaimed seeking custody.

On March 3, 2014, the juvenile court held a trial on the mother's petition and the father's counterclaim. The evidence indicated that the child had been living with the mother and D.S., a woman with whom the mother had a close relationship. The mother alleged, among other things, that the father had a drug problem, but no similar allegations were made regarding the mother. Both parents, however, were ordered to submit to drug screens while present in court. The mother's drug screen tested positive for the presence of THC, a component of marijuana. The father's drug screen also tested positive for the presence of THC and also indicated a faint trace of methamphetamine. The juvenile court chastised both parents for apparently lying about their drug use. At the conclusion of a hearing, the juvenile court stated:

"And the whole time we're talking about what's in [the child's] best interest. You know, what are we going to do? And I'm just-I'm really-I'm upset and I'm disappointed in the both of you.
"And here's what we're going to do. We're not doing the final order today. We're going to do a temporary order. Y'all are submitting income affidavits. [P.B. and T.R.B., Sr., the child's paternal grandparents], y'all haven't prepared on it, but you have custody of [the child] for the next six months.
"And the two of y'all [i.e., the parents] are going to go to court referral. You're going to get every other weekend visitation. You're going to get every other weekend visitation. [The father is] not to have any visitation any more than [the mother] has.
"Both of [the parents] are going to go and take drug tests on Friday before they pick up [the child]. And they're going to sit there, and they're going to show [the paternal grandparents] the drug test. And if they've failed, [the paternal grandparents] are authorized by the Court to deny them visitation.
"I'm going to be clear with both of y'all. If something ain't changed in the next six months, y'all [i.e., the paternal grandparents] gear up. You're getting custody. And here's-no. And here's the thing. Y'all [i.e., the parents] have done this to yourselves."

On March 4, 2014, the day following the hearing, the juvenile court entered an order in which it joined T.R.B., Sr., and P.B. ("the paternal grandparents") as parties to the action, granted "temporary" custody of the child to the paternal grandparents, and granted visitation to the parents. In the same order, the juvenile court set the case for a trial on October 15, 2014. On March 18, 2014, the mother filed what she styled as a motion to alter, amend, or vacate the juvenile court's March 4, 2014, order, but the juvenile court did not rule on the motion. In the same order, the juvenile court set the case for a trial on October 15, 2014. Aside from later filing a Rule 60(b) motion, the mother took no further action to challenge any aspect of the March 4, 2014, order. On October 9, 2014, six days before the scheduled trial, the paternal grandparents filed a motion that they entitled "Intervenors' Motion for Custody."

On October 15, 2014, the juvenile court held a trial. Testimony was presented from the mother, from the father, and from P.B., the paternal grandmother. At trial, the mother did not raise any objections to the juvenile court's order of March 4, 2014, that had added the paternal grandparents as parties to the action, and she did not raise any objection to the participation of the paternal grandparents in the trial. Following the presentation of the evidence, the juvenile court then indicated that it would take the matter under advisement and issue an order.

On November 25, 2014, the juvenile court entered a judgment granting custody of the child to the paternal grandparents and visitation to the mother. On December 9, 2014, the mother filed a motion to alter, amend, or vacate the juvenile court's November 25, 2014, judgment. On February 24, 2015, after a hearing, the juvenile court entered an order purporting to deny the mother's postjudgment motion; however, that order was void because the mother's postjudgment motion had been denied by operation of law on December 23, 2014. See Rule 1(B), Ala. R. Juv. P. The mother filed a notice of appeal on April 7, 2015. That appeal was dismissed by this court as untimely on June 2, 2015, because the time to appeal from the November 25, 2014, judgment had expired 14 days after the date the mother's postjudgment motion was denied. Rule 28(C), Ala. R. Juv. P.

On August 28, 2016, the mother filed a motion in the juvenile court seeking relief from the November 25, 2014, judgment pursuant to Rule 60(b)(4), Ala. R. Civ. P. In that motion, the mother asserted that both the March 4, 2014, order and the November 25, 2014, judgment were void. On September 1, 2016, the juvenile court entered an order denying the mother's motion. On September 14, 2016, the mother appealed that order to this court.

On appeal, the mother argues that the juvenile court's March 4, 2014, order and November 25, 2014, judgment granting custody to the paternal grandparents violated the mother's fundamental right to custody of the child and her procedural-due-process rights.

Standard of Review

"'The standard of review on appeal from the denial of relief under Rule 60(b)(4) is not whether there has been an abuse of discretion. When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process.'"

Ex parte R.S.C., 853 So.2d 228, 236 (Ala. Civ. App. 2002) (quoting Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala. 1991) ). Furthermore, "[a] judgment is void and may be set aside at any time under Rule 60(b)(4), Ala. R. Civ. P., if it was entered in a manner inconsistent with due process." T.L. v. W.C.L., 203 So.3d 66, 69 (Ala. Civ. App. 2016) (citing Ex parte Full Circle Distrib., L.L.C., 883 So.2d 638, 641 (Ala. 2003) ).

"[A]n appeal from the denial of a Rule 60(b)(4) motion does not vest the court to which the appeal is taken with jurisdiction to review the judgment challenged by the Rule 60(b)(4) motion; rather, it vests the court to which the appeal is taken with jurisdiction to review only the propriety of the lower court's ruling on the Rule 60(b)(4) motion."

Ex parte J.L.P., [Ms. 2150813, Feb. 3, 2017] 230 So.3d 396, 399 (Ala. Civ. App. 2017).

Discussion

The proceedings before the juvenile court involved a custody dispute between the parents of a child. A petition seeking to have the child declared dependent was not filed. The mother first argues that the juvenile court lacked the authority to grant custody of the child to the paternal grandparents absent an express finding that she was unfit or that the child was dependent. Consideration of those issues would require us to review the propriety of the findings made in the juvenile court's March 4, 2014, order and November 25, 2014, judgment regarding the mother's substantive-due-process rights-an issue that could have been addressed on appeal had a timely appeal been taken. Because a timely appeal was not taken, however, our review is limited to whether the mother's Rule 60(b)(4) motion should have been granted, and a violation of the mother's substantive-due-process rights in entering the judgment to which the mother's Rule 60(b)(4) motion is directed cannot serve as a basis for granting the Rule 60(b)(4) motion. See Hobbs v. Heisey, 118 So.3d 187, 191 (Ala. Civ. App. 2012) (holding that the failure to require clear and convincing evidence of parental unfitness before placing custody with a nonparent amounts only to a violation of substantive, not procedural, due process and, therefore, cannot serve as a basis for vacating a judgment under Rule 60(b)(4) ). We cannot review the merits of the underlying judgment-we can determine only whether the judgment is void and, thus, whether the Rule 60(b)(4) motion should have been granted. See Ex parte J.L.P., 230 So.3d at 401.

In contrast to a violation of a party's substantive-due-process rights in the entry of the underlying judgment, a violation of a party's procedural-due-process rights in the entry of the underlying judgment can serve as a basis for vacating the judgment pursuant to Rule 60(b)(4), because a judgment entered without affording a party procedural due process is void. Ex parte Third Generation, Inc., 855 So.2d 489, 492 (Ala. 2003). Procedural " 'due process... means notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing.' " Neal v. Neal, 856 So.2d 766, 782 (Ala. 2002) (quoting Frahn v. Greyling Realization Corp., 239 Ala. 580, 583, 195 So. 758, 761 (1940) ).

The mother argues that the March 4, 2014, order is void because she lacked notice that custody of the child might be granted to the paternal grandparents, who, at that time, were not parties to the action, and an opportunity to defend against such an award of custody. Before addressing the merits of the mother's argument, we must determine whether that order constitutes a final judgment, because "[R]ule 60(b) appl[ies] solely to final judgments" and cannot be used to challenge an interlocutory pendente lite order. Ex parte Seibert, [Ms. 2160006, Jan. 6, 2017] 231 So. 3d 1111, 1113 (Ala. Civ. App. 2017). We must therefore determine whether the March 4, 2014, order was an interlocutory pendente lite order or a final order addressing "temporary" custody.

"A 'temporary order' as to custody or a 'temporary custody award' is generally considered a final order, but a pendente lite custody order is not a final order. Ex parte J.P., 641 So.2d 276, 278 (Ala. 1994).
"A pendente lite custody order is an order that is effective only during the pendency of the litigation in an existing case and is usually replaced by the entry of a final judgment. Hodge v. Steinwinder, 919 So.2d 1179, 1182 (Ala. Civ. App. 2005). Pendente lite custody orders allow a trial court to take into consideration developments in the lives of the child and the parties that naturally occur during the gap in time between the filing of an action and the final hearing in the matter. Id.
"However, a 'temporary custody award' or a 'temporary order' as to custody is a 'final' custody award or judgment. Despite its name, a temporary order as to custody is intended to remain effective until a party seeks to modify it. It may be modified if the trial court reviews the case and determines that changed circumstances that warrant a modification have come into existence since the last custody award. 919 So.2d at 1182-83."

T.J.H. v. S.N.F., 960 So.2d 669, 672 (Ala. Civ. App. 2006). The juvenile court indicated that the March 4, 2014, order would be replaced by another order in approximately six months, after a trial and after the juvenile court would have an opportunity to determine whether the parents had complied with various requirements imposed upon them by the juvenile court. The juvenile court did not require the mother or the father to petition the court to seek a modification of the custody award to the paternal grandparents contained in the March 4, 2014, order. We also note that the mother asserts in her appellate brief that the March 4, 2014, order "was denominated as a 'temporary' custody order, [but] it is more properly characterized as a 'pendente lite' order." Based on the circumstances, we determine that the March 4, 2014, order was an interlocutory, pendente lite order that was replaced by the November 25, 2014, final judgment and that Rule 60(b)(4) is therefore inapplicable to the March 4, 2014, order.

The mother argues that, because the final judgment was predicated on a void pendente lite order, it is " 'tainted' " and " 'similarly without effect.' " M.G.D. v. L.B., 164 So.3d 606, 613 (Ala. Civ. App. 2014) (quoting 50 C.J.S. Judgments § 754 (2009) ). Assuming, without deciding, that the March 4, 2014, order was entered without affording procedural due process to the mother, that deprivation did not extend to the entry of the final judgment under the facts of this case.

Gatchel v. Gatchel, 356 So.2d 186, 187 (Ala. Civ. App. 1978), although not cited by the mother, is factually similar, but nonetheless distinguishable, from this case. In Gatchel, this court reversed the trial court's award of custody of a child to the child's paternal grandparents, who were not parties to the action, in a divorce proceeding between the child's parents. Id. at 187. The trial court placed "temporary" custody of the child with the paternal grandparents, who were not parties, after a hearing. After a trial on the merits, the trial court divorced the child's parents and awarded "permanent" custody of the child to the paternal grandparents, who had never been made parties to the action. Id. This court, citing Anonymous v. Anonymous, 353 So.2d 515 (Ala. 1977), explained that the award of custody of the child after the trial to the nonparty paternal grandparents had violated the mother's procedural-due-process rights, despite the previous "temporary" award. Id. The paternal grandparents in this case, however, were made parties to the action, and the mother was advised that the paternal grandparents would retain custody of the child if the mother did not adhere to the juvenile court's orders.

The record demonstrates that, based on the juvenile court's March 4, 2014, order and the paternal grandparents' October 9, 2014, motion, the mother had the requisite notice that the paternal grandparents were parties to the case, that the paternal grandparents were seeking custody, and that custody could be given to the paternal grandparents following the trial. See Neal, 856 So.2d at 782 (quoting Frahn, 239 Ala. at 583, 195 So. at 761 )(explaining that procedural " 'due process... means notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing' "). The juvenile court announced in open court in March 2014 that the paternal grandparents were being made parties to the action, that they would have custody of the child at least until the scheduled trial date, and that they would continue to have custody if the mother did not improve her situation. The March 4, 2014, order, whether procedurally irregular or not, put the mother on notice that the paternal grandparents had been added as parties to the action. The paternal grandparents filed a motion for custody before the trial, the mother did not object to the paternal grandparents' intervention, and the mother's counsel argued against the paternal grandparents' receiving custody at the trial. Based on the facts contained in the record, we cannot hold that the November 25, 2014, judgment was entered without notice to the mother of the paternal grandparents' custody request and without the mother's having an opportunity to respond to that request so as to indicate that the mother was deprived of her procedural-due-process rights. Because no timely appeal was taken from the November 25, 2014, judgment, we cannot review the merits of the juvenile court's decision to place custody of the child with the paternal grandparents. Accordingly, because the mother's procedural-due-process rights were not violated by the entry of the November 25, 2014, judgment, we affirm the juvenile court's decision to deny the mother's Rule 60(b)(4) motion seeking to vacate the judgment.

AFFIRMED.

Thompson, P.J., and Pittman, J., concur.

Thomas and Moore, JJ., concur in the result, without writings.

      We note that, even if the custody-placement provision in the March 4, 2014, order was void, an issue that we do not decide, the voidness of that provision would not necessarily dictate that the provision adding the paternal grandparents as parties to the action was also void. See 50 C.J.S. Judgments § 756 (2009) (footnotes omitted)("[A] judgment may be valid in part and void in part where the parts which are valid and void are separable[, and] [t]he fact that part of the judgment is void ... does not necessarily invalidate the entire judgment.").


text:
    EX PARTE Joe HORSE
    CR-14-1572
    Court of Criminal Appeals of Alabama.
    June 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Mand. pet. denied.


text:
    Anthony TYSON v. STATE
    CR-14-0945
    Court of Criminal Appeals of Alabama.
    May 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Patricia BLACKMON v. STATE
    CR-14-0317
    Court of Criminal Appeals of Alabama.
    May 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jason Dale LUND v. STATE
    CR-14-1589
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Devonte Jashawn COBB v. STATE
    CR-15-0014
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    Reh. denied.


text:
    EX PARTE Vincent ONeal MOORE
    CR-14-1443
    Court of Criminal Appeals of Alabama.
    April 5, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Mand. pet. dismissed.


text:
    Roger Anthony DIXON v. STATE
    CR-15-0152
    Court of Criminal Appeals of Alabama.
    May 26, 2017
    Affirmed.


text:
    Charlie JONES v. STATE
    CR-15-0336
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Montavious Kentrell ASKEW v. STATE
    CR-15-0056
    Court of Criminal Appeals of Alabama.
    April 21, 2017 Reh. denied May 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Derrick Wayne MURRAY v. STATE
    CR-15-0268
    Court of Criminal Appeals of Alabama.
    April 21, 2017 Reh. denied May 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Paul Edward WALKER v. STATE
    CR-15-0277
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    Affirmed.


text:
    Robert Gary SIMS, Jr. v. STATE
    CR-15-0402
    Court of Criminal Appeals of Alabama.
    May 26, 2017 Reh. denied June 16, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Nicholas Robert DUNLAP v. STATE
    CR-15-0439
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied; memo of 02/03/2017 withdrawn; memo substituted; affirmed.


text:
    Janice GREEN v. STATE
    CR-15-0531
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ledon HALL v. STATE
    CR-15-0517
    Court of Criminal Appeals of Alabama.
    April 21, 2017 Reh. denied May 26, 2017
    Affirmed.


text:
    Joe REID v. STATE
    CR-15-0580
    Court of Criminal Appeals of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Shannon Ray JOHNSON v. STATE
    CR-15-0643
    Court of Criminal Appeals of Alabama.
    June 30, 2017
    Affirmed.


text:
    Michael Deon DRAPER v. STATE
    CR-15-0646
    Court of Criminal Appeals of Alabama.
    May 26, 2017 Reh. denied June 16, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Richard Lammel ARNOLD, Jr. v. STATE
    CR-15-0735
    Court of Criminal Appeals of Alabama.
    May 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Sammy Dee JACKSON v. STATE
    CR-15-0663
    Court of Criminal Appeals of Alabama.
    May 26, 2017 Reh. denied June 16, 2017
    Affirmed.


text:
    David Gregory COPENHAVER v. STATE
    CR-15-0609
    Court of Criminal Appeals of Alabama.
    April 28, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Kashif Tariq MYHAND v. STATE
    CR-15-0739
    Court of Criminal Appeals of Alabama.
    May 26, 2017 Reh. denied June 23, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    James WINSTON v. STATE
    CR-15-0760
    Court of Criminal Appeals of Alabama.
    May 26, 2017 Reh. denied June 16, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    James Robert CASEY v. STATE
    CR-15-0758
    Court of Criminal Appeals of Alabama.
    May 23, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Arlis WILSON v. STATE
    CR-15-0746
    Court of Criminal Appeals of Alabama.
    May 5, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Jonathan Mikeal RAYNES v. STATE
    CR-15-0767
    Court of Criminal Appeals of Alabama.
    April 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    T.W. v. STATE
    CR-15-0791
    Court of Criminal Appeals of Alabama.
    April 21, 2017 Reh. denied May 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Adam Justin STOVALL v. STATE
    CR-15-0848
    Court of Criminal Appeals of Alabama.
    April 21, 2017 Reh. denied May 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ethridge D. SAMUEL v. STATE
    CR-15-0861
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Joseph Antonio QUATES v. STATE
    CR-15-0859
    Court of Criminal Appeals of Alabama.
    April 7, 2017
    Reh. denied.


text:
    L.W.M. v. STATE
    CR-15-0847
    Court of Criminal Appeals of Alabama.
    April 7, 2017
    Reh. denied.


text:
    Wendy Michelle GILBERT v. STATE
    CR-15-0894
    Court of Criminal Appeals of Alabama.
    June 30, 2017
    Affirmed.


text:
    Blake COFIELD v. STATE
    CR-15-0932
    Court of Criminal Appeals of Alabama.
    May 5, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Jimmie Edward PARKER v. STATE
    CR-15-0871
    Court of Criminal Appeals of Alabama.
    April 28, 2017 Reh. denied June 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ralph Edward BARTLETT v. STATE
    CR-15-0884
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Timothy STOKES, Jr. v. STATE
    CR-15-0925
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Octavius Shuman BRYANT v. STATE
    CR-15-1009
    Court of Criminal Appeals of Alabama.
    May 26, 2017
    Affirmed.


text:
    Matthew David BAILEY v. STATE
    CR-15-0974
    Court of Criminal Appeals of Alabama.
    April 21, 2017 Reh. denied May 12, 2017
    Affirmed.


text:
    Courtney Jamal FULLER v. STATE
    CR-15-0936
    Court of Criminal Appeals of Alabama.
    April 21, 2017 Reh. denied May 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Steven Keith JONES v. STATE
    CR-15-1004
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Marcus Leshawn HARRIS v. STATE
    CR-15-1011
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied; memo of 02/03/2017 withdrawn; memo substituted; affirmed.


text:
    Lisa Meshelle PERRY v. STATE
    CR-15-1051
    Court of Criminal Appeals of Alabama.
    June 30, 2017
    Affirmed.


text:
    David Lee SANDERS v. STATE
    CR-15-1046
    Court of Criminal Appeals of Alabama.
    June 28, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Courtney Duran DICKERSON v. STATE
    CR-15-1045
    Court of Criminal Appeals of Alabama.
    May 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Terrance Kareem GARRETT v. STATE
    CR-15-1015
    Court of Criminal Appeals of Alabama.
    May 26, 2017 Reh. denied June 23, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    B.J.N. v. STATE
    CR-15-1032
    Court of Criminal Appeals of Alabama.
    April 28, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Paul TEAGUE v. STATE
    CR-15-1104
    Court of Criminal Appeals of Alabama.
    April 21, 2017 Reh. denied May 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Dongli Xia TRAYWICK v. STATE
    CR-15-1113
    Court of Criminal Appeals of Alabama.
    April 21, 2017 Reh. denied May 26, 2017
    Affirmed.


text:
    Carlos Edward KENNEDY v. STATE
    CR-15-1092
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Ashley Brooke CRUTCHFIELD v. STATE
    CR-15-1098
    Court of Criminal Appeals of Alabama.
    April 21, 2017 Reh. denied May 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Terry L. BRIGGS v. STATE
    CR-15-1119
    Court of Criminal Appeals of Alabama.
    April 21, 2017 Reh. denied May 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Bradley Joseph STEIGER v. STATE
    CR-15-1132
    Court of Criminal Appeals of Alabama.
    May 16, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Antonio PATTERSON v. STATE
    CR-15-1182
    Court of Criminal Appeals of Alabama.
    April 28, 2017
    Dismissed.


text:
    Dave THOMAS v. STATE
    CR-15-1146
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    David Lamar DANIELS v. STATE
    CR-15-1143
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    Affirmed.


text:
    F.E.B. v. STATE
    CR-15-1125
    Court of Criminal Appeals of Alabama.
    April 7, 2017
    Reh. denied.


text:
    Carlos HERNANDEZ, Jr. v. STATE
    CR-15-1219
    Court of Criminal Appeals of Alabama.
    May 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    M.E.M. v. STATE
    CR-15-1186
    Court of Criminal Appeals of Alabama.
    May 26, 2017 Reh. denied June 23, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Brian Frederick LUCAS v. STATE
    CR-15-1204
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    Reh. denied.


text:
    Nigel Mequel WASHINGTON v. STATE
    CR-15-1235
    Court of Criminal Appeals of Alabama.
    April 21, 2017 Reh. denied May 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    S.M.W. and J.I.M. v. STATE
    CR-15-1225
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    Affirmed.


text:
    Latonya Denise HALEY v. STATE
    CR-15-1246
    Court of Criminal Appeals of Alabama.
    May 26, 2017 Reh. denied June 30, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    David A. LANEY v. STATE
    CR-15-1261
    Court of Criminal Appeals of Alabama.
    April 28, 2017
    Affirmed.


text:
    Mialsdreaco Cornez CHAMBERS v. STATE
    CR-15-1287
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    Affirmed.


text:
    Walter Lee RHONE, Jr. v. STATE
    CR-15-1236
    Court of Criminal Appeals of Alabama.
    April 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    D.G. v. STATE
    CR-15-1277
    Court of Criminal Appeals of Alabama.
    April 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Valerie Yvette MOORE v. STATE
    CR-15-1315
    Court of Criminal Appeals of Alabama.
    June 30, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jimmy Wayne HAMMOCK, Jr. v. STATE
    CR-15-1306
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Christopher Columbus BYRD v. STATE
    CR-15-1309
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Aubrey Bernard LAVENDER v. STATE
    CR-15-1288
    Court of Criminal Appeals of Alabama.
    April 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    EX PARTE Anthony S. PAPINEAU
    CR-15-1303
    Court of Criminal Appeals of Alabama.
    April 5, 2017
    Mand. pet. dismissed.


text:
    Timothy Dane TILLMAN v. STATE
    CR-15-1327
    Court of Criminal Appeals of Alabama.
    June 30, 2017
    Affirmed.


text:
    CITY OF FLORENCE v. CODY
    CR-15-1346
    Court of Criminal Appeals of Alabama.
    June 30, 2017
    DECISION WITHOUT PUBLISHED OPINION
   On reh. ex mero motu:

Yarbrough opinion of 03/17/2017 withdrawn; memo substituted; affirmed.


text:
    Richardson Arthur Johnson KENNEDY v. STATE
    CR-15-1331
    Court of Criminal Appeals of Alabama.
    June 30, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Armani Markell WARD v. STATE
    CR-15-1328
    Court of Criminal Appeals of Alabama.
    May 26, 2017 Reh. denied June 30, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Billy Eugene BROWNING v. STATE
    CR-15-1329
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    Reh. denied.


text:
    Bobby Joe WIDEMAN v. STATE
    CR-15-1359
    Court of Criminal Appeals of Alabama.
    June 30, 2017
    Affirmed.


text:
    Jerome Steven PAYNE v. STATE
    CR-15-1354
    Court of Criminal Appeals of Alabama.
    May 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jessica Renee ROGERS v. STATE
    CR-15-1383
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    J.C.P. v. STATE
    CR-15-1367
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Tiarah Shaque JONES v. STATE
    CR-15-1377
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Devaris Cornez BROWNING v. STATE
    CR-15-1400
    Court of Criminal Appeals of Alabama.
    May 26, 2017 Reh. denied June 30, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    James MCINTURFF v. STATE
    CR-15-1401
    Court of Criminal Appeals of Alabama.
    May 26, 2017 Reh. denied June 30, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Deaundrea Markese FORD v. STATE
    CR-15-1410
    Court of Criminal Appeals of Alabama.
    April 28, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    James Benjamin KIRKLAND v. STATE
    CR-15-1409
    Court of Criminal Appeals of Alabama.
    April 21, 2017 Reh. denied May 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Timothy Andrew GAVIN v. STATE
    CR-15-1402
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    Reh. denied.


text:
    Demetrice WINSTON v. STATE
    CR-15-1422
    Court of Criminal Appeals of Alabama.
    June 30, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Mitchell Bernard JOHNSON v. STATE
    CR-15-1442
    Court of Criminal Appeals of Alabama.
    April 21, 2017 Reh. denied May 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Don Evan ROBINSON III v. STATE
    CR-15-1411
    Court of Criminal Appeals of Alabama.
    April 21, 2017 Reh. denied May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Shannon GARY v. STATE
    CR-15-1425
    Court of Criminal Appeals of Alabama.
    April 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Farron Alexander TAYLOR v. STATE
    CR-15-1430
    Court of Criminal Appeals of Alabama.
    April 7, 2017
    Reh. denied.


text:
    EX PARTE Farris BURRELL
    CR-15-1438
    Court of Criminal Appeals of Alabama.
    April 3, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Mand. pet. dismissed.


text:
    Marion Cortez FELDER v. STATE
    CR-15-1446
    Court of Criminal Appeals of Alabama.
    April 21, 2017 Reh. denied May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Hector CARRANZA v. STATE
    CR-15-1454
    Court of Criminal Appeals of Alabama.
    April 21, 2017 Reh. denied May 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Arthur Lee GRIGGS v. STATE
    CR-15-1445
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Ronnie Lenear COLVIN v. STATE
    CR-15-1457
    Court of Criminal Appeals of Alabama.
    April 21, 2017 Reh. denied June 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jermaine Leon YOUNG v. STATE
    CR-15-1462
    Court of Criminal Appeals of Alabama.
    April 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Zendarius Ziqae WHITE v. STATE
    CR-15-1493
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Jason Matthew SIMMONS v. STATE
    CR-15-1466
    Court of Criminal Appeals of Alabama.
    April 21, 2017 Reh. denied May 26, 2017
    Affirmed.


text:
    Steven Duatell RICE v. STATE
    CR-15-1480
    Court of Criminal Appeals of Alabama.
    April 21, 2017 Reh. denied May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Matthew William RIDDLE v. STATE
    CR-15-1478
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    R.D.B. v. STATE
    CR-15-1479
    Court of Criminal Appeals of Alabama.
    April 14, 2017
    Reh. denied.


text:
    EX PARTE James Spinster CLOPTON, Jr.
    CR-15-1488
    Court of Criminal Appeals of Alabama.
    April 5, 2017
    Mand. pet. denied.


text:
    E.T.F. v. STATE
    CR-15-1511
    Court of Criminal Appeals of Alabama.
    May 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    William C. COLEMAN v. STATE
    CR-15-1497
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Frank Everette ROWE v. STATE
    CR-15-1498
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Rigoberto HERNANDEZ v. STATE
    CR-15-1513
    Court of Criminal Appeals of Alabama.
    April 21, 2017 Reh. denied May 12, 2017
    Affirmed.


text:
    EX PARTE Earl W. SANDERS
    CR-15-1505
    Court of Criminal Appeals of Alabama.
    April 5, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Habeas corpus pet. dismissed.


text:
    Ronald RICKS v. STATE
    CR-16-0006
    Court of Criminal Appeals of Alabama.
    June 30, 2017
    Affirmed.


text:
    Scott JONES v. STATE
    CR-16-0003
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Jakeel Adonis SHAGER v. STATE
    CR-16-0018
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jimmy Lee BOLDEN v. STATE
    CR-16-0009
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jaron Antonio TOWNSEND v. STATE
    CR-16-0017
    Court of Criminal Appeals of Alabama.
    April 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    LeDonte DENT v. STATE
    CR-16-0024
    Court of Criminal Appeals of Alabama.
    May 26, 2017 Reh. denied June 16, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Delimus Vaughn BURNS v. STATE
    CR-16-0041
    Court of Criminal Appeals of Alabama.
    April 21, 2017 Reh. denied May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jessica Briana ISBELL v. STATE
    CR-16-0021
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    Affirmed.


text:
    Freddie Buford WALKER v. STATE
    CR-16-0037
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    Darrell Lee JACKSON v. STATE
    CR-16-0035
    Court of Criminal Appeals of Alabama.
    April 7, 2017
    Reh. denied.


text:
    EX PARTE David Jerome RUSSELL
    CR-16-0038
    Court of Criminal Appeals of Alabama.
    April 3, 2017
    Mand. pet. denied.


text:
    Everette Leon STOUT v. STATE
    CR-16-0052
    Court of Criminal Appeals of Alabama.
    June 30, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    James W. CAMPBELL v. STATE
    CR-16-0072
    Court of Criminal Appeals of Alabama.
    May 26, 2017 Reh. denied June 16, 2017
    Affirmed.


text:
    James Psycoscia DORTCH v. STATE
    CR-16-0051
    Court of Criminal Appeals of Alabama.
    April 21, 2017 Reh. denied May 26, 2017
    Affirmed.


text:
    S.A.C. v. STATE
    CR-16-0056
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Eddie BROWN v. STATE
    CR-16-0055
    Court of Criminal Appeals of Alabama.
    April 21, 2017 Reh. denied May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Earl VANDIVER v. STATE
    CR-16-0088
    Court of Criminal Appeals of Alabama.
    May 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Leo HENLEY v. STATE
    CR-16-0074
    Court of Criminal Appeals of Alabama.
    April 28, 2017 Reh. denied May 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Victor Colton ALLEN v. STATE
    CR-16-0080
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    Affirmed.


text:
    Alfred P. MONTGOMERY v. ALABAMA DEPARTMENT OF CORRECTIONS
    CR-16-0076
    Court of Criminal Appeals of Alabama.
    April 21, 2017 Reh. denied May 5, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Robert PATTERSON v. STATE
    CR-16-0078
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    H.E.O. v. STATE
    CR-16-0095
    Court of Criminal Appeals of Alabama.
    June 30, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ronald ARMBRESTER v. ALABAMA DEPARTMENT OF CORRECTIONS
    CR-16-0094
    Court of Criminal Appeals of Alabama.
    May 26, 2017
    Affirmed.


text:
    Robert Chase CAPLEY v. STATE
    CR-16-0093
    Court of Criminal Appeals of Alabama.
    April 28, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Calvin Levester CHAMBERS v. STATE
    CR-16-0089
    Court of Criminal Appeals of Alabama.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jonathan Lee DOUGLAS v. STATE
    CR-16-0098
    Court of Criminal Appeals of Alabama.
    April 7, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Reh. denied.


text:
    J.W.S. v. STATE
    CR-16-0101
    Court of Criminal Appeals of Alabama.
    June 30, 2017
    Affirmed.