author: CARLTON, J., FOR THE COURT:

text:
    James Christopher SKINNER a/k/a Christopher Skinner a/k/a James Skinner a/k/a James C. Skinner a/k/a Chris Skinner, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CA-01185-COA
    Court of Appeals of Mississippi.
    October 2, 2018 Rehearing Denied March 5, 2019
    ATTORNEY FOR APPELLANT: JACOB WAYNE HOWARD, JACKSON
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER
    BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. On March 25, 2011, a Rankin County jury convicted Chris Skinner of one count of disorderly conduct and one count of felony evasion. The circuit court sentenced Skinner as a habitual offender to serve six months in the county jail for his disorderly conduct conviction and life in prison without eligibility for parole for his felony evasion conviction. On appeal to this Court, we affirmed Skinner's conviction and sentence. Skinner v. State , 120 So.3d 419 (Miss. Ct. App. 2013).

¶ 2. After obtaining leave from the Mississippi Supreme Court, Skinner filed a motion for postconviction relief (PCR), which the circuit court summarily dismissed. Skinner now appeals the circuit court's dismissal of his PCR motion, arguing that the circuit court erred by: (1) dismissing his PCR motion after the supreme court granted him leave to proceed in the circuit court; (2) concluding that Skinner's PCR claim is barred by res judicata; and (3) refusing to consider the mitigating circumstances of Skinner's prior childhood convictions when enhancing his sentence to life in prison without eligibility for parole.

¶ 3. After our review, we find error in the circuit court's dismissal of Skinner's PCR motion. We therefore reverse and remand this case to the circuit court for further proceedings consistent with this opinion.

FACTS

¶ 4. After a jury trial in Rankin County Circuit Court, Skinner was convicted of one count of disorderly conduct, in violation of Mississippi Code Annotated section 97-35-7 (Rev. 2014), and one count of felony evasion of police, in violation of Mississippi Code Annotated section 97-9-72(2) (Rev. 2014). Pursuant to statute, the maximum jail sentence for a disorderly conduct conviction is "imprisonment in the county jail for not more than six (6) months" and the maximum sentence for a felony evasion conviction is "commitment to the custody of the Mississippi Department of Corrections for not more than five (5) years."

¶ 5. Prior to Skinner's trial, the State amended Skinner's indictment to charge him as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev. 2015). The circuit court granted the State's motion. The record shows that the State's motion to amend the indictment set forth Skinner's underlying convictions and sentences:

(1) Rankin County, Mississippi cause number 18714-conviction of possession of a controlled substance and sentence of eight years in the custody of the MDOC, with four years suspended and four years to serve, followed by four years' post-release supervision; (2) Escambia County, Florida case number 94-5154CFA4M-01-conviction of Count I, attempted carjacking with a firearm, and sentence of four years in the custody of the FDOC, followed by two years of supervised probation; and (3) Escambia County, Florida case number 94-5154CFA4M-01-conviction of Count II, aggravated assault with a firearm, and sentence of four years in the custody of the FDOC, to run concurrently with the sentence in Count I, followed by one year of supervised probation.

Skinner , 120 So.3d at 424 (¶ 19).

¶ 6. The State also provided evidence showing that Skinner served at least a year or more in a penal institution for each underlying conviction. The record reflects that in March 2011 (the time of his trial and sentencing hearing), Skinner was 32 years old.

¶ 7. At a sentencing hearing held on March 29, 2011, the State introduced documents establishing Skinner's status as a habitual offender. The State further showed that Skinner's 1994 Florida case involved additional convictions for four nonviolent crimes: carrying a concealed firearm, burglary of a conveyance, grand theft auto, and grand theft. The State emphasized that Skinner's conviction for felony evasion "would be his ninth felony conviction."

¶ 8. At the sentencing hearing, the defense argued that "[a]t the time of those Florida convictions which the State is using ... to make [Skinner] a habitual offender with life without the possibility of parole, he was 15 years old[.]" The defense also argued that the circuit court should consider several mitigating circumstances in Skinner's case, including the fact that Skinner suffered with bipolar disorder and ADHD from a young age, and at the time of his disorderly conduct and felony evasion charges, he was not taking his medication, which caused Skinner to suffer confusion and disorientation. The defense counsel explained that this "[was] not an excuse, ... but ... it tends to soften the impact of why [Skinner] did what he did." The record reflects that prior to Skinner's trial, the circuit court heard testimony from Dr. William Criss Lott, a clinical psychologist who evaluated Skinner's competency to stand trial. Dr. Lott concluded that Skinner was competent, but he diagnosed Skinner with bipolar disorder and attention-deficit disorder and explained that those disorders "would have certainly impaired [Skinner's] judgment" at the time of the crime. Dr. Lott also explained that "people who have bipolar disorder... have a difficult time conforming their conduct to the requirements of the law as a result of their mental illness." Skinner's mother, Frances Skinner, also testified (outside of the jury's presence) that Skinner was not taking his medications at the time of the crime.

¶ 9. After the hearing, the circuit court determined "that the State ha[d] met its burden of proof to show that [Skinner] [was] entitled to be sentenced under [s]ection 99-19-83 as a violent habitual offender." The circuit court accordingly sentenced Skinner to serve six months in the county jail for his disorderly conduct conviction and to life in prison, without eligibility for parole or other form of early release, for his felony evasion conviction, with the sentences to run concurrently with each other. As stated, Skinner was 32 years old at the time of sentencing.

¶ 10. Skinner filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, in which he incorporated a request for the circuit court to reconsider his sentence. In his posttrial motion, Skinner claimed that "[t]he [circuit c]ourt erred in using [his] prior convictions from 199[5] ... when [he] was only 15 years old, so as to charge him as an [h]abitual [o]ffender under [ section] 99-19-83." After a hearing on the matter, the circuit court ultimately denied Skinner's posttrial motion.

¶ 11. Skinner then appealed. On appeal, this Court affirmed his conviction and sentence. Regarding Skinner's argument on direct appeal that his sentence of life without eligibility for parole constitutes cruel and unusual punishment, this Court held as follows:

Skinner's sentence of life imprisonment complies with the applicable habitual-offender statute, section 99-19-83. "Our supreme court has consistently held that sentences under the habitual-offender statute do not constitute cruel and unusual punishment." Cummings [v. State ], 29 So.3d [859,] 861 (¶ 5) [ (Miss. Ct. App. 2010) ]. The circuit court's order amending Skinner's indictment to charge him as a habitual offender under section 99-19-83 listed Skinner's prior convictions of possession of a controlled substance, attempted carjacking with a firearm, and aggravated assault with a firearm. In light of the gravity of Skinner's current offense and his prior offenses, the circuit court's imposition of a life sentence fails to give rise to an Eighth Amendment proportionality analysis. Therefore, this Court will not proceed with such an analysis. Since the record reflects no gross disproportionality in the sentence, and the sentence falls within the statutory-maximum period, we find no abuse of discretion in the sentence imposed by the circuit court. See Cummings v. State , 58 So.3d 715, 719 (¶ 19) (Miss. Ct. App. 2011) ("This Court reviews the terms of a sentence under an abuse-of-discretion standard.").

Skinner , 120 So.3d at 426 (¶ 25).

¶ 12. Skinner then obtained new counsel and sought leave from the supreme court for permission to file a PCR motion in the circuit court. The supreme court entered an order requiring the State to respond to Skinner's application for leave. The State filed its response, and the supreme court granted Skinner's application for leave to file his PCR motion in the circuit court.

¶ 13. Skinner filed his PCR motion in the circuit court. In his PCR motion, Skinner argued that the circuit court should have considered the mitigating circumstances of what Skinner refers to as his "childhood convictions." Skinner also argued that the circuit court should have imposed a sentence less than life without parole because, even though he was convicted and sentenced as an adult for those prior felonies, he was only fifteen when they were committed. No response by the State to Skinner's PCR motion appears in the record.

¶ 14. On August 1, 2017, the circuit court entered an order denying and dismissing Skinner's PCR motion. In its order, the circuit court held:

Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) does not apply to the sentence imposed on the petitioner in this case. Skinner's date of birth was [in] 1979. The date of the felony evasion alleged in the indictment was August 28, 2009. The trial was in March of 2011. [Skinner] was over thirty years of age as of the date of this crime and the imposition of the sentence in this matter. Miller applies to mandatory life sentences for crimes committed prior to a defendant's eighteenth birthday. There is no authority for the position taken by [Skinner] that his Florida convictions, obtained before his eighteenth birthday, must be considered in light of the Miller factors before they can be used to enhance punishment pursuant to the habitual offender statutes.

¶ 15. Skinner now appeals.

STANDARD OF REVIEW

¶ 16. "When reviewing a [circuit] court's denial or dismissal of a PCR motion, we will only disturb the [circuit] court's factual findings if they are clearly erroneous; however, we review the [circuit] court's legal conclusions under a de novo standard of review." Alexander v. State , 228 So.3d 338, 340 (¶ 7) (Miss. Ct. App. 2017).

DISCUSSION

¶ 17. Skinner first argues that the circuit court lacked authority to summarily deny and dismiss his motion pursuant to Mississippi Code Annotated section 99-39-11(2) (Rev. 2015). Section 99-39-11(12) states that "[t]his section shall not be applicable where an application for leave to proceed is granted by the [s]upreme [c]ourt under [s]ection 99-39-27." In addition, section 99-39-27(7)(b) provides that when the supreme court grants the movant's application for leave, "the court, in its discretion, may ... [a]llow the filing of the motion in the circuit court for further proceedings under [s]ections 99-39-13 through 99-39-23." Skinner maintains that since the supreme court granted his application for leave to file his PCR motion in the circuit court, the circuit court thus erred by failing to conduct further proceedings and in dismissing his motion.

¶ 18. The State asserts that Skinner's argument is flawed because the circuit court did in fact conduct further proceedings. In Mitchell v. State , 809 So.2d 672 (Miss. 2002), our supreme court reiterated that "under the express terms of [section] 99-39-27, once this Court allows an applicant to proceed with a motion in the circuit court, subsequent actions taken by the circuit court must be pursuant to one of the enumerated sections (99-39-13 through 99-39-23)." Mitchell , 809 So.2d at 674 (¶ 6) (quoting Hymes v. State , 703 So.2d 258, 260 (¶ 8) (Miss. 1997) ). In the present case, the circuit court found that under section 99-39-21, Skinner's claim was barred by res judicata. The State maintains that section 99-39-21 indeed falls within the sections identified in both Mitchell and section 99-39-27 as constituting further proceedings. In resolving this issue, we turn to precedent and statutory law.

¶ 19. In Porter v. State , 963 So.2d 1225, 1228-29 (¶ 10) (Miss. Ct. App. 2007), the circuit court summarily denied Porter's PCR motion under section 99-39-11. On appeal, this Court addressed Porter's claim that because "the supreme court granted his request for leave to proceed in the [circuit] court ..., he was automatically entitled to an evidentiary hearing on the merits[.]" Porter , 963 So.2d at 1228 (¶ 7). This Court clarified that "there is no automatic right to an evidentiary hearing under the Mississippi Uniform Post[ ]Conviction Collateral Relief Act" and explained that "[o]nce a prima facie case is established, the [circuit] court may still proceed under [s]ection 99-39-19 ... and summarily deny a petitioner's motion if, after the answer has been filed and discovery completed, it appears that no evidentiary hearing is warranted." Porter , 963 So.2d at 1228 (¶ 9). This Court found that the supreme court's grant of Porter's request for leave to proceed in the circuit court constituted "a finding of a prima facie case," and therefore the circuit court should have "examined the motion under [s]ection 99-39-19, along with the filed answer and any completed discovery, to determine if an evidentiary hearing should be required." Porter , 963 So.2d at 1228-29 (¶ 10). This Court accordingly held that the circuit court committed error in dismissing Porter's PCR motion under section 99-39-11 : "A court may not use [s]ection 99-39-11 to summarily deny a motion if the supreme court has granted permission to file the motion in the [circuit] courts, pursuant to Section 99-39-27." Porter , 963 So.2d at 1229 (¶ 12).

¶ 20. In the present case, we find that the circuit court did not follow the procedure set forth in Porter or in section 99-39-19:

The supreme court's order granting [the petitioner] permission to proceed [is] a finding of a prima facie case. The [circuit] court should request that the State respond to the motion. Then, pursuant to Mississippi Code Annotated section 99-39-19..., the [circuit] court must examine the record and determine whether an evidentiary hearing is required.

Pittman v. State , 20 So.3d 51, 54 (¶ 12) (Miss. Ct. App. 2009). The supreme court's grant of Skinner's request for leave to proceed in the circuit court constitutes a finding of a prima facie case. Porter , 963 So.2d at 1228 (¶ 10). However, the circuit court dismissed Skinner's PCR motion before the State filed an answer and before discovery; therefore, the circuit court failed to follow the procedures of section 99-39-19 in determining whether an evidentiary hearing was required. As set forth in Porter and Pittman , the circuit court must request that the State respond to Skinner's PCR motion. Next, in determining whether an evidentiary hearing is required, the circuit court must examine the record, including Skinner's motion and the State's answer/response to Skinner's motion, and any completed discovery, in accordance with section 99-39-19. We therefore reverse the circuit court's order dismissing Skinner's PCR motion and remand this case for further proceedings consistent with this opinion. Based on the resolution of this issue, we decline to address Skinner's remaining issues on appeal.

¶ 21. REVERSED AND REMANDED.

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

      Miss. Code Ann. § 97-35-7(1)(i).

      Miss. Code Ann. § 97-9-72(2).

      Mississippi Code Annotated section 99-19-83 provides as follows:
      Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more, whether served concurrently or not, in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence, as defined by [s]ection 97-3-2, shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole, probation or any other form of early release from actual physical custody within the Department of Corrections.

      Skinner was born in 1979.

      The State also referenced an "additional [2001] conviction out of the State of Alabama" for felony theft.

      The State's filed response does not appear in the record. However, the supreme court's docket reflects that the State did file its response on April 14, 2017. "[T]his Court certainly can take judicial notice of [s]upreme [c]ourt files." Mitchell v. State , 218 So.3d 278, 283 (¶ 16) (Miss. Ct. App. 2017). Additionally, "[a] court may look to any source it deems helpful and appropriate, including official public documents, records[,] and publications." Enroth v. Mem'l Hosp. at Gulfport , 566 So.2d 202, 205 (Miss. 1990).

      "If it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the petitioner to be notified." Miss. Code Ann. § 99-39-11(2).


source: Caselaw Access Project

author: WILSON, J., FOR THE COURT:

license: Public Domain

text:
    Rodney Wayne SMITH a/k/a Hot Rod, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-01170-COA
    Court of Appeals of Mississippi.
    October 9, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: DANIEL HINCHCLIFF
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ALICIA AINSWORTH, JACKSON
    BEFORE LEE, C.J., FAIR AND WILSON, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. Following a jury trial in the Pearl River County Circuit Court, Rodney Wayne Smith was convicted under Mississippi Code Annotated section 97-9-45 (Rev. 2014), which makes it a crime for "any person sentenced to the Mississippi Department of Corrections [ (MDOC) ] for any term [to] escape or attempt to escape from his particular unit or camp of confinement or the boundaries of the penitentiary as a whole." At the time of his "escape," Smith was on "house arrest" under the jurisdiction of the MDOC in the "Intensive Supervision Program" (ISP). See Miss. Code Ann. §§ 47-5-1001 through -1015 (Rev. 2015). Smith cut his monitoring device off his ankle and fled. Smith claims that his conviction must be reversed and rendered because an escape from house arrest does not constitute an escape from the "penitentiary" under section 97-9-45. However, the Legislature has made clear that an escape from house arrest is a felony escape. See Miss. Code Ann. § 47-5-1007(8) (Rev. 2015). Therefore, Smith's conviction under section 97-9-45 is affirmed.

FACTS AND PROCEDURAL HISTORY

¶ 2. The only issue that Smith raises on appeal is an issue of statutory interpretation that does not turn on the particular facts of his case. Therefore, we only generally summarize the underlying facts that led to his indictment and conviction in this case.

¶ 3. On May 12, 2014, Smith pled guilty to racketeering, Miss. Code Ann. § 97-43-5 (Rev. 2014), and was sentenced to twenty years in MDOC custody, with eighteen years suspended, two years of ISP (house arrest), and eighteen years of post-release supervision. While on ISP, Smith was required to wear an electronic monitoring device on his ankle at all times, and he was allowed to leave his home in Poplarville only to go to work or to attend other meetings or activities preapproved by his ISP officer, Scott Davis. On December 22, 2014, Smith failed to report to Davis as required by his ISP agreement. Davis used Smith's electronic monitoring device to locate him at his girlfriend's house in Picayune. However, by the time Davis reached Smith's girlfriend's house, Smith had already left. Davis then received notice of a "device tamper," which meant that Smith had cut his monitoring device off of his ankle. Smith had left the device at his house. Davis tried to call Smith several times, but Smith would not answer his phone.

¶ 4. On January 6, 2015, Davis received information that Smith was at another house in Pearl River County. Davis went to the house with two officers from the Pearl River County Sheriff's Department, but when they arrived at the house, Smith fled into the woods and escaped. United States Marshals finally caught Smith on January 13, 2015, at his ex-wife's house in Hancock County.

¶ 5. Smith was indicted for escape under section 97-9-45, supra , as a nonviolent habitual offender. See Miss. Code Ann. § 99-19-81 (Rev. 2015). Smith filed a pretrial motion to dismiss the indictment, arguing that his escape from house arrest was not subject to prosecution under section 97-9-45 ; however, the circuit court denied his motion. Smith was then convicted following a jury trial in the Pearl River County Circuit Court. The court sentenced him to serve five years in MDOC custody as a nonviolent habitual offender.

ANALYSIS

¶ 6. As stated above, Smith raises only one issue on appeal: he argues that an escape from house arrest is not an escape within the meaning of section 97-9-45.

¶ 7. In relevant part, section 97-9-45 makes it a crime for "any person sentenced to the [MDOC] for any term [to] escape or attempt to escape from his particular unit or camp of confinement or the boundaries of the penitentiary as a whole." The Legislature has defined "the penitentiary" as follows:

The plantation known as Parchman owned by the state in Sunflower and Quitman Counties, and in such other places as are now or may be hereafter owned or operated by the state for correctional purposes shall constitute the facilities of the correctional system for the custody, punishment, confinement at hard labor and reformation of all persons convicted of felony in the courts of the state and sentenced to the custody of the department, and whenever the term "penitentiary" or "state penitentiary" appears in the laws of the State of Mississippi, it shall mean any facility under the jurisdiction of the Department of Corrections which is used for the purposes described herein.

Miss. Code Ann. § 47-5-3 (Rev. 2015). The Legislature has defined "facility," as used in the above definition, to include "any facility for the custody, care, treatment and study of offenders which is under the supervision and control of the [MDOC], including but not limited to the State Penitentiary property located in Sunflower and Quitman Counties." Id. § 47-5-4(d) (Rev. 2015). The "correctional system" includes all MDOC "facilities, institutions, programs and personnel ... utilized for adult offenders who are committed to the custody of the [MDOC]." Id. § 47-5-4(i).

¶ 8. The ISP or "house arrest" is "used as an alternative to incarceration" for certain classes of offenders. Miss. Code Ann. § 47-5-1003(1) (Rev. 2015). An offender placed on house arrest is "confine[d] ... to his place of residence under the terms and conditions established by the [MDOC]," and he "is under the full and complete jurisdiction of the [MDOC]." Id. §§ 47-5-1001(e) & 47-5-1003(3).

¶ 9. Our Supreme Court has held that the ISP constitutes "imprisonment." Tipton v. State , 150 So.3d 82, 85-86 (¶¶ 9-13) (Miss. 2014). In fact, the Supreme Court went so far as to say that ISP is "best characterized" as like " 'being in the penitentiary except sleeping at home.' " Id. at 86 (¶ 11) (quoting the circuit judge in Ivory v. State , 999 So.2d at 420, 423 (¶ 3) (Miss. Ct. App. 2008) ). "[T]he purpose of the ISP is to confine inmates who are under the complete jurisdiction of the ISP.... [P]risoners in the ISP are, for all intents and purposes, prisoners with the same liberty interests as those in actual prisons." Id. at (¶ 13). The offender must "submit completely to the MDOC, giving the State access to his home and his body," and he must "forego several significant constitutional rights enjoyed by free Americans." Id.

¶ 10. Smith claims that his "escape" from the ISP did not amount to an "escape from his particular unit or camp of confinement or the boundaries of the penitentiary as a whole." Miss. Code Ann. § 97-9-45. We disagree.

¶ 11. As noted above, the Legislature has made clear that "the penitentiary" includes not only the State Penitentiary at Parchman but also any other "facility under the jurisdiction of the [MDOC]" that is used for correctional purposes.

Miss. Code Ann. § 47-5-3. Moreover, the Legislature has addressed this issue directly by providing that "[n]otice shall be given to [an offender placed on house arrest] that violation of the order of home detention shall subject the participant to prosecution for the crime of escape as a felony." Miss. Code Ann. § 47-5-1007(8). We can only interpret the statute's reference to "the crime of escape as a felony" as a reference to section 97-9-45, as we can identify no other crime that this phrase could describe.

¶ 12. "It is a well-settled rule of statutory construction that when two statutes pertain to the same subject, they must be read together in light of legislative intent." Tunica Cty. v. Hampton Co. Nat'l Sur. , 27 So.3d 1128, 1133 (¶ 15) (Miss. 2009). "[I]n construing statutes in pari materia, ... all of the relevant statutes must be taken into consideration, and a determination of legislative intent must be made from the statutes as a whole." Martin v. State , 501 So.2d 1124, 1127 (Miss. 1987). "Statutes on the same subject ... should if possible be construed in harmony with each other to give effect to each." Roberts v. Miss. Republican Party State Exec. Comm. , 465 So.2d 1050, 1052 (Miss. 1985). Applying these principles, we must read section 97-9-45 together with the specific, on-point statement found in subsection 47-5-1007(8). We conclude that an escape from house arrest is a crime under section 97-9-45. Therefore, Smith's conviction and sentence are AFFIRMED .

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

      "[W]e view the evidence in the light most favorable to the State ...." Lenoir v. State , 222 So.3d 273, 279 (¶ 25) (Miss. 2017).

      Smith's girlfriend was also on house arrest.


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

text:
    Dahne JONES a/k/a Dahne C. Jones a/k/a Dahne Christopher Jones, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00775-COA
    Court of Appeals of Mississippi.
    October 9, 2018 Rehearing Denied January 15, 2019
    ATTORNEY FOR APPELLANT: DAHNE JONES (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS
    BEFORE LEE, C.J., FAIR AND WILSON, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. In this appeal, we must determine if Dahne Jones's postrelease supervision (PRS) was properly revoked. Finding no error, we affirm.

PROCEDURAL HISTORY

¶ 2. In 2001, Jones pleaded guilty to robbery. The Jackson County Circuit Court sentenced him to ten years in the custody of the Mississippi Department of Corrections (MDOC), with four years to serve and six years of PRS. In July 2004, Jones was released on PRS. In April 2005, a show-cause order was issued summoning Jones to appear in court regarding his failure to pay fines, court costs, and restitution as previously ordered. Jones did not appear, and a bench warrant was issued in May 2005 stating that Jones was in contempt of court.

¶ 3. On August 15, 2005, an MDOC corrections officer submitted an affidavit detailing nine PRS violations committed by Jones, including two positive drug tests, failure to report, and failure to pay fines. That same day, the trial court issued an arrest warrant for Jones based upon these violations. Jones was not apprehended at that time for reasons unknown.

¶ 4. Over the next two years, Jones committed several crimes in Alabama. Ultimately, he was sentenced to a lengthy prison term for these crimes. After being released on parole in Alabama on August 2, 2016, the MDOC brought Jones to Mississippi based upon the 2005 arrest warrant.

¶ 5. Jones received a waiver of his right to a preliminary revocation hearing, but he refused to sign the waiver. The waiver listed all nine of Jones's PRS violations. Jones also received notice from the MDOC regarding a probation-revocation hearing scheduled for August 31, 2016. Jones refused to sign that he received the letter.

¶ 6. During the revocation hearing, two parole officers testified regarding Jones's PRS violations. Based upon the evidence presented, the trial court revoked Jones's PRS and ordered him to serve the remainder of his sentence.

¶ 7. Jones filed a motion for postconviction relief (PCR), which the trial court denied. He now appeals, asserting the following issues that we have condensed for clarity: (1) the trial court did not have jurisdiction to revoke his PRS; (2) he did not receive notice of his PRS violations; (3) he was denied a preliminary revocation hearing; (4) his counsel was ineffective; and (5) the trial court failed to issue a written statement supporting the revocation.

STANDARD OF REVIEW

¶ 8. Absent a finding that the "ruling was clearly erroneous," this Court will not reverse a trial court's denial of a PCR motion. Jones v. State , 994 So.2d 829, 830 (¶ 4) (Miss. Ct. App. 2008) (citing Kirksey v. State , 728 So. 2d 565, 567 (¶ 8) (Miss. 1999) ). "However, when issues of law are raised, the proper standard of review is de novo." Steele v. State , 991 So.2d 176, 177 (¶ 3) (Miss. Ct. App. 2008) (citing Brown v. State , 731 So.2d 595, 598 (¶ 6) (Miss. 1999) ).

DISCUSSION

I. Jurisdiction

¶ 9. Jones contends that his sentence expired in August 2010; thus, the trial court did not have jurisdiction to revoke his PRS in 2016. "Probation may be lawfully revoked beyond the probationary period if a revocation petition is filed prior to the end of the probationary period-an act deemed to 'toll' the running of the probationary period-and the State acts on the petition within a reasonable time." Leech v. State , 994 So.2d 850, 853 (¶ 14) (Miss. Ct. App. 2008). "If this were not the law, then a probationer who violates his probation on the last day of the five (5) year period would have to be caught and given a hearing that day or his probation could not be revoked. Such reasoning would be absurd and is not the law." Jackson v. State , 483 So.2d 1353, 1356 (Miss. 1986). The petition to revoke Jones's PRS was filed on August 15, 2005, well within the PRS period. Therefore, we agree with the trial court that Jones's probationary period had been tolled. Although the time between the expiration of Jones's sentence and his revocation was lengthy due to Jones's incarceration in Alabama, the State acted on the petition within a reasonable time upon Jones's release from custody in Alabama. See Price v. State , 132 So.3d 1083, 1084 (¶ 6) (Miss. Ct. App. 2014). This issue is without merit.

II. Notice

¶ 10. Jones claims he did not receive written notice of his PRS violations. However, during the revocation hearing, Jones admitted that he had received written notice of his PRS violations. Jones further admitted that he had read the notice, understood it, and discussed it with his attorney prior to the hearing. This issue is without merit.

III. Preliminary Revocation Hearing

¶ 11. Jones argues that he was denied a preliminary revocation hearing. We first note that Jones failed to raise this issue at his revocation hearing; thus, the issue regarding a lack of a preliminary revocation hearing was waived. See Friday v. State , 141 So.3d 18, 22 (¶ 13) (Miss. Ct. App. 2014). Notwithstanding the waiver, Jones's claim is without merit. Although Jones was entitled to a preliminary revocation hearing, he must show that prejudice resulted from the failure to hold a separate preliminary revocation hearing. See id. "If no prejudice is found and a formal [revocation] proceeding was held [that met minimum due-process requirements], then the failure to hold a preliminary hearing is harmless error." Id. The minimum due-process requirements for a probation-revocation hearing are:

(1) written notice of the claimed violations of probation; (2) disclosure to the probationer of the evidence against him; (3) an opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adverse witnesses (unless the hearing officer finds good cause for not allowing such confrontation); (5) a neutral and detached hearing body or officer; and (6) a written statement by the fact-finder as to the evidence relied on and reasons for revoking the probation.

Loisel v. State , 995 So.2d 850, 852 (¶ 7) (Miss. Ct. App. 2008) (quoting Payton v. State , 845 So.2d 713, 719 (¶ 22) (Miss. Ct. App. 2003) ); see also Miss. Code Ann. § 47-7-34(2) (Rev. 2015) ("Procedures for termination of [PRS] ... shall be conducted in the same manner as procedures for the revocation of probation and imposition of a suspended sentence ....").

¶ 12. Here, we find any error was harmless. At his revocation hearing, Jones was afforded all due-process protections as required. He has failed to show any prejudice resulting from the lack of a preliminary revocation hearing. This issue is without merit.

IV. Ineffective Assistance of Counsel

¶ 13. Jones argues that his counsel at his revocation hearing was ineffective for several reasons: she failed to challenge the timeliness of the revocation hearing; she failed to object to insufficient evidence of his PRS violations; and she forced Jones to attend the revocation hearing.

¶ 14. To prove ineffective assistance of counsel, Jones must show that: (1) his counsel's performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "The burden of proof rests on [Jones] to show both prongs." Willis v. State , 66 So.3d 740, 745 (¶ 21) (Miss. Ct. App. 2011). "Under Strickland , there is a strong presumption that counsel's performance falls within the range of reasonable professional assistance." Id. (citing Strickland , 466 U.S. at 689, 104 S.Ct. 2052 ).

¶ 15. The movant must allege facts pointing toward counsel's deficient performance with "specificity and detail." Kinney v. State , 737 So.2d 1038, 1041 (¶ 8) (Miss. Ct. App. 1999). In PCR cases, "where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit." Brooks v. State , 89 So.3d 626, 628 (¶ 6) (Miss. Ct. App. 2011) (quoting Vielee v. State , 653 So.2d 920, 922 (Miss. 1995) ). The supreme court in Walden v. State , 201 So.3d 1042, 1045 (¶ 14) (Miss. 2016), recently stated that "the petitioner's obligation to support his application with affidavits other than his own is not absolute. That obligation may be excused by a showing that the petitioner has good cause for failing to obtain those affidavits." (Citing Miss. Code Ann. § 99-39-9(1)(e) (Rev. 2015) ). Here, Jones has not shown good cause why he has not provided affidavits other than his own.

¶ 16. Jones has offered only his own bare assertions, which are insufficient. "It is firmly established that mere allegations are insufficient to entitle a defendant to an evidentiary hearing on a post-conviction claim of ineffective assistance of counsel." Ealey v. State , 967 So.2d 685, 691 (¶ 18) (Miss. Ct. App. 2007). Thus, Jones has not shown his attorney's performance was ineffective. This issue is without merit.

V. Written Statement

¶ 17. In his final issue, Jones argues that the trial court did not issue a written statement detailing the reasons his PRS was revoked. However, the trial court entered an order of revocation that lists the PRS violations that the State proved Jones committed. Additionally, the revocation hearing contains testimony from two parole officers detailing Jones's PRS violations, including his two positive drug tests. This issue is without merit.

¶ 18. AFFIRMED.

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

      Although Jones's argument is unclear, it appears he is claiming that he did not receive notice of the hearing and only attended based upon his attorney's insistence. However, as previously stated, Jones admittedly received notice of the revocation hearing.


author: GREENLEE, J., FOR THE COURT:

text:
    Angela Marie MYERS, Appellant v. Thomas Lavon MYERS, Appellee
    NO. 2017-CA-00551-COA
    Court of Appeals of Mississippi.
    October 9, 2018
    ATTORNEY FOR APPELLANT: BARRON CRUZ GRAY
    ATTORNEYS FOR APPELLEE: RISHER GRANTHAM CAVES, TERRY L. CAVES, LAUREL
    BEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. Angela Myers appeals the Jones County Chancery Court's award of the physical custody of her nine-year-old son, STM, and four-year-old daughter, AEM, to her ex-husband, Thomas "Tommy" Myers. On appeal, Angela argues the chancellor erred in his Albright analysis. Finding no manifest error in the chancellor's judgment, we affirm.

BACKGROUND

¶ 2. On April 21, 2016, Tommy filed for divorce on the ground of adultery and requested custody of their two children. A bifurcated trial on the merits was held on November 16, 2016. Following trial, the court granted Tommy a divorce on the ground of adultery. A second trial was held on the remaining issues before the court. On January 5, 2017, the chancellor entered his findings of fact and conclusions of law, awarding Tommy physical custody of the two children and ordering Angela to pay Tommy child support.

¶ 3. On January 26, 2017, the chancellor entered his final judgment granting Tommy a divorce from Angela on the ground of adultery. Tommy was awarded full physical custody, with Angela being awarded visitation rights and both parties being awarded joint legal custody. On February 6, 2017, Angela filed a motion for a new trial or to amend the judgment under Rule 59 of the Mississippi Rules of Civil Procedure. The chancellor denied the motion on March 14, 2017. Angela timely appealed.

STANDARD OF REVIEW

¶ 4. Our standard of review concerning child custody is limited. C.W.L. v. R.A. , 919 So.2d 267, 270 (¶ 8) (Miss. Ct. App. 2005). On appeal, we will only reverse a chancellor's child-custody decision when the chancellor is manifestly wrong or applied an erroneous legal standard. We will affirm a chancellor's factual findings when they are supported by substantial evidence in the record. 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

The Chancellor's Albright Findings

¶ 5. On appeal, Angela argues the chancellor's decision resulted from an erroneous analysis of the Albright factors.

¶ 6. The polestar consideration in all child custody cases is the best interest and welfare of the children. D.M. v. D.R. , 62 So.3d 920, 923 (¶ 11) (Miss. 2011). In determining the child's best interest, the chancellor considers the following factors:

(1) age, health, and sex of the child;
(2) a determination of the parent that 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.

Lee v. Lee , 798 So.2d 1284, 1288 (¶ 15) (Miss. 2001) (citing Albright v. Albright , 437 So.2d 1003, 1005 (Miss. 1983) ).

¶ 7. The chancellor is required to address each Albright factor that applies to the case before him. Powell v. Ayars , 792 So.2d 240, 244-45 (¶¶ 10-11) (Miss. 2001). However, he need not decide that every factor favors one parent over the other. See Weeks v. Weeks , 989 So.2d 408, 411 (¶ 12) (Miss. Ct. App. 2008). "[T]he 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." Blakely v. Blakely , 88 So.3d 798, 803 (¶ 17) (Miss. Ct. App. 2012) (quoting Johnson v. Gray , 859 So.2d 1006, 1013-14 (¶ 36) (Miss. 2003) (internal quotation marks omitted) ).

¶ 8. Angela makes a number of factor-specific challenges to the chancellor's Albright findings. We address her arguments below.

1. Age, Health, and Sex of the Children

¶ 9. The chancellor noted that STM has ADHD and dyslexia and is borderline autistic. The chancellor stated that ordinarily the health of the children would be neutral, but in this case, the factor favored Tommy due to his and STM's close emotional ties. Angela argues the chancellor erred in his finding because he used another factor to justify his conclusion and ignored evidence of her training and experience in teaching children with dyslexia.

¶ 10. It is true Angela has special training in dyslexia therapy and accepted a position teaching children with dyslexia. However, she did not offer evidence showing how she utilized her training to support STM's health needs beyond coordinating STM's school accommodations. Tommy testified that in order to help STM with his disabilities, he and STM read books and looked through comic books together. And Tommy said that he helped STM with his homework, including STM's reading assignments, which he and STM read and worked through together. Overall, the testimony presented at trial reflected that Tommy is a patient and attentive father. Conversely, the evidence showed that Angela loses her patience with the children. The chancellor did not err by finding that, in light of STM's disabilities, his developmental health was aided by his close emotional ties with his father. The chancellor properly found this factor to favor Tommy, and the finding is supported by substantial evidence.

2. Continuity of Care

¶ 11. The chancellor separately delineated this factor in his findings of fact and found it weighed in Tommy's favor "for [the] reasons set forth above." Angela contends the chancellor's reasoning was ambiguous and that the chancellor should have specifically discussed the evidence relevant to this factor.

¶ 12. It is clear from the chancellor's express enumeration of this factor that the chancellor considered it. Further, in the chancellor's general findings of fact, he found that although Angela was the children's primary caregiver when they were infants, Tommy took on more parenting responsibilities when the children became toddlers. Tommy cooked ninety percent of the family meals, bathed the children, put them to bed, did the household laundry, and was responsible for disciplining the children. Additionally, Tommy continues to reside in the children's childhood home. We find no manifest error in the chancellor's finding that this factor favored Tommy.

3. Parenting Skills

¶ 13. The chancellor found this factor favored Tommy, noting that Angela was sometimes impatient with the children, destroyed property during emotional outbursts, and used profanity in the children's presence. Angela suggests the chancellor placed too much weight on testimony concerning her negative attributes. She specifically claims the chancellor ignored evidence of her good parenting skills, including her efforts to ensure STM received educational support for his ADHD and dyslexia. Her challenges are premised on the chancellor's evidentiary and credibility assessments.

¶ 14. "The credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation, are primarily for the chancellor as the trier of facts." Johnson , 859 So.2d at 1014 (¶ 36) (quoting Chamblee v. Chamblee , 637 So.2d 850, 860 (Miss. 1994) ). " '[T]he chancellor has the ultimate discretion to weigh the evidence the way [he] sees fit' in determining where the child's best interest lies." Blakely , 88 So.3d at 803 (¶ 17) (quoting Johnson , 859 So.2d at 1013-14 (¶ 36) ).

¶ 15. We find substantial evidence to support the chancellor's finding that Tommy has better parenting skills. It is true, as Angela points out, that Angela changed the children's diapers when they were young, helped the children with most of their school projects, and took the children to and from school every day. She also coached STM's soccer team and ensured STM had the support he needed at school. However, Angela exhibited a lack of patience with the children and was prone to emotional outbursts. Upon losing her temper, she became physically violent, destroyed various household items, and punched holes in the wall. She also used profanity in front of the children. The evidence showed that Tommy was responsible for the bulk of the parenting duties. He put the kids to bed, did the laundry, cleaned up after supper, and packed the kids' lunches for the following day. He also got up in the middle of the night when the kids became sick. And Tommy disciplined the kids for behavioral problems. This issue is without merit.

4. Physical and Mental Health of the Parents

¶ 16. The chancellor found the evidence weighed in Tommy's favor and that Angela "has a history of depression and anxiety and takes medication for these issues." The chancellor found Tommy had no mental problems. Angela claims the chancellor's finding on her and Tommy's physical and mental health was based on a mischaracterization of the evidence.

¶ 17. During trial, Tommy testified that he was diagnosed with anxiety and had been taking medication for it. He said that with the help of a doctor, he was able to stop taking medication. Tommy also testified that Angela was diagnosed with anxiety and depression, for which she took medication. However, Angela testified that she was diagnosed with depression only. On appeal, Angela claims the chancellor's conclusion concerning this factor was based on a misstatement of fact. She argues that she only suffers from depression and that Tommy has anxiety.

¶ 18. We note that the testimony concerning the mental health of either party was brief. However, because Tommy testified Angela had been diagnosed with both anxiety and depression, the chancellor's finding was not based on a misstatement of fact. The chancellor was entitled to determine the credibility and weight of both Angela's and Tommy's testimonies. See Johnson , 859 So.2d at 1014 (¶ 36). We find no error here.

5. Home, School, and Community Record

¶ 19. The chancellor found this factor favored Tommy. Angela argues the evidence favors her based on STM's need for educational consistency, and again asks this Court to reweigh evidence on appeal, which we cannot do. Id. at 1013-14 (¶ 36).

¶ 20. In his general findings of fact, the chancellor noted that STM had been attending school in Lauderdale County for four years and received special care in school for his health conditions. However, the chancellor found that STM's entire family and support group lives in Jones County. The chancellor noted that AEM and STM attended church in Jones County and have relatives in Jones County who could help care for them when needed. In addition, the chancellor noted that Tommy continues to reside in AEM and STM's childhood home. The chancellor's findings on this issue are supported by substantial evidence in the record.

6. Employment Responsibilities

¶ 21. Angela claims the chancellor failed to address her and Tommy's employment responsibilities, and argues this factor should weigh in her favor. Although the chancellor is required to make specific findings of fact on each Albright factor, it is not necessary that he state which party prevails under each factor. Alderson v. Alderson , 810 So.2d 627, 629 (¶¶ 5-6) (Miss. Ct. App. 2002) (citing Powell , 792 So.2d at 244-45 (¶ 11) ). Here, the chancellor did not separately delineate this factor in his Albright analysis, but he discussed Tommy's and Angela's employment responsibilities in his general findings of fact. The chancellor found that Tommy works Monday through Friday from 7:30 to 4:30 p.m. as an information-systems technician at Wayne Farms. He found that Angela works as a school teacher at Southeast Lauderdale Elementary School, and that she gets off at 3:30 p.m. daily. We find the chancellor properly considered Tommy's and Angela's employment responsibilities and his failure to state which party prevailed under this factor was not an abuse of discretion. See Weeks , 989 So.2d at 411 (¶ 12).

CONCLUSION

¶ 22. There is substantial evidence in the record to support the chancellor's award of custody to Tommy. Finding no error in this case, we affirm the chancellor's judgment.

¶ 23. AFFIRMED.

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

      To protect the identity of Angela and Tommy's minor children, we substitute initials for their names.

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

      See M.R.C.P. 59(a), (e).

      Angela also incorrectly contends that the capacity to provide primary care falls within this factor. See Lee , 798 So.2d at 1288 (¶ 15) (The parents' willingness and capacity to provide primary care is considered with the "parenting skills" factor.).


text:
    Jerold Wayne SMITH a/k/a Jerold Smith a/k/a Gerald Wayne Smith a/k/a Jerold W. Smith, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-01027-COA
    Court of Appeals of Mississippi.
    October 9, 2018
    ATTORNEY FOR APPELLANT: JEROLD WAYNE SMITH (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS
    BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. Jerold Wayne Smith appeals the Jackson County Circuit Court's denial of his motion for postconviction relief (PCR). On appeal, Smith argues that: (1) his sentence has expired, (2) he was subjected to double jeopardy, and (3) he was denied effective counsel.

¶ 2. After our review, we find that Smith's double jeopardy and ineffective assistance of counsel claims are procedurally barred. We also find that Smith's expired sentence claim is without merit and also time-barred. We therefore affirm the trial court's denial of Smith's PCR motion.

FACTS

¶ 3. In September of 1985, Smith was convicted of burglary of a business in Harrison County and sentenced to serve seven years as a habitual offender. In March of 1986, Smith was convicted of possession of a schedule II controlled substance in Harrison County, and the trial court sentenced him to life without eligibility for parole. The supreme court affirmed Smith's conviction of possession of a controlled substance and sentence to life imprisonment on direct appeal. Smith v. State , 527 So.2d 660, 665 (Miss. 1988). Then, in June of 1986, Smith pled guilty to armed robbery in Jackson County. The trial court sentenced Smith to serve a term of ten years, with the sentence to run concurrently with Smith's seven year sentence for burglary of a business and consecutive to Smith's life sentence for possession of a controlled substance.

¶ 4. On October 7, 2016, Smith filed a PCR motion requesting that the trial court enter an order finding that his ten-year sentence for armed robbery had expired. On February 9, 2017, Smith filed a motion for leave to file additional and supplemental pleadings in support of his PCR motion. That same day, and despite failing to receive permission from the trial court, Smith also filed his supplemental pleadings in support of his PCR motion, arguing: (1) that he was subjected to double jeopardy because "[he] was tried, convicted, and sentenced for both armed robbery and possessing the proceeds of that robbery," and (2) "it should be inferred that [he] was denied ineffective assistance of counsel" based on the alleged double jeopardy violation.

¶ 5. On May 24, 2017, the trial court entered an order denying Smith's PCR motion. The trial court found no merit to Smith's claim that his sentence for his armed robbery conviction had expired and explained as follows:

Part of Smith's sentence was to be served concurrently with Harrison County Cause Number 20,493 [ (burglary of a business) ]. After the sentence in Harrison County Cause Number 20,493 expired, Smith had three (3) years remaining on ... [his armed robbery] sentence[,] [w]hich was to run consecutively with his sentence in Harrison County Cause Number 20,705 [ (possession of a controlled substance) ]. The remaining three (3) years would not begin to run until after completion of his life sentence in Harrison County Cause Number 20,705. As such his sentence has not expired[.]

¶ 6. On June 14, 2017, Smith filed his notice of appeal. On July 14, 2017, Smith filed a motion for reconsideration, in which he also asked the trial court to rule on the double jeopardy claim and ineffective assistance of counsel claim raised in his February 9, 2017 supplemental pleadings. On October 11, 2017, the trial court entered an order denying Smith's motion for reconsideration. The trial court held that "[i]t plainly appears from the [m]otion that [Smith] is not entitled to any relief as he has failed to bring any new facts or law that this [c]ourt should consider."

STANDARD OF REVIEW

¶ 7. "When reviewing a trial court's denial or dismissal of a PCR motion, we will only disturb the trial court's decision if it is clearly erroneous; however, we review the trial court's legal conclusions under a de novo standard of review." Sims v. State , 227 So.3d 1167, 1168 (¶ 5) (Miss. Ct. App. 2017).

DISCUSSION

¶ 8. In his October 7, 2016 PCR motion, Smith argued that his ten-year sentence for armed robbery had expired. The record reflects that on February 9, 2017, four months after filing his PCR motion, Smith filed a motion for leave to file additional or supplemental pleadings to set forth additional PCR claims of double jeopardy and ineffective assistance of counsel.

¶ 9. We have held that "[a] prisoner must move to amend his PCR motion within thirty days of filing." Williams v. State , 98 So.3d 1090, 1092 (¶ 11) (Miss. Ct. App. 2012). Mississippi Rule of Civil Procedure 15(a) states that "[a] party may amend a pleading as a matter of course at any time before a responsive pleading is served, or, if a pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within thirty days after it is served."

¶ 10. The record reflects that the trial court never ruled on Smith's motion for leave to file additional or supplemental pleadings. "It is the duty of the movant, when a motion or other pleading is filed, ... to pursue said motion to hearing and decision by the court." URCCC 2.04 ; see also Ryan v. State , 245 So.3d 491, 498 (¶ 20) (Miss. Ct. App. 2017). In Williams , 98 So.3d at 1092 (¶ 12), the petitioner, Williams, filed his motion to amend his PCR motion more than thirty days after he filed his PCR motion. Williams also "failed to secure a ruling on his motion to amend." Id. This Court therefore held that Williams's PCR claim set forth in his motion to amend "[wa]s not properly before this Court" and thus procedurally barred. Id.

¶ 11. In the present case, because Smith filed his motion for leave to file additional or supplemental pleadings outside of the thirty day time limit, and because he failed to secure a ruling on his motion, we find that Smith's claims of double jeopardy and ineffective assistance of counsel are procedurally barred from our review.

¶ 12. Turning to his remaining PCR claim, Smith argues that his ten-year sentence for his Jackson County armed robbery conviction had expired. As stated, the trial court ordered that Smith's ten-year sentence for armed robbery was to run concurrently with Smith's seven-year sentence for burglary of a business and consecutive to Smith's life sentence for possession of a controlled substance.

¶ 13. In its order denying Smith's PCR motion, the trial court found that Smith's ten-year sentence had not expired. The trial court explained as follows:

Part of Smith's sentence was to be served concurrently with Harrison County Cause Number 20,493 [ (burglary of a business) ]. After the sentence in Harrison County Cause Number 20,493 expired, Smith had three (3) years remaining on ... [his armed robbery] sentence[, w]hich was to run consecutively with his sentence in Harrison County Cause Number 20,705 [ (possession of a controlled substance) ]. The remaining three (3) years would not begin to run until after completion of his life sentence in Harrison County Cause Number 20,705.

¶ 14. In Smith , 251 So.3d at 755, we addressed a similar claim by Smith where he argued that his fifteen-year sentence for an armed robbery conviction in Forrest County had expired. This Court held that "[b]ecause Smith's fifteen-year sentence is being served consecutively to a prior life sentence, he cannot successfully argue that his sentence is expired." Id. at (¶ 5). This Court also held that although cases where a petitioner claims that his sentence has expired are excepted from the three-year time limit for filing PCR motions, Smith cannot successfully argue that his sentence is expired since his sentence is being served consecutively to a prior life sentence. Id. ; Miss. Code Ann. § 99-39-5(2)(b) (Rev. 2015). This Court further found that Smith's claims amounted to nothing more than "mere assertions" of constitutional-rights violations. Id. at (¶ 6) ("[M]ere assertions of constitutional-rights violations do not suffice to overcome the procedural bar[s]" of the Uniform Post[ ]Conviction Collateral Relief Act.). Therefore, Smith's claim of an expired sentence was time-barred. Id.

¶ 15. For these same reasons, we similarly find that Smith's present claim of an expired sentence is time-barred and without merit. We therefore affirm the trial court's denial of Smith's PCR motion.

¶ 16. AFFIRMED.

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

      In his PCR motion, Smith recognized the three-year time limit for filing a PCR motion under Mississippi Code Annotated section 99-39-5(2) (Rev. 2015), but he argued that a claim of an expired sentence is an exception to the three-year time limit. We address this argument below.

      Smith attached a December 7, 2016 order from the Mississippi Supreme Court to his appellate brief in this case. In the order, the supreme court denied in part and dismissed in part Smith's application for leave to proceed in the trial court. This order does not appear in the record from the trial court. However, "this Court certainly can take judicial notice of [s]upreme [c]ourt files." Mitchell v. State , 218 So.3d 278, 283 (¶ 16) (Miss. Ct. App. 2017). Additionally, "[a] court may look to any source it deems helpful and appropriate, including official public documents, records[,] and publications." Enroth v. Mem'l Hosp. at Gulfport , 566 So.2d 202, 205 (Miss. 1990). Therefore, we look to Smith's motion for leave to proceed in the trial court, which he filed in the supreme court on June 8, 2016. Crawford v. Fisher , 213 So.3d 44, 47-48 (¶ 10) (Miss. 2016). Smith's motion for leave to proceed in the trial court addresses Smith's claims regarding his armed robbery conviction in Forrest County. In Smith v. State , 251 So.3d 754, 755 (Miss. Ct. App. 2018), cert. denied , 250 So.3d 1270 (Miss. Aug. 23, 2018), this Court disposed of Smith's PCR claims stemming from his conviction and sentence for armed robbery in Forrest County. Therefore, the supreme court's December 7, 2016 order has no bearing on the present case, where Smith challenges his conviction and sentence for armed robbery in Jackson County.

      In Smith's motion for leave to file additional or supplemental pleadings, he cites to Mississippi Rule of Civil Procedure 15(b). However, it appears that Smith's motion actually falls within subsection (a) of Rule 15.


author: TINDELL, J., FOR THE COURT:

text:
    John GIRANI, Appellant v. John Taylor LOVORN, Appellee
    NO. 2017-CA-00457-COA
    Court of Appeals of Mississippi.
    October 9, 2018
    ATTORNEYS FOR APPELLANT: DAVID RINGER, BRENTON MATTHEW CARTER, FLORENCE
    ATTORNEY FOR APPELLEE: JAMES WALTER NEWMAN IV, JACKSON
    BEFORE GRIFFIS, P.J., WILSON AND TINDELL, JJ.
   TINDELL, J., FOR THE COURT:

¶ 1. This appeal involves a dispute between neighbors over the use of a boat ramp. John Girani appeals the Rankin County Chancery Court's judgment finding he was not entitled to any type of easement or license to access the boat ramp, which was largely situated on John Taylor Lovorn's land. On appeal, Girani argues the chancellor erred by finding he possessed neither an easement by estoppel nor an irrevocable license to use the boat ramp. Finding no error, we affirm the chancellor's judgment.

FACTS

¶ 2. Girani and Lovorn are neighbors in a Rankin County subdivision. The parties own adjoining lots on a lake used for water skiing. In August 1995, Girani acquired by warranty deed two lots from John and Minnie Jo Stewart (collectively, the Stewarts). Lovorn acquired his adjoining lot in August 2006 by warranty deed from Michael Smith (Smith) and his wife, Patricia (collectively, the Smiths).

¶ 3. When the Stewarts and the Smiths still owned the lots, they and two other neighboring families decided to access the lake by deepening a drainage ditch, building a boat ramp, and constructing retaining walls. One retaining wall ran along the Smiths' property while the other ran along the Stewarts' property. The boat ramp itself was located almost entirely on the Smiths' lot, with a small portion extending onto the Stewarts' property. In exchange for sharing the cost of the project, all four families received permission to freely use the boat ramp.

¶ 4. After Girani purchased his lots from the Stewarts, and before Lovorn acquired his lot, Girani, the Smiths, and the two other contributing families performed repairs and renovations to the boat ramp.

Girani testified on direct examination that, since purchasing his property, he had contributed around $25,000 to $30,000 for the repair and maintenance of the boat ramp and retaining walls. Girani further stated he only made these expenditures because he believed he could use the boat ramp whenever he wished. On cross-examination, though, Girani admitted that his expenditures were actually used to replace and maintain only the retaining wall and deck area on his property.

¶ 5. Girani further testified that, before Lovorn acquired the Smiths' lot, no one had ever barred Girani from accessing the boat ramp. However, after Lovorn acquired his lot, Girani testified that Lovorn parked vehicles in front of the boat ramp and that Lovorn's wife told Girani he would have to obtain permission to use the boat ramp. Following these events, Girani filed a complaint against Lovorn in chancery court. Girani asked the chancellor to find he held an easement by estoppel to the portion of Lovorn's land containing the boat ramp. Alternatively, Girani asked the chancellor to find he held an irrevocable license to use the boat ramp and water channel. In addition, Girani asked the chancellor to find he was entitled to adequate consideration for the support his land provided for the boat ramp and/or channel.

¶ 6. At trial, both Girani and Lovorn testified. Smith also testified about the construction and use of the boat ramp and about selling his land to Lovorn. When Smith conveyed his property to Lovorn, he told Lovorn about the boat-ramp project and identified the contributing families who had permission to use the boat ramp. Smith admitted, however, that neither Girani nor any of the other contributing families had ever requested a written easement from him. Smith also testified that the warranty deed he conveyed to Lovorn contained no easement regarding the boat ramp and that, in fact, no such written easement had ever existed. Following the trial, the chancellor entered a March 1, 2017 judgment denying with prejudice all Girani's requested relief.

¶ 7. Aggrieved, Girani appeals.

STANDARD OF REVIEW

¶ 8. We will not disturb a chancellor's factual findings when supported by substantial credible evidence. McDowell v. Zion Baptist Church , 203 So.3d 676, 681 (¶ 15) (Miss. Ct. App. 2016). We only reverse where the chancellor manifestly erred, was clearly erroneous, or applied an erroneous legal standard. Id. However, we review questions of law de novo. Id.

DISCUSSION

¶ 9. Although Girani acknowledges Mississippi caselaw generally fails to recognize either easements by estoppel or irrevocable licenses, he asserts equity allows courts to employ such remedies to prevent injustice. Contending the facts of this case support judicial recognition that he has either an easement by estoppel or an irrevocable license to access Lovorn's boat ramp, Girani asks this Court to modify or extend existing Mississippi caselaw to provide for such remedies.

¶ 10. "[A]n easement is an interest in land subject to the statute of frauds, and any agreement to convey or transfer an easement must comply with the statute of frauds, and be conveyed by written deed." 37 C.J.S. Statute of Frauds § 66 (2017). Where recognized, however, an easement by estoppel provides an exception to the statutes imposing the requirement of a writing. Id. at § 67. The Mississippi Supreme Court has defined easement by estoppel to mean:

[A]n easement which is created when a landlord voluntarily imposes an apparent servitude on his property and another person, acting reasonably, believes that the servitude is permanent and in reliance upon that belief does something that he would not have otherwise or refrains from doing something that he would have done otherwise.

Gulf Park Water Co. v. First Ocean Springs Dev. Co. , 530 So.2d 1325, 1332 (Miss. 1988) (quoting United States v. Thompson , 272 F.Supp. 774, 784 (E.D. Ark. 1967) ). In contrast to an easement, a license "confers no interest in the land but merely gives one the authority to do a particular act on another's land ... and ... may be created orally." 37 C.J.S. Statute of Frauds § 66. "However, it ... has been said that an irrevocable license is ... an easement rather than a license." 53 C.J.S. Licenses § 147 (2017).

¶ 11. In the present case, Girani admits no written instrument ever existed to grant him permission to use the boat ramp on Lovorn's land. He therefore relies solely on the remedies of easement by estoppel and irrevocable license for his requested relief. Recognizing that our supreme court has previously looked unfavorably on both irrevocable licenses and easements by estoppel, Girani asks this Court to extend or modify existing Mississippi caselaw on this issue. See Gulf Park Water Co. , 530 So.2d at 1335 (providing that Mississippi "does not recognize 'irrevocable licenses' "); Belzoni Oil Co. v. Yazoo & Miss. Valley R.R. Co. , 94 Miss. 58, 58, 47 So. 468, 472-73 (1908) (refusing to change licenses into an irrevocable right on the basis of equitable estoppel); Beck v. New Orleans & Tex. Ry. Co. , 65 Miss. 172, 176, 3 So. 252, 252 (1887) (declining to recognize irrevocable licenses). Upon review, we decline to do so. See Cahn v. Copac Inc. , 198 So.3d 347, 358 (¶ 35) (Miss. Ct. App. 2015) ("[T]his Court does not have the authority to overrule or ignore supreme court precedent."). We therefore find this assignment of error lacks merit.

CONCLUSION

¶ 12. Because existing Mississippi caselaw and substantial credible record evidence support the chancellor's finding Girani was not entitled to any type of easement or license to use the boat ramp on Lovorn's land, we affirm.

¶ 13. AFFIRMED.

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


text:
    EMMANUEL RIDGE COMMUNITY SERVICES INC. d/b/a Emmanuel Ridge Home Care, Appellant v. Nedra LOGGINS, Appellee
    NO. 2017-WC-01624-COA
    Court of Appeals of Mississippi.
    October 9, 2018
    ATTORNEY FOR APPELLANT: EMMANUEL RIDGE COMMUNITY SERVICES INC. (PRO SE)
    ATTORNEY FOR APPELLEE: MATTHEW IVAN HETZEL, JACKSON
    BEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. After a work accident, Nedra Loggins filed a petition to controvert with the Mississippi Workers' Compensation Commission (the Commission). The administrative judge (AJ) awarded benefits, and Emmanuel Ridge Community Services Inc. (Emmanuel Ridge) appealed. But the Commission dismissed the appeal as untimely. We affirm the Commission's dismissal.

FACTS AND PROCEEDINGS BELOW

¶ 2. Loggins-an employee of Emmanuel Ridge-allegedly injured herself while assisting a fallen patient. She quickly notified her supervisor and sought treatment.

Later, she filed a petition to controvert with the Commission.

¶ 3. After several hearings, the AJ awarded benefits to Loggins on September 19, 2017. Twenty-one days later, on October 10, 2017, Emmanuel Ridge filed a petition for review with the Commission. The Commission dismissed her petition as untimely, though mistakenly referred to the petition as having been filed on October 11. Emmanuel Ridge filed a motion to reconsider and the Commission once again dismissed the untimely petition, but this time corrected the filing date to October 10. It still determined that Emmanuel Ridge filed the petition outside of the twenty-day limit, thereby barring jurisdiction.

¶ 4. Emmanuel Ridge appeals from this order.

STANDARD OF REVIEW

¶ 5. The Commission's findings of fact are entitled to substantial deference. Raytheon Aerospace Support Servs. v. Miller , 861 So.2d 330, 335 (¶ 11) (Miss. 2003) (citing Vance v. Twin River Homes Inc. 641 So.2d 1176, 1180 (Miss. 1994) ). Our determination, therefore, is based on whether the Commission's finding was supported by substantial evidence, was arbitrary or capricious, or was based on erroneous application of facts. Logan v. Klaussner Furniture Corp. , 238 So.3d 1134, 1138 (¶ 11) (Miss. 2018). "The findings of the Commission should be reversed 'only in rather extraordinary cases.' " Id. (citing Miller , 861 So.2d at 335 (¶ 11) ).

DISCUSSION

Did the Commission properly dismiss Emmanuel Ridge's appeal as untimely?

¶ 6. We note that Emmanuel Ridge does not address the issue of timeliness in its appeal. Furthermore, we note that Emmanuel Ridge does not cite any authority in support of that appeal to this Court. "Failure to cite any authority is a procedural bar, and this Court is under no obligation to consider the assignment." United Plumbing & Heating Co. v. Mosley , 835 So.2d 88, 92 (¶ 9) (Miss. Ct. App. 2002). Notwithstanding this procedural bar, Emmanuel Ridge still cannot prevail on appeal because it untimely filed its petition for review, thus barring the Commission from exercising jurisdiction.

¶ 7. Mississippi Code Annotated section 71-3-47 (Rev. 2011) notes that a "decision shall be final unless within twenty (20) days a request or petition for review by the full commission is filed." And the twenty-day time limit is not merely procedural. Roberson v. LFI Fort Pierce Inc. , 3 So.3d 788, 790 (¶ 6) (Miss. Ct. App. 2008). "If the notice of appeal is not filed within twenty days, the Commission does not have jurisdiction to hear the matter." Felter v. Floorserv Inc. , 140 So.3d 426, 428 (¶ 5) (Miss. 2013). But the Commission will hear an appeal filed outside of the twenty-day requirement only if "unique facts which would permit [the] petition to be considered constructively filed." Ford v. KLLM Inc. , 909 So.2d 1194, 1196 (¶ 5) (Miss. Ct. App. 2005).

¶ 8. The record is clear: The AJ awarded benefits to Loggins on September 19, 2017. In determining the twenty-day window, we exclude the date of the order and include the last day. Marlboro Shirt Co. (Reliance Mfg. Co.) v. Whittington , 195 So.2d 920, 921 (Miss. 1967). Accordingly, Emmanuel Ridge should have filed its appeal by October 9, 2017. Instead, it filed on October 10, 2017. And although Emmanuel Ridge asserted in its motion to reconsider that October 9 was a holiday, it was not a legal holiday, and the Commission's offices were open and operating. Here, there are no "unique facts which would permit [the] petition to be considered constructively filed." Ford , 909 So.2d at 1196 (¶ 5). Therefore, we find the Commission's dismissal of Emmanuel Ridge's appeal as untimely proper. Thus, we affirm the Commission's order.

¶ 9. AFFIRMED.

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


author: BARNES, J., FOR THE COURT:

text:
    Jewel Lean KOHNKE, Appellant v. Bertha Jean TATE, Appellee
    NO. 2017-CA-00257-COA
    Court of Appeals of Mississippi.
    October 9, 2018
    ATTORNEYS FOR APPELLANT: LARRY STAMPS, Jackson, ANITA M. STAMPS
    ATTORNEY FOR APPELLEE: R. ANDREW FOXWORTH, Columbia
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. Bertha Tate filed a complaint for partition of property in the Marion County Chancery Court against Jewel Kohnke and other defendants who are cotenants of the property but not appellants in this case. The property at issue, approximately thirty-nine acres, was devised to several family members in the will of Annie Boone, who passed away in 2010. The chancery court approved a survey, ordered the partition of three separate parcels, and adjudicated the owners of the parcels. Kohnke appealed, claiming the partition of the property was unfair because it was not in equal value to the rights of the property owners. Finding no error, however, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On March 22, 2016, Tate filed her complaint seeking a partition of her portion of real property that had been devised to her and other relatives under the last will and testament of Annie Boone, who passed away in July 2010.

¶ 3. Annie had seven children, three of whom predeceased her but left children of their own. In her will, Annie devised the subject property between her children or their descendants, and her brother, Frank Holt, with the following ownership interests:

Bertha Jean Tate 0.125 (or 1/8) Howard Boone 0.125 (or 1/8) Christeen Boone Owens 0.125 (or 1/8) Jewel Lean Kohnke 0.125 (or 1/8) Lonnie Mae McLeod 0.125 (or 1/8) Annie Nell Boone3 0.125 (or 1/8) Frank W. Holt 0.125 (or 1/8) Jackie Boone Walton 0.0625 (or 1/16) Ricky Boone4 0.0625 (or 1/16)

[Editor's Note: The preceding image contains the reference for footnotes , ].

Lonnie McLeod, one of Annie's daughters, died intestate after her mother; therefore, her 1/8 ownership interest was divided among her five children, the McLeod Family, giving each of those five individuals a 0.025 (1/40) ownership interest in the property. Additionally, Frank Holt, Annie's brother, died intestate after Annie's death. He was not married at the time of his death and had no children or surviving parents; however, he did have seven siblings, all of whom predeceased him. Five of the seven siblings were survived by children, which included Annie's children. Accordingly, Holt's 0.125 (1/8) ownership interest in the property was divided into five equal parts, descending through intestate succession to the descendants of Holt's deceased siblings. Therefore, Annie's children inherited an additional 0.025 (1/40) ownership interest in the property from Holt's 1/8 share, to be divided equally among them.

¶ 4. Christeen Boone Owens and the McLeod Family later joined Tate to have their interest in the subject property partitioned from the larger parcel. The other cotenants, including Kohnke, desired to continue as common owners of the remaining property. After a hearing on August 29, 2016, the chancery court entered an agreed order on September 19, 2016, confirming title and partitioning the property. The order delineated the ownership interests of the cotenants and ordered the property be partitioned in kind to give Tate, the McLeod Family, and Christeen Owens separate parcels of land equal in value to their ownership interests. The order also added Holt's 1/40 interest to Annie's children or descendants, stating the parties' legal interest in the property was as follows:

Bertha Jean Tate 0.1285714 (or 180/1400)6 Howard Boone 0.1285714 (or 180/1400) Jewel Lean Kohnke 0.1285714 (or 180/1400) Charley McLeod 0.0257143 (or 36/1400) Frank McLeod 0.0257143 (or 36/1400) Jamie McLeod 0.0257143 (or 36/1400) Joey McLeod 0.0257143 (or 36/1400) Johnny McLeod 0.0257143 (or 36/1400) Christeen Owens 0.1285714 (or 180/1400) Ricky Boone 0.0642857 (or 90/1400) Jackie Walton 0.0642857 (or 90/1400) Annie Nell Boon 0.1285714 (or 180/1400) Frank Holt's Heirs at Law/ Devisees Excluding Annie Boone's Descendants 0.10 (or 140/1400)

[Editor's Note: The preceding image contains the reference for footnote ].

A final hearing was held on January 18, 2017, where the chancellor entered a final judgment, approving a survey and partitioning the three parcels. The judgment stated "the requesting parties have agreed among themselves as to the division of the partited parcels." Each parcel contained 5.12 acres, with Tate owning Parcel # 1, the McLeod family owning Parcel # 2, and Christeen Owens owning Parcel # 3. The remaining property consisted of 25.48 acres. The judgment also allowed Howard Boone to continue to graze and water his livestock from the small "catfish" pond on Owens's parcel, as long as he lived or had the need. Relatedly, she was prohibited from building a fence on her parcel, to which she agreed.

STANDARD OF REVIEW

¶ 5. For partition cases, "[a]n appellate court will only overturn a chancellor's decision ... if it is determined that the chancellor committed manifest error." Cathey v. McPhail & Assocs. Inc. , 989 So.2d 494, 495 (¶ 3) (Miss. Ct. App. 2008). "[U]nless the chancellor was manifestly wrong, clearly erroneous or applied an erroneous legal standard," the reviewing court will not overturn the chancellor's findings when supported by substantial evidence. Id. ; accord Samples v. Davis , 904 So.2d 1061, 1064 (¶ 9) (Miss. 2004).

ARGUMENT

¶ 6. Kohnke raises three issues: (1) the chancellor improperly and unfairly partitioned the property based upon acreage rather than value, (2) there was a mathematical error in the calculations used to determine the interests of the cotenants, and (3) the chancellor improperly accepted the deraignment of title without a hearing.

I. Partition of Property

¶ 7. Kohnke argues that the division of the three separate parcels of 5.12 acres was improper and inequitable because the value of the parcels was unequal. She requests the case be remanded to partition the property based upon value rather than acreage. Also, she suggests on remand the chancellor make a more complete record of how the property was distributed.

¶ 8. "Partition is a statutory right in Mississippi" governed by Mississippi Code Annotated sections 11-21-1 through -45 (Rev. 2004). Mosby v. Mosby , 962 So.2d 119, 121 (¶ 8) (Miss. Ct. App. 2007). Cotenants have an absolute right to partition property (with one statutory exception not applicable here). Id. "A partition in kind, rather than a partition by sale, is the preferred method of dividing property in Mississippi." Cathey , 989 So.2d at 495 (¶ 4). "Any party in interest ... may institute proceedings for the partition of lands ..." in the chancery court. Miss. Code Ann. § 11-21-5 (Rev. 2004).

¶ 9. Kohnke claims the case must be remanded because the chancellor did not follow the statutory requirements imposed on special commissioners who may, but are not required to, be appointed by the chancellor in partition actions. Kohnke argues that the chancellor did not divide the property into shares "having regard to the situation, quantity, quality and advantages of each part or share, so that they may be equal in value as nearly as may be, or according to the respective rights of the parties." See Miss. Code Ann. § 11-21-19 (Rev. 2004). Kohnke claims this statutory language for the special commissioner applies to the chancellor. She further contends that there was no proof that an expert or the surveyor considered the statutory language either. Finally, she maintains that the division of the property was unfair because there was no evidence presented as to the value of the land.

¶ 10. Kohnke's reliance on section 11-21-19 is misplaced because it relates to the situation where a special commissioner is appointed, unlike here, where neither party requested one. Regardless of the inapplicability of the statute, however, Kohnke is basically arguing the property was unfairly divided with unequal value according to the interest rights of the cotenants. After examining the record, we cannot say that the chancellor's ruling on the survey and division of property was manifest error. Moreover, neither Kohnke nor her attorney during the chancery court proceedings made any objections as to the method of partition used (in kind), requested that a special commissioner be appointed, or requested that an appraisal of the property's value be made. Also, Kohnke did not request partition based on value. It is well established that a chancellor cannot abuse her discretion in failing to grant a request that was never made. Pride v. Pride , 60 So.3d 208, 212 (¶ 15) (Miss. Ct. App. 2011).

¶ 11. Kohnke's discontent appears to stem from the fact that there are three ponds on the property-two larger ponds on the large undivided tract, and one smaller pond on Christeen Owens's parcel. Kohnke states the chancery court unfairly "enriched" Tate by granting her "an entire pond for her sole use and benefit to the exclusion of the other beneficiaries," and allowing Howard Boone to water his livestock from Owens's pond. It is unclear from the record which pond Kohnke is speaking of, because on the survey map, Tate does not have a pond on her parcel and was not granted use of a pond, as Howard was. At the hearing, the chancellor explained to Kohnke that the property distribution was fair because the majority of cotenants, including Kohnke, had unfettered use and access to the two larger ponds on the 25.28 acres of property. We cannot find error in this regard.

¶ 12. Accommodations appear to have been made for the fair distribution of property between the three partited owners and the remaining cotenants. As Tate notes, the survey shows the three parcels are in the back of the property and do not front a public road; they were located to ensure the remaining cotenants' portion of the land remained contiguous and intact. The house and surrounding one acre is on the undivided land. Boone was allowed to run his livestock operation throughout the land with access to all three ponds. Easements were granted for the three parcels to allow ingress and egress. Accordingly, there is substantial evidence in the record to justify the chancellor's division of the property. We cannot say it was "unfair" to the remaining cotenants. This issue is without merit.

II. Interests of Cotenants

¶ 13. Kohnke argues that the calculations used to determine the cotenants' ownership interests in the property were incorrect, and therefore the owners of the three partitioned parcels received "too much acreage" for their ownership interests. She also claims there is no proof to support the "per stirpes distribution" tendered to the chancery court by the parties' attorneys and it, too, is erroneous. Therefore, Kohnke suggests that even though these issues were not raised below, she is entitled to plain error review.

¶ 14. The September 19, 2016 agreed order delineated the ownership interests that each of the heirs to Annie's will were to receive. We cannot find error in their determination. Annie's will had nine beneficiaries; seven beneficiaries received 1/8 interest and two beneficiaries received 1/16 interest each. However, the death of Annie's brother Holt, who held a 1/8 interest and died without a will, spouse, children, living siblings, or parents, increased the ownership interests of all of Annie's other beneficiaries. Holt's 1/8 interest was divided into five equal parts, or 1/40th of an interest, and descended to his five siblings who had children, which included Annie. Therefore, Annie's descendants (her living children and the children of her deceased children) received an additional 1/40th interest in the land, to be divided among them according to their proportionate share. Attorneys for both parties before the chancery court clearly laid out the interests in both fractions and decimal figures. After thoroughly reviewing them, we find no error in their calculation.

¶ 15. Kohnke now criticizes the chancery court for allowing the attorneys to calculate the cotenants' inherited ownership interests instead of appointing a special commissioner. She also complains the calculations are incorrect, without elaboration, and there is no evidence to support them. As stated earlier, Annie's will is not a part of the record, but the complaint explained the interests devised in the will, and at that time, and during the entire proceedings in the chancery court, the calculations were not in dispute.

¶ 16. At the hearing, Kohnke appeared to be concerned that some of Holt's interest was not being distributed to all of Annie's descendants. However, all of Annie's descendants, including both Kohnke and Tate, inherited some of Holt's interest. The calculations show every descendant and devisee received their fair portion of the property according to Annie's will and the laws of intestate succession.

¶ 17. Additionally, Kohnke argues the three separate parcels of 5.12 acres exceed the vested interest of the owners receiving them. At the final hearing, Kohnke argued that the division was unfair because there was insufficient total acreage to give the remaining cotenants each 5.12 acres-the amount the partitioned owners received. Kohnke claims that the property should be divided into eight parcels or 4.88 acres for the 1/8 interest owners and 2.4 acres for the two 1/16 interest owners. Under Kohnke's calculations, the partited owners are receiving 0.24 acres more than their interest allows. Kohnke suggests 4.88 acres as the starting point for determining the "correct acreage" to which each beneficiary, or their heirs, is entitled.

¶ 18. Tate agrees that 4.88 acres is the "starting point" to determine the theoretical acreage for each cotenant. Tate correctly notes, though, that the subject property is not exactly forty acres, but 40.84 acres according to the survey. Because the house and surrounding one-acre of land were devised to Kohnke and Owens, the remaining total acreage is 39.84 acres. Using the percentages agreed upon in the chancery court for the partition parties, each partitioned parcel would equal 5.12 acres (39.84 acres x 180/1400 = 5.12 acres). We cannot find error in this determination. Although it is true that if all of the landowners desired to partition their property in kind and according to their shares there would be a shortage of acreage, that was not the situation before the chancellor when she divided the property. The chancellor had to take other factors into consideration such as location of the parcels, access, easements, and the ponds. The property of the remaining cotenants fronts a public road while the three partitioned parcels do not. We cannot say the chancellor abused her discretion in partitioning the property into three 5.12 acre parcels and a remaining 25.48 acre parcel. This issue is without merit.

III. Deraignment of Title

¶ 19. Kohnke argues the chancery court failed to conduct a hearing to determine the validity of the property's deraignment found in Tate's complaint. Kohnke complains that there is no evidence the deraignment was performed by a competent abstractor, or that "a title search, abstract, or opinion was entered into evidence." She claims the deraignment and supporting documents' omission from the record is "plain error" and warrants reversal.

¶ 20. In order to confirm or quiet title to real estate, the complainant must set forth a deraignment of title. In this case, the deraignment is sufficient if it shows "title out of the sovereign and a deraignment of title for not less than sixty (60) years prior to the filing of the [complaint]." Miss. Code Ann. § 11-17-35 (Rev. 2004).

¶ 21. Tate's complaint contained a deraignment of title in paragraph 5. It began with a reference to the first conveyance from the sovereign, the United States, with references to the patent, and ended with the conveyance to Annie H. Boone. Accordingly, the statutory requirement of proof of title was fulfilled. Moreover, Kohnke admitted the accuracy of the deraignment in her answer. This issue is without merit.

CONCLUSION

¶ 22. For the foregoing reasons, the judgment of the Marion County Chancery Court is affirmed.

¶ 23. AFFIRMED.

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

      The subject property is legally described as: "NE1/4 of the SE1/4 of Section 1, Township 2 North, Range 18 West, Marion County, Mississippi" and is a total of 40.84 acres.

      Neither the will nor the final judgment probating the will is a part of the record on appeal, but the complaint included the interests of the beneficiaries, which are not in dispute. Additionally, a home and surrounding one acre on the property was separately devised to Kohnke and Christeen Owens and is not at issue in this action. This one acre was excluded from the 40.84 section.

      Annie Nell Boone is Annie's granddaughter.

      Jackie Walton and Ricky Boone are Annie's grandchildren.

      See Miss. Code Ann. § 91-1-3 (Rev. 2013).

      This amount is the share received through Annie's will, plus Uncle Holt's share, or .125 plus .0035714 equaling 0.1285714.

      Kohnke has different counsel on appeal, and many of her arguments criticize her counsel's actions during the chancery court proceedings.

      Kohnke admits that the chancery court was within its authority to order a partition without appointing a special commissioner. See Miss. Code Ann. § 11-21-13 (Rev. 2004).

      Kohnke complains that the record is sparse because the first two of the three hearings were not transcribed, but we find the record sufficient.