author: LAMAR, Justice,

text:
    Joey Dante JOHNSON v. STATE of Mississippi.
    No. 2008-KA-01077-SCT.
    Supreme Court of Mississippi.
    Dec. 17, 2009.
    Rehearing Denied March 25, 2010.

      Todd W. Sorey, Jerry L. Bustin, Forest, Gar N. Schwippert, attorneys for appellant.
    Office of the Attorney General, by Laura H. Tedder, attorney for appellee.
    Before GRAVES, P.J., LAMAR and KITCHENS, JJ.
   LAMAR, Justice,

for the Court.

¶ 1. Joey Dante Johnson appeals his conviction of three counts of armed robbery and his sentence of forty-one years without parole. Finding no error, we affirm.

PROCEDURAL HISTORY

¶ 2. Johnson was indicted for three counts of armed robbery under Sections 97-3-79 and 99-19-81 of the Mississippi Code. A jury found Johnson guilty of all three counts but did not impose the maximum penalty of life imprisonment. The trial court conducted a sentencing hearing and heard evidence of Johnson’s two prior felony convictions. The trial court sentenced Johnson to serve forty-one years for each count, with each count to run concurrently. Additionally, the court ordered that Johnson’s sentence should not be reduced or suspended, and that he should not be eligible for parole. Johnson timely filed this appeal.

STATEMENT OF FACTS

¶ 3. On February 4, 2007, all of the parties in this case arrived at the Harmony Community Center (“HCC”) in Leake County shortly after watching a football game. The defendant, Joey Johnson, and his friend, Eddie Vivians, had watched the game together at a friend’s house. Johnson and Vivians left the friend’s house to look for Larry Bernard Green at the HCC, because Larry Green had lost a $20 bet to Johnson over the game. Meanwhile, Larry Green had watched the football game with Kendrick Red Green (Larry Green’s brother), Andrew Whittington, and Ronald Lindsey. After the game, they left Larry Green’s house and went to the HCC.

Robbe'i-y of Kendrick Green

¶ 4. Kendrick and Larry Green testified that they arrived first at the HCC, and Johnson and Vivians arrived about five minutes later. Both Kendrick and Larry Green testified that Johnson had exited his car shooting two guns, a pistol and a revolver, and demanding $20 from Larry Green. According to Kendrick Green, he tried to give Johnson $20, but Johnson then demanded all of Kendrick Green’s money. Kendrick Green stated that he emptied his money clip, giving Johnson a total of $140. Kendrick Green testified that Vivians then began fighting with Larry Green, and Johnson joined their fight. When Kendrick Green attempted to break up the fight, he obtained Johnson’s pistol.

¶ 5. Kendrick Green ran with the gun to Deputy Sheriff Johnny Nealy’s home. Kendrick Green testified that he gave the gun to Deputy Nealy, who placed it into an evidence bag. Kendrick Green stated that he did not do anything to the gun prior to giving it to Deputy Nealy.

¶ 6. Deputy Nealy testified that Kendrick Green arrived at his house and informed him of the events at the HCC and gave him a Rossi .357 Magnum pistol. Deputy Nealy testified that he examined the firearm and found six empty shells inside the gun’s cylinder.

Robbery of Andrew Whittington

¶ 7. Andrew Whittington testified that Johnson had approached him while he was in a car. Whittington testified that Johnson had a gun in each hand and demanded that he get out of the car. When Whit-tington exited the car, Johnson hit him in the jaw and ribs with a gun. Whittington fell to the ground, at which point, Johnson ripped Whittington’s pants off. Whitting-ton’s wallet, which contained $55, fell out of his pants pocket. Whittington stated that Johnson took the wallet. A witness corroborated Whittington’s version of events at trial. Vivians also testified that he had witnessed Johnson rip Whitting-ton’s pants, but that he did not see Johnson take anything out of the pants pocket.

Robbery of Marcus McKee

¶ 8. Marcus McKee arrived at the HCC after he had watched the football game with a friend. McKee testified that he heard gunshots as he arrived. McKee stated that he was talking with Vivians when Johnson walked over and pointed a pistol at him (McKee). McKee testified that he and Johnson fought, and then Johnson approached him with two guns and demanded his money. McKee gave Johnson $250. Vivians testified that he saw Johnson point a gun at McKee and demand money.

Johnson’s Version of Events

¶ 9. Unsurprisingly, Johnson’s version of events is contrary to that of the victims. Johnson testified that he got into an argument with Larry Green and decided to leave the HCC, when Green charged him with a gun. According to Johnson, Vivi-ans stopped Larry Green by hitting Green in the side of the head. Johnson then began to fight with Larry Green. Johnson admitted to taking the $20 from Kendrick Green, as the pay-off for the bet he had won.

¶ 10. Johnson also admitted to fighting with Whittington, since Whittington had allowed Larry Green to charge at him (Johnson) with a gun. Johnson stated that he attempted to pick up Whittington by Whittington’s pants, and that the pants ripped. Johnson testified that he never saw anything fall out of Whittington’s pants.

If 11. Johnson further admitted to fighting with McKee, but he denied robbing McKee. Johnson denied that he ever had possessed a gun.

DISCUSSION

I. Is Mississippi Code Section 99-19-81 unconstitutional because mandatory sentencing violates the Supremacy Clause, the Separation of Powers Doctrine, and the Sixth and Fourteenth Amendments to the U.S. Constitution?

¶ 12. Johnson’s arguments under this issue are procedurally barred, as he did not raise them at the sentencing phase. “This Court’s general policy is that ‘errors raised for the first time on appeal will not be considered, especially where constitutional questions are concerned.’ ” Powers v. Tiebauer, 939 So.2d 749, 752 (Miss.2005) (citing Stockstill v. State, 854 So.2d 1017, 1028 (Miss.2003)). Notwithstanding the procedural bar, these arguments fail.

Separation of Powers

¶ 13. Johnson first argues that Section 99-19-81 violates the Separation of Powers Doctrine. See Miss.Code Ann. § 99-19-81 (Rev.2007). Johnson acknowledges that this Court has held “there is no violation of the separation of powers doctrine by statutorily mandated penalties for crimes.” Fisher v. State, 690 So.2d 268, 275-76 (Miss.1996). Johnson, however, argues that this Court has never considered a separation of powers challenge “between the legislature and an individual’s fundamental rights.” We fail to see how the Separation of Powers Doctrine is applicable to a division of power between an individual and the Legislature. The Separation of Powers Doctrine applies to our three branches of government. Id. This issue has no merit.

The Supremacy Clause

¶ 14. Johnson further argues that the trial court’s failure to conduct a proportionality review violated the Supremacy Clause. In Clowers v. State, this Court affirmed a defendant’s sentence to less than the maximum penalty as a Section 99-19-81 habitual offender, even though the statute provided the trial court no sentencing discretion. Clowers v. State, 522 So.2d 762, 765 (Miss.1988). This Court found that a “trial court has authority to review a particular sentence in light of constitutional principles of proportionality as expressed in Solem v. Helm [463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), ovemded by Harmelin v. Michigan, 501 U.S. 957, 1005, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) ]. That authority is a function of the Supremacy Clause.” Id. We further noted that the Solem Court set forth three objective factors to guide a proportionality analysis: “(1) the gravity of the offense and the harshness of the penalty; (2) comparison of the sentence with sentences imposed on other criminals in the same jurisdiction; [and] (3) comparison of sentences imposed in other jurisdictions for commission of the same crime with the sentence imposed in this case.” Id. at 764.

¶ 15. This Court has held that a proportionality review under Solem applies “ ‘only when a threshold comparison of the crime committed to the sentence imposed leads to an inference of “gross dispropor-tionality.” ’ ” Edwards v. State, 800 So.2d 454, 468-69 (Miss.2001) (quoting Hoops v. State, 681 So.2d 521, 538 (Miss.1996)). If an inference of gross disproportionality is found, the court must proceed to evaluate the remaining Solem factors in light of the evidence submitted by the defendant. Id. This Court has ruled that the defendant has the burden of presenting evidence of each Solem factor in order for the court to determine whether the sentence is disproportionate. Willis v. State, 911 So.2d 947, 951 (Miss.2005). Johnson has failed to present the trial court or this Court with evidence as to each Solem factor, and as such, this claim is barred from further review. Id.

¶ 16. Furthermore, we find that the proportionality review announced in dowers is inapplicable to the case at hand. The maximum penalty under Section 99-19-81 is life imprisonment. Miss.Code Ann. § 99-19-81 (Rev.2007). However, only the jury can sentence a defendant to life for armed robbery, even when the defendant is a Section 99-18-81 habitual offender. Watkins v. State, 500 So.2d 462, 462 (Miss.1987). Because the jury did not sentence Johnson to life imprisonment, the trial court had discretion under Section 97-3-79 to sentence Johnson to “any term [excluding life] not less than three (3) years.” Miss.Code Ann. § 97-3-79 (Rev. 2006). However, the trial court must have imposed a sentence that is “reasonably less than life.” Watkins, 500 So.2d at 462.

¶ 17. Johnson argues that his forty-one-year sentence is effectively a life sentence, since his actuarial life-expectancy is 41.7 years. In Henderson v. State, an armed-robbery case, this Court upheld a forty-one-year sentence for an appellant with an actuarial life expectancy of 41.6 years. Henderson, 402 So.2d 325, 328-29 (Miss.1981). This Court also relied on Henderson in Ware v. State, 410 So.2d 1330 (Miss.1982), another armed-robbery case in which the defendant, who had an actuarial life expectancy of 40.51 years, argued that his forty-year sentence amounted to life imprisonment. Ware, 410 So.2d at 1332. This Court rejected his argument, noting “[t]he evidence in the record that was presented at the sentencing hearing would thoroughly justify the lower court in giving the appellant every year possible.” Id.

¶ 18. The record before this Court also justifies the trial court in giving Johnson, a habitual offender, forty-one years without parole for three counts of armed robbery. If this case was treated any differently, circumstances might arise where it would be impossible for the court “to impose any meaningful sentence where more than one crime was committed.” Erwin v. State, 557 So.2d 799, 803 (Miss.1990) (providing in dictum that a court may impose sentences for multiple crimes that in combination exceed the defendant’s actuarial life expectancy, as the court should impose each sentence without respect to the other). The Seventh Circuit has further reasoned why a sentence such as Johnson’s should be upheld:

[Attempts to define precisely at what point a term of years becomes a life sentence ... [are] of limited utility. Estimated life expectancy is just that — an estimate. The reality is that some persons live beyond their life expectancies while others do not. To hold that a defendant’s sentence must be a certain number of years or months less than his life expectancy would place unwarranted emphasis on a number that is itself only a rough approximation.

U.S. v. Martin, 115 F.3d 454, 455 (7th Cir.1997). Given all of the above, Johnson’s argument that Section 99-18-81 violates the Supremacy Clause is without merit.

Sixth and Fourteenth Amendment

¶ 19. Johnson also argues that his status as a habitual offender is a “fact” that the jury should determine, and as such, Section 99-18-91 violates the Sixth and Fourteenth Amendments to the U.S. Constitution. In Jones v. U.S., the United States Supreme Court set forth the rule that “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Jones v. U.S., 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (emphasis added). The Supreme Court reiterated this rule in Apprendi v. New Jersey, and found that “[t]he Foimteenth Amendment commands the same answer in [a] case involving a state statute.” Apprendi v. New Jersey, 530 U.S. 466, 476, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); see also Blakely v. Washington, 542 U.S. 296, 301, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Furthermore, this Court has held that a defendant has no constitutional right to a jury trial on the issue of habitual-offender status. Keyes v. State, 549 So.2d 949, 951 (Miss.1989). Therefore, we find this issue has no merit.

II. Was Johnson deprived of his Sixth Amendment right to receive a fair and impartial trial?

A. Application of Strickland

¶ 20. This Court has adopted the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to analyze a claim of ineffective assistance of counsel. Payton v. State, 708 So.2d 559, 560 (Miss.1998). To prevail under Strickland, Johnson must show that (1) his counsel’s performance was deficient, and that (2) the deficiency prejudiced him. Leatherwood v. State, 473 So.2d 964, 968 (Miss.1985). Additionally, there is a strong but rebuttable presumption that his counsel’s decisions were sound trial strategy. Id. at 968-69. The United States Supreme Court has reasoned that “a court must indulge a ‘strong presumption’ that counsel’s conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight.” Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). To overcome that presumption, Johnson must show that, but for his counsel’s deficiency, a different result would have occurred. Leatherwood, 473 So.2d at 968-69.

¶ 21. With new appellate counsel, Johnson argues that his trial counsel was constitutionally ineffective in failing to:

(1) request a change of venue;
(2) request jury sequestration;
(3) recognize that one of the jurors was legally deaf;
(4) submit a jury instruction of self-defense;
(5) submit a jury instruction of circumstantial evidence;
(6) request the judge apply a proportionality l-eview under Glowers;
(7) object to the district attorney’s reference to Johnson as a habitual offender;
(8) object to the gun being admitted into evidence;
(9) object to leading questions;
(10) question a witness about his alcohol consumption;
(11) request that the court sever the charges; and
(12) object to “surprise” testimony of Johnson possessing two guns.

Johnson also argues that his counsel was ineffective by introducing evidence of a prior bad act.

¶ 22. Mississippi Rule of Appellate Procedure 22(b) provides in relevant part that “[ijssues which may be raised in post-conviction proceedings may also be raised on direct appeal if such issues are based on facts fully apparent from the record.” Miss. R.App. P. 22(b). The official comment to Rule 22(b) provides that:

[Ijssues such as claims of ineffective assistance of counsel for failure to object to evidence offered by the state or to argument by the state must be raised on direct appeal. Other post-conviction issues which cannot be raised at the time of appeal because they involve actions or inaction outside the record are not waived since they cannot practically be raised without further development or investigation.

Miss. R.App. P. 22(b) cmt. Therefore, this Court must detei’mine whether the claims of ineffective assistance of counsel are better addressed in this direct appeal or in post-conviction relief (PCR) proceedings. Neal v. State, 15 So.3d 388, 405-06 (Miss.2009).

¶ 23. This Court finds that several of Johnson’s arguments under this issue are inappropriate for this Court to decide on direct appeal. We find that matters outside the trial record would need to be analyzed to determine whether Johnson’s trial counsel was ineffective in: (1) failing to request a change of venue; (2) failing to request jury sequestration; and (3) failing to recognize that one of the jurors was legally deaf. Therefore, we decline to address these claims of ineffective assistance of counsel on direct appeal, finding that they would be more appropriately addressed by way of post-conviction relief. We will address the remaining claims of ineffective assistance raised by Johnson.

¶ 24. Johnson alleges that his counsel was ineffective by failing to submit a jury instruction on self-defense. In order for self-defense to constitute a valid defense, the defendant must “act in response to an urgent actual threat or on a reasonable belief that such threat is actual or imminent.” Carter v. State, 858 So.2d 212, 215 (Miss.Ct.App.2003). We fail to see how a self-defense instruction is applicable to a charge of robbery, a specific-intent crime. Croft v. State, 992 So.2d 1151, 1157 (Miss.2008). Therefore, we find that counsel was not ineffective in failing to submit a self-defense instruction.

25. Johnson also argues that his counsel was ineffective by failing to submit an instruction on the “heightened burden of proof required for a case based on circumstantial evidence.” This Court has explicitly defined circumstantial evidence as “evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact does exist. Conversely, eye witness testimony is thought of as direct evidence.” State v. Rogers, 847 So.2d 858, 863 (Miss.2003) (emphasis added). The victims, witnesses, and Johnson, testified as to the events that occurred at the HCC. This not a case that warrants a jury instruction on circumstantial evidence. Therefore, we find that Johnson’s counsel was not ineffective in failing to submit a circumstantial-evidence instruction.

¶ 26. Johnson argues that his counsel was ineffective in failing to inform the judge a proportionality test could be used to exercise discretion. Based on our discussion ¡supra regarding proportionality, we find this argument to be without merit.

¶ 27. Johnson argues that his counsel was ineffective in failing to object to the district attorney’s reference to Johnson as a habitual offender during a chambers conference. After reviewing the record, we find the district attorney merely informed the court that Johnson was charged as a habitual offender. More importantly, the discussion took place in the judge’s chambers, not in front of the jury. We find that Johnson’s argument as to this issue to be without merit.

¶ 28. Johnson further alleges that his counsel was ineffective in failing to challenge the foundation for admitting the gun into evidence. Specifically, Johnson alleges that the gun was improperly admitted as evidence, due to the witnesses’ confusing references to multiple guns. We find the gun was appropriately identified through the testimony of Kendrick Green and Deputy Nealy. Kendrick Green testified that he had obtained the gun from Johnson and brought it directly to Deputy Nealy, who at trial, identified the gun as the one he received from Kendrick Green. We find that the proper foundation was laid for introduction of the gun, and any discrepancies in testimony were issues to be resolved by the jury. Therefore, we find that counsel was not ineffective in failing to challenge the foundation of admitting the gun into evidence.

¶ 29. Johnson next argues that his counsel was ineffective in failing to object to leading questions, and in failing to question the witnesses about their alcohol and drug consumption on the night of the robbery. While counsel failed to object to some leading questions, we do not find that such a failure amounts to deficient performance. Furthermore, Johnson has failed to provide this Court with any argument or evidence that these failures prejudiced him. This issue has no merit.

¶ 30. Johnson also argues that his counsel was ineffective by failing to move the court to sever the three charges. Section 99-7-2 of the Mississippi Code governs multiple offenses in a single indictment. That statute provides:

(1) Two (2) or more offenses which are triable in the same court may be charged in the same indictment with a separate count for each offense if: (a) the offenses are based on the same act or transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme.

Miss.Code Ann. § 99-7-2 (Rev.2007).

When the defendant requests severance of a multi-count indictment, the trial court should conduct a hearing. Corley v. State, 584 So.2d 769, 772 (Miss.1991). The State bears the burden of making a prima facie case that the alleged offenses do indeed arise out of the same transaction or are parts of a common scheme. Id. The defense may rebut this showing. Id. In ruling upon the motion to sever, the trial court must consider the time period between the offenses, whether evidence proving each offense would be admissible to prove the other counts, and whether the offenses are interwoven. Id.

¶ 31. The indictment at issue provided that the robberies were “part of a continuing series of acts connected together and constituting one with the other parts of a common design, scheme and plan.” After reviewing the transcript, we find that the robberies were a continuation of acts that were connected by the same parties, at the same place, and at the same time. Johnson has failed to provide any argument that the robberies were in fact separate and distinct acts. We find this argument has no merit.

¶ 32. Johnson also argues that his counsel was ineffective in introducing evidence of a prior bad act. At trial, Johnson’s counsel questioned McKee about filing the same charges in 2006 against Johnson. McKee testified the charges were dropped, and that he had mistakenly identified Johnson as the assailant in 2006. Johnson’s counsel questioned McKee about the 2006 charges, implying that McKee had falsely accused Johnson for a second time. Clearly, this constituted trial strategy and falls within the wide range of reasonable assistance of counsel. We find this issue has no merit.

¶ 33. Johnson further alleges that testimony regarding his having two guns was a surprise that affected his attorney’s ability to provide reasonably adequate representation, to which his counsel should have objected. Contrary to these arguments, the record reveals Johnson’s counsel adequately addressed the issue, asking each witness to review his previous statement (in which each witness reported only one gun). Johnson’s counsel properly cross-examined and impeached the testimony of each witness. Johnson has shown no prejudice resulting from the alleged surprise testimony that there were two guns. We find this issue to be without merit.

B. Application of Cronic

¶ 34. Johnson analyzes the same above-referenced errors under U.S. v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), for the proposition that his counsel failed to subject the trial to “meaningful adversarial testing.” In Cronic, the U.S. Supreme Court found that “[t]here are ... circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Id. at 658, 104 S.Ct. 2039. The Court in Cronic set forth three situations in which prejudice was presumed: (1) when counsel is completely denied; (2) when counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing; (3) and when counsel is called upon to render assistance under circumstances where competent counsel very likely could not. Id. at 659-60, 104 S.Ct. 2039. The Supreme Court has also held that a correct analysis falls under Strickland, not Cronic, when “respondent’s argument is not that his counsel failed to oppose the prosecution throughout the sentencing proceeding as a whole, but that his counsel failed to do so at specific points. For purposes of distinguishing between the rule in Strickland and that of Cronic, this difference is not of degree but of kind” Bell v. Cone, 535 U.S. 685, 697, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (emphasis added). The case sub judice is properly analyzed under Strickland, as Johnson argues specific failures of his counsel, not failure as a whole. Therefore, we find Johnson’s argument of error under Cronic to be without merit.

III. Whether the evidence presented at trial was insufficient to establish the three counts of armed robbery and whether the jury’s verdict was against the overwhelming weight of the evidence?

A. Whether the motion for judgment notwithstanding the verdict was properly denied.

¶ 35. A motion for judgment notwithstanding the verdict (JNOV) challenges the legal sufficiency of the evidence. Davis v. State, 18 So.3d 842, 850 (Miss.2009). As noted by this Court, “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Bush v. State, 895 So.2d 836, 843 (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 36. Considering the evidence in the light most favorable to the State, we find there was sufficient evidence to convict Johnson of three counts of armed robbery. The jury was presented with' testimony and evidence that Johnson (1) feloniously took (2) money from Kendrick Green, Andrew Whittington, and Marcus McKee, (3) against their will, (4) by putting each man in fear of immediate injury by the exhibition of a deadly weapon, i.e., the gun. See Miss.Code Ann. § 97-3-79 (Rev.2006). After reviewing the record, we find that a rational jury could have found the essential elements of armed robbery beyond a reasonable doubt. This issue has no merit.

B. Whether the motion for a new trial was properly denied.

¶ 37. This Court will reverse a trial court’s denial of a motion for new trial only when such denial amounts to an abuse of discretion. Neal v. State, 15 So.3d 388, 410 (Miss.2009). This Court will reverse when the verdict is “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable result.” Bush, 895 So.2d at 844. On motion for a new trial, “ ‘the court sits as a thirteenth juror [and] the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.’ ” Id. quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss.2000). Furthermore, “the evidence should be weighed in the light most favorable to the verdict.” Id.

¶ 38. After reviewing the evidence in the light most favorable to the verdict, we cannot say the trial court abused its discretion in denying the motion for a new trial. Kendrick Green made an in-court identification of Johnson as the man who had pointed two pistols at him and demanded his money. Whittington and a witness identified Johnson in court as the man who had hit Whittington with a gun and ripped off Whittington’s pants and picked up an object that fell out. Whit-tington further testified that the only thing in his pants was a wallet containing $55. McKee also identified Johnson in court as the man who had demanded and taken his money at gunpoint. Johnson took the stand, only to say that all the witnesses were lying. The credibility of witnesses is not for the reviewing court, but only for the jury. Doby v. State, 532 So.2d 584, 591 (Miss.1988). After reviewing the record, we fail to see any abuse of discretion on the part of the trial judge. Johnson’s motion for a new trial was properly denied.

CONCLUSION

¶ 39. For these reasons, we affirm Johnson’s conviction of three counts of armed robbery and sentence of forty-one years without parole or probation.

¶ 40. CONVICTION OF THREE (3) COUNTS OF ARMED ROBBERY AND SENTENCE OF FORTY-ONE (41) YEARS, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SAID SENTENCE SHALL NOT BE REDUCED OR SUSPENDED, NOR SHALL SAID APPELLANT BE ELIGIBLE FOR PAROLE OR PROBATION.

WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. GRAVES, P.J, CONCURS IN RESULT ONLY.

      . Mississippi Code Section 97-3-79 provides that:
      Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.
      Miss.Code Ann. § 97-3-79 (Rev.2006).
      Mississippi Code Section 99-19-81 provides that:
      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 separate terms of one (1) year or more ... shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.
      Miss.Code Ann. § 99-19-81 (Rev.2007).

      . In 2001, Johnson pleaded guilty to taking away a motor vehicle, to which he was sentenced to three years in the custody of the Mississippi Department of Corrections. In 2006, Johnson pleaded guilty to possessing cocaine, and he was sentenced to serve eight years in the custody of the Mississippi Department of Corrections for this crime.

      . While McKee did not see Larry and Kendrick Green, he did see Whittington leaning against a car. Further, Vivians testified that McKee arrived about the time Whittington and Johnson were fighting. We note these facts to provide a time frame in which the three robberies took place.

      . Vivians testified that Larry Green poinled a pistol at Johnson and the two began to fight. Vivians stated that Johnson obtained the pistol from Green.

      . Johnson also argues that the trial court violated his liberty interests under the Fourteenth Amendment to the U.S. Constitution by failing to exercise discretion in imposing his sentence. Johnson provides no authority for the proposition that the trial court must sua sponte conduct a proportionality review. Furthermore, we find that the trial judge did exercise his discretion by imposing a forty-one-year sentence for three counts of armed robbery, running the sentences concurrently, rather than consecutively.

        . We note that Johnson's counsel did cross-examine Kendrick Green about his consumption of four to five beers the day of the altercation.

      . Johnson also argues that his counsel was ineffective in failing to provide caselaw in support of his motions for judgment notwithstanding the verdict and a new trial. As will be discussed in the text, supra, these two motions were properly denied. Therefore, counsel was not ineffective in failing to support these motions with authority.


source: Caselaw Access Project

author: GRAVES, Presiding Justice, WALLER, Chief Justice, DICKINSON, Justice,

license: Public Domain

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Bobby B. DeLAUGHTER.
    No. 2008-JP-00460-SCT.
    Supreme Court of Mississippi.
    March 4, 2010.

      Darlene D. Ballard, attorney for appellant.
    Cynthia H. Speetjens, attorney for ap-pellee.
   GRAVES, Presiding Justice,

for the Court:

¶ 1. This matter is before the Court on the Motion to Dismiss Order of Interim Suspension filed by the Mississippi Commission on Judicial Performance (the Commission).

FACTS AND PROCEDURAL HISTORY

¶ 2. The Commission previously filed a Petition for Interim Suspension of Circuit Court Judge Bobby D. [sic] DeLaughter and a supporting brief with this Court as a result of two pending judicial complaints. Those formal complaints, Numbers 2008-022 and 2008-027, alleged that DeLaughter committed multiple counts of judicial misconduct in two separate cases, Wilson v. Scruggs, Cause No. 251-94-582CIV, and Kirk v. Pope, 973 So.2d 981 (Miss.2007). This Court granted the petition for interim suspension on March 28, 2008. Thereafter, DeLaughter was indicted on federal charges of bribery, conspiracy, mail fraud and obstruction of justice. See U.S. v. DeLaughter, No. 3:09CR002 (N.D.Miss.2009). On July 28, 2009, DeLaughter entered a guilty plea to Count Five of the federal indictment. Pursuant to this plea agreement, DeLaughter admitted his guilt to charges of “obstructing, influencing and impeding an official federal corruption investigation and grand jury proceeding....” On July 30, 2009, DeLaughter resigned from office.

¶ 3. Prior to DeLaughter’s sentencing on November 13, 2009, the Commission filed this Motion to Dismiss Order of Interim Suspension on August 18, 2009. As a basis for the motion, the Commission states that, “[i]n exchange for the dismissal of the underlying Formal Complaints pending before the Commission, [DeLaughter] agrees that he will not seek judicial office or otherwise serve in any judicial capacity at any time in the future.” The federal plea agreement attached as an exhibit to the Commission’s motion does not contain any provision wherein DeLaughter agrees never to seek judicial office in the future. Likewise, DeLaughter’s letter of resignation does not contain any statement indicating his agreement not to seek judicial office in the future. The only evidence before this Court of any such agreement with DeLaughter is the Commission’s statement in the motion to dismiss.

DISCUSSION

¶ 4. In Mississippi Commission on Judicial Performance v. Martin, 2008 WL 518227 (Miss. Feb. 25, 2008), reh’g granted and superseded by 995 So.2d 727 (Miss.2008), this Court denied, by order, a similar motion. In Martin, the Commission filed a formal complaint against Justice Court Judge Judy Martin for judicial misconduct. Simultaneously, the Commission petitioned this Court for the interim suspension of Martin, pending the continuing investigation of the complaint. Thereafter, the Commission petitioned this Court to allow it to withdraw the petition for interim suspension, as counsel for the Commission and Martin had entered into a memorandum of understanding resolving the matter. This Court refused to allow the Commission to withdraw the petition for interim suspension, finding, in effect, that the Commission’s mere request provided an insufficient basis to withdraw the motion. On joint motion for rehearing, which was granted, this Court dismissed the order as moot and found that: “[W]here the Commission finds judicial misconduct ... failure to report such findings to this Court, and disposal of the violation by agreement, settlement, or memorandum of understanding between the respondent and the Commission, are beyond the Commission’s constitutional authority.” Martin, 995 So.2d at 730. This Court also said:

The constitution grants the Commission no direct authority or power to order punishment. Nor does it authorize the Commission to enter into a settlement agreement or memorandum of understanding which bypasses its constitutional mandate to make recommendations for punishment to this Court. That said, the Commission is certainly free to agree to recommend to this Court approval of a memorandum of understanding which is supported by the facts.
In the case before us today, we are told by the Commission that “counsel for the Commission and the respondent have entered into an agreement whereby the issues have been resolved in a manner satisfactory to all parties.” We are further told that the Commission and Judge Martin entered into a Memorandum of Understanding which “the Commission accepted by unanimous decision.” We find and hold today that, where the Commission finds judicial misconduct within one of the five categories under Section 177A, failure to report such findings to this Court, and disposal of the violation by agreement, settlement, or memorandum of understanding between the respondent and the Commission, are beyond the Commission’s constitutional authority.

Martin, 995 So.2d at 730 (Dickinson, J.). Moreover, this Court found that, although the memorandum of understanding did not require that the order of interim suspension be dismissed, the contents of said memorandum of understanding were taken into account in deciding that the order should be dismissed as moot. Id. at 731.

¶ 5. In the instant case, the Commission has exceeded its constitutional authority by failing to comply with the provisions as outlined above in Martin. This Court has neither been presented with nor asked to approve any agreement between the Commission and DeLaughter. What this Court has been presented with are admitted acts of criminal and judicial misconduct. This Court cannot ignore the serious, willful nature of the admitted acts of criminal and judicial misconduct. Further, this Court cannot allow the dismissal of formal complaints in two separate cases pursuant to DeLaughter’s resignation or any mere agreement not to seek judicial office in the future.

¶ 6. The Mississippi Constitution provides the following:

On recommendation of the commission on judicial performance, the Supreme Court may remove from office, suspend, fine or publicly censure or reprimand any justice or judge of this state for: (a) actual conviction of a felony in a court other than a court of the State of Mississippi; (b) willful misconduct in office; (c) willful and persistent failure to perform his duties; (d) habitual intemperance in the use of alcohol or other drugs; or (e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute; and may retire involuntarily any justice or judge for physical or mental disability seriously interfering with the performance of his duties, which disability is or is likely to become of a permanent character.

Miss. Const, art. 6, § 177A. Mississippi Code Section 25-5-1 provides for the removal of any public officer convicted of a crime in this State. Miss.Code Ann. § 25-5-1 (Rev.2006). To be clear, this opinion does not rely on Section 25-5-1, but mentions it to note the uniformity of this section with Section 177A, on which we rely. Accordingly, we find it unnecessary to address Chief Justice Waller’s lengthy analysis of Section 25-5-1. However, we will briefly discuss the lack of consistency in Chief Justice Waller’s dissent. Mississippi Commission on Judicial Performance Rule 6(A)(1) notes that:

Under Section 175, Mississippi Constitution of 1890, and Section 25-5-1, Mississippi Code of 1972, public officers convicted of a crime in this state shall be removed from office. Section 25-5-1 was amended in 1979 to provide for removal upon conviction of certain crimes in federal courts and the courts of other states as well as in state courts.

Miss. Comm’n on Judicial Performance, Rule 6(A)(1), n. 1. Further, this Court has held that “[njothing in Section 53 [Miss. Const, art. 4] or 177A, the two sections which specifically provide for removal of judges, suggests that they are exclusive.” In re Higginbotham, 716 So.2d 631, 635 (Miss.1998) (Waller, C.J., concurring).

¶ 7. The dissents erroneously interpret the constitutional provision above as meaning that this Court cannot remove a judge unless the Commission actually recommends removal, suspension, fine, public censure or reprimand. The dissenting opinions offer no applicable authority for such a proposition. The dissents’ failure to cite any applicable authority is telling. Section 177A does not state “on recommendation of the commission ... Tor disciplinary action,’ ” nor does it say, “on recommendation of the commission ... ‘for some type of sanction,’ ” as stated by the dissent. Further, this Court is without the authority to amend the Constitution to add such language.

¶ 8. The dissents assert that the Commission has failed to submit any recommendation for sanction to this Court, and, therefore, that we have no authority to sanction DeLaughter. It borders on absurdity to opine that this Court is powerless to discipline a judge absent a recommendation from the Commission to impose a sanction. Notwithstanding that erroneous conclusion by the dissents, the Commission has made the recommendation to dismiss the order of interim suspension because the Commission has made an agreement with DeLaughter to dismiss the underlying judicial complaints. Despite that recommendation, the dissents conclude that we are without authority to impose sanctions “at this time.” However, the judicial complaints against DeLaughter are pending “at this time.” The Commission is recommending dismissal of those judicial complaints “at this time.” No other judicial complaints involving DeLaughter are pending before this Court “at this time.” Hence, the matter of disciplining DeLaughter is appropriately handled “at this time.”

¶ 9. This is a situation which is controlled by Martin, 995 So.2d at 730, and which falls under this Court’s constitutional authority. In addition to the discussion of Martin, as set out above and which the dissent appears to ignore, this Court has consistently held:

In a judicial misconduct proceeding, this Court conducts a de novo review. Miss. Comm’n on Judicial Performance v. Thompson, 972 So.2d 582, 585 (Miss.2008). This Court also affords “deference to the Commission’s recommendations when the Commission’s findings are based on clear and convincing evidence.” Id. Notwithstanding this deference, this Court is the sole authority for the imposition of sanctions in cases involving judicial misconduct and, therefore, we are obligated to conduct an independent inquiry in each case. Miss. Comm’n on Judicial Performance v. Carr, 990 So.2d 763, 766 (Miss.2008). This Court is not bound by the Commission’s findings, and we may impose additional sanctions. Miss. Comm’n on Judicial Performance v. Boland, 975 So.2d 882, 888 (Miss.2008).

Miss. Comm’n on Judicial Performance v. Osborne, 16 So.3d 16, 18-19 (Miss.2009).

¶ 10. Further, this Court repeatedly has imposed sanctions not recommended by the Commission. See In re: Collins, 524 So.2d 553 (Miss.1987) (Removing county court judge where Commission recommended public reprimand); and In re: Brown, 458 So.2d 681 (Miss.1984) (Removing justice court judge where Commission recommended public reprimand and line). See also Miss. Comm’n on Judicial Per formance v. Osborne, 977 So.2d 314, 328 (Miss.2008) (Graves, J., dissenting).

¶ 11. This Court has established that it is not limited in its available constitutional sanctions against a judge when the judge either resigns from office or is voted out by constituents. See Miss. Comm’n on Judicial Performance v. Osborne, 16 So.3d 16 (Miss.2009) (Judge Solomon Osborne, who had resigned from office more than a year earlier, was removed from office by this Court for judicial misconduct and was assessed costs of proceedings.). Further, this Court previously has removed judges no longer in office.

[I]n Mississippi Commission on Judicial Performance v. Dodds, 680 So.2d 180 (Miss.1996), this Court found that the judge “should be removed from the bench.” Id. at 201. This finding was made notwithstanding the fact that the subject judge had chosen not to seek reelection to judicial office and thus was no longer in office at the time of this Court’s decision to remove him from office. Id, at 182 n. 1. Of significant import in today’s case is the following language found in Dodds, in which Justice Banks, writing for the majority, stated:
Floyd Dodds was not a candidate for reelection in the 1995 elections and, therefore, left office in January 1996. It follows that this case is moot insofar as it requires that he leave office. We conclude, however, that there are substantial reasons for bringing this matter to a conclusion with a decision on the merits. First, one should not be able to preclude discipline by the simple expedient of resigning or otherwise voluntarily leaving office. See In re the Matter of Weeks, 134 Ariz. 521, 658 P.2d 174 (1983). Additionally, judicial conduct is a matter of great public interest and our decisions serve as a guide for the entire judiciary and to preserve the public confidence in it. In re Yaccarino, 101 N.J. 342, 502 A.2d 3, 30-31 (1985); Matter of Probert, 411 Mich. 210, 308 N.W.2d 773, 776 (1981); Judicial Inquiry and Review Bd. v. Snyder, 514 Pa. 142, 523 A.2d 294, 298 (1987).
Dodds, 680 So.2d at 182 n. 1. See also Miss. Comm’n on Judicial Performance v. Brown, 918 So.2d 1247, 1256, 1259 (Miss.2005) (judge removed from office although he “elaim[ed] he [would] not seek another term.”).
... Therefore, we find that in today’s case, Osborne III, the appropriate sanction is suspension from office for a period of one year and the assessment of costs. Again, we find this sanction to be in keeping with the logic expressed in Dodds for the imposition of a sanction of removal (or in this case, suspension), even though the judge chose to resign from judicial office prior to this Court’s decision. Dodds, 680 So.2d at 182 n. 1.

Miss. Comm’n on Judicial Performance v. Osborne, 11 So.3d 107, 117-118 (Miss.2009). Justice Dickinson, concurring in part, dissenting in part, stated: “Although I agree with the majority’s conclusions concerning all other matters, I cannot agree that Judge Osborne may be punished for making a political speech.” Id. at 123.

¶ 12. In accordance with our precedent, DeLaughter’s resignation is of no effect as regards sanctions by this Court. Based upon the seriousness of his admitted criminal acts and judicial misconduct, De-Laughter shall be removed from office.

CONCLUSION

¶ 13. For these reasons, this Court removes Bobby DeLaughter from the office of Circuit Court Judge of Hinds County, and directs that DeLaughter shall pay any costs of this proceeding. Further, the Motion to Dismiss Order of Interim Suspension filed by the Commission is hereby dismissed as moot.

¶ 14. The Clerk of this Court is directed to mail a copy of this opinion to the Hinds County Board of Supervisors and to the Clerks of the Hinds County Chancery, Circuit, and Justice Courts.

¶ 15. FORMER HINDS COUNTY CIRCUIT COURT JUDGE BOBBY B. DELAUGHTER IS HEREBY REMOVED FROM OFFICE AND SHALL PAY ALL COSTS OF THIS PROCEEDING. THE MOTION TO DISMISS ORDER OF INTERIM SUSPENSION IS HEREBY DISMISSED.

CARLSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY DICKINSON, J. DICKINSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY WALLER, C.J.

WALLER, Chief Justice,

dissenting:

¶ 16. I concur in the majority’s conclusion that the Commission on Judicial Performance is absolutely without constitutional authority to dispose of a judicial-performance complaint by agreement between the respondent and the Commission. See Maj. Op. at ¶ 4 (citing Miss. Comm’n on Judicial Performance v. Martin, 995 So.2d 727 (Miss.2008)) (holding that “[t]he constitution ... does [not] authorize the Commission to enter into a settlement agreement or memorandum of understanding which bypasses its constitutional mandate to make recommendations for punishment to this Court”). However, I must respectfully dissent from the majority’s decision to remove DeLaughter from the office of Circuit Court Judge of Hinds County in this proceeding. This Court does not have the authority, pursuant to the Mississippi Constitution or otherwise, to remove DeLaughter permanently from office at this time.

¶ 17. It is undisputed that DeLaughter pleaded guilty to “obstructing, influencing and impeding an official federal corruption investigation and grand jury proceeding....” Based on his plea agreement, DeLaughter has resigned from office. The federal court has accepted DeLaughter’s guilty plea, and DeLaughter has been convicted of a felony. The Commission asserts that, “[i]n exchange for the dismissal of the underlying Formal Complaints pending before the Commission, [DeLaughter] [has agreed] that he will not seek judicial office or otherwise serve in any judicial capacity at any time in the future.” Thus, the Commission seeks, in this proceeding, that this Court dismiss DeLaughter’s interim suspension. Because we have held today that the Commission is without authority to enter into such an agreement, neither party to the agreement is bound by its contractual obligations, and DeLaughter’s promise never to seek judicial office in the future is of no effect. Hence, the majority seeks in this proceeding, sua sponte, to remove De-Laughter permanently from office as circuit court judge.

¶ 18. However, notwithstanding De-Laughter’s felony conviction, this Court does not have the constitutional authority to do so at this time. As the majority states, Section 177A of the Mississippi Constitution provides that:

On recommendation of the commission on judicial performance, the Supreme Court may remove from office, suspend, fine or publicly censure or reprimand any justice or judge of this state for: (a) actual conviction of a felony in a court other than a court of the State of Mississippi; (b) willful misconduct in office; (c) willful and persistent failure to perform his duties; (d) habitual intemperance in the use of alcohol or other drugs; or (e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute; and may retire involuntarily any justice or judge for physical or mental disability seriously interfering with the performance of his duties, which disability is or is likely to become of a permanent character.

Miss. Const, art. 6, § 177A (emphasis added). Hence, before this Court may take disciplinary action against a judge pursuant to Section 177A, we must receive a “recommendation of the commission on judicial performance” for some type of sanction, which may be that we “remove from office, suspend, fine or publicly censure or reprimand” the judge. Id.

¶ 19. Here, the Commission has not submitted to this Court any recommendation for disciplinary action against De-Laughter. Pursuant to Section 177A, therefore, we do not have the authority to remove DeLaughter from office as circuit judge at this time.

¶ 20. That is not to say that this Court must follow the Commission’s recommendation to the letter, if such a recommendation is made. See Miss. Comm’n on Judicial Performance v. Thompson, 972 So.2d 582 (Miss.2008). We have recognized previously that “where the Commission on Judicial Performance recommends discipline of a judge short of removal from office, this Court has the constitutional authority and responsibility to review the matter independently and, if it feels such is required by law, to order the judge removed from office.” In re Collins, 524 So.2d 553, 558 (Miss.1987) (citing In Re Brown, 458 So.2d 681 (Miss.1984)) (emphasis added). We went on to explain that:

It has been adjudicated and recognized that the Mississippi Commission on Judicial Performance does not have the authority to impose sanctions upon a judge, only to make recommendations. The Mississippi Supreme Court has the sole responsibility and authority to impose the sanctions. If such responsibility and authority were dependent upon the recommendations of the Commission, Section 177A of the Mississippi Constitution of 1890, as amended, and statutes and rules enacted pursuant thereto would be meaningless and would accomplish nothing in working toward proper judicial performance. We hold that, having acquired jurisdiction, the Mississippi Supreme Court has full jurisdiction to increase or diminish sanctions based upon its review of the record made before the Commission.

Id. at 560. Hence, we may exercise our independent judgment and remove a judge from office even if the Commission recommends lesser sanctions.

¶ 21. However, in the instant case, the Commission has made no recommendation for sanctions whatsoever. It seeks only to have DeLaughter’s interim suspension dismissed — which is no sanction at all— pursuant to an agreement which we already have held the Commission was without constitutional authority to enter into. Hence, we are not empowered to remove DeLaughter, on our own motion, at this time.

1122. The majority also cites Mississippi Code Section 25-5-1 for the proposition that this Court may remove any public officer convicted of a felony in this State. See Maj. Op. at ¶ 5 (citing Miss.Code Ann. § 25-5-1 (Rev.2006)). However, Section 25-5-1 confers no such power upon this Court under the circumstances of this case. Specifically, Section 25-5-1 provides that:

If any public officer, state, district, county or municipal, shall be convicted or enter a plea of guilty or nolo contendere in any court of this state or any other state or in any federal court of any felony other than manslaughter or any violation of the United States Internal Revenue Code, of corruption in office or peculation therein, or of gambling or dealing in futures with money coming to his hands by virtue of his office, any court of this state, in addition lo stick other 'punishment as may be prescribed, shall adjudge the defendant removed from office; and the office of the defendant shall thereby become vacant. If any such officer be found by inquest to be of unsound mind during the term for which he was elected or appointed, or shall be removed from office by the judgment of a court of competent jurisdiction or otherwise lawfully, his office shall thereby be vacated; and in any such case the vacancy shall be filled as provided by law.
When any such officer is found guilty of a crime which is a felony under the laws of this state or which is punishable by imprisonment for one (1) year or more, other than manslaughter or any violation of the United States Internal Revenue Code, in a federal court or a court of competent jurisdiction of any other state, the Attorney General of the State of Mississippi shall promptly enter a motion for removal from office in the circuit court of Hinds County in the case of a state officer, and in the circuit court of the county of residence in the case of a district, county or municipal officer. The court, or the judge in vacation, shall, upon notice and a proper hearing, issue an order removing such person from office and the vacancy shall be filled as provided by law.

Miss.Code Ann. § 25-5-1 (Rev.2006) (emphasis added).

¶ 23. Circuit court judges are constitutional officers. Miss. Const, art. 6, § 153. They are elected by the people for fixed terms of office. Id. By Section 177A of the Constitution, they may be removed from office when convicted of a felony, upon recommendation by the Commission. It may be true that the constitutional methods of removing some public officers are “put in operation and made more effective” by statute. See Ex parte Lehman, 60 Miss. 967, 1883 WL 3942, *3 (1883) (explaining that the method of removing circuit clerks pursuant to article 6, section 26 of the Constitution of 1868 is put into operation and made more effective by Section 417 of the Code of 1880). However, regarding this Court’s authority to remove an elected judge from office, Section 177A’s removal procedure is the exclusive method by which this Court may do so. And as already discussed, we may not remove DeLaughter pursuant to Section 177A in the absence of a request for sanctions by the Commission.

¶ 24. Furthermore, even if Section 25-5-1 could override the requirements of Section 177A, this Court may not remove DeLaughter pursuant to Section 25-5-1 anyway. The first paragraph of Section 25-5-1 applies to a public officer who “shall be convicted or enter a plea of guilty or nolo contendere ... of any felony[,]” whereas the second paragraph applies to a public officer who “is found guilty of a crime which is a felony[.]” Miss.Code Ann. § 25-5-1 (Rev.2006) (emphasis added). These two provisions provide in clear terms that the procedure for removal of a public officer who pleads guilty to a felony is different from the procedure for removal of an officer who goes to trial and is found guilty by a jury.

¶ 25. However, both procedures must be accompanied by the required due-process protections. Specifically, a public officer who is “found guilty” by a jury may not be removed from office unless the Attorney General files a motion for removal in the appropriate court, that court gives notice and holds a proper hearing on the motion, and then the court “issue[s] an order removing such person from office.” Miss.Code Ann. § 25-5-1 (Rev.2006). These due-process requirements, contained in Section 25-5-1’s second paragraph, are necessary to protect such a public officer from the unconstitutional deprivation of the property right embodied in his or her official position.

¶ 26. At first glance, however, it appears from the first paragraph of Section 25-5-1 that no such procedural, due-process protections are afforded to a public officer who enters a plea of guilty or nolo contendere to a felony. Miss.Code Ann. § 25-5-1 (Rev.2006). In fact, the statute states that, when such an officer pleads guilty, “any court of this state ... shall adjudge the defendant removed from office..” Id. (emphasis added). However, the phrase “any court of this state” is not as broad as it seems. That language appears once before in the statute, when it refers to “any public officer, state, district, county or municipal” who “shall be convicted or enter a plea of guilty or nolo conten-dere in any court of this state .... Miss. Code Ann. § 25-5-1 (Rev.2006) (emphasis added). Hence, as it does in the first instance, I interpret the second use of the phrase, “any court of this state,” to refer to the court by which the officer actually is convicted. In other words, when a public officer enters a plea of guilty or nolo con-tendere to a felony in “any court of this state,” that court “shall adjudge the defendant removed from office.” Id.

¶ 27. This interpretation of Section 25-5-1 renders the statute constitutional because, pursuant to the felony proceedings in that court, the defendant necessarily has been afforded his or her constitutional due-process protections. Section 25-5-1 puts the public officer on notice that, “in addition to such other punishment as may be prescribed, [the court by which the defendant is convicted] shall adjudge the defendant removed from office [as well].” Miss.Code Ann. § 25-5-1 (Rev.2006). And the plea hearing held in that court affords the public officer the required opportunity to be heard, to challenge or contest that possible punishment. Hence, the first paragraph of Section 25-5-1 passes constitutional muster only when the court that adjudges the public officer removed from office is the same court that actually convicted the officer of a felony.

¶ 28. If possible, a court should construe statutes so as to render them constitutional rather than unconstitutional. City of Gulfport v. Orange Grove Utilities, Inc., 735 So.2d 1041, 1044 (Miss.1999) (citing Cities of Oxford, Carthage, Louisville, Starkville, and Tupelo v. Ne. Miss. Elec. Power Ass’n, 704 So.2d 59, 65 (Miss.1997)). Were this Court to use Section 25-5-1 to remove DeLaughter in this proceeding, without the proper notice and hearing, we would be violating DeLaughter’s procedural due-process rights, and we necessarily would be interpreting and applying Section 25-5-1 in a manner that makes it unconstitutional. I am unwilling to interpret Section 25-5-1 to require a court of this state to deprive an elected judicial officer of his or her minimum, constitutional due-process protections.

¶ 29. When DeLaughter joined in the Commission’s recommendation to this Court to dismiss his interim suspension, no recommendation for sanctions was made. Thus, neither DeLaughter nor the Commission had any notice, much less a hearing on the subject, that one potential result of these proceedings would be DeLaughter’s removal from office. The Constitution has established a procedure by which this Court may remove a judge from office, a procedure we are duty-bound to follow. Miss. Const, art. 6, § 177A. Therefore, I must dissent from the majority’s sua sponte decision to remove DeLaughter from office as circuit court judge in the absence of a recommendation for any sanctions from the Commission on Judicial Performance and without affording De-Laughter his minimum due-process rights.

DICKINSON, J., JOINS THIS OPINION IN PART.

DICKINSON, Justice,

dissenting:

¶ 30. Although the action taken by the majority is appealing, I simply cannot join in a fiction that purports to remove from office a judge who has already resigned. I find no legal or logical purpose in doing so, other than for this Court to make a public statement through its published opinion that it does not approve of Bobby De-Laughter’s conduct. To be sure, I do not approve of his conduct and, for the sake of absolute clarity, I would vote to remove him — if he were still in office. But he is not.

¶ 31. The majority is correct that this Court is limited only by the Constitution as to available punishment for a judge, that is, we have authority to order punishment more severe than that recommended by the Mississippi Commission on Judicial Performance, so long as the punishment we order is listed in Section 177A of the Constitution. However, Chief Justice Waller is correct in his view that the Constitution — by the specific language cited in his dissent — requires us to wait until the Commission recommends some punishment before we can act. In the case before us today, the Commission has recommended nothing which, in my judgment, reflects its understanding that a judge who has already resigned from office cannot be removed from office.

¶ 32. In Mississippi Commission on Jiidicial Performance v. Martin, 995 So.2d 727 (Miss.2008), this Court entered an order of interim suspension, as requested by the Commission on Judicial Performance. After Judge Martin resigned from office, we did not remove her from office, but rather disposed of the case by stating: “Because Judge Martin has resigned her office, we find the order of interim suspension should be, and hereby is, moot.” Id. at 731.

¶ 33. For the reasons stated, I dissent from the majority and join, in part, Chief Justice Waller’s dissent.

WALLER, C.J., JOINS THIS OPINION IN PART.

      . Chief Justice Waller’s dissenting opinion goes so far as to say that the parties are not bound by the "contractual obligations" of this "agreement” because they did not have the authority to enter into an agreement. However, again, the record before us contains no such agreement.

      . In his dissenting opinion here, Justice Dickinson says that this Court "entered an order of interim suspension, as requested by the Commission” in Martin. However, as stated previously herein, in Martin, the Commission petitioned this Court to withdraw its petition for interim suspension before any order of interim suspension was ever entered. This Court denied the Commission's request to withdraw the petition for interim suspension, and then months later this Court ordered the interim suspension of Martin.

      . We note that in the supporting brief to the petition for interim suspension, the Commission acknowledged that the charges "are very serious. The public's confidence in the integrity and impartiality of the entire judicial system is at stake. A suspension would send a clear message to the Respondent, the judiciary and the citizens of Mississippi of the high ethical standards required of our judges and of the importance of the integrity and impartiality of our judiciary.”

      . The record before us in this proceeding contains DeLaughter's signed plea agreement, in which he pleaded guilty to obstruction charges. Although DeLaughter's conviction and eighteen-month prison sentence have been widely reported in the media, the record before us in this proceeding includes no evidence that the federal court has accepted DeLaughter’s guilty plea or that DeLaughter has, in fact, been convicted of a felony and sentenced therefor. Nonetheless, we may take judicial notice of the proceeding currently before this Court in The Mississippi Bar v. Bobby B. DeLaughter, No. 2009-BD-01903-SCT. The record in that case includes the federal court's Judgment in Criminal Case No. 3:09CR00002-002, filed on November 20, 2009, and signed by Judge Davidson, convicting DeLaughter of the felony charge of attempted obstruction of justice.

      . The majority also states that this Court "is not limited in its available constitutional sanctions against a judge when the judge ... resigns from office....” See Maj. Op. at ¶ 10 {citing Miss. Comm'n on Judicial Performance v. Osborne, 16 So.3d 16 (Miss.2009)). The judge in Osborne had resigned before this Court ordered him removed from office. Osborne, 16 So.3d at 25. However, this Court removed the judge from office only upon the recommendation by the Commission. See Id. at 21 (stating the second issue as "Whether Judge Osborne should be removed from office ... as recommended by the Commission") (emphasis added).

      . This Court conducts a de novo review of judicial-misconduct proceedings, while affording deference to the Commission's recommendations when the Commission's findings are based on clear and convincing evidence. While we do give great deference to the Commission’s findings, we also are charged to render an independent judgment. In essence, this Court serves as the "the trier of fact,” since we have the sole power to impose sanctions in judicial-misconduct cases. Thompson, 972 So.2d at 585 (internal citations and quotations omitted).

      . The majority cites a multitude of cases for the proposition that this Court may remove a judge from office without a specific recommendation for removal by the Commission. See Maj. Op. at ¶ 9. However, in every single one of those cases, the Commission had at least recommended some form of sanctions, and this Court simply exercised its independent authority to increase the sanction and order the judge’s removal from office.

      . Similarly, a public officer convicted of a misdemeanor or willful neglect of duty "shall be removed from office, and otherwise punished as may be prescribed by law" by the court that convicts him. See Miss. Const, art. 6, § 175 (1890).

      . When such a public officer pleads guilty to a felony in a court of another state, or in a federal court, however, the statute still requires a "court of this state” to be the court that "adjudge[s] the defendant removed from office.” Miss.Code Ann. § 25-5-1 (Rev. 2006). This may be done, pursuant to the United States Constitution, through "any court of this state” giving "full faith and credit” to the conviction of the officer in the court of another state or in a federal court. See U.S. Const, art. IV, § 1. However, it is my opinion that the "court of this state” that adjudges the officer removed from office based on a conviction in another state or in a federal court must still afford the defendant the minimum due-process protections of notice and an opportunity to be heard before removing him or her from office.

      . As we stated in Mississippi Commission on Judicial Peiformance v. Martin, 995 So.2d 727, 731 (Miss.2008), "Section 177A clearly imposes upon this Court the duty, responsibility, and authority (after considering the recommendation of the Commission) to determine and impose punishment....”


text:
    Jay BEARDEN v. BELLSOUTH TELECOMMUNICATIONS, INC.
    No. 2008-CA-02088-SCT.
    Supreme Court of Mississippi.
    March 11, 2010.

      Thomas W. Prewitt, Ronald E. Stutz-man, Jr., attorneys for appellant.
    Kenneth W. Barton, Benjamin M. Watson, Thomas B. Alexander, Jackson, attorneys for appellee.
    Before WALLER, C.J., LAMAR and PIERCE, JJ.
   LAMAR, Justice,

for the Court:

¶ 1. Jay Bearden filed suit for malicious prosecution against BellSouth Telecommunications, Inc., and Gloria Robison, their employee who signed an affidavit charging Bearden with cutting a telecommunications line. Summary judgment was granted in favor of the defendants. Bearden now appeals that dismissal.

FACTS AND PROCEDURAL HISTORY

112. Jay Bearden operates Bearden Construction Company, a business installing various utility conduits. In the course of installing water lines for the North Laud-erdale Water Association, several of Bell-South’s telephone lines were cut. In an attempt to prevent further damage to Bell-South’s telephone lines, Gloria Robison, a security claims investigator for BellSouth, traveled to the jobsite, met with Bearden several times, gave him a copy of Mississippi’s laws regarding excavation around utility lines, and asked him to refrain from cutting any more of BellSouth’s telephone lines. Todd Purvis, another BellSouth employee, also visited the jobsite, accompanied by a deputy sheriff, and asked Bear-den to comply with the law.

¶ 3. Despite the efforts of Robison and Purvis, the cuts did not stop. BellSouth, through its employee Robison, reported to the Lauderdale County Sheriffs Department that Bearden repeatedly had cut BellSouth’s cables. On June 21, 2004, Ro-bison signed a general affidavit and filed it with the Lauderdale County Justice Court, stating that Bearden had violated Mississippi Code Section 97-7-31, which makes it a felony to interfere with a licensed telecommunications system. That same day, Bearden was arrested and released on bond. Bearden was indicted by a Lauder-dale County grand jury for violation of Section 97-7-31 on November 12, 2004.

¶ 4. On August 19, 2005, Bearden filed a motion to dismiss the criminal charges, arguing that because Mississippi Code Sections 97-7-31 (a felony) and 97-25-53 (a misdemeanor) have the same elements, he should be tried under the statute providing for the lesser penalty. The Circuit Court of Lauderdale County agreed, and reduced the charge to the misdemeanor violation of Section 97-25-53. Further, the court transferred the case to the Laud-erdale County Justice Court for disposition.

¶ 5. On October 14, 2005, Bearden filed a motion to dismiss in justice court, stating that “the Lauderdale County Justice Court does not have jurisdiction.” The motion provided no legal theories or analysis. Subsequently the justice court dismissed the charge, finding “This is reference to the above case State of Ms. against Jay Q. Bearden, Per Judge William B. Gunn request this case have no jurisdiction in Lauderdale County Justice Court.”

¶ 6. Following dismissal of the charges against him, Bearden filed suit against Robison and BellSouth (“the Defendants”) alleging malicious prosecution. The Defendants moved for summary judgment, arguing primarily that a dismissal for lack of jurisdiction cannot support an action for malicious prosecution. The circuit court agreed and granted summary judgment. From this judgment, Bearden now appeals.

ANALYSIS

¶ 7. This Court reviews grants of summary judgment under a de novo standard. Weathers v. Metropolitan Life Ins. Co., 14 So.3d 688, 691 (Miss.2009). Summary judgment shall be granted only if the record shows “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.” Miss. R. Civ. P. 56(c). In making such a determination, “[t]he evidence must be viewed in the light most favorable to the nonmoving party.” Treasure Bay Corp. v. Ricard, 967 So.2d 1235, 1238 (Miss.2007) (citing Flores v. Elmer, 938 So.2d 824, 826 (Miss.2006)).

¶ 8. In order to prevail on a claim of malicious prosecution, the plaintiff must prove the following elements:

(1) the institution or continuation of original judicial proceedings, either criminal or civil;
(2) by, or at the insistence of the defendants;
(3) the termination of such proceeding in plaintiffs favor;
(4) malice in instituting the proceedings;
(5) want of probable cause for the proceedings; and
(6) the suffering of damages as a result of the action or prosecution complained of.

Van v. Grand Casinos of Miss., Inc., 724 So.2d 889, 891 (Miss.1998) (citations omitted).

¶ 9. In the instant case, the sole issue presented is whether the third element had been met; in other words, did the justice court’s dismissal of Bearden’s case for lack of jurisdiction constitute a termination of proceedings in Bearden’s favor. The trial court found that the dismissal for lack of jurisdiction did not constitute a termination in Bearden’s favor and therefore granted summary judgment to the Defendants.

¶ 10. The issue of whether a dismissal for lack of jurisdiction may constitute a favorable termination of proceedings sufficient to support a subsequent claim of malicious prosecution is of first impression before this Court. This Court has determined, however, that in order to qualify as a termination in favor of the plaintiff, the dismissal of criminal proceedings must reflect on the merits of the criminal action. Van, 724 So.2d at 893. Further, this Court has held that “not all dismissals in this State constitute terminations in favor of the accused for purposes of malicious prosecution actions.” Stewart v. Southeast Foods, Inc., 688 So.2d 733, 737 n. 2 (Miss.1996).

¶ 11. Though Van is properly distinguishable from the instant case in that the dismissal was on speedy-trial grounds, it nonetheless provides the proper standard to make our determination here — the pivotal question is whether dismissal for lack of jurisdiction “properly reflects on the merits of a criminal action and therefore qualifies as a termination in favor of the plaintiff.” Van, 724 So.2d at 893. Further, the Restatement (Second) of Torts provides that criminal proceedings are terminated in favor of the accused “only when their final disposition is such as to indicate the innocence of the accused.” Restatement (Second) of Torts § 660 cmt. a (1977). Requiring a dismissal to reflect on the merits of a criminal action or the innocence of the accused comports with our public-policy considerations regarding claims of malicious prosecution:

There are two competing interests in all malicious prosecution cases. The public policy interest in crime prevention insists that private citizens, when aiding law enforcement personnel, ought to be protected against the prejudice that is likely to arise from the termination of the prosecution in favor of the accused. “Large tort judgments against well-meaning individuals, acting honestly and in good faith, might seriously inhibit those attempting to perform what they believe a civic duty....” Equally important is the second interest which protects individuals from being wrongly accused of criminal behavior which results in unjustifiable and oppressive litigation of criminal charges. Consequently, in our orderly society we allow those subjected to criminal proceedings cloaked with malice to recover compensation for their losses.

Benjamin v. Hooper Elec. Supply Co., Inc., 568 So.2d 1182, 1187-1188 (Miss.1990) (citations omitted) (emphasis in original). Further, this Court has recognized that “[mjalicious prosecution is not the most favored tort because of a public policy in favor of halting and prosecuting crime.” Id. at 1187.

¶ 12. When presented with issues of first impression, it is “helpful to review the law of other jurisdictions for guidance.” Conley v. State, 790 So.2d 773, 790 (Miss.2001). In differentiating a failure to prosecute and a procedural dismissal, the Supreme Court of California has held that a dismissal for lack of jurisdiction is “not only not on the merits, it is unreflective of the merits; neither the judgment of the court nor that of the prosecuting party on the merits is implicated in the dismissal.” Lackner v. LaCroix, 25 Cal.3d 747, 159 Cal.Rptr. 693, 602 P.2d 393, 395 (1979) (quoting Minasian v. Sapse, 80 Cal.App.3d 823, 827, 145 Cal.Rptr. 829 (Cal.App. 2 Dist.1978)).

It is not enough, however, merely to show that the proceeding was dismissed. The theory underlying the requirement of favorable termination is that it tends to indicate the innocence of the accused, and coupled with the other elements of lack of probable cause and malice, establishes the tort, that is, the malicious and unfounded charge of crime against an innocent person.... Hence, if the criminal proceeding goes to trial, it is ordinarily necessary, as a foundation for a malicious prosecution suit, that the plaintiff have been acquitted.... The same fundamental theory is applied in testing a dismissal or other termination without a complete trial on the merits. If it is of such a nature as to indicate the innocence of the accused, it is a favorable termination sufficient to satisfy the requirement. If, however, the dismissal is on technical grounds, for procedural reasons, or for any other reason not inconsistent with his guilt, it does not constitute a favorable termination.

Jaffe v. Stone, 18 Cal.2d 146, 114 P.2d 335, 338 (1941) (citations omitted). California courts recently have confirmed that “a dismissal for lack of jurisdiction does not involve the merits and cannot constitute a favorable termination.” Hudis v. Crawford, 125 Cal.App.4th 1586, 1592, 24 Cal.Rptr.3d 50 (Cal.Dist.Ct.App.2005).

¶ 13. The Supreme Court of Tennessee has found that “a favorable termination is not present for a malicious prosecution claim where the underlying proceeding was resolved based on matters of standing and jurisdiction.” Parrish v. Marquis, 172 S.W.3d 526, 532 (Tenn.2005). That court further stated that the “almost universal rule” is that a dismissal on procedural grounds does not reflect on the merits and, therefore, cannot constitute a favorable termination for malicious-prosecution purposes. Id. The Court of Appeals of Utah has held that claims dismissed for lack of jurisdiction and not on the merits are not considered favorable terminations. Hatch v. Davis, 102 P.3d 774, 780 (Utah App.2004). Similarly, “Florida follows the rule that a dismissal on technical or procedural grounds does not constitute a favorable termination.” In re Sav-A-Stop, Inc., 98 B.R. 83, 86 (Bkrtcy.M.D.Fla.1989). That court found that a dismissal for lack of in personam jurisdiction “was a technical termination of the proceedings and did not address the merits of the dispute,” and therefore could not support a claim for malicious prosecution. Id.

¶ 14. We find these authorities to be persuasive and conclude that the dismissal of the case for lack of jurisdiction does not reflect on the merits of the criminal case against Bearden. The record is totally void of any indication of why the justice court concluded that it had no jurisdiction. Nevertheless, the order, which plainly cited the court’s lack of jurisdiction as the exclusive basis for dismissal, neither indicates Bearden’s innocence, nor is it inconsistent with Bearden’s guilt.

¶ 15. Relying on Van, Bearden argues that the Defendants effectively abandoned the prosecution when they failed to refile an affidavit in justice court following the transfer from circuit court. We find this argument to be without merit. There is nothing in the record for this Court to conclude that the Defendants “abandoned” the prosecution. We find that Van, 724 So.2d at 889, is clearly distinguishable.

CONCLUSION

¶ 16. For these reasons, we find that the dismissal of criminal charges against Bearden for lack of jurisdiction did not constitute a termination of proceedings in Bearden’s favor that would support a subsequent action for malicious prosecution. We find that summary judgment was properly granted, given the particular facts presented in this case. We therefoi’e affirm the judgment of the circuit court.

¶ 17. AFFIRMED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.

      . BellSouth Telecommunications, Inc., now does business as AT & T Mississippi.

      . Mississippi Code Section 97-7-31 provides:
      Whoever intentionally destroys, impairs, injures, or tampers or interferes with any real or personal property used or useful in the maintenance, repair, or operation of any telephone or telegraph system or radio station which is subject to regulation or licensing by any agency of the United States of America or of the State of Mississippi, with reasonable grounds to believe that such act will hinder, delay or interfere with the maintenance, repair or operation of such telephone or telegraph system or radio station, on conviction shall be punished as prescribed in section 97-7-29.
      Miss.Code Ann. § 97-7-31 (Rev.2006).

      . The trial court stated "It is undisputed that at the time of the affidavit, Bearden and/or his employees and subcontractors had cut Bell-South's cables at least 11 times.” Indeed, in his response to BellSouth's request for admissions, Bearden admitted that Jay Bearden Construction, Inc., had damaged BellSouth cables on twenty-two separate occasions in the Meridian area between January 15, 2004, and January 25, 2005.

      .Mississippi Code Section 97-25-53 provides:
      (1) Any person who shall intentionally obstruct, injure, break or destroy, or in any other manner interrupt any telegraph or telephone line, or communication thereon between any two (2) points, by or through which the said lines may pass, or who shall injure or destroy any of the posts, wires, insulators, or fixtures, or things belonging to such telegraph or telephone lines, such person shall, on conviction, be fined not less than two hundred fifty dollars ($250.00), nor more than five hundred dollars ($500.00), or imprisoned in the county jail not exceeding six (6) months or both such fine and imprisonment....
      Miss.Code Ann. § 97-25-53 (Rev.2006).