author: LEE, P.J., CARLTON, J.,

text:
    Judy WHITE, Appellant, v. MISSISSIPPI DEPARTMENT OF CORRECTIONS, Appellee.
    No. 2008-WC-01309-COA.
    Court of Appeals of Mississippi.
    July 21, 2009.
    Rehearing Denied Nov. 24, 2009.
    Certiorari Denied Feb. 25, 2010.

      Gilson Davis Peterson, attorney for appellant.
    Cassandra B. Walter, Ridgeland, attorney for appellee.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On November 21, 2005, Judy White filed a petition to controvert with the Mississippi Workers’ Compensation Commission (Commission) alleging that she suffered a work-related injury to her lower back, specifically a herniated disc, on March 22, 2005. White stated that when she sat down on the toilet, she slipped and fell against the back of the toilet, resulting in the claimed injury. At the time of her injury, White was working as a correctional officer with the Mississippi Department of Corrections (MDOC) at its facility in Parchman, Mississippi.

¶ 2. After a hearing on the matter, the administrative law judge (ALJ) determined that White’s injury arose out of her employment with the MDOC. The ALJ awarded White permanent total disability benefits of $349.18 per week for 450 weeks, penalties and interest at the legal rate, and any medical services needed for her recovery. The MDOC appealed to the Commission. The Commission reversed the ALJ’s decision, finding that although White’s injury may have occurred during the course of her employment, it did not arise out of her employment. White appealed to the Sunflower County Circuit Court, and the trial court affirmed the Commission’s decision to deny benefits. White now appeals, asserting that the trial court erred in affirming the decision of the Commission to deny benefits.

FACTS

¶ 3. On March 22, 2005, White arrived at work, signed in, and spoke with some coworkers. White then went to the bathroom in the security office. The bathroom was used by both men and women, and it contained a single toilet. White testified that when she sat down on the toilet, her right foot slipped; she hit the back of the toilet; and she sat down hard on the seat. White immediately felt pain and when she stood up, pain “ripped” down her right leg. According to White, the toilet in that particular bathroom often leaked water on the floor.

¶ 4. Hattie Berry, a corrections officer, was on duty that morning. Officer Berry testified that she spoke with White prior to her injury, and White seemed fine. Officer Berry later saw White limping from the bathroom. Officer Berry testified that White “could barely, barely make it. By the time she got to me she couldn’t even stand up on her own. I had to literally hold her to support her and she was just crying hysterically.” Officer Berry stated that White said she had hit her back on the toilet. After observing White, Officer Berry called her supervisor, Lieutenant Rebecca Blount, and asked for assistance. Lt. Blount arrived at the scene approximately five to ten minutes after the call from Officer Berry.

¶ 5. Lt. Blount testified that when she arrived, White was leaning against a wall, crying, and repeating, “My leg is killing me.” Officer Berry was rubbing White’s leg. Lt. Blount offered to transport White to the hospital, but White wanted to see her own doctor. Lt. Blount notified her supervisor that White was sick, and she was taking White to seek medical help. At that moment White’s daughter arrived and decided to take White for medical treatment. Lt. Blount testified that she practically had to carry White to her daughter’s car. At the time Lt. Blount filled out a supervisor’s accident report, she was unaware White had slipped and fallen in the bathroom.

¶ 6. White’s daughter took White to her chiropractor’s office in Batesville. Dr. Don Barnett, White’s chiropractor, examined White and suspected she had a ruptured disc. Dr. Barnett’s note describing White’s visit stated that White told him she “tryed [sic] to get off of comode [sic] and pain sta[r]ted.” Dr. Barnett noted that White “was in severe pain[;] she could hardly walk.” Later that day White went to the emergency room at Baptist Memorial Hospital in Oxford. White filled out an admissions form and marked “No” to the question asking whether the injury was work related. White testified that she was in so much pain that she could not remember what she told the nurses.

¶ 7. The emergency room physician referred White to a neurosurgeon, Dr. Thomas Windham. Dr. Windham testified that White reported, “getting up in the bathroom at work and [having] right hip and leg pain with numbness.” Dr. Wind-ham indicated that White suffered an “acute lumbar disc rupture.” Dr. Wind-ham also stated that White’s prior back problems, namely degenerative disc disease and osteoarthritis, did not cause the disc rupture. At Dr. Windham’s office, White filled out a patient-intake form, and she marked “no” to the question about whether her injury was a workers’ compensation case. White testified that she did not know her injury was considered a workers’ compensation case. White had filed two prior workers’ compensation claims, one in 1996 and the other in 2000. Both injuries resulted in back pain, but White was able to return to full-duty work.

¶ 8. White had surgery to repair a herniated disc in April 2005. After her surgery, Dr. Windham advised her to apply for disability benefits. During the first week of June 2005, White went to Parchman to apply for disability. White discussed her case with Karen Ware, who was responsible for assisting employees when applying for retirement. White informed Ware of her circumstances, including the injury she received on March 22, 2005. Ware informed White that her injury might be compensable, and she advised White to see Jay Philley, who administered work-related claims for Parchman employees.

¶ 9. While meeting with Philley, White was shown Lt. Blount’s incident report prepared in March 2005. White informed Philley that the report was not accurate, and she was advised to prepare a report of the incident. On June 13, 2005, White completed an incident report that stated her foot slipped; her back hit the toilet tank; she fell hard on the seat; and she experienced a “ripping” pain when she got up from the toilet. At some time in early to mid June 2005, Officer Berry visited White to pay her respects following the death of White’s mother. Officer Berry stated that White told her she was instructed to fill out a report because her back injury might have been work related. Officer Berry, not at the request of White, then decided to fill out her own report stating that after the accident, White informed her that she had slipped and fallen on the toilet and hit her back. Officer Berry stated that she was so upset about White’s injury that she inadvertently forgot to tell Lt. Blount how White’s injury occurred. Officer Berry said that “[m]y ultimate concern, at the time, was to try and get [0]fficer White some type of assistance because it was apparent she was in a lot of pain.” Officer Berry testified that immediately after White left with her daughter, she had to run to her post to perform part of her job duties and did not have the opportunity to discuss the accident with Lt. Blount.

¶ 10. Lt. Blount testified that she was informed in June 2005 that White’s injury was the result of a slip and fall. Lt. Blount stated that her supervisor ordered her to do a follow-up incident report containing the new information from White.

STANDARD OF REVIEW

¶ 11. The standard of review in workers’ compensation cases is well established. The decision of the Commission will be reversed only if it is not supported by substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law. Weatherspoon v. Croft Metals, Inc., 853 So.2d 776, 778(¶ 6) (Miss.2003) (citing Smith v. Jackson Constr. Co., 607 So.2d 1119, 1124 (Miss.1992)). If the Commission’s decision and findings of fact are “supported by substantial evidence, then we are bound by them” even if we would have been convinced otherwise. Spann v. Wal-Mart Stores, Inc., 700 So.2d 308, 311 (¶ 12) (Miss.1997) (citing Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988)). We will exercise de novo review on matters of law. KLLM, Inc. v. Fowler, 589 So.2d 670, 675 (Miss.1991).

DISCUSSION

¶ 12. White’s sole issue on appeal is whether the Commission erred in finding that her injury did not arise out of her employment. Mississippi’s workers’ compensation statutes compensate injuries “arising out of and in the course of employment without regard to fault which results from an untoward event or events, if contributed to or aggravated or accelerated by the employment in a significant manner.” Miss.Code Ann. § 71-3-3(b) (Rev.2000). The term “arising out of employment” simply means there is a causal connection between the employment and the injury. Singley v. Smith, 844 So.2d 448, 458(¶ 20) (Miss.2003). One is injured in the course of employment when an injury results from activity actuated partly by a duty to serve the employer or reasonably incident to the employment. Id.

¶ 13. Our supreme court has held that a personal-comfort activity of an employee should be compensable if it is reasonably incident to the employment, although not a necessity of it. Collums v. Caledonia Mfg. Co., 237 Miss. 607, 611, 115 So.2d 672, 673 (1959). What is reasonably incidental depends both on the practices permitted in the particular workplace by the employer and on the general customs of the employment environment. Id. Examples of those personal-comfort activities that are reasonably incident to the employment include: (1) brushing teeth, (2) drinking water, (3) going to the bathroom, (4) smoking a cigarette, and (5) so forth. John R. Bradley & Linda R. Thompson, Mississippi Workers’ Compensation § 4:34 at 4-51 (Thompson-West 2006).

¶ 14. The ALJ determined that White was engaged in a personal-comfort activity and that the activity was reasonably incident to her employment. The ALJ noted the MDOC’s argument that without an actual trauma in the bathroom, the ruptured disc is not compensable because it could have happened elsewhere. The ALJ noted that the definition of “injury” also states that the “[u]ntoward event includes events causing unexpected results.” Miss.Code Ann. § 71-3-3(b). Although White did not specifically tell someone on the day of the injury that she slipped and fell, Officer Berry did testify that White, after leaving the bathroom, told her she had hit her back on the toilet.

¶ 15. The Commission stated that “the record indicates [White] had a degenerative condition which might have been brought to the acute stage by any one of a number of everyday motions, at home or at work.” This statement by the Commission is unsupported by the record. White did have pre-existing back problems, but Dr. Windham testified that those pre-existing problems did not cause the disc rupture. Dr. Windham stated that White’s prior history of degenerative disc disease and osteoarthritis were insignificant in regard to his diagnosis of an acute lumbar disc rupture.

¶ 16. The Commission further stated the following: “We likewise are not persuaded that [White] herniated a disc while standing up, or sitting down, or doing anything else that may be considered work related ... and were it not for the stipulation, ... we likely would find that nothing at all happened at work.” Although White never specifically told anyone on the day of the injury that she “slipped and fell,” testimony from Officer Berry corroborates White’s testimony that she was injured while in the bathroom. Officer Berry testified that prior to entering the bathroom, White was acting like her usual self. Officer Berry testified that she saw White limping immediately after exiting the bathroom. Officer Berry stated that White could not stand on her own and that she was crying hysterically. Officer Berry stated that White “was in pain. She was hollering and crying.... [h]er foot seemed like it was paralyzed.” Dr. Windham testified that White presented with “severe weakness of extension of her right toe and ankle, almost a complete foot drop. She had sensory loss. She had a severe restriction of straight leg raising.” Dr. Windham stated that these symptoms were compatible with a disc rupture.

¶ 17. The Commission was concerned that White did not report her injury as a workers’ compensation case immediately. The Commission stated that this undermined White’s credibility. However, White did report her injury as a workers’ compensation claim after discussing the circumstances with Philley, the MDOC workers’ compensation representative. We are mindful that “[t]he Workers’ Compensation Act is construed liberally, and doubtful cases are to be resolved in favor of compensation so that the beneficent purposes of the act may be achieved.” Robinson v. Packard Elec. Div., Gen. Motors Corp., 523 So.2d 329, 332 (Miss.1988). Since White had filed two prior workers’ compensation claims, White testified that she did not immediately file a work-related injury report because she did not think using the bathroom was work related. We resolve any doubt as to White’s failure to immediately file a work-related injury report in favor of White.

¶ 18. After considering the evidence and the entire record, we are of the opinion that the Commission’s denial of workers’ compensation benefits was not supported by substantial evidence and that the trial court erred in affirming the Commission’s decision. Therefore, we reverse the judgment of the trial court and remand the case back to the Mississippi Workers’ Compensation Commission for a determination of benefits.

¶ 19. THE JUDGMENT OF THE SUNFLOWER COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED TO THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY ISHEE, J.

CARLTON, J.,

Dissenting:

¶ 20. Because I find the majority’s analysis in this case exceeds this Court’s scope of review, I must respectfully dissent. I find ample evidence in the record to support the Commission’s finding that White failed to satisfy her burden of proof that she experienced a compensable injury to her back. Therefore, I would affirm the trial court’s judgment, which affirmed the Commission’s denial of benefits.

¶ 21. This Court’s standard of review in a workers’ compensation appeal is limited. This Court must determine only whether the decision of the Commission is supported by substantial evidence. Casino Magic v. Nelson, 958 So.2d 224, 228(¶ 13) (Miss.Ct.App.2007) (citing Westmoreland v. Landmark Furniture, Inc., 752 So.2d 444, 447(¶ 7) (Miss.Ct.App.1999)). “The Commission sits as the ultimate finder of facts; its findings are subject to normal, deferential standards upon review.” Id. (citing Natchez Equip. Co. v. Gibbs, 623 So.2d 270, 273 (Miss.1993)). Because our review is limited, this Court “will only reverse the Commission’s rulings where findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious.” Id. (citing Westmoreland, 752 So.2d at 448 (¶ 8)). We maintain this deferential standard of review even when we would have been persuaded to rule otherwise if we had been the fact-finder. Vance v. Twin River Homes, Inc., 641 So.2d 1176, 1180 (Miss.1994) (quoting Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988)). Though we defer to the Commission’s findings of fact, “[w]e review the Commission’s application of the law de novo.” Univ. of Miss. Med. Ctr. v. Smith, 909 So.2d 1209, 1218 (¶ 30) (Miss.Ct.App.2005) (citing ABC Mfg. Corp. v. Doyle, 749 So.2d 43, 45 (¶ 10) (Miss.1999)).

¶ 22. Mississippi Code Annotated section 71-3-7 (Rev.2000) provides, in part, the following regarding compensation for workplace injuries:

Compensation shall be payable for disability or death of an employee from injury or occupational disease arising out of and in the course of employment, without regard to fault as to the cause of the injury or occupational disease. An occupational disease shall be deemed to arise out of and in the course of employment when there is evidence that there is a direct causal connection between the work performed and the occupational disease.

(Emphasis added).

¶ 23. Mississippi Code Annotated section 71-3-3(b) (Rev.2000) defines “injury,” in part, as follows:

accidental injury or accidental death arising out of and in the course of employment without regard to fault which results from an untoward event or events, if contributed to or aggravated or accelerated by the employment in a significant manner. Untoward event includes events causing unexpected results. An untoward event or events shall not be presumed to have arisen out of and in the course of employment, except in the case of an employee found dead in the course of employment.

(Emphasis added).

¶ 24. Furthermore, the supreme court articulated the following burden of proof in a workers’ compensation case:

In a workers’ compensation case, the claimant bears the burden of proving by a “fair preponderance of the evidence” each element of the claim. These elements are: (1) an accidental injury, (2) arising out of and in the course of employment, and (3) a causal connection between the injury and the death or claimed disability.

Hedge v. Leggett & Platt, Inc., 641 So.2d 9, 13 (Miss.1994).

¶ 25. The employer concedes that White’s injury occurred during the course of her employment, leaving the Commission to determine only whether the injury “arose out of’ White’s employment. To arise out of employment, an injury must bear some causal connection between the employment and the injury. Big “2” Engine Rebuilders v. Freeman, 379 So.2d 888, 890 (Miss.1980). Injuries may occur “in the course of’ employment when the injury is the result of an activity that “(1) in its overall contours [is] actuated at least in part by a duty to serve the employer, or (2)[is] reasonably incidental to the employment.” Id.

¶ 26. White argues that under the personal-comfort doctrine, her injury is com-pensable. Under the personal-comfort doctrine, injuries that result from an employee’s attending to her personal needs are compensable when reasonably incidental to her employment duties. See John R. Bradley & Linda R. Thompson, Mississippi Workers’ Compensation § 4:34 (Thompson-West 2006). Personal-comfort activities are not necessarily activities required by the employment duties, but which occur while the employee is on the employer’s premises during working hours. Id. Activities contemplated under the personal-comfort doctrine include, among other activities, using the restroom on the employer’s premises. Id.

¶ 27. White asserts that she presented undisputed proof that she slipped while seating herself on the toilet and then immediately felt pain. If White slipped and hit her back against the toilet, as she alleges, her injury is compensable. See Smith v. Container Gen. Corp., 559 So.2d 1019, 1022 (Miss.1990) (finding injury com-pensable where employee hit a wooden pallet and employer’s concrete floor as a result of alcohol-withdrawal syndrome); Dependents of Chapman v. Hanson Scale Co., 495 So.2d 1357, 1360-61 (Miss.1986) (finding death compensable where deceased suffered a seizure and struck his head on the employer’s concrete floor); c.f. Malone & Hyde of Tupelo, Inc. v. Hall, 183 So.2d 626, 629-30 (Miss.1966) (finding no causal connection between employee’s sneezing and subsequent back injury and his employment).

¶ 28. While I agree that White’s injury would be compensable if she fell against the toilet on the employer’s premises, I am mindful that the determination of whether White hit her back against the toilet is a matter of fact for the Commission to determine. Our standard of review in a workers’ compensation case is limited to determining whether substantial evidence exists in the record to support the Commission’s decision. Franks v. Foam Craft, 929 So.2d 350, 353(¶ 12) (Miss.Ct.App.2006).

¶ 29. After considering the testimony and the medical records in this case, the Commission made the following findings:

White’s version of a March 22, 2005, slip and fall is simply not credible. We likewise are not persuaded that she herniated a disc while standing up, or sitting down, or doing anything else that may be considered work related. We are not at all convinced the disc herniation even occurred at work, and were it not for the stipulation agreed to by the Employer/Carrier, we likely would find that nothing at all happened at work. While the Workers’ Compensation Act covers risks which are inherent in the nature of the employment, and even those arising from personal[-]comfort activities such as going to the bathroom, the mere fact that Claimant’s disc herniated or became symptomatic while at work does not make her claim compensable.

(Emphasis added). The Commission evaluated the evidence before it and found White’s story lacked credibility. Ultimately, the Commission judges the credibility of witnesses. Manning v. Sunbeam-Oster Household Prods., 979 So.2d 736, 740 (¶ 13) (Miss.Ct.App.2008) (citing Barber Seafood, Inc. v. Smith, 911 So.2d 454, 461 (¶ 27) (Miss.2006)).

1130. I find ample evidence in the record to support the Commission’s finding that White did not suffer a slip and fall accident while in the restroom on the employer’s premises. The record reflects that White never reported to any of her doctors that she had fallen at work. She simply told the doctors that she had experienced pain when getting up from the toilet. White did not inform her supervisor, Lt. Rebecca Blount, that she suffered a fall in the restroom, even though she testified that she considered Lt. Blount a friend. White failed to report her injury as being work-related until months after it occurred. Further, even though Officer Berry testified that White told her she had fallen in the restroom, Officer Berry did not report the incident to her supervisors until the same day White reported the incident.

¶ 31. White contends that her injury is compensable regardless of whether she fell and hit the toilet or whether her injury occurred as she stood up from the toilet. The administrative law judge found that White was engaged in a personal-comfort activity at the time of her injury and that her injury was compensable regardless of whether or not she experienced an actual trauma in the restroom. I agree that White’s injury falls under the personal-comfort doctrine for determining whether her injury arose in the course of her employment. However, White still must show a causal connection between her employment and her injury to satisfy the “arising out of’ portion of the statute. See Big “2” Engine Rebuilders, 379 So.2d at 890. White fails to satisfy this requirement. Because the Commission, as the ultimate fact-finder, determined that White’s injury did not result from a fall, we are left with an injury, a herniated disc, that occurred, by coincidence, in the employer’s restroom.

¶ 32. The employer points this Court to several cases in other jurisdictions which have dealt with similar issues. I find those cases instructive in White’s case. The Arizona Court of Appeals addressed a nearly identical situation in Sacks v. Industrial Commission, 13 Ariz.App. 83, 474 P.2d 442 (1970). The claimant in Sacks suffered a herniated disc while arising from a toilet on the employer’s premises. Id. at 442. The claimant, like White, had a pre-existing back condition. Id. The Sacks court addressed whether the injury was one “arising out of’ the claimant’s employment. Id. Recognizing that her injury occurred in the course of her employment under the personal-comfort doctrine, the court of appeals still found no causal connection between Sacks’s work and her injury. Id. at 443. The court denied compensation and gave the following explanation:

It does not appear that the risk of disc herniation while arising from a toilet was a risk in any way peculiar to or increased by petitioner’s employment. There is no suggestion that the structure or condition of any of the surroundings contributed in any way to the unfortunate event.... The mere fact that the accident occurred on the premises of the employer during working hours does not make it compensable.

Id. Like the claimant in Sacks, White has proven no defect with the toilet or in the bathroom which contributed to her injury.

¶ 33. The Florida Supreme Court addressed another case with similar facts. In Southern Bell Telephone and Telegraph Co. v. McCook, 355 So.2d 1166 (Fla.1977), the Florida Supreme Court denied benefits to a claimant, McCook, who injured her back as she bent over while seated on the toilet in the employer’s restroom. Id. at 1167. McCook had a congenital abnormality in her back; bending down while seated on the toilet triggered her condition. Id. The Florida court adopted the reasoning of the Arizona Court of Appeals in Sacks and found that McCook’s injury did not arise out of her employment because there was no causal connection between her employment and her injury. Id. at 1169. See also Miedema v. The Dial Corp., 551 N.W.2d 309, 312 (Iowa 1996) (holding that claimant’s back injury arose in the course of employment, but it did not arise out of his employment).

¶ 34. The record leaves me with no doubt that White suffers from a debilitating condition which prevents her from returning to regular employment. However, I am, as the other members of this Court, limited to an examination of the evidence in the record to determine not whether her injury arose out of and in the course of her employment, but whether substantial evidence exists in the record to support the Commission’s determination that it did not. See Casino Magic, 958 So.2d at 228 (¶ 13) (citing Westmoreland, 752 So.2d at 447 (¶ 7)). Therefore, for the reasons stated, I would affirm the trial court’s judgment, which affirmed Commission’s determination that White’s injury did not arise out of her employment with the MDOC.

ISHEE, J„ JOINS THIS OPINION.

      . The Mississippi Workers' Compensation Act (the Act) is a remedial statute, and as such, it should be construed fairly to promote its beneficent purpose. Big "2" Engine Rebuilders, 379 So.2d at 889 (citations omitted). However, questions of law, such as interpretation of the Act, differ from factual determinations by the Commission. The supreme court in Big "2” Engine Rebuilders distinguished between broadly interpreting the language of the Act and the appellate courts' deferential standard of review regarding questions of fact determined by the Commission. Id. at 890-91. The Big “2” Engine Rebuilders court examined the statutory language of the Act in explaining that the broadly construed words of causation, such as “arising out of,” require a nexus between the injury and the employment. Id.

      While noting the intent of a broad interpretation of the Act, the supreme court provided that the base-line was a "rational connection” between the employment and the injury, and the question of whether a causal connection existed constituted a question of fact, not law. Id. at 891 (citing Barry v. Sanders, 211 Miss. 656, 52 So.2d 493 (1951) finding that whether the claimant was assaulted because of his employment was a question of fact for the Commission to determine).'


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    In the Matter of the ESTATE OF Ollie M. THOMAS, Deceased: John D. Thomas, Jr., Appellant, v. Lynda Thomas Thoms, Carol Thomas Deady And Cathy Thomas May, Appellees.
    No. 2008-CA-00462-COA.
    Court of Appeals of Mississippi.
    July 28, 2009.
    Rehearing Denied Dec. 1, 2009.
    Certiorari Denied Feb. 25, 2010.

      James T. Knight, James Ray Mozingo, Ridgeland, attorneys for appellant.
    Moran M. Pope, Hattiesburg, attorney for appellees.
   ISHEE, J.,

for the Court.

¶ 1. After administering the will of Ollie Mae Thomas (Ollie Mae), the executor, John D. Thomas, Jr. (John), filed a petition to close the Estate of Ollie Mae (Estate) and discharge the executor. In response, John’s sisters — Lynda Thomas Thoms (Lynda), Carol Thomas Deady (Carol), and Cathy Thomas May (Cathy) — filed a petition alleging maladministration of their mother’s estate and the family business, Gibson Products. John and his three sisters were the beneficiaries under the will. Following a hearing on the matter, the Chancery Court of Forrest County ruled in favor of the sisters.

¶ 2. The chancellor entered a judgment refusing to close the Estate and removing John as administrator for two trusts created by the decedent. Additionally, the chancellor ordered John’s interest in the Estate to be surcharged $267,477.41 for failing to account for the Estate’s assets. That amount included $142,000 that John spent for the real property contained in the Estate. Each of the three sisters was awarded $80,382.52 for the business, and they received attorney’s fees in the amount of $67,882.83.

¶ 3. Aggrieved by the judgment, John appeals. He asserts the following points of error: (1) whether the chancellor erred by refusing to approve John’s accounting, by refusing to close the Estate, and by allowing the litigation of corporate matters in the estate actions; and (2) whether the chancellor erred in surcharging John and entering a judgment against him and in favor of his sisters.

FACTS AND PROCEDURAL HISTORY

¶ 4. The estate action in this case was initially commenced in 1999 following the death of Ollie Mae. The decedent left a will, which named John as executor, and John admitted the will to probate on July 13, 1999. The case was assigned to Chancellor Sebe Dale, Jr., but because he was unavailable at the time, Chancellor James Thomas, Jr., signed the decree admitting the will to probate and authorizing the issuance of letters testamentary to John. According to the provisions of the will, the decree waived the requirements of inventory, appraisal, and annual accounting.

¶ 5. The terms of the will directed that the decedent’s real property, which included a condominium in Destín, Florida, and a chalet in Gatlinburg, Tennessee, be placed in a trust along with $100,000 to operate and maintain the properties. John was named as the trustee of the trust. The residual property of the Estate was to be divided evenly among the decedent’s four children-Carol, Lynda, Cathy, and John. Lynda’s share was to be placed in the previously-created Lynda Thomas Thoms Trust, for which John also served as trustee. The will also contained an in terro-rem clause, which disinherited any beneficiary who challenged the will.

¶ 6. In addition to serving as executor of his mother’s estate and trustee of the aforementioned trusts, John was the sole officer, director, and employee of Gibson Products of Hattiesburg, Inc. — the family corporation. Stock ownership in the corporation was approximately twenty-six percent held by the Estate, nineteen percent held by John, and eighteen percent held by each of the three sisters. Besides voting his own shares, as executor and trustee, John was able to vote the shares controlled by the Estate and those controlled by Lynda’s trust. Therefore, John could effectively vote a majority of the stock in Gibson Products. His sisters pointed out that, at the Gibson Products directors’ meeting, of which John was the sole director, he voted himself a salary of $1,200 per month, which increased to $2,000 per month beginning on June 1, 2000.

¶ 7. From 1999 through 2005, John managed the Estate, the two trusts, and the family corporation. On November 17, 2005, he filed a Petition to Close Estate and Discharge Executor. Despite numerous letters from James Knight-the attorney that John had retained to assist him in closing the Estate, Carol and Lynda refused to assent to the closing. On May 8, 2006, Carol and Lynda filed a response to the petition to close the Estate. The chancellor found that the Estate was not ready to be closed and granted Carol and Lynda sixty days to file pleadings in the case. On August 17, 2006, Carol, Lynda, and Cathy filed a petition alleging maladministration of the Estate by John. Initially, Cathy had filed a Waiver of Process and Entry of Appearance, but she later revoked her assent to the Estate’s closing and joined her sisters’ petition. John again sought to close the Estate, but the chancellor refused and ordered him to file an inventory and accounting.

¶ 8. After filing an inventory and accounting of the Estate, John filed a Petition for Approval of Inventory and Final Accounting and Discharge of Executor. Thereafter, Carol, Lynda, and Cathy filed a complaint against John individually, as executor, as trustee for both trusts, and in his capacity as president, secretary, treasurer, and sole director of Gibson Products. The complaint sought to (1) compel John to file a complete inventory and accounting, (2) remove John as trustee of the two trusts, (3) distribute the assets of the Estate under the court’s supervision, (4) impose liability upon John for damages caused by his breach of fiduciary duties, and (5) award attorney’s fees. John responded and requested that his sisters be disinherited from the decedent’s will pursuant to the in terrorem clause, and he also sought attorney’s fees.

¶ 9. A trial was held on the matter from October 16-17, 2007. John testified that the Estate consisted of various checking and investment accounts; real property in Florida, Tennessee, Alabama, and Mississippi; personal property; and stock in Gibson Products and in O.T. Properties, Inc. For his work on the Estate, the chancellor had approved two petitions filed by John seeking $8,881.25 and $16,932.50 in attorney’s fees. When he sought to close the Estate, he requested an additional $37,089 in attorney’s fees. He also requested $5,000 in attorney’s fees for Knight. At trial, John requested $78,699 in attorney’s fees for himself and an additional $55,574.89 for Knight. Additionally, John filed a petition with the chancery court in which he sought permission to sell the decedent’s homestead and her two automobiles. He sold the house, but he kept one of the cars and took it to Arkansas with him.

¶ 10. After hearing from the parties and attempting to reconcile John’s expenditures on behalf of the Estate with the accounting that he filed, the chancellor entered an order refusing to close Ollie Mae’s estate. The chancellor surcharged John $267,477.41. That amount included $142,000 that was spent in excess of the $100,000 set aside for the real property. The difference represented the amount for which the chancellor could not determine the purpose of the expense. As for the expenses that the chancellor could find were for the benefit of the Estate, the chancellor stated the following:

The Court notes (a) that in 1999, there was a check written to Hulett-Winstead Funeral Home in the amount of $13,427.64, which the Court assumes was for funeral expenses; (b) that in 2000, there were four (4) checks written to the four (4) beneficiaries of the Estate in the amount of $25,000.00 each, which the Court assumes was a partial distribution from the Estate; (c) that in 2000, there was a check in the amount of $152,834.00 made payable to the Mississippi State Tax Commission; a check in the amount of $10,723.00 made payable to the Tennessee Department of Revenue; a check in the amount of $1[,]716.00 made payable to the Alabama Department of Revenue; the Court assumes these checks were for taxes related to the Estate[;] (d) that in 2001, there was a check payable to Thomas Law Firm in the amount of $16,932.50, which figure matches the amount authorized by the Court; (e) that in 2002, there was a check in the amount of $3,881.25 payable to Thomas Law Firm, which figure matches the amount authorized by the Court; (f) that in 2004, there were four (4) checks written to the four beneficiaries of the Estate in the amount of $100,000.00 each, which the Court assumes was a partial distribution from the Estate; (g) that in 2005, there were four (4) checks written to the beneficiaries of the Estate in the amount of $12,500.00 each, which the Court assumes was a partial distribution from the Estate; (h) in 2006, there were four (4) checks in the amount of $7,500.00 each written to the four (4) beneficiaries, which the Court assumes was a partial distribution from the Estate; and (i) that $100,000.00 of the Estate of Ollie M. Thomas was used to fund the Ollie Thomas Real Property Trust. The Court will not make further assumptions about the purpose of the remaining checks written on the Estate’s checking account given the complete incomprehensibility of the so-called accounting and the amount of time and the number of opportunities [John] had to prepare an accounting.

¶ 11. Finding that the sisters’ attorney essentially represented the Estate, the chancellor awarded the sisters the sum of $67,382.83 in attorney’s fees. The chancellor awarded $37,089 in attorney’s fees to John, an amount which had been agreed to by his sisters. For violating his duties as sole officer, director, and attorney for Gibson Products, the chancellor ordered John to pay each of his sisters the sum of $30,382.52. The chancellor also removed John as trustee of both trusts and prohibited him from spending any money from the Estate without court approval. From this judgment, John filed the present appeal.

STANDARD OF REVIEW

¶ 12. Our review of a chancellor’s judgment is limited. In re Estate of Carter; Frazier v. Shackelford, 912 So.2d 138, 143(¶ 18) (Miss.2005) (citing Miller v. Panned, 815 So.2d 1117, 1119(¶ 9) (Miss.2002)). Generally, we will not disturb a chancellor’s findings unless the chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal standard. Id.

DISCUSSION

¶ 13. On appeal, John cites two alleged points of error. However, each of his allegations actually contains multiple issues, and we have divided them as such for clarity.

I. The Accounting and Petition to Close the Estate

¶ 14. To begin, John argues that the chancellor erred by refusing to approve the inventory and accounting that he filed and by refusing to close the Estate. He makes a number of arguments in support of his position: (1) the chancellor had waived an accounting per the terms of the will; (2) the accounting filed by John was accurate and fully reflected all the disbursements from the Estate; (3) objections to the accounting were untimely; and (4) all issues with the accounting were addressed at trial.

¶ 15. Even though an accounting may be waived by a testator through the will, a chancellor has the power to nullify the waiver. Shackelford, 912 So.2d at 146(¶ 26). “[T]he chancery court may require an accounting even when the testator has waived it where there are charges of mismanagement or maladministration of the estate.” Id. (quoting In re Estate of Hollaway; Hollaway v. Hollaway, 631 So.2d 127, 134 (Miss.1993)). In Shackelford, the supreme court noted the broad equitable powers of the chancellor in ensuring that an executor properly exercises his fiduciary powers in administering the estate:

According to Mississippi law, “one serving in the capacity of executor or administrator is an officer of the court and holds a fiduciary relationship to all parties having an interest in the estate.” Hollaway, 631 So.2d at 133. Based on this relationship, Mississippi law provides a chancellor with broad equitable powers and encourages the imposition of regulatory measures which insure that an estate and the will of its owner are protected from fraud. It is therefore the distinct duty of a chancellor to hold those serving in positions of trust accountable for their administrative actions and, in this way, hold a fiduciary fully accountable for the property with which the fiduciary has been entrusted.

Id. at 147(¶ 29). While Shackelford is not directly on point with the present case, we find the reasoning espoused by the supreme court to be applicable to the situation at hand.

¶ 16. The temporary chancellor initially waived an accounting of the Estate, which was an acceptable practice because the testator provided in her will that an accounting should be waived. However, after the sisters filed charges of maladministration, it was within the chancellor’s discretion to order a complete accounting. The supreme court has even stated that it is possible for a chancellor to reopen a closed estate upon charges of maladministration. Id. “[W]hen indicia of fraudulent activity are present, there is no legal barrier preventing a chancellor, clothed with the powers of equity, from reopening a closed estate and demanding a fiduciary to produce evidence in an effort to disprove maladministration.” Id. Accordingly, we find that the chancellor did not err in ordering John to provide an accounting.

¶ 17. As for the sufficiency of the accounting at issue, the chancellor repeatedly expressed his disapproval of the inadequate information that John had provided to the court. The accounting included a date, an amount spent, a check number, and a payee, but for the most part, it did not reflect the purpose of the transaction. Rule 6.05 of the Uniform Chancery Court Rules requires an accounting to include the purpose of any disbursement. The accounting by John did not reflect the purposes of the disbursements that he had made throughout the more than six years he served as executor. The attorneys attempted to go through the entire accounting with John in order to inform the chancellor of the purposes of the transactions. However, the questions were mostly limited to whether the transactions were for the benefit of the Estate or the real-property trust, and the actual purpose behind each transaction remained unclear. The supreme court has stated the following regarding the purpose of an accounting:

An accounting is an important mechanism for the chancery court to employ in order to monitor the administration of an estate. Moreover, an accounting is an opportunity for an individual charged with the distribution of the assets of an estate to document and justify his/her lawful execution of the duties conferred upon him/her.

Shackelford, 912 So.2d at 146(¶ 26).

¶ 18. In the final judgment, the chancellor stated the following regarding the accounting:

The Court has painstakingly gone through the so-called accounting filed by the Executor and the copies of the more than 1,200 checks written by the Executor on the Estate’s checking account, most of which contain nothing whatsoever on the “memo line.” The Court is asked by [John] to approve his so-called accounting, but to do so would be to approve the unknown; what was the money spent for and where did it come from. The Court cannot approve such an accounting.

After reviewing the accounting submitted by John, we find no error with the chancellor’s determination that it was incomplete. It generally failed to disclose the purpose for the various expenses, and the testimony at trial did little to clear up that discrepancy.

¶ 19. We also see no merit to John’s arguments that the filing was untimely and that all the issues with the accounting were resolved when he gave his testimony concerning the accounting. First, John makes no allegation that the statute of limitations had expired on his sisters’ claim. He merely argues that his sisters did not file their claim for maladministration within the sixty days provided for by the chancellor. Second, the sisters made no stipulation that the items in the accounting were accurate or complete, and the chancellor repeatedly noted that John’s testimony did not resolve the issues with the accounting. It was for the chancellor to resolve those issues, and he did so in the final judgment.

II. The Corporate Matters

¶ 20. Next, John takes issue with the fact that the chancellor allowed the litigation of corporate matters relating to John’s control of Gibson Products. He argues that it was not proper to litigate the corporate matters in an estate action. Instead, he argues that his sisters should have filed a shareholder derivative suit on behalf of Gibson Products. John relies on Bruno v. Southeastern Services, Inc., 385 So.2d 620, 622 (Miss.1980) to support his position. In Bruno, the supreme court stated:

We adopt the rule in Mississippi that an action to redress injuries to a corporation, whether arising in contract or in tort cannot be maintained by a stockholder in his own name, but must be brought by the corporation because the action belongs to the corporation and not the individual stockholders whose rights are merely derivative.

Id.

¶ 21. More recently, the supreme court has addressed this issue and decided that Mississippi would take the position that:

[i]n the case of a closely held corporation ..., the [chancery] court in its discretion may treat an action raising derivative claims as a direct action, exempt it from those restrictions and defenses applicable only to derivative actions, and order an individual recovery, if it finds that to do so will not (i) unfairly expose the corporation or the defendants to a multiplicity of actions, (ii) materially prejudice the interests of creditors of the corporation, or (iii) interfere with a fair distribution of the recovery among all interested persons.

Era Franchise Sys., Inc. v. Mathis, 931 So.2d 1278, 1281(¶ 9) (Miss.2006) (quoting Derouen v. Murray, 604 So.2d 1086, 1091 n. 2 (Miss.1992)); see also Griffith v. Griffith, 997 So.2d 218, 222(¶ 15) (Miss.Ct.App.2008).

¶ 22. Prior to trial, John filed a motion in limine requesting that the corporate matters be excluded from the estate action. In the order denying John’s motion in limine, the chancellor stated that he examined the issue and considered its ramifications. The chancellor found that:

inasmuch as the said corporation is a part and property of this Estate, and further that the actions of John D. Thomas, Jr. as Executor herein, his actions as President and Sole Officer and Director of that corporation, and his actions as attorney for the Estate are so inextricably intertwined as to render it inefficient, impractical,] and contrary to equitable principles and judicial economy to effect separation of any or all his said actions into independent legal proceedings.

The chancellor reiterated this finding in the final judgment and also noted that he considered the factors listed in Derouen.

¶ 23. All of the shareholders of Gibson Products were a party to the lawsuit, and there was no evidence that treating the sisters’ claim as a direct action would expose the corporation to a multiplicity of lawsuits or that it would prejudice the corporation’s creditors. Based on the chancellor’s consideration of the issue and in light of the fact that the supreme court has granted the chancellor discretion in deciding whether to treat such derivative actions as direct actions, we find that the chancellor was within his discretion in hearing issues relating to John’s management of Gibson Products. Accordingly, we find no merit to this issue.

III. Surcharging the Executor

¶ 24. John’s argument concerning the amount he was surcharged can be broken down into two sub-issues: (1) the amount he was surcharged as a result of what the chancellor deemed to be an insufficient accounting and (2) the amount he was surcharged for expenses related to the upkeep of the real property.

¶ 25. The chancellor found that the court-approved expenses totaled $879,514.39, and the amount expended by John was $1,146,991.82. The chancellor found the difference in the amounts to be $267,477.41, with $142,000 of that amount being the excess that John spent on the real property and the remaining amount representing estate expenditures for which John could not account.

¶ 26. John’s argument concerning the accounting is that his sisters suffered no prejudice as the result of his actions and that he should not be penalized for failing to strictly comply with the antiquated practice of filing vouchers with the accounting. Contrary to John’s argument, the chancellor did not penalize John for failing to file vouchers, as required by statute. The chancellor made it clear that the issue with John’s accounting was its incomplete nature — the fact that the purposes of the expenditures were not disclosed. When examining the accounting, the chancellor regarded it as “an accounting which does not tell me to whom the money was paid, for what purpose it was paid, and whether it’s an estate purpose or a personal purpose, or to a beggar on the street.” In the final judgment, the chancellor found that absent the filing of vouchers, “[pjlacing the style of the case and the cause number on the check, showing to whom paid and for what purpose the money was paid, the amount, and the date of the Court Order authorizing payment, would satisfy the substance, if not the form, of a statutory ‘voucher.’ ” The chancellor noted that John wrote more than 1,200 checks on the Estate’s account, which totaled more than $1,100,000, and only two of those — two payments of attorney’s fees to John — were approved by the court. Accordingly, we see no merit to John’s claim that the chancellor penalized him for failing to file vouchers.

¶27. Next, we address John’s argument concerning the real-property trust. He contends that he was protecting the assets of the Estate with his expenditures on the real property, and furthermore, the trust had not yet come into existence because it had not been funded. John cites Harper v. Harper, 491 So.2d 189, 196 (Miss.1986) in support of his argument that the real-property trust did not come into existence. In Harper, the supreme court found that the testamentary trust did not come into existence because it had not been funded with a corpus, and the will did not grant the executor any authority to transfer estate property into the trust. Id. As the supreme court stated: “It is elementary that there can be no trust without a res, that there must be a definite subject matter.” Id. (quoting Warner v. Merchs. Bank & Trust Co., 2 Conn.App. 729, 483 A.2d 1107, 1110 (1984)). We find Harper distinguishable. In the present case, the trust was funded with real property in Florida and Tennessee and with $100,000 to maintain the properties.

¶ 28. Furthermore, as the chancellor found, John’s actions revealed that he believed that the trust had been activated. In the 2005 Petition to Close the Estate and Discharge Executor, John included as Exhibit H a Schedule of Remaining Trust Funds to Be Distributed by Estate. The schedule listed the funds expended on behalf of the real-property trust and calculated the funds that remained from the $100,000 that had been set aside.

¶ 29. At trial, John tallied the accounting figures and stipulated to the fact that he had spent $242,000 on maintaining the real property over the course of the Estate’s administration. This was clearly in excess of the $100,000 that the will provided to maintain the property. John argues that this figure is irrelevant and arbitrary in that the real-property trust never came into existence. However, we see nothing arbitrary about the figure when the will provided that $100,000 would be placed in the real-property trust for the maintenance of the trust’s property. Additionally, we have already found that the trust was funded with the real property and the $100,000. The trust provided $100,000 for maintenance of the real property. Without seeking court approval, John spent $242,000 for that purpose. We find no error with the chancellor surcharging him the difference in those amounts; therefore, this argument is without merit.

IY. Attorney’s Fees

¶ 30. John next takes issue with the chancellor’s award of attorney’s fees to his sisters and the chancellor’s refusal to award attorney’s fees to John. He argues that the fees he requested were reasonable and were spent for the benefit of the Estate. He also argues that there was no authority allowing the chancellor to grant attorney’s fees to his sisters.

¶ 31. “Although attorney’s fees are the personal obligation of the administrator or executor, where they have benefit-ted the estate, they may be paid out of the estate as administration expenses.” In re Estate of Collins v. Collins, 742 So.2d 147, 149(¶ 6) (Miss.Ct.App.1999) (citing Scott v. Hollingsworth, 487 So.2d 811, 813 (Miss.1986)). However, “[if] the estate has not benefitted by those services, equity suggests that the estate should not pay for those services.” Id. In the present case, the chancellor found that John had breached fiduciary duties to his sisters and ma-ladministered his mother’s estate. The chancellor also found that: John refused to cooperate with his sister when she inquired, as was her right, into the Estate’s finances; John claimed to have spent an exorbitant amount of time creating an accounting that was unsatisfactory; and John unnecessarily hired Knight as a lawyer despite the fact that John had acted as the Estate’s attorney for more than six years. The chancellor did, however, award John the $37,089 in attorney's fees that his sisters had previously agreed for him to receive.

¶ 32. Ultimately, the chancellor concluded that the services of John and Knight were “not ‘proper and [not] rendered in good faith.’ ” See Miss.Code Ann. § 91-7-281 (Rev.2004). Supporting the chancellor’s refusal to award attorney’s fees was the finding that:

In Estate of Carter, 912 So.2d 138, 145 [ (¶ 23) ] (Miss.2005), the Mississippi Supreme Court described an executrix’s repeated failure to “provide [any] substantiation for the expenditure of a large portion of [the estate’s] assets” as a “monumental dereliction.” The failure of [John] in this case to provide “[any] substantiation for the expenditure of a large portion of [the estate’s] assets” rivals the dereliction in the Carter case. What makes it worse is that the Executor is an attorney, with an undergraduate degree in accounting together with two (2) law degrees: a J.D., and a Masters of Law in Taxation.

Furthermore, the chancellor found that it was “patently unbelievable” that John spent almost sixty hours preparing such an inadequate accounting. We find this to be within the chancellor’s discretion, and we decline to disturb the chancellor’s ruling refusing John’s request for attorney’s fees.

¶ 33. As for the sisters’ attorney’s fees, the chancellor found that their attorney essentially had to act as attorney for the Estate and that equity required that the sisters be reimbursed for their attorney’s fees. According to the chancellor, John and Knight discouraged the sisters from asking questions concerning the Estate, and it was their lack of cooperation that forced the sisters to hire an attorney to ensure a proper handling of their mother’s estate. The chancellor noted that the sisters had no option but to hire an attorney in order to get John to disclose the details of their mother’s estate. In support of their request for attorney’s fees, the sisters offered the testimony of William Andrews, a local attorney, who testified that the bill for $67,382.83 was reasonable in light of the work done for the Estate.

¶ 34. In light of John’s lack of cooperation and the fact that the sisters had to hire their own attorney to get any answers about the Estate, we find no error with the chancellor’s decision to award them attorney’s fees. The supreme court has held that “even where there is no specific statutory authority for imposing sanctions, courts have an inherent power to protect the integrity of their processes, and may impose sanctions in order to do so.” Selleck v. S.F. Cockrell Trucking, Inc., 517 So.2d 558, 560 (Miss.1987) (citing Ladner v. Ladner, 436 So.2d 1366, 1370 (Miss.1983)). The supreme court went on to state that “where a party’s intentional misconduct causes the opposing party to expend time and money needlessly, then attorney’s fees and expenses should be awarded to the wronged party.” Id. In the present case, there should have been no need for John’s sisters to hire an attorney to resolve the deficiencies in John’s accounting. Furthermore, John would have been entitled to attorney’s fees if his services and those of Knight had been rendered in good faith. Based on the foregoing, we find no error with the chancellor’s decision to award the sisters’ attorney’s fees. This issue is without merit.

Y. In Terrorem Clause

¶ 35. In John’s last assignment of error, he argues that the chancellor erred in not enforcing the in terrorem clause contained in the will. It is John’s contention that his sisters violated the clause when they challenged his actions as executor; therefore, they should have been disinherited from the will. Article Four of the will reads as follows:

If any Beneficiary hereunder shall protest the probate or validity of this Will or any provision thereof, or shall institute or join in (except as a party defendant) any proceeding to contest the validity of this Will or to prevent any provision thereof from being carried out in accordance with its terms (regardless of whether or not such proceedings are instituted in good faith and with probable cause), then all benefits provided for such Beneficiary are revoked and such benefits shall pass to the residuary Beneficiaries of this will (other than the persons joining in such contest) who are living at my death and who would have been distributees had I died intestate a resident of the State of Mississippi and had the person or persons contesting my will died immediately before me. Each benefit conferred herein is made on the condition precedent that the Beneficiary shall accept and agree to all of the provisions of this will and the provisions of this Article are an essential part of each and every benefit.

¶ 36. In the ruling on this issue, the chancellor concluded that the purpose of the above-quoted clause was “to discourage the beneficiaries from contesting the Will, not challenging the administration of the Estate or the Trusts-which is what Carol, Lynda[,] and Cathy’s Complaint does, and the Court so finds.” As the chancellor further noted, “[t]o hold otherwise, would mean that an Executor and/or a Trustee is free to spend a decedent’s money without accountability to anyone .... ” We find no error with this holding, and we find that the chancellor properly refused to apply the in terrorem clause. Therefore, this issue is without merit.

¶ 37. THE JUDGMENT OF THE CHANCERY COURT OF FORREST COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ROBERTS, AND MAXWELL, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY. GRIFFIS, J., NOT PARTICIPATING.

      . The difference in the amounts actually comes out be $267,477.43


author: MYERS, P.J.,

text:
    Jeffrey J. JACKSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-00154-COA.
    Court of Appeals of Mississippi.
    July 28, 2009.
    Rehearing Denied Dec. 15, 2009.
    Certiorari Denied Feb. 25, 2010.

      George T. Holmes, Leslie S. Lee, Jackson, Alicia L. Thomas, attorneys for appellant.
    Office of The Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Jeffrey Jackson was indicted for three counts of aggravated assault and one count of murder for a shooting that occurred at a nightclub in Shaw, Bolivar County, Mississippi. A Bolivar County Circuit Court jury convicted Jackson of all of the charges. He was sentenced to serve fifteen years on each of the two counts of aggravated assaults and twenty years on the other count of aggravated assault to run consecutively to his sentence of life on the murder conviction. Jackson now appeals arguing: (1) the trial court erred in granting a flight instruction to the jury; (2) the weight of the evidence does not support the verdicts; (3) the evidence is not legally sufficient to sustain a murder conviction; and (4) the introduction of hearsay was prejudicial and a result of ineffective assistance of counsel. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On February 21, 2003, at approximately 1:30 a.m., a fight erupted inside Roy Ventura’s Lounge (Roy’s Lounge) in Shaw, Bolivar County, Mississippi. The participants in the fight were forced outside of Roy’s Lounge by its security personnel, where the fight resumed. During the melee, witnesses testified that someone pulled a gun and fired between ten to twelve shots into the crowd that had gathered outside of Roy’s Lounge. Four people were struck by the shots: one bullet grazed the temple of Jennifer Diggins (Diggins) and went through her ear; Car-mencita Davis (Davis) was shot as she tried to reenter Roy’s Lounge when the shots began; Bernice Smith (Smith) was shot in the leg, causing permanent damage. All three of these victims survived the shooting and were able to testify at trial. The fourth victim, Eric Mack, was shot in the abdomen, and ultimately died. The state pathologist testified that Mack bled to death from the gunshot wound to his abdomen.

¶ 3. The Shaw Police Department arrived at Roy’s Lounge shortly after the shots were fired. Witnesses informed the police that the suspects had fled the scene in a car. The police pursued the car, and caught up to it after the car overheated and pulled over to the side of the road. The police detained the three occupants of the vehicle: Dennis Coleman, Carl Holl-ingsworth, and Jeffrey J. Jackson. The police then searched Roy’s Lounge and the area where the cars had fled. They recovered ten spent nine-millimeter shell casings and several bags of marijuana. The police were unable to recover the weapon used in the shooting.

¶ 4. Several witnesses positively identified Jackson as the shooter. Tangrea White (Tangrea), Bernice White (Bernice), and Trevino McGee (Trevino) all testified that they each witnessed Jackson fire shots in the parking lot of Roy’s Lounge. They testified that they did not see any other person firing a weapon that night.

¶ 5. Subsequently, Jackson was indicted for three counts of aggravated assault and one count of murder. At the end of a two-day jury trial, Jackson was found guilty of all four counts, and he sentenced as follows: fifteen years on each of the two counts of aggravated assault, twenty years on one count of aggravated assault, life for the count of murder. Jackson was also order to pay $3,019 in restitution for the aggravated assault of Diggins, and $1,100 in restitution for the aggravated assault of Davis. All of the aggravated assault convictions were ordered to run concurrently with each other, with those sentences to run consecutively to the murder conviction, all in the custody of the Mississippi Department of Corrections. Jackson then filed a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial and a motion for a sentence reduction. The trial court denied both of these motions. Aggrieved by his convictions and sentences, Jackson appeals.

DISCUSSION

I. Whether the trial court erred in granting' a flight instruction.

¶ 6. Over the objection of Jackson’s defense counsel, the trial court granted the following flight instruction:

Flight is a circumstance from which guilty knowledge and fear may be inferred. If you find from the evidence in this case beyond a reasonable doubt that the Defendant JEFFREY J. JACKSON did flee or go into hiding, such flight or hiding is to be considered in connection with all other evidence in this case. You will determine from all of the facts whether the flight was from a conscious sense of guilt or whether it was caused by other things, and give it such weight as you think it is entitled to in determining the guilt or innocence of defendant.

Jackson argues this instruction was prejudicial to his case. He also argues that the jury was confused about how to apply the instruction because Jackson was absent from the proceedings on the second day of his trial. He surmises the jury could not discern which flight the court was instructing the jury to consider, his flight from the scene or his absence from court.

¶ 7. In determining whether error lies in the granting of jury instructions, the instructions must be read as a whole. Johnson v. State, 823 So.2d 582, 584(¶ 4) (Miss.Ct.App.2002). “When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Id.

¶ 8. Our supreme court has held that “flight is admissible as evidence of consciousness of guilt.” Fuselier v. State, 702 So.2d 388, 390(¶ 4) (Miss.1997) (citing Williams v. State, 667 So.2d 15, 23 (Miss.1996)). However, a flight instruction “is appropriate only where that flight is unexplained and somehow probative of guilt or guilty knowledge.” Id. (quoting Reynolds v. State, 658 So.2d 852, 856 (Miss.1995)). Therefore, evidence of flight is inadmissa-ble where there is an independent reason for the flight. Id.

¶ 9. “[E]vidence of flight or escape is admissible as an exception to Mississippi Rule of Evidence 404(b) in order to show guilty knowledge.” Shaw v. State, 915 So.2d 442, 447(¶ 18) (Miss.2005). Our supreme court has held that “evidence of flight is admissible under Mississippi Rule of Evidence 404(b), but it must be filtered through Rule 403, which states that ‘[a]l-though relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’ ” Id. (quoting M.R.E. 403).

¶ 10. The supreme court has found:

the following “explanations” were substantial enough so that a flight instruction was not proper: defendant was an escapee; [the defendant] was driving a stolen car[; and the defendant] was leaving based on threats from another person or from potential danger from [the] victim himself. The common factor is that ... it would have been illogical for a defendant not to have run.

Austin v. State, 784 So.2d 186, 195(¶ 32) (Miss.2001).

¶ 11. Jackson offers three reasons on appeal why he fled the scene of the accident. First, Jackson argues that he and the other two suspects had been shot at by someone at Roy’s Lounge. He points to an injury to his neck as supportive evidence of someone shooting at him. Second, there was marijuana in the car. Third, he feared retaliation. He concludes these reasons fully explain his flight, and accordingly, a flight instruction should not have been given by the trial court.

¶ 12. The record reveals that there was contradictory testimony with regard to whether someone was shooting at Jackson, the injury he sustained on his neck, and the allegation that someone was going to retaliate against Jackson.

¶ 13. Officer Willie Bethley of the Shaw Police Department was one of the officers who responded to the shooting and subsequent chase of Jackson. He testified that upon inspection of the fleeing car, he did not see any bullet holes or markings on the car. Tangrea, Bernice, and Trevino testified that no one, other than Jackson, fired a weapon that night. Contrary to what Jackson argues on appeal, this evidence supports a finding that no one was firing a weapon at Jackson.

¶ 14. Jackson also claims on appeal that the injury on his neck was evidence of someone firing at him as he left Roy’s Lounge. There is no evidence to support this assertion. It is an unfounded and unsupported assertion. The events that led to the shooting began as a fight between Mack, Jackson, and several of their friends. Bernice, testified that he was also fighting with Jackson, and during their fight, he grabbed Jackson by the collar of his shirt. This would explain the injury to the back of Jackson’s neck. Officer Bethley also testified that none of the three suspects requested any medical attention during their detention, and he did not notice any blood emanating from the suspects. Murray Roark, the chief investigator with the Bolivar County Sheriffs Department, characterized the injury to Jackson as a “scratch” and not a serious injury. He also testified that the mark on Jackson’s neck was not a straight line, and unless we are dealing with the infamous “magic bullet,” it would not be indicative of a bullet grazing Jackson’s neck.

¶ 15. Likewise, Jackson’s explanation that he was in fear of retaliation is contradicted and unsupported by the evidence. No one testified that Jackson was pursued by anyone after he began shooting and fled the scene. The testimony reveals the antithesis of this; when Jackson began shooting, everyone ran or drove off from the scene. The supreme court has found error for a flight instruction that was given when the defendant was claiming fear of retribution as his explanation. See Tran v. State, 681 So.2d 514, 519 (Miss.1996); Banks v. State, 631 So.2d 748, 751 (Miss.1994). However, these cases are clearly distinguishable from the case at bar because the defendants in those cases were arguing self-defense, which automatically eliminates the possibility of a flight instruction. Banks, 631 So.2d at 751. Jackson is not arguing self-defense in the present case; his defense was that someone else was the shooter.

¶ 16. Similarly, “[f]ailure to appear for trial may be considered flight.” Waldon v. State, 749 So.2d 262, 267(¶ 13) (Miss.Ct.App.1999). Jackson was absent from the second day of his trial. He argues that, due to his absence from trial, the jury was confused as to how to apply the flight instruction.

¶ 17. The trial court asked defense counsel several times, outside the presence of the jury, where Jackson was and why Jackson was not present. Defense counsel did not have an answer for the trial court. To cure any confusion the jury may have had with regard to the flight instruction, the trial court, in jury instruction C-l, advised the jury that they were only to consider the facts and evidence presented in open court. The trial court stated that the evidence the jury was to consider “consisted of the testimony and statements of the witnesses and the exhibits offered and received.” The trial court did not highlight Jackson’s absence from the second day of his trial to the jury. Moreover, Jackson should not be able to profit from his own flight. If we were to grant Jackson’s request and award a new trial, we face a slippery slope of every defendant fleeing his or her trial in hopes of receiving a new trial on appeal. Nevertheless, we find that the trial court’s instruction to the jury clarified any confusion they may have harbored with regard to the flight instruction and eliminated any prejudice to Jackson.

¶ 18. We also find that the evidence of Jackson’s flight was probative of Jackson’s guilt and his guilty knowledge. Officer Bethley testified that he and another officer arrived at Roy’s Lounge shortly after the shots were fired. When they arrived at Roy’s Lounge, Jackson and the other two suspects had already fled the scene. The officers pursued and located the vehicle traveling at a high rate of speed, going the wrong way down a one-way street. They were able to catch up to the car only because it overheated. After detaining the suspects, Officer Bethley and another officer searched the area that night and the next morning for the weapon, but they were unable to locate it. However, they did recover a bag of marijuana that had been thrown out of the vehicle. Given these facts, it is very evident that Jackson knew he had shot someone at Roy’s Lounge, and he was trying to flee the area, only to be stopped when his car overheated. Thus, we find that the flight circumstances have considerable probative value.

¶ 19. The current scenario is not similar to any of the explanations above that the supreme court has deemed to be reasonable; we find that Jackson’s proffered reasons are illogical and contradicted by the evidence. Furthermore, the circumstances surrounding Jackson’s flight have considerable probative value. Accordingly, we find that the trial court did not err in giving a flight instruction. This issue is without merit.

II. Whether the weight of the evidence supports of all Jackson’s convictions.

¶ 20. “In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Herring v. State, 691 So.2d 948, 957 (Miss.1997) (citing Thornhill v. State, 561 So.2d 1025, 1030 (Miss.1989)). During such an inquiry, we afford the State “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Griffin v. State, 607 So.2d 1197, 1201 (Miss.1992). “There is a presumption that the judgment of the trial court is correct, and the burden is on the appellant to demonstrate some reversible error to this Court.” King v. State, 857 So.2d 702, 731 (¶ 104) (Miss.2003) (citing Branch v. State, 347 So.2d 957, 958 (Miss.1977)). Reversal on these grounds is appropriate only when “the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Johnson v. State, 642 So.2d 924, 928 (Miss.1994) (citing McNeal v. State, 617 So.2d 999, 1009 (Miss.1993)).

¶ 21. Jackson argues that the weight of the evidence does not support all four of his convictions. He argues that the inconsistencies in witnesses’ statements about the color of his attire on the night of the shooting and the fact that Roy’s Lounge had a metal detector at its front entrance, which made it impossible to get a gun into Roy’s Lounge, prove that he could not have been the shooter that night at Roy’s Lounge.

¶ 22. Witnesses described the col- or of the shooter’s sweatshirt as “light-colored,” black, and gray. When Jackson was apprehended, he was wearing a blue sweatshirt. However, “Conflicting testimony does not evince overwhelming evidence; [w]here the verdict turns on the credibility of conflicting testimony and the credibility of the witnesses, it is the jury’s duty to resolve the conflict.” Brown v. State, 995 So.2d 698, 702(¶ 13) (Miss.2008) (citing Nicholson v. State, 523 So.2d 68, 71 (Miss.1988)).

¶ 23. We find that the weight of the evidence supports the jury’s verdict. Three eyewitnesses testified that Jackson was the only person firing a weapon in the parking lot, and one witness testified that he saw Jackson shoot Mack. Jackson was one of three individuals who fled the scene in a speeding car immediately following the shooting. Several witnesses testified that the shooter had braids in his hair; Jackson had braids in his hair on the night of the shooting. As to the color of Jackson’s shirt, the shooting occurred around 1:30 a.m., and it would have been difficult to discern whether the sweat shirt was black, gray, or blue.

¶ 24. Jackson also argues that it was impossible for him to bring a gun into Roy’s Lounge because it had metal detectors and security guards patting down patrons as they entered. However, there was testimony that the metal detectors might not have worked, and that the security guards were inattentive to the metal detector’s alarms when Roy’s Lounge was crowded, as it was on the night of the shooting. Additionally, White testified that he was one of the first persons to go out of Roy’s Lounge, and that Jackson was already outside when White arrived, leaving time for Jackson to return to his ear and retrieve the gun.

¶ 25. The jury heard the conflicting testimony regarding the color of Jackson’s shirt and the use of metal detectors, and the jury resolved the conflicting testimony in favor of the State. We find the jury’s conviction is fully supported by the evidence and does not “sanction an unconscionable injustice.” Accordingly, this assignment of error is without merit.

III. Whether the evidence is legally sufficient to sustain Jackson’s murder conviction.

¶ 26. Jackson argues the facts of this case support a manslaughter conviction, and not a murder conviction. The trial court specifically asked Jackson’s counsel whether he wanted the court to give a manslaughter instruction. He declined. Jackson can hardly argue on appeal that the jury erred in not convicting him of manslaughter when he refused the opportunity to have a manslaughter instruction read to them. Nevertheless, we will address his argument.

¶ 27. In Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005), the supreme court set out the standard of review for legal sufficiency as follows:

In Carr v. State, 208 So.2d 886, 889 (Miss.1968), we stated that in considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.”

We view the evidence in the light most favorable to the prosecution, and we will affirm if any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶28. Without repeating the last issue word-for-word, we find there was sufficient evidence to support Jackson’s murder conviction. Jackson’s actions are the epitome of an act eminently dangerous to others and evincing a depraved heart, without regard for human life. He exited Roy’s Lounge after being in a fight with Mack and several of his friends. Jackson pulled a gun and fired ten to twelve shots into a crowded parking lot, hitting four people.

¶29. Viewing the evidence in a light most favorable to the prosecution, we find that the evidence is sufficient to support the conviction of murder. Therefore, this assignment of error is without merit.

IV. Whether Jackson received ineffective assistance of counsel.

¶ 30. Jackson argues that he received ineffective assistance of counsel due to his trial counsel not objecting to an alleged hearsay statement made by Officer Roark. Jackson argues this statement bolstered the prosecution’s case against him.

¶ 31. A claim of ineffective assistance of counsel is judged by the standard stated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The two inquiries under that standard are: (1) whether counsel’s performance was deficient, and if so, (2) whether that deficient performance was prejudicial to the defendant’s defense in the sense that the defendant is deprived of a fair trial. Id. at 687, 104 S.Ct. 2052. “To show prejudice, the claimant must demonstrate that, but for his attorney’s errors, there is a reasonable probability that a different result would have occurred.” Watts v. State, 981 So.2d 1034, 1039(¶ 12) (Miss.Ct.App.2008). The burden of proving both prongs of Strickland is on the defendant, “who faces a ‘rebuttable presumption that counsel’s performance falls within the broad spectrum of reasonable professional assistance.’ ” Walker v. State, 703 So.2d 266, 268(¶ 8) (Miss.1997) (citations omitted).

¶ 32. Relevant to this issue, Officer Roark testified that after a witness viewed a photographic lineup, that person identified Jackson as the shooter. Officer Roark was asked, “do you recall who [the person who viewed a photographic lineup] identified?” Officer Roark responded, “Jeffrey Jackson.” Neither party determined which witness identified Jackson as the shooter. Nevertheless, we can dismiss this argument as non-hearsay under Mississippi Rule of Evidence 801(d)(1)(C) if that identifying witness was subject to cross-examination or as cumulative evidence under Mississippi Rule of Evidence 103 if the statement was hearsay because of the other in-court identifications of Jackson.

¶ 33. In conclusion, we find the failure to object to part of Officer Roark’s testimony did not meet the requirements of Strickland. Jackson’s result would not have changed if his attorney had objected to the testimony. Three eyewitnesses identified Jackson in court as the only shooter at Roy’s Lounge. The evidence was more than sufficient to convict Jackson of the charged crimes. Therefore, this assignment of error is without merit.

¶ 34. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, AGGRAVATED ASSAULT, AND SENTENCE OF FIFTEEN YEARS; COUNT II, AGGRAVATED ASSAULT, AND SENTENCE OF FIFTEEN YEARS; COUNT III, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS; AND COUNT IV, MURDER, AND SENTENCE OF LIFE, WITH SENTENCES IN COUNTS I, II, AND III TO RUN CONCURRENTLY WITH EACH OTHER AND CONSECUTIVELY TO THE SENTENCE IN COUNT IV, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY RESTITUTION OF $3,019 IN COUNT I AND $1,100 IN COUNT II, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . Jackson did not testify at trial.

      . Similarly, Jackson does not offer an explanation on appeal for his absence on the second day of trial.

      . Officer Bethley testified that he was at the Shaw police station when the shots were fired. He stated that Roy's Lounge and the Shaw Police Department were very close to each other; in fact, one could see Roy's Lounge from the police station.

      . Murder is defined by Mississippi Code Annotated section 97-3-19(1) (Rev.2006). Under that statute, to obtain a murder conviction, the State had to prove that Jackson killed Mack with deliberate design to effect his death or killed him “in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual.”

      . Mississippi Rule of Evidence 801(d)(1)(C) provides that a statement is not hearsay if ”[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving him.”


text:
    Vernon FRAZIER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-CP-01300-COA.
    Court of Appeals of Mississippi.
    Aug. 18, 2009.
    Rehearing Denied Dec. 8, 2009.
    Certiorari Denied Feb. 25, 2010.

      Vernon Frazier, pro se, appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Vernon Frazier appeals the Marion County Circuit Court’s dismissal of his motion for post-conviction relief, asserting numerous errors. Finding no error, we affirm.

FACTS

¶ 2. Frazier executed a waiver of indictment and consent to be proceeded against by information on a felony charge of statutory rape of a fifteen-year-old girl. He then entered a plea of guilty to the information on October 19, 2006. The circuit court accepted his guilty plea, and he was convicted of statutory rape. Frazier was subsequently sentenced to twenty years’ imprisonment, with fifteen years to serve, five years suspended, and five years of post-release supervision.

¶ 3. On May 15, 2007, Frazier filed the instant motion for post-conviction relief, which the circuit court dismissed without an evidentiary hearing on June 27, 2007. Frazier timely appeals to this Court.

STANDARD OF REVIEW

¶ 4. This Court reviews the dismissal of a post-conviction relief motion for an abuse of discretion. Willis v. State, 904 So.2d 200, 201(¶ 3) (Miss.Ct.App.2005). Questions of law, however, are reviewed de novo. Ruff v. State, 910 So.2d 1160, 1161(¶ 7) (Miss.Ct.App.2005).

DISCUSSION

1. Waiver of Indictment; Circuit Court Jurisdiction; Illegal Sentence

¶ 5. Frazier argues that his sentence was illegal and that the circuit court was without jurisdiction because he was never indicted by a grand jury. He asserts that this violated article 3, section 27 of the Mississippi Constitution. That provision reads, in pertinent part: “No person shall, for any indictable offense, be proceeded against criminally by information, except in cases ... where a defendant represented by counsel by sworn statement waives indictment.” The record, however, reflects that Frazier was represented by counsel and that he executed a sworn statement that expressly waived indictment by a grand jury on October 19, 2007. This argument is without merit.

¶ 6. Frazier also argues that the information was defective because it did not comply with Rule 7.06 of the Uniform Rules of Circuit and County Court. Rule 7.06, however, provides for the form of indictments returned by a grand jury; it does not concern the form of an information. This argument is without merit.

¶ 7. Frazier additionally argues that the circuit court erred in accepting his waiver of indictment because it was not made knowingly and voluntarily. This, however, is belied by his own testimony at the plea colloquy:

[By the Court]: And you understand about a charge being made by information; you’re giving up your right to be indited [sic] by the grand jury and letting the district attorney’s office make that charge?
[Frazier]: Yes, sir.
[By the Court]: And your lawyer went over that and explained it to you?
[Frazier]: Yes, sir.

He also testified that his attorney had explained his rights in this respect to him. Allegations by a prisoner in a petition for post-conviction relief that are belied by his sworn testimony in the record do not require an evidentiary hearing. Callins v. State, 975 So.2d 219, 230 (¶ 25) (Miss.2008). Furthermore, the waiver of indictment itself clearly informed Frazier of his right to have the case presented to a grand jury. It also stated that Frazier’s attorney had advised him of his rights, and that the waiver was freely and voluntarily executed. This argument is without merit.

¶ 8. Finally, Frazier asserts that he was only “semi-literate,” and that the trial court erred in allowing him to present sworn statements that he did not understand. The record contains nothing that supports these allegations, except perhaps the following exchange in Frazier’s plea colloquy:

[By the Court]: How far did you go in school?
[Frazier]: Until the eighth.
[By the Court]: So you can read and write?
[Frazier]: Pretty well, sir.
[By the Court]: Did you read your petition and charge and understand it?
[Frazier]: Yes, sir, best I could, sir.
[By the Court]: And did your lawyer go over that with you too?
[Frazier]: Yes, sir.
[By the Court]: Do you feel like after he went over it and you looked at it, that you understood about all of it?
[Frazier]: Yes, sir.

We are satisfied that this issue is without merit.

2. Ineffective Assistance of Counsel

¶ 9. Frazier argues that his defense counsel rendered constitutionally ineffective assistance in a number of respects. We shall address each.

¶ 10. “In order to prevail on the issue of whether his defense counsel’s performance was ineffective, [the petitioner] must prove that his counsel’s performance was deficient and that he was prejudiced by counsel’s mistakes.” Kinney v. State, 737 So.2d 1038, 1041 (¶ 8) (Miss.Ct.App.1999) (citing Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “There is a strong but rebuttable presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.” Id. (citing Moody v. State, 644 So.2d 451, 456 (Miss.1994)). Additionally, a petitioner is required to “allege both prongs of the above test with specific detail.” Coleman v. State, 979 So.2d 731, 735 (¶ 15) (Miss.Ct.App.2008) (citing Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990)).

¶ 11. Frazier argues that his counsel was ineffective in failing to object to his entry of a guilty plea on an information, without a grand jury indictment. This is issue is without merit for reasons we have already discussed.

¶ 12. Frazier also alleges that his counsel failed to fully advise him of his rights and wrongfully advised him that, if he did not plead guilty, he could potentially be sentenced to life imprisonment. Frazier has presented no affidavits to support these assertions, and they are not supported by anything but allegations in his brief. The supreme court has stated that, in cases involving post-conviction relief, “where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” Vielee v. State, 653 So.2d 920, 922 (Miss.1995). Furthermore, we note that Frazier correctly stated in his sworn petition to plead guilty that the maximum penalty for statutory rape was thirty years and that, during his plea colloquy, the court asked Frazier if he knew the maximum penalty for the crime he was pleading guilty to, and Frazier replied correctly that it was thirty years’ imprisonment. He also testified that he was satisfied with his attorney’s representation. This issue is without merit.

3. Factual Basis for Guilty Plea

¶ 13. Finally, Frazier argues that the circuit court had no factual basis to accept his guilty plea. This argument, however, is belied by the record, which contains both the information and a sworn petition to plead guilty, which were sufficient to establish the factual basis for the plea. The record reflects that during his plea colloquy, Frazier testified that his attorney had gone over his plea petition and explained it to him. He further testified that his attorney had “go[ne] over and explained] the charge to [him].” The transcript of the plea colloquy then contained the following exchanges:

[By the Court]: And, Vernon Frazier, do I needed [sic] to have your charge read to you?
[Frazier]: No, sir. I understand it
[By the Court]: You understand what it is. Your charge is statutory rape?
[Frazier]: Yes, sir.
[By the Court]: And how do you plead to that charge?
[Frazier]: Guilty, sir.
[By the Court]: Pleading guilty because you are guilty?
[Frazier]: Yes, sir.
[By the Court]: Facts that are stated in the charge then are true and correct?
[Frazier]: Yes, sir.
[By the Court]: I believe your charge is made by information, is that right?
[Frazier]: Yes, sir.

Frazier’s assertions that the circuit court wrongfully relied on the information are without merit for reasons we have already discussed. This issue is without merit.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF MARION COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARION COUNTY.

KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.