text:
    Richard N. COOLEY A/K/A Richard Cooley A/K/A Ricky, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-01358-COA
    Court of Appeals of Mississippi.
    December 18, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE, Jackson
    BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. A Perry County jury found Richard Cooley guilty of aggravated assault against Dustin Cooley during a confrontation where Richard undisputedly hit Dustin in the head with the butt of a shotgun. The trial judge sentenced Richard to a term of fifteen years in the custody of the Mississippi Department of Corrections, with three years to serve and twelve years suspended, plus fines and restitution. Richard timely appeals, raising three issues: (1) the trial court erred in failing to instruct the jury on Richard's defense-of-others defense; (2) Richard's trial counsel was ineffective for failing to request such an instruction; and (3) the verdict was against the overwhelming weight of the evidence. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. This case arises out of an altercation that occurred in the parking lot of a convenience store located in Janice, Mississippi, between two unrelated families with the same last name of Cooley. The primary participants were Adam Cooley and his son Dustin, the victim; Richard, the defendant, and his son Wesley Cooley. Richard arrived on the scene to interrupt a confrontation between his unarmed son, Wesley, and Adam's armed son, Dustin. An unrelated individual, Mitchell Cooley, came upon the fight and was able to break it up. However, this was after Richard had already hit Dustin in the head with the butt of his shotgun because, according to Richard, Dustin was preparing to shoot and kill his son Wesley.

¶ 3. The animosity between the two families began following a hunting incident. Each family owned hunting and timber land in proximity to the other in Perry County, Mississippi. One of Adam's sons, Tristan, and Tristan's cousin (also named Wesley Cooley), killed a deer near Richard's house. They were charged with shooting from a public road and trespassing on property where Richard and Wesley kept livestock. Tristan was not convicted, but his cousin was. The father of Wes told Wesley to let him know if there was any further trouble from his son.

¶ 4. On the night of November 15, 2014, Wesley was sitting on his front porch when he heard a truck without a muffler revving its engine on the road in front of his property. Wesley testified that it sounded like the same truck Wes was driving during the prior hunting incident. Wesley decided to follow the truck and saw it was "just easing up the road." He confirmed that it was the hunting-incident truck due to its color and several stickers on the back glass. Wesley passed the truck, and the truck turned around. Wesley testified he drove to the home of Wes to see if his parents were there, but no one appeared to be home. Wesley decided to drive to the Janice store, where Wes's mother worked.

¶ 5. Wesley was correct that Wes was driving the truck, and Tristan was a passenger. The young men were coming from their hunting camp. Tristan admitted to "downshifting" when they passed Wesley's house and claimed that Wesley's truck thereafter began to follow them, driving recklessly and trying to run them off the road. Tristan became scared because he had heard "Wesley Cooley and them wanted to whip our butts" because they were mad about the prior hunting incident. Tristan called his father Adam, who instructed him not to stop but to go to the nearby Janice store because it was a public place, and he would meet them there. Instead, Wes turned the truck around and pulled into a cornfield across the road from the store to hide.

¶ 6. Meanwhile, Adam and his son Dustin drove to the Janice store, while another of Adam's sons, Ashton, got in a truck with Adam's brother to try and find Tristan. Adam had a pistol in his truck; Dustin not only had a .22-caliber rifle in the truck but also a nine-millimeter pistol on his person. When they arrived at the store, Adam told Dustin to go hide the rifle in the abandoned building across the street in order to avoid being accused of "head-lighting deer."

¶ 7. Wesley arrived at the Janice store in his truck and saw Dustin cross the road with a rifle and head towards the abandoned building and some bushes. At the time, neither individual knew who the other was. Dustin, an Iraq-war vet and member of the Mississippi Army National Guard, testified that as he was walking toward the abandoned building to hide the rifle a truck pulled up behind him and shined its headlights on him. When Dustin was ten feet from Wesley's truck, Wesley stepped out of his truck and asked Dustin who he was and what he was doing. Dustin replied by asking Wesley who he was, assuming he was the individual that was chasing his brother in the truck. Dustin testified that "almost like a precise military ambush," another truck came behind him and shined its bright headlights on him. The other man-Richard-got out of his truck, held up a badge, stated he was a federal marshal, and told Dustin to drop the gun. Dustin refused, stating he had a permit to carry the gun. He testified Wesley and Richard closed in on him and were trying to grab the gun from him. Dustin would not release the gun "because [he] didn't think anything good would become of me being disarmed." Dustin testified that Richard had his own rifle; so he let go of Dustin's gun and "butt stroked me in the head with his shotgun." Dustin fell to the ground. Wesley straddled Dustin trying to take Dustin's gun away. Richard hit Dustin in the head with the gun one or two more times. Blood was running down Dustin's face. Dustin then heard a gunshot fired, which he later found out was his father trying to break up the fight. Dustin decided, in a "fight or flight decision," to try and reach for his concealed pistol, but he was lying on it and could not access it. Wesley asked what Dustin was reaching for but got off Dustin when he saw Richard and Adam fighting. During the skirmish with Wesley and Richard, Dustin testified the barrel of his own gun was always pointed upward and he never made a threatening action with his weapon. He also denied pointing a gun at anybody or putting a pistol to anyone's head.

¶ 8. During the altercation, Adam was in his truck across the road about sixty feet from Wesley and Richard. Adam testified he saw Dustin and Wesley having words, and when Richard arrived, he heard Richard tell Dustin to "drop the gun. I'm a federal marshal." Adam testified that Wesley tried to grab Dustin's rifle, and as they were fighting over the gun, Richard took the butt of his gun and hit Dustin in the head with it several times, knocking him to the ground. Wesley then jumped on top of Dustin and started beating him as well.

¶ 9. Adam ran across the road toward the fight and fired a warning shot into the air. Richard turned his gun on Adam, but Adam grabbed the end of it. Richard and Adam tussled over the gun. Fortunately, Mitchell Cooley, unrelated to the parties, came upon the fight, broke it up, and collected the guns. Adam maintained that Dustin never pointed his gun at Wesley or Richard, or made any threats at any time.

¶ 10. Richard testified in his own defense, and his version of the events differed from that of Dustin and Adam. He claimed to arrive at the Janice store coincidentally at the same time as the confrontation between Wesley and Dustin. He noticed his son's truck parked across the road from the store. He saw Wesley telling a "young guy" (Dustin) with a long gun to put the gun down. The gun was pointed above Wesley's head. It was his "perception" that Wesley was being threatened. Prior to that point Richard did not know what had transpired. Richard exited his truck, unarmed, as Dustin leveled the long gun "down towards Wesley." Richard told Dustin "you are not going to shoot my son. Put the gun up." Richard told Dustin he was a "retired federal officer." Wesley testified he was scared for his life, and he feared Dustin was going to shoot him. Richard then retrieved his shotgun from his truck and started walking toward Dustin while Wesley, who was unarmed, reached for the barrel and snatched the gun from Dustin, throwing it away from them. According to Richard and Wesley, Dustin pulled out a pistol from his pants and pointed it at Wesley's head, threatening to shoot him. Richard then hit Dustin with his shotgun and knocked him to the ground. Wesley got on top of Dustin, and he and Richard managed to get the pistol away from Dustin. Richard testified that he was "scared" because Dustin had a gun "stuck to" Wesley's head and he was scared he could not stop Dustin from killing Wesley.

¶ 11. Wesley's testimony corroborated Richard's testimony about the encounter. Wesley claims to have shown up at the store to confront Tristan's mother about her son's behavior, not knowing Tristan, Dustin, or Adam might be there. Wesley testified that Dustin was pointing his rifle at him "the whole time." When Dustin refused to put his gun down, Wesley grabbed the barrel, snatched it, and threw the gun to the ground. Dustin then pulled a small-caliber pistol out of his pants, but Wesley grabbed it. They went to the ground with Wesley on top of Dustin, and Richard got the pistol away from Dustin. Wesley was not aware that his father had hit Dustin with the shotgun and knocked him to the ground.

¶ 12. Deputy Jeremy McSwain of the Perry County Sheriff's department arrived on the scene and noticed that Dustin had a head injury. No other injuries were observed. Dustin was transported by ambulance to a local emergency room, where he was treated for blunt-force trauma to the head. He sustained several scalp lacerations.

ANALYSIS

I. Defense-Of-Others Jury Instruction

¶ 13. Richard claims it was reversible error that the trial court did not reform sua sponte his self-defense jury instructions to include a defense-of-others theory consistent with the trial testimony. However, Richard failed to request such an instruction or reformation at trial.

¶ 14. The trial court possesses considerable discretion regarding jury instructions. Young v. Guild , 7 So.3d 251, 259 (¶ 23) (Miss. 2009). The appellate court "reviews jury instructions 'as a whole to determine whether the jury was fully and fairly instructed according to the applicable law.' " Conner v. State , 138 So.3d 143, 149 (¶ 14) (Miss. 2014) (quoting Clark v. State , 40 So.3d 531, 544 (¶ 36) (Miss. 2010) ). "We will not find error if the instructions fairly, though not perfectly, announce the applicable rules of law." Id. "A criminal defendant is entitled to present his defense to the finder of fact." Keys v. State , 635 So.2d 845, 848 (Miss. 1994). A defense-of-others instruction "may be proper when the defendant has reasonable grounds to believe certain force is necessary to prevent the danger of imminent death or bodily injury to another person." Maye v. State , 49 So.3d 1124, 1130 (¶ 11) (Miss. 2010).

¶ 15. The primary concern with jury instructions is "that each party's proof-grounded theory of the case was placed before [the jury]." Banyard v. State , 47 So.3d 676, 681 (¶ 11) (Miss. 2010) (quoting Young , 7 So.3d at 259 (¶ 24) ). Richard argues this "primary concern" was not met by the jury instructions given, because Richard's primary theory of his case was defense of others-Richard hit Dustin with the shotgun in Wesley's defense. Richard claims the evidence established this theory, yet the jury instructions only covered Richard's own self-defense. Although he had reason to fear his own safety, Richard contends his testimony and the evidence show that it was his son Wesley who faced the most imminent threat of serious bodily injury.

¶ 16. The jury received three instructions related to self-defense: Instruction S-4, making aggravated assault justifiable on the grounds of self-defense; Instruction C-6, allowing Richard to claim self-defense even if he did not avoid the danger; and Instruction D-4, stating the burden of proof is on the State to prove that Richard did not act in self-defense.

¶ 17. Mississippi case law is well established that it "does not impose upon a trial court a duty to instruct the jury sua sponte , nor is a court required to suggest instructions in addition to those which the parties tender." Ballenger v. State , 667 So.2d 1242, 1252 (Miss. 1995) (quoting Conner v. State , 632 So.2d 1239, 1254 (Miss. 1993), overruled on other grounds by Weatherspoon v. State , 732 So.2d 158 (Miss. 1999) ). However, Richard contends that the trial court does have this duty if the jury instructions offered do not conform to the evidence, citing Guster v. State , 758 So.2d 1086 (Miss. Ct. App. 2000), as authority for reversal on this issue.

¶ 18. In Guster , this Court reversed a manslaughter conviction, finding reversible error because of the trial court's failure to reform a self-defense instruction to include a defense-of-others theory. Id. at 1089-90 (¶¶17-22). The defendant, Shywon Guster, had filed assault charges numerous times against the victim, Henry Hyder, whom she had dated. Id. at 1088 (¶ 9). Hyder was placed under a restraining order, but went to Guster's home anyway and threatened her. Id. at (¶ 10). While Hyder was pushing and choking Guster, her two-year old son bit Hyder on the leg. In response, Hyder kicked the child in the chest, knocking him across the table. Fearful for her life and that of her son, Guster picked up a knife and stabbed Hyder in the back to prevent further assault on her son. Id. at 1088-89 (¶¶ 10, 19).

¶ 19. At trial, Guster offered and was granted a self-defense instruction, but on appeal, claimed the trial court should have sua sponte reformed it to raise the issue of defense-of-others consistent with the trial testimony. Id. at 1089 (¶ 18). This Court found while Guster's self-defense instruction was legally correct, it "did not conform with the evidence. It was therefore the trial court's responsibility to conform the instruction to the evidence, particularly since this was the only instruction on Guster's theory of the case." Id. at 1089-90 (¶ 21).

¶ 20. Unlike Guster , here the instructions granted on self-defense conformed to the evidence. There was conflicting evidence on who the initial aggressor was-Dustin, or Wesley and Richard-and there was also conflicting evidence on whether Richard acted in self-defense or defense of Wesley. While there is testimony that Richard was defending his son from harm, there was also testimony that Richard was trying to get Dustin's shotgun away from him to protect himself. Wesley testified that Dustin did not retrieve and point his pistol at Wesley until after Wesley grabbed Dustin. Testimony that Dustin pointed his rifle and pistol at Wesley and Richard was denied by both Dustin and Adam. Just because some testimony supports an instruction on a defense-of-others theory does not require the trial court to offer it, or to reform existing self-defense instructions.

¶ 21. Here, the three instructions on self-defense were in the proper form; there was no need for them to be reformed. There is no authority which places a duty on the trial court sua sponte to instruct the jury on an alternative legal theory of defense simply because some of the evidence supports the theory.

II. Ineffective Assistance of Counsel

¶ 22. Relatedly, Richard argues that his trial counsel was ineffective for failing to reform the self-defense instructions to include defense of others.

¶ 23. The benchmark for any claim of ineffectiveness is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The reviewing court utilizes Strickland 's two-prong test to determine if counsel was ineffective. First, the defendant must demonstrate his counsel's performance was deficient. Quinn v. State , 191 So.3d 1227, 1234 (¶ 27) (Miss. 2016). A defendant must overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Id. (quoting Stringer v. State , 454 So.2d 468, 477 (Miss.1984) ). "Second, a defendant must show that, but for his counsel's deficient performance, there is a 'reasonable probability' that the result of the proceeding would have been different." Id. (quoting Foster v. State , 687 So.2d 1124, 1130 (Miss. 1996) ). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland , 466 U.S. at 694, 104 S.Ct. 2052. For a claim of ineffective assistance of counsel, the record is reviewed de novo. Blunt v. State , 55 So.3d 207, 210 (¶ 12) (Miss. Ct. App. 2011).

¶ 24. While post-conviction proceedings are typically the most appropriate avenue to address ineffective-assistance-of-counsel claims, review on direct appeal is permitted when the issues presented "are based on facts fully apparent from the record" and the defendant is represented by different counsel on appeal. Archer v. State , 986 So.2d 951, 955 (¶ 16) (Miss. 2008) (quoting M.R.A.P. 22(b) ). The parties agree the record is sufficient to address the claim, and Richard is represented by different counsel on appeal; therefore, we shall address the claim.

¶ 25. Richard claims defense counsel was deficient for not requesting a defense-of-others instruction, or reforming the granted self-defense instructions. Further, Richard contends that if requested, the trial court would have granted the instruction because the evidence supported it-a contention the State does not dispute. Richard claims this deficiency prejudiced his defense because there was a reasonable probability the outcome of the trial would have been different.

¶ 26. For an ineffective-assistance claim, the context of counsel's actions are carefully reviewed, and "where reasonable under the circumstances, we presume the 'decisions were sound trial strategy.' " Sea v. State , 49 So.3d 614, 617 (¶ 12) (Miss. 2010) (quoting Johnson v. State , 29 So.3d 738, 745 (¶ 20) (Miss. 2009) ). However, Richard notes that "[w]hile trial counsel is entitled to the presumption that his actions fall within the ambit of sound trial strategy, that presumption is not absolute." Herrington v. State , 102 So.3d 1241, 1246 (¶ 16) (Miss. Ct. App. 2012).

¶ 27. Richard claims the evidence established that Wesley faced a more imminent and apparent threat of serious harm from Dustin than he did, but the jury was not informed that Richard could be justified in his violent actions in his son's defense. Since the evidence supported a defense-of-others theory more than a self-defense theory, Richard argues the omission of a defense-of-others instruction could not be considered a viable trial strategy.

¶ 28. We find the second prong of Strickland was not met. While defense counsel may have been deficient for failing to offer the defense-of-others instruction, Richard fails to show how this omission might have prejudiced his case. The State cites Ford v. State , 230 So.3d 316 (Miss. Ct. App. 2017), in support of this contention. In Ford , this Court found no ineffective assistance for counsel failing to offer an alibi instruction because it was not supported by the evidence. Id. at 320-21 (¶ 13). Further, the defendant failed to show how the alleged instruction would have changed the outcome of the trial. Id.

¶ 29. Here, we have a similar situation. Although a defense-of-others instruction may have been appropriate, Richard fails to show there was a reasonable probability the instruction would have changed the outcome of the trial. Richard does not overcome the strong presumption that, under the circumstances, his defense counsel not offering this instruction was part of his trial strategy. Offering such an instruction may have detracted from his theory of self-defense, which appeared to be his primary theory. A defense-of-others theory was not strongly elicited during witness testimony by defense counsel, and it was only mentioned briefly during closing argument. We are reminded here that "there is no single, particular way to defend a client or to provide effective assistance." Reynolds v. State , 736 So.2d 500, 511 (¶ 41) (Miss. Ct. App. 1999). Moreover, a defendant has "no constitutional right to errorless counsel," only competent counsel. Parker v. State , 30 So.3d 1222, 1233 (¶ 38) (Miss. 2010). Richard did not meet his high burden of showing his trial counsel was so ineffective by the omission of a defense-of-others instruction to prejudice him by undermining confidence in the trial's outcome and warrant reversal and a new trial.

III. Weight of the Evidence

¶ 30. Richard argues that his conviction was against the overwhelming weight of the evidence, and the trial judge abused his discretion in not granting him a new trial.

¶ 31. In reviewing a challenge to the weight of the evidence, "[a] reversal is warranted only if the lower court abused its discretion in denying [the] motion." Dilworth v. State , 909 So.2d 731, 737 (¶ 20) (Miss. 2005). The verdict must be "so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Little v. State , 233 So.3d 288, 292 (¶ 21) (Miss. 2017). "[T]he power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict."

Amiker v. Drugs For Less Inc. , 796 So.2d 942, 947 (¶ 18) (Miss. 2000). The evidence will be "weighed in the light most favorable to the verdict." Id. at 954 (¶ 44).

¶ 32. Richard claims that the evidence shows Richard and Wesley had reasonable grounds to fear Dustin would shoot them, and in light of the lack of a defense-of-others instruction, his conviction sanctions an unconscionable injustice. While it is undisputed that Dustin refused to put the rifle down and it was wrestled away from him by Wesley, there is contradictory testimony whether Dustin was threatening anybody with it. Dustin denied ever pointing the gun at Richard or Wesley, stating he was holding the barrel "upward." Wesley and Richard, however, claimed that Dustin pointed the rifle over Wesley's head, although not directly at Wesley's head. When Dustin lost his rifle, Richard claims a second threat was the pistol.

¶ 33. Yet, the jury choose to believe Dustin and Adam's version of the confrontation, not Richard and Wesley's, and it is their province to do so. It is the jury's role to assess the weight and credibility of the evidence and to resolve any conflicts in the evidence. Latiker v. State , 918 So.2d 68, 73 (¶ 12) (Miss. 2005). The jury was given three instructions on self-defense. Instruction C-6 allowed the jury to find Dustin did not have to avoid the danger of another person: he was in a place he had a right to be, with a rifle, was not the immediate aggressor, and stood his ground. The jury found that the State proved beyond a reasonable doubt that Richard did not act in self-defense; he misapprehended the situation and provoked Dustin, becoming the aggressor by attempting to disarm him. Upon realizing Dustin was not going to voluntarily surrender the rifle, Richard struck him on the head with the butt of his shotgun. The jury also could have found that Richard did not have reasonable grounds to apprehend a design on the part of Dustin to kill or do great bodily harm to him, and "reasonable grounds to apprehend that there is imminent danger of such design being accomplished" under instruction S-4. We cannot say the weight of the evidence, taken in the light most favorable to the verdict, did not support the verdict.

¶ 34. AFFIRMED.

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

      All of the individuals involved in this case have the last name of Cooley but are not all related; therefore, we shall refer to individuals by their first names after their initial introduction.

      To alleviate some of the confusion with the identical names, we will refer to Tristan's cousin as "Wes."

      Adam testified that having a loaded rifle in your truck was "one of the biggest things" in Perry County because you can be charged with head-lighting deer. He admitted to having been previously charged with the crime, and the charge had recently been brought against Tristan in the hunting incident near Richard's house.

      Richard is not a federal marshal, but a retired United States Forestry Service law-enforcement officer. He carries a commemorative retired-officer badge.


source: Caselaw Access Project

author: IRVING, P.J., FOR THE COURT:

license: Public Domain

text:
    Hazel SMITH, Appellant v. HOWARD INDUSTRIES, INC. (Self Insured,) Appellee
    NO. 2018-WC-00019-COA
    Court of Appeals of Mississippi.
    December 18, 2018
    ATTORNEY FOR APPELLANT: H. ALEXANDER BRINKLEY
    ATTORNEY FOR APPELLEE: RICHARD LEWIS YODER JR., LAUREL
    BEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. Hazel Smith appeals the decision of the Workers' Compensation Commission (Commission), asserting that two of its findings are unsupported by substantial evidence: (1) that Smith was capable of performing the substantial acts of her usual employment; and (2) that Smith was not permanently and totally disabled, but rather only suffered a partial, fifty percent loss of industrial use to her right upper extremity. We find that the Commission's decision is supported by substantial evidence; therefore, we affirm.

FACTS

¶ 2. At the time of the events giving rise to this appeal, Smith was employed as a final assembler at Howard Industries Inc. She was sixty years old and had worked at Howard for approximately twenty years. She reached the eleventh grade in high school and did not obtain her GED. Prior to her employment at Howard, she worked various labor jobs, including as a shirt inspector at a factory in Arkansas; as a manager at a Pizza Hut; inspector of rice, sugar, and flour bags; and as an assistant manager at a resort. Her job as a final assembler at Howard consisted generally of pulling wire off of spools and then using a crimping gun to put leads on the wires. This job required Smith to repetitively grasp and pull the crimping gun and to lift bins containing parts that weighed more than twenty pounds. She fell into the pay grade of 11.3 and earned $12.56 per hour, which came to an average weekly wage of $807.

¶ 3. On August 5, 2013, while operating the crimping gun, Smith felt a sharp, shooting pain throughout her arm. She immediately reported the injury to her supervisor and sought medical care, where she learned that she had sustained an injury to her right upper extremity. She also went on to develop bilateral carpal tunnel syndrome. Following her injury, Smith returned to Howard and continued to work in a different capacity-driving a forklift-until she had the first of several surgeries by Dr. Rocco Barbieri on December 18, 2013. On November 10, 2014, Dr. Barbieri diagnosed Smith with a four percent upper-extremity impairment, determined that she had reached maximum medical improvement (MMI), and summarized the findings of a functional capacity exam, which he approved and adopted in determining the work limitations to be placed on Smith:

A Functional Capacity Exam was performed by Drayer Physical Therapy and it demonstrated findings that the patient was recommended for a light duty level of work which [is] really no lifting more than 20 pounds and some specifics on avoiding paths that would require balance on uneven surfaces due to preexisting problem with polio. She also should avoid a combination of repetitive forceful grasping and vibration, as well as sustained posturing of the wrists greater than 30 degrees of flexion as this may worsen her carpal tunnel.
My opinion, at this time, is that this Functional Capacity Evaluation is in line with what I perceived the patient being able to do regarding her work activities and I will release her to work with these restrictions of light duty limitations. Essentially, she will not be allowed to lift or carry more than 20 pounds, will avoid unusual postures of the wrist or sustained repetitive gripping actions.

Smith returned to Howard in September 2016. Her job title and pay grade stayed the same as prior to her injury, but her pay was raised to $12.96 per hour due to a company-wide increase. She was offered a new job that allegedly fell within her medical restrictions. This job consisted of pulling rubber tips off of threads. Smith testified that she attempted the job but was unable to pull the rubber tips off due to the immobility of her thumb. She was accompanied by John Risher, Howard's environmental and safety manager. When Smith informed Risher that she was unable to properly grip the rubber tips due to her thumb, he moved her to another job. She burned her arm and was subsequently sent home and told that someone from Howard would call her; however, she has not heard from Howard since that date. Smith contends that she searched for work elsewhere but was unsuccessful.

¶ 4. Smith timely filed a petition to controvert on February 19, 2015. On February 1, 2017, an administrative judge (AJ) conducted a hearing to determine the existence and extent of permanent disability and any applicable penalties and interest. The parties stipulated that Smith's August 5, 2013 injury was work-related, that she began accruing disability on December 18, 2013, and that she reached MMI on November 10, 2014. The parties also stipulated that Smith's average weekly wage was $807.

¶ 5. During the hearing, Smith testified regarding the requirements of her job. Pete Mills, a vocational rehabilitation counselor, testified that he went to Howard and observed several different positions. He developed a list of three different jobs that he believed fell within Dr. Barbieri's medical restrictions for Smith and issued a report including that information. Mills also conducted a job survey, wherein he analyzed Smith's past work history and education level and determined what types of jobs might be available to her. On January 12, 2017, ten days before the hearing, he composed a list of four openings for which Smith might be suited: openings at Red Lobster, Krystal, IHOP, and TGI Fridays. The pay for each of these positions was $7.25 per hour. Mills testified that on the day before the hearing, he went online and found that the TGI Fridays and IHOP positions had been filled. Despite this, Mills opined that he felt that Smith was able to find employment with a company other than Howard. Mills further opined that Smith had not been effectively conducting her job search; specifically, Mills testified that Smith had been writing "light duty" on each of her applications-which deterred potential employers-and there was inconsistency in the rate at which she was submitting applications.

¶ 6. Risher testified that Smith was unable to return to her pre-injury position as a final assembler due to the medical restrictions imposed by Dr. Barbieri. He stated that the job that Smith was offered when she briefly returned in September 2016-removing rubber tips-fell within those restrictions. On cross-examination, Risher conceded that the duties required by the job removing rubber tips might require repetitive gripping actions, which fell outside of Dr. Barbieri's restrictions for Smith; however, Risher maintained that the job could be done with either hand. Risher further testified that the other two jobs on Mills's list were not offered to Smith because she told him she could not do the work.

¶ 7. Following the hearing, the AJ issued an order finding that Smith had sustained a 50% industrial loss of use to her right upper extremity and that she consequently could not perform the substantial acts of her usual employment. The AJ ordered Howard to pay Smith permanent disability benefits of $449.12 beginning November 11, 2014, for a period of 100 weeks as compensation, with 10% interest added to each installment as provided by Mississippi Code Annotated section 71-3-37(5) (Rev. 2011).

¶ 8. Smith appealed the AJ's findings, arguing that she erred in finding that Smith only suffered a 50% loss of industrial use to her right upper extremity and in performing a loss of wage-earning-capacity analysis to decide the industrial loss of use of a scheduled member, which is inconsistent with existing workers' compensation law. The Commission adopted the AJ's findings in relevant part and affirmed its finding that Smith suffered a 50% loss of industrial use to her right upper extremity; however, it amended the AJ's order to find that although Smith had suffered a loss of industrial use in excess of her medical impairment rating, she was capable of performing the substantial acts of her usual employment. Smith filed this timely appeal.

DISCUSSION

¶ 9. Smith asserts two issues on appeal; however, because our analysis necessarily invokes both issues, we discuss them together. The standard of review regarding workers' compensation matters is well-settled in Mississippi caselaw:

In workers' compensation cases, this Court's review is limited to determining whether the Commission's decision was supported by substantial evidence, was arbitrary and capricious, was beyond the scope or power of the agency to make, or violated constitutional or statutory rights. The Commission is the ultimate fact-finder and judge of the credibility of witnesses; therefore, we may not reweigh the evidence that was before the Commission. When the Commission's decision is supported by substantial evidence, it must be upheld. This remains true even though we might have reached a different conclusion were we the trier of fact. Furthermore, we are reminded that workers' compensation law is to be liberally and broadly construed, resolving doubtful cases in favor of compensation so that the beneficent purposes of the act may be accomplished.

Howard Indus. Inc. v. Hardaway , 191 So.3d 1257, 1261-62 (¶ 10) (Miss. Ct. App. 2015) (citations and internal quotation marks omitted).

¶ 10. As the Commission notes in its order, this is a scheduled-member case. " Mississippi Code Annotated section 71-3-17 (Supp. 2014) provides two avenues for a claimant seeking compensation for loss of a scheduled member. Subsection (a) applies to claims for permanent total disability, whereas subsection (c) applies when ... the claimant seeks permanent partial disability benefits." Hardaway , 191 So.3d at 1265-66 (¶ 24). Determination of whether a claimant has suffered permanent total disability or permanent partial disability controls which analysis we conduct in order to calculate benefits.

¶ 11. Here, Smith contends that she suffered permanent total disability and argues that both the AJ and the Commission erred in finding that she only sustained a 50% industrial loss of use of her right upper extremity. Smith maintains that despite her 4% medical impairment rating, she suffered a 100% industrial loss of use of her right upper extremity such that she has been rendered permanently and totally disabled. In support of her argument, Smith points to both her testimony and Risher's testimony that she was unable to return to the job she held pre-injury. Smith also argues that Howard presented no vocational testimony to show that Smith was employable post-injury. Howard, in contrast, argues that the evidence presented shows that Smith was not totally disabled: Mills, the vocational expert, located three jobs inside Howard and four jobs outside Howard that purportedly fell within Smith's medical restrictions. Howard maintains that Smith offered no evidence to suggest that she was unable to perform these jobs, aside from her own self-serving testimony that she was simply incapable of doing them.

¶ 12. This Court in Howard Industries Inc. v. Satcher , 183 So.3d 907, 912 (¶ 14) (Miss. Ct. App. 2016), set forth the requirements for establishing a prima facie case of permanent total disability where, as here, the claimant has only suffered a partial medical loss:

To establish a prima facie case for permanent total disability, the claimant has the burden to show he has sought and been unable to find work in the same or other employment. The claimant must show he took reasonable efforts to find other employment. The claimant can also establish a prima facie case for total disability if, after reaching MMI, the claimant reports back to the employer for work and the employer refuses to reinstate or rehire him. After the claimant makes out a prima facie case, the burden shifts to the employer to rebut or refute the claimant's evidence by showing the claimant's efforts were not reasonable or were a sham. The issue of whether a claimant's permanent disability is partial or total is a question of fact determined by the evidence as a whole, including both lay and medical testimony.

(Citations and internal quotation marks omitted). "To determine the reasonableness of the claimant's job search, factors are examined such as job availability, economics of the community, the claimant's skills and background, and the nature of the disability." Id. at 913 (¶ 17). "Another consideration in determining disability is wage-earning capacity. Factors examined for loss of wage-earning capacity include the amount of education and training that the claimant has had, inability to work, failure to be hired elsewhere, and the continuance of pain." Id. "In order to be deemed permanently totally disabled under Mississippi Code Annotated section 71-3-17(a) (Rev. 2000), a claimant must show something more than an inability to return to the job existing at the time of injury." Flowers v. Crown Cork & Seal USA Inc. , 168 So.3d 1009, 1018 (¶ 27) (Miss. Ct. App. 2013).

¶ 13. Based on the above caselaw, it is this Court's opinion that the Commission and AJ correctly concluded that Smith was not permanently and totally disabled. Although Smith testified at trial that she was unable to perform the jobs offered to her upon her return to Howard in September 2016, this testimony, combined with her contention that she is unemployable, is not sufficient to overcome the high burden of showing that the Commission's decision was unsupported by substantial evidence.

¶ 14. We note, as the Commission also properly noted, that a rebuttable presumption of total occupational loss arises where a permanent partial disability renders the claimant unable to continue in the position she held at the time she sustained her work-related injury, "subject to other proof of the claimant's ability to earn the same wages which the claimant was receiving at the time of injury." Meridian Prof'l Baseball Club v. Jensen , 828 So.2d 740, 747 (¶ 21) (Miss. 2002). This presumption arises "when the claimant establishes that he has made a reasonable effort but has been unable to find work in his usual employment, or makes other proof of his inability to perform the substantial acts of his usual employment." Id. at 747-48 (¶ 21). The employer may rebut this presumption by pointing to "all the evidence concerning wage-earning capacity, including education and training which the claimant has had, his age, continuance of pain, and any other related circumstances." Id. at 748 (¶ 21).

¶ 15. Here, Smith contends that the Commission's decision that she was able to perform the substantial acts of her usual employment is unsupported by substantial evidence. However, we disagree. Smith relies on the fact that Risher, Howard's representative, conceded that she could not return to the job she held pre-injury as proof that she was unable to perform the substantial acts of her usual employment. However, Mississippi caselaw is clear that " 'usual employment' is broader in scope than the job [that the claimant] held at the time of injury." Id. at 747 (¶ 20). "Usual employment in this context means the jobs in which the claimant has past experience, jobs requiring similar skills, or jobs for which the worker is otherwise suited by his age, education, experience, and any other relevant factual criteria." Id.

¶ 16. We note that Smith failed to provide any evidence or testimony that she was, in fact, unable to perform the job presented to her in September 2016 when she returned to Howard for a few hours. All we have to rely upon is her own testimony that she was unable to perform the job. In contrast, we have testimony from both Risher and Mills that the job offered to Smith-removing rubber tips-fell within her medical restrictions. Smith provided insufficient evidence to overcome the high burden of showing that the Commission's decision was unsupported by substantial evidence with respect to this issue. As such, we affirm the Commission's finding that she was capable of performing the substantial acts of her employment.

¶ 17. Section 71-3-17(c) (Rev. 2011) provides the following:

In case of disability partial in character but permanent in quality, the compensation shall be sixty-six and two-thirds percent (66-2/3%) of the average weekly wages of the injured employee, subject to the maximum limitations as to weekly benefits as set up in this chapter, which shall be paid following compensation for temporary total disability paid in accordance with paragraph (b) of this section, and shall be paid to the employee as follows:
Member Lost Number Weeks Compensation (1) Arm 200
....

¶ 18. As previously stated, the AJ ordered Howard to pay Smith $449.12 per week for a period of 100 weeks. She included the following analysis in her order:

[Smith] applied for the four positions [that] were identified in the vocational report - Red Lobster; Krystal; IHOP; and TGI Fridays. All of those positions offered $7.25 per hour. At the time of her injury, Smith was making $12.56 per hour with the Employer. If Smith had actually been hired by one of those employers, she would have suffered a $5.31 per hour loss of wages, which calculates to a $212.40 loss per week or an approximate 42% loss of wages. If overtime were considered, Smith would lose about half of her weekly income by taking one of the four positions identified by the vocational expert.

We find substantial evidence supporting the Commission's finding that Smith was not totally and permanently disabled and that she suffered only a 50% industrial loss of a scheduled member. Therefore, it follows that Smith was not entitled to 450 weeks of compensation for permanent-total disability or 200 weeks of compensation for loss of a scheduled member. The order of the Commission awarding Smith $449.12 for one hundred weeks is AFFIRMED.

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

      Dr. Barbieri performed one surgery to treat her carpal tunnel syndrome and two surgeries to treat her thumb injury.

      Of note is the fact that "there is a difference between the job-search requirement for a claim for permanent total disability benefits under subsection (a) and the job-search requirement for a claim for permanent partial disability benefits under subsection (c). A claim made under subsection (a) is subject to the most rigorous test for disability, which requires convincing medical proof of total disability and a legitimate job search for suitable employment." Hardaway , 191 So.3d at 1266 (¶ 25) (internal quotation marks omitted).


author: WILSON, J., FOR THE COURT: WESTBROOKS, J., CONCURRING IN PART AND DISSENTING IN PART:

text:
    Lana L. OLSON, Appellant v. Robert M. BENNETT, Appellee
    NO. 2017-CA-01145-COA
    Court of Appeals of Mississippi.
    December 18, 2018
    ATTORNEY FOR APPELLANT: MICHAEL C. HESTER, LONG BEACH
    ATTORNEY FOR APPELLEE: REED S. BENNETT, GULFPORT
    EN BANC.
   WILSON, J., FOR THE COURT:

¶ 1. The issue in this appeal is whether the chancery court erred by changing the surname of a nine-year-old boy at the request of the boy's father and over the objection of the boy's mother. We agree with the mother that the chancery court manifestly erred by changing the boy's name. Therefore, we reverse and render the judgment of the chancery court to that extent.

FACTS AND PROCEDURAL HISTORY

¶ 2. Noah was born in Gulfport in July 2008. Noah's father, Robert Bennett, was present when Noah was born, but he insisted on a paternity test and refused to sign Noah's birth certificate or be listed as Noah's father. Accordingly, Noah's birth certificate did not list a father, and Noah took the surname of his mother, Lana Olson (Lana). Within three weeks of Noah's birth, a DNA test confirmed that Bennett was Noah's father. However, Bennett took no steps to have his name added to Noah's birth certificate. Nor did Bennett pursue visitation with Noah. Noah has lived with Lana his entire life.

¶ 3. Years passed. At some point, Bennett began paying child support, although the record does not reflect when Bennett began paying support or how much he paid. Otherwise, Bennett was not "in the picture."

¶ 4. In April 2016, Bennett filed a "Complaint for Child Custody and Support, Amendment or Correction of Birth Certificate, and Motion for Temporary Relief" in the Harrison County Chancery Court. Lana and Noah subsequently moved to Kentucky, where they live with Lana's mother, Sharon Olson (Sharon). Lana and Bennett eventually resolved all issues related to child custody and support, and in July 2017 the court entered an "Agreed Order of Custody and Support." The parties did not include the order in the record on appeal, but it apparently awarded physical custody to Lana, grants visitation to Bennett, and orders Bennett to pay child support. Bennett's visitation was described during a hearing as not "the ordinary standard visitation of every other weekend, but ... simply ... parcels of time for the four major holidays." Sharon stated that Bennett has visitation with Noah for a total of three months each year.

¶ 5. In July 2017, the chancery court held a hearing on Bennett's request to change Noah's surname, which was the only unresolved issue in the case. Noah was nine years old at the time of the hearing and did not testify. Bennett, Lana, and Sharon testified.

¶ 6. When asked why he wanted to change Noah's name, Bennett answered, "I want him to carry ... his family name .... My father passed my name down to me, and I want to pass it down to my children." Bennett testified that he had no other reason for requesting the name change. Lana acknowledged that Bennett "started paying [child] support some years ago." Otherwise, Bennett was not "in the picture" until he sought visitation in 2016.

¶ 7. Lana and Sharon both testified that they feared that changing Noah's name would have a negative impact on him. Sharon testified that when Noah "started school, he became sullen and angry and uncooperative," and eventually he was "suspended" from school at age five. As a result, Sharon homeschooled Noah for two and a half years until they were able to enroll him in school in Kentucky. Sharon testified that Noah continues to have behavior problems at school, but they have been able to work through the issues with the school. Sharon said they were still in a "tentative situation" with Noah. Sharon was concerned that a name change could make Noah "confused" or "angry" and that someone at school might tease him about his new name. She feared that would lead to "the problem of [Noah] deciding he doesn't want to go to school again." Lana similarly testified that she feared that Noah would be bullied at school because of a sudden name change. Lana also testified, "I feel like ... Mr. Bennett had opportunities to change the name and decided not to because he felt like the child was not his and didn't want to take responsibility for his child."

¶ 8. At the beginning of the hearing, the chancellor stated that the Mississippi Supreme Court has been "pretty emphatic that the child shall take the last name of the father." The chancellor acknowledged that there is an "exception" to the rule, but he stated that "[t]he exception that's permitted isn't mere embarrassment or confusion for the child or potential embarrassment or confusion or things like that that may result from the name being changed." The chancellor cited Rice v. Merkich , 34 So.3d 555 (Miss. 2010), for this point. The chancellor further stated:

The Court could make an exception ... if the circumstances are such that it is just really a traumatic kind of thing that would make it just absolutely inappropriate for the child to carry the father's name. [For example, if there is] something seriously wrong with the father, such as, let's say that hypothetically ... I was trying to think of some reason why I might do this. If the mother were raped and the child was the result of a heinous thing like that. Or the father was a pedophile and had been abusing the child. Or something that's just really just detrimental and the child should not ever have to go around carrying that name. That is a logical reason to do it. You know, you may be able to think of some other reason that the Supreme Court would go along with, but those are the kind of drastic measures that the Supreme Court may or may not.

¶ 9. At the conclusion of the hearing, the chancellor granted Bennett's request to change Noah's surname, explaining his ruling as follows:

Well, I can certainly understand the reluctance to want to have the child's name changed to that of the father. I think that there are certainly some reasons that she could point to and say it would be in the child's best interest to leave it as it is. I don't think that they meet the criteria that the Supreme Court has set for us to be able to change the name or to allow the name to be different from what the statute says. The statute says that the child shall carry the father's name. And so I must reluctantly deny the request to have it changed -- or, rather, to deny it to remain the same as the mother's. And I will order that it be changed to be the father's name.

¶ 10. The chancellor subsequently entered a judgment ordering that Noah's birth certificate should be amended to change his last name to Bennett and to list Bennett as his father. The chancellor effectively stayed the judgment pending appeal by ordering that the judgment should not be registered with the Mississippi Department of Vital Records or otherwise effectuated until after Lana had exhausted her appeals.

ANALYSIS

¶ 11. On appeal, Lana argues (1) that the chancery court's ruling should be reversed because "it would not be in [Noah's] best interest to change his surname" and (2) that the statutory "presumption" that a child shall be given the father's surname violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

¶ 12. "This Court 'will not disturb the factual findings of a chancellor when supported by substantial evidence unless the Court can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard.' " Rice , 34 So.3d at 557 (¶ 7) (quoting Powers v. Tiebauer , 939 So.2d 749, 752 (¶ 6) (Miss. 2005) ). "When reviewing questions of law, this Court employs a de novo standard of review and will only reverse for an erroneous interpretation or application of law." Id. (quoting Powers , 939 So.2d at 752 (¶ 6) ).

¶ 13. We first address Lana's argument that the chancery court's ruling should be reversed because it would not be in Noah's best interest to change his surname. The parties agree that this case is governed by Mississippi Code Annotated section 93-9-9(1), which provides in relevant part that "the surname of the child shall be that of the father, unless the judgment specifies otherwise." The parties also agree that our Supreme Court's decision in Rice , supra , provides the authoritative interpretation of section 93-9-9(1). As noted above, the chancellor also cited Rice as binding precedent on this issue.

¶ 14. In Rice , the father (Merkich) and mother (Rice) were living together when Rice became pregnant, but their relationship ended a few months later, before their daughter (Presley) was born. Rice , 34 So.3d at 556 (¶¶ 2-3). Merkich accompanied Rice to doctor's appointments and contributed to her medical bills during the pregnancy. Id. at (¶ 2). Merkich was not present for Presley's birth only because Rice did not inform him when she went into labor early. Id. at (¶ 3). However, Merkich filed a petition to determine paternity less than two weeks after Presley was born. Id. at (¶ 4). Once paternity was established, Merkich promptly filed a petition to determine custody and visitation, acknowledged his obligation to pay child support, and requested that Presley's surname be changed to Merkich. Id. He did all this within sixty days of Presley's birth. Id. The chancery court subsequently awarded joint legal custody to Rice and Merkich, physical custody to Rice, and visitation to Merkich. Id. at (¶ 5). The court also found that Presley's surname should be changed to Merkich. Id. Rice appealed the name change. Id.

¶ 15. On appeal, the Supreme Court held that under section 93-9-9(1), supra , a chancery court should change a child's surname to that of the father unless the mother proves by a preponderance of the evidence that it would not be "in the child's best interest" to change the child's name. Id. at 557 (¶¶ 8-9). Applying this standard, the Supreme Court affirmed the chancery court's ruling. Id. at 559 (¶ 16). The Court noted that if Rice had informed Merkich of Presley's birth, Merkich could have acknowledged paternity by completing the proper forms at the hospital, in which case Presley would have been given his surname. Id. at 558 (¶ 10). In addition, the Court stated that "[t]he only evidence offered by Rice that Presley should not have the surname Merkich" was Rice's own testimony about "possible embarrassment and confusion for Rice and Presley to have different names." Id. at 559 (¶ 13). Moreover, at a hearing held a few days after Presley's first birthday, "Rice testified that Merkich [was] a good father, who [was] very involved in Presley's life and spen[t] as much time with her as possible." Id. at (¶ 15). On those facts, the Supreme Court held "that Rice failed to prove by a preponderance of the evidence that it [was] in the child's best interest that her surname not be Merkich." Id. at (¶ 16).

¶ 16. In this case, the chancellor cited Rice , but many of the chancellor's statements were inconsistent with Rice 's best-interest/preponderance-of-the-evidence standard. As noted above, the chancellor began the hearing by suggesting that he could make an "exception" to the rule that a "child shall take the last name of the father" only if Lana proved that "the circumstances are such that it is just really a traumatic kind of thing that would make it just absolutely inappropriate for the child to carry the father's name." The chancellor further stated that he could make an exception if there was "something seriously wrong with the father"-for example, if the father had raped the mother or "was a pedophile and had been abusing the child." The chancellor indicated that some other "drastic" set of facts might justify an exception, although he did not provide additional examples. At the conclusion of the hearing, the chancellor recognized that there were "certainly some reasons that [Lana] could point to and say it would be in [Noah's] best interest to leave [his name] as it is." But the chancellor then concluded: "I don't think that [Lana's reasons] meet the criteria that the Supreme Court has set for us to be able ... to allow the name to be different from what the statute says. The statute says that the child shall carry the father's name." The chancellor then "reluctantly" ordered Noah's surname to be changed to Bennett.

¶ 17. The chancellor's statements imply a misreading of the majority opinion in Rice . Lana was not required to prove that there was "something seriously wrong" with Bennett or that it would be "absolutely inappropriate" for Noah to have Bennett's surname. Nor was Lana required to prove that Noah would be traumatized by a name change. Under Rice , Lana only needed to show, by a mere preponderance of the evidence, that it would not be in nine-year-old Noah's "best interest" to change his name. Rice , 34 So.3d at 557 (¶¶ 8-9). We conclude that Lana met her burden and that the chancellor manifestly erred by ruling otherwise.

¶ 18. To begin with, the facts of this case are materially different from the facts of Rice . In Rice , Merkich took action when Presley was only weeks old so that she was barely one year old when her name was changed. As Justice Lamar put it, Presley was still "too young even to know her last name." Id. at 563 (¶ 28) (Lamar, J., dissenting). In contrast, Bennett did not seek visitation with Noah or take any action to change his name until Noah was nearly eight years old. Thus, Noah was nine years old by the time of the hearing in the chancery court, certainly old enough to have become accustomed to his name.

¶ 19. Moreover, Lana presented some evidence to support her contention that it was not in Noah's best interest to change his surname. Lana and Sharon could not and did not testify that a name change would result in certain harm to Noah, but that is to be expected. In most cases, it will be difficult, if not impossible, for a mother to produce objective evidence that a name change will cause a specific, certain harm to her child. Nonetheless, Lana and Sharon provided legitimate reasons why it would not be in Noah's "best interest" to change his name. Indeed, at the conclusion of the hearing, the chancery court recognized that "certainly" there were "some reasons that [Lana] could point to and say it would be in [Noah's] best interest to leave [his name] as it is." Given Noah's age and history of behavioral issues at school, it was reasonable for Lana and Sharon to be concerned that a sudden name change could have a negative impact on him.

¶ 20. On the other side of the scale, Bennett presented no reason or evidence that it would be in Noah's best interest to change his name at age nine. Bennett stated only, "I want him to carry ... his family name .... My father passed my name down to me, and I want to pass it down to my children." Bennett's feelings are understandable, but he failed to act on them-or even pursue visitation with Noah-until Noah was nearly eight years old. More important, Bennett's desire to pass on his family name is not the equivalent of Noah's best interest. "[T ]he child's best interest" is not the same thing as "either parent's best interest." Vassar v. Vassar , 228 So.3d 367, 375 (¶ 26) (Miss. Ct. App. 2017). Put simply, "[t]he relationship of parent and child is not for the benefit of the parent, but of the child." Reno v. Reno , 253 Miss. 465, 475, 176 So.2d 58, 62 (1965) (quoting J.W. Bunkley Jr. & W.E. Morse, Amis on Divorce and Separation in Mississippi § 8.01 (2d ed. 1957) ).

¶ 21. In summary, Lana presented legitimate reasons that it was not in Noah's best interest to change his name, while Bennett presented no reason that a name change would benefit Noah. Lana met her burden of proof under Rice , and the chancery court manifestly erred to the extent that it concluded otherwise. Accordingly, we reverse and render the judgment of the chancery court insofar as it ordered Noah's surname to be changed. Noah's last name shall remain Olson.

¶ 22. REVERSED AND RENDERED.

LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR AND TINDELL, JJ., CONCUR. WESTBROOKS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J., AND GREENLEE, J.

WESTBROOKS, J., CONCURRING IN PART AND DISSENTING IN PART:

¶ 23. I write separately because I concur in part and dissent in part from the majority. I agree that Olson did not properly provide notice to the Attorney General's Office, and therefore her constitutional claim is procedurally barred. But, I respectfully dissent because I believe that Olson did not meet the burden of proof required by Rice and would affirm the chancellor's decision.

¶ 24. On appeal, Olson asserts that the chancellor erred in finding that Noah's surname should be changed to Bennett. I disagree. The applicable Mississippi Code Annotated section 93-9-9(1) states that "[i]n the event of court-determined paternity, the surname of the child shall be that of the father, unless the judgment specifies otherwise." Because Bennett's paternity was court-established, Olson's claim focuses on the "unless the judgment specifies otherwise" clause of the statute, and this is the only section of the statute she raises on appeal for this Court's consideration. Olson asserts that the chancellor had the ability to allow Noah to maintain his surname and chose not to.

¶ 25. The Mississippi Supreme Court has held that where a party to the action contends that the surname should not be "that of the father," then, and in that event, that party must prove by a preponderance of the evidence that it is in the child's best interest that the surname not be "that of the father." Rice v. Merkich , 34 So.3d 555, 557 (¶ 8) (Miss. 2010). Here, it was Olson's responsibility to prove that it was not in Noah's best interest to take Bennett's surname. In support of her assertions, Olson stated that Bennett had not established himself as a father figure and had been void from Noah's life for eight years. During the hearing, Olson and her mother testified that it might be difficult to change all of Noah's official documents and may subject him to bullying at school. The chancellor held that these reasons, while valid, did not meet the burden of proving that it was in the best interest of Noah for his last name to remain Olson. I agree.

¶ 26. Olson attempted to differentiate her case from Rice v. Merkich , which is binding precedent in Mississippi. However, I find that their cases are analogous. In Rice , the father, Scott Merkich, was not present for the child's birth because the mother, Jessica Rice, did not alert him to the birth until days later. Rice , 34 So.3d at 556 (¶ 3). Once paternity was established, Merkich immediately filed for child custody, visitation, a change of surname, and stated that he would pay his child support obligations. Id. at (¶ 4). At trial, Rice presented evidence that changing the child's surname would be embarrassing and confusing, therefore, the child should maintain her surname. Id. The chancellor did not find the evidence persuasive and ordered that while Rice would maintain custody and receive temporary child support, Merkich would have reasonable visitation and that the child's surname would be changed to Merkich. Id. at (¶ 5). Rice appealed. Id. On appeal, the Mississippi Supreme Court ruled that Rice failed to prove by a preponderance of the evidence that it was in her child's best interest that her surname not be changed to Merkich and affirmed the chancery court's decision. Id. at (¶ 18).

¶ 27. Olson contrasted her case by highlighting that Bennett was present at the birth and chose not to sign the birth certificate or petition the court for a name change years after the DNA testing, stating that hers and Rice's lives were in "direct contrast." Although, Bennett waited eight years to petition the court for a name change, the same standard of proof was needed to deviate from the statute. Olson, similarly to Rice, only presented evidence that her child's surname should remain as hers to avoid "possible embarrassment and confusion." Id. at (¶ 13). Additionally, like in Rice , Bennett has attempted to establish himself as a father figure in Noah's life. Bennett began paying child support prior to a court order and, further, Noah lives with Bennett three months out of the year. In both Rice and the present case, the chancellor found the potential for confusion and embarrassment insufficient to show the child's surname should not be changed to the father's.

¶ 28. The majority contends that the chancellor reluctantly ordered Noah's surname to be changed, although the record reflects differently. The chancellor made it very clear at the beginning of the proceedings that there were exceptions to the mandate that the child take the father's surname and was very clear that potential embarrassment and confusion would not be sufficient evidence to overcome the burden. Olson only presented evidence of that kind.

¶ 29. Additionally, we review this case for abuse of discretion:

This Court will not disturb the factual findings of a chancellor when supported by substantial evidence unless the Court can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard.

Rice , 34 So.3d at 557 (¶ 7) (internal quotation mark omitted) (quoting Powers v. Tiebauer , 939 So.2d 749, 752 (¶ 6) (Miss. 2005) ). The Supreme Court of Mississippi has held that when appellate courts:

[R]eview[ ] a decision that is within the trial court's discretion, it first asks if the court below applied the correct legal standard. If the trial court applied the right legal standard, then this Court will affirm a trial court's decision unless there is a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.

Scoggins v. Ellzey Beverages Inc. , 743 So.2d 990, 996 (¶ 27) (Miss. 1999). I do not believe that we can find that the chancellor abused his discretion in following Mississippi Code Annotated section 93-9-9(1) and mandating that Noah's name be changed to the surname of his father's.

¶ 30. Moreover, the role of this Court is not to substitute our ruling for that of the trial court's. This Court has found that we "cannot substitute its judgment of credibility for that of the trial court, and where the record contains substantial evidence to support the trial court's decision, this Court lacks authority to reverse that decision." Barnett ex rel. Gordon v. Lauderdale Cty. Bd. of Sup'rs, 880 So.2d 1085, 1089 (¶ 10) (Miss. Ct. App. 2004). In light of the standard in Rice , I believe that there was substantial evidence to support the chancellor's decision.

IRVING, P.J., AND GREENLEE, J., JOIN THIS OPINION.

      We use a fictitious first name for the minor child.

      Bennett filed an amended complaint in May 2016. However, the parties did not include the complaint, amended complaint, or any other pleading in the record on appeal.

      Lana's second argument challenges Mississippi Code Annotated section 93-9-9(1), as interpreted by our Supreme Court in Rice , supra . As discussed below, the majority opinion in Rice held that the statute places the "burden of proof" on the party who contends that the child should not have the father's surname. Rice , 34 So.3d at 557 (¶¶ 8-9). The majority opinion in Rice did not use the term "presumption," but Justice Lamar's dissent fairly characterized the majority opinion as establishing a "presumption" in favor of the paternal surname. Id. at 562 (¶ 26) (Lamar, J., dissenting). We note that Lana apparently did not comply with Mississippi Rule of Appellate Procedure 44(a), which requires a party challenging the constitutionality of a statute to serve a copy of her brief on the Attorney General. M.R.A.P. 44(a) ; see also 5K Farms v. Miss. Dep't of Revenue , 94 So.3d 221, 224-25 (¶¶ 11-13) (Miss. 2012) (discussing an appellate court's discretion to decline to consider a constitutional issue when a party fails to comply with Rule 44(a) ). However, this issue is moot because we decide the case on other grounds.

      See Warner-Lambert Co. v. Potts , 909 So.2d 1092, 1093 (¶ 3) (Miss. 2005) ("It is well-settled by decision of this Court that a constitutional question will be passed on where the issues involved in a particular case are such that the case may be decided on other grounds.").

      In dissent, Justice Lamar argued that the father, as the party requesting relief, should bear the burden of proof. Id. at 562 (¶ 26). Justice Lamar further argued that the chancery court in Rice had not made a "best interest" determination but rather had misinterpreted the statute as mandating that the child's surname be changed to that of the father. Id. at 562-63 (¶ 27). Justice Lamar also reasoned that a statutory "presumption" in favor of the paternal surname "would raise serious Equal Protection concerns." Id. at 562 (¶ 26).

      Noah is now ten years old.

      The chancery court also ruled that Noah's birth certificate should be amended to show Bennett as his father. Lana does not challenge that part of the chancery court's judgment, and our decision has no impact on it.

      34 So.3d 555 (Miss. 2010).


author: BARNES, P.J., FOR THE COURT:

text:
    Demario WALKER A/K/A Demario D. Walker A/K/A Demario Dontez Walker, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-01191-COA
    Court of Appeals of Mississippi.
    January 8, 2019 Rehearing Denied May 21, 2019
    ATTORNEY FOR APPELLANT: DEMARIO WALKER (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE, JACKSON
    BEFORE GRIFFIS, C.J., BARNES AND CARLTON, P.JJ.
   BARNES, P.J., FOR THE COURT:

¶ 1. Demario Walker, appearing pro se, appeals the judgment of the Circuit Court of Rankin County, which dismissed his motion for post-conviction relief (PCR). Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In May 2014, Walker was indicted for felony false pretense under Mississippi Code Annotated section 97-19-39 (Rev. 2014). Walker was assigned a public defender and on August 1, 2016, entered an open plea of guilty to the charge. The factual basis of the plea showed that in October 2013, Walker defrauded Pop's Auto Sales LLC, by providing a fraudulent check for approximately $11,000 to purchase a 2005 Chrysler vehicle. Walker was sentenced to serve ten years in the custody of the Mississippi Department of Corrections, with eight years of incarceration and two years of post-release supervision. Walker was sentenced as a non-habitual offender, even though this crime was his ninth non-violent felony. This sentence runs consecutively to other sentences Walker was serving at the time of his plea.

¶ 3. In September 2016, Walker filed a PCR motion, claiming a defective indictment, denial of counsel, ineffective assistance of counsel, an involuntary guilty plea, an illegal sentence, and lack of jurisdiction.

In September 2017, the trial court entered an order dismissing Walker's PCR motion, noting that none of his grounds for relief stated in his PCR motion were made at the time of his plea or sentencing; therefore, the claims are procedurally barred under Henley v. State , 749 So.2d 246 (Miss. Ct. App. 1999). Walker timely appealed.

STANDARD OF REVIEW

¶ 4. This Court reviews the trial court's dismissal of a PCR motion under an abuse-of-discretion standard. Questions of law, however, are reviewed de novo. Castro v. State , 159 So.3d 1217, 1219 (¶ 6) (Miss. Ct. App. 2015).

ANALYSIS

¶ 5. The trial court summarily dismissed Walker's claims because they did not involve a violation of Walker's fundamental rights, and his failure to raise related "objections, defenses, claims, questions, issues, or errors in either fact or in law" at his plea and sentencing hearings operates as a waiver and procedural bar to raising them later in a PCR motion. See Henley , 749 So.2d at 249 (¶ 11). While we agree with the summary dismissal, we provide further analysis, as failure to make the objections and defenses might impact Walker's ineffective-assistance-of-counsel claims. In some circumstances, these claims may implicate a violation of a fundamental constitutional right under Rowland v. State , 42 So.3d 503 (Miss. 2010).

I. Defective Indictment

¶ 6. Walker contends his indictment was defective because it failed to include the elements of injury, detriment, or loss to Pop's Auto Sales, which he claims are essential elements to the crime of false pretense.

¶ 7. By pleading guilty, a defendant waives "all technical and non-jurisdictional defects contained in the indictment ...." Clark v. State , 54 So.3d 304, 308 (¶ 9) (Miss. Ct. App. 2011). Therefore, Walker's claim is waived. Even so, Walker's argument is without merit. "The purpose of the indictment is to provide the accused reasonable notice of the charges against him so that he may prepare an adequate defense." Brawner v. State , 947 So.2d 254, 265 (¶ 31) (Miss. 2006). Walker admits that his indictment tracks the statutory language for false pretense in section 97-19-39(2) :

Every person, who with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by another false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, or valuable thing, with a value of Five Hundred Dollars ($500.00) or more ....

As the State explains, injury, detriment, and loss are not essential elements of the offense but matters of proof. See Martin v. State , 87 So.3d 1145, 1148 (¶ 10) (Miss. Ct. App. 2012) (explaining the State must prove the "property or money obtained under false pretenses must be 'to the detriment or injury of the person from whom the defendant obtains the same' "). In his indictment, Walker was given proper notice of the essential elements of the charge so he could prepare an adequate defense. The indictment was not defective.

II. Guilty Plea

¶ 8. Next, Walker asserts that there was no factual basis for his guilty plea and it was involuntary. Rule 8.04(A)(3) of the Uniform Rules of Circuit and County Court provides that "[b]efore the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea." The burden of proving the invalidity of a guilty plea rests with the defendant and must be proven by a preponderance of the evidence. Williams v. State , 31 So.3d 69, 74 (¶ 13) (Miss. Ct. App. 2010). On-the-record statements of the elements of the charged crime sufficiently inform a defendant of the elements of the crime. Id. at 79 (¶ 28). "A defendant may establish a factual basis for his guilty plea simply by pleading guilty, but his plea 'must contain factual statements constituting a crime or be accompanied by independent evidence of guilt.' " Aucoin v. State , 17 So.3d 142, 146 (¶ 11) (Miss. Ct. App. 2009) (quoting Hannah v. State , 943 So.2d 20, 26-27 (¶ 16) (Miss. 2006) ). A factual basis also can be established by "a statement of the prosecutor, the testimony of live witnesses, and prior proceedings ...." Watkins v. State , 170 So.3d 582, 587 (¶ 16) (Miss. Ct. App. 2014).

¶ 9. Walker contends that the State's factual basis for the crime is deficient. He alleges that he never obtained ownership of the vehicle because he never had title to it; he only "temporarily" possessed it. Further, Walker claims that he did not have adequate time to consult with his attorney about pleading guilty; so his plea was involuntary. Moreover, he claims his attorney "forced him" to plead guilty.

¶ 10. Walker's plea was not involuntary. At the plea hearing, he was thoroughly informed of the nature and consequences of his guilty plea. Under oath, Walker agreed that he could read and write, was not under the influence of drugs or alcohol, read and signed his guilty plea, understood everything in it, agreed that he had the opportunity to fully discuss with his attorney all of the facts and circumstances related to the crime, told his attorney the facts that might be necessary for his defense; and he provided under oath that he was informed of the elements of the crime, what the State would have to prove, the waiver of his right to trial, and the minimum and maximum sentence. Additionally, he agreed he had not been threatened or forced to plead guilty. These statements, made in open court, "carry a strong presumption of veracity." Thomas v. State , 159 So.3d 1212, 1216 (¶ 12) (Miss. Ct. App. 2015).

¶ 11. Further, at the plea hearing, the State explained the factual basis for the charge of false pretense as follows, reading the language of the indictment into the record:

[O]n or about the 7th day of October, 2013, in Rankin County, this defendant willfully, unlawfully, feloniously, and with the intent to cheat Pop's Auto Sales, LLC, obtain a 2005 silver Chrysler 300 bearing the VIN number set forth in the indictment and valued in excess of $500, the property of Pop's Auto Sales, LLC, by presenting a fraudulent check drawn on Wells Fargo Account Number 7116919445 in the amount of $11,035, and thereby falsely representing that he had sufficient funds on deposit with Wells Fargo when ... Walker well knew that said check was fraudulent and the account was closed in violation of Mississippi Code Section 97-19-39 ....

Walker had no objection to this factual basis. Section 97-19-39(b) does not require that Walker "own" the vehicle but merely "obtain" it; therefore, mere possession of the vehicle was sufficient. We cannot say that this factual basis was deficient or Walker's plea was involuntary.

III. Illegal Arrest

¶ 12. Walker claims his arrest was illegal because the Richland Police Department issued the arrest warrant and later arrested him in Lamar County, but the offense occurred in Florence, Mississippi, where Pop's Auto Sales is located. Additionally, Walker claims most of his criminal proceedings improperly occurred in the Richland Municipal Court. Walker reasons that because Pop's Auto Sales is not located in Richland, that municipality's law enforcement and courts lack jurisdiction over him and thus his judgment of conviction is void.

¶ 13. Again, we note that Walker's voluntary "guilty plea operates as a waiver of all nonjurisdictional rights or defects which are incident to trial." Shanks v. State , 233 So.3d 877, 881 (¶ 13) (Miss. Ct. App. 2017) (quoting Anderson v. State , 577 So.2d 390, 391 (Miss. 1991) ). Waiver notwithstanding, there was no error in Walker's arrest and court proceedings occurring in Richland. Both Florence and Richland are in Rankin County, Mississippi, where Walker's arrest warrant was properly issued and his court proceedings occurred. This issue is without merit.

IV. Ineffective Assistance of Counsel

¶ 14. Lastly, Walker contends that his counsel was deficient. To succeed on this claim, the defendant must show that his counsel's performance was deficient, and he was prejudiced by that deficiency. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "In the context of a guilty plea, [the defendant] 'must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty, would have insisted on going to trial, and the outcome would have been different.' " Brown v. State , 187 So.3d 667, 671 (¶ 8) (Miss. Ct. App. 2016) (quoting Hannah , 943 So.2d at 24 (¶ 7) ). The defendant "must show unprofessional errors of substantial gravity." Davis v. State , 5 So.3d 435, 437 (¶ 7) (Miss. Ct. App. 2008). There is a strong rebuttable presumption that counsel's conduct falls "within the wide range of reasonable professional assistance." Kinney v. State , 737 So.2d 1038, 1041 (¶ 8) (Miss. Ct. App. 1999).

¶ 15. Walker alleges his counsel failed to investigate the case, meet and confer with him, and properly advise him, as well as related deficiencies in the issues discussed above. Walker also claims that his counsel was "constructively ineffective" under United States v. Cronic , 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). In that case, the United States Supreme Court "recognized a limited exception to the prejudice requirement when (1) assistance of counsel has been denied completely, (2) 'counsel entirely fails to subject the prosecution's case to meaningful adversarial testing,' or (3) counsel is denied during a critical stage of the proceedings." Branch v. State , 882 So.2d 36, 65 (¶ 85) (Miss. 2004) (quoting Freeman v. Graves , 317 F.3d 898, 900 (8th Cir. 2003) ).

¶ 16. Walker has failed to overcome the presumption that his counsel rendered reasonably effective assistance. At his plea hearing, Walker acknowledged that he was satisfied with his counsel's performance. Further, there is nothing in the record to support Walker's numerous contentions his counsel was deficient. Finally, Walker's claim that Cronic applies, and therefore he does not have to show prejudice, is without merit.

¶ 17. Accordingly, we affirm the trial court's dismissal of Walker's PCR motion.

¶ 18. AFFIRMED.

GRIFFIS, C.J., CARLTON, P.J., WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. McDONALD, LAWRENCE AND McCARTY, JJ., NOT PARTICIPATING.

      His prior felonies primarily related to false pretense, worthless checks, and forgery.

      The supreme court has not held that ineffective-assistance-of-counsel claims are exempt from procedural bars under Rowland , but the court has recently held that under certain "extraordinary circumstances" a trial counsel's failure "to ensure a defendant can adequately appeal his conviction" excepted the PCR motion from the statutory time-bar. Chapman v. State , 167 So.3d 1170, 1173-74 (¶¶ 10, 12-13) (Miss. 2015) ; see also Brown v. State , 187 So.3d 667, 671 (¶ 7) (Miss. Ct. App. 2016) (applying Chapman ).

      The Uniform Rules of Circuit and County Court relating to criminal practice have been supplanted by the Mississippi Rules of Criminal Procedure, effective July 1, 2017; however, the former rules were still in effect at the time of Walker's guilty plea.

      At the sentencing hearing, Walker's counsel explained it was undisputed that a few days after obtaining the vehicle, Walker attempted to return it before Pop's Auto discovered he had written a bad check for it, but the company would not let him.


author: WILSON, J., FOR THE COURT:

text:
    Donald Willie CAREY a/k/a Donald Carey, Appellant v. STATE of Mississippi, Appellee
    NO. 2018-CP-00303-COA
    Court of Appeals of Mississippi.
    January 15, 2019 Rehearing Denied May 21, 2019
    ATTORNEY FOR APPELLANT: DONALD WILLIE CAREY (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BARBARA WAKELAND BYRD, JACKSON
    EN BANC.
   WILSON, J., FOR THE COURT:

¶1. Donald Willie Carey appeals from the circuit court's dismissal of his motion for post-conviction relief. Carey's claims for relief are without merit. Therefore, we affirm.

¶2. In January 2006, Carey was convicted of aggravated assault and armed robbery in Madison County Circuit Court. The court sentenced him to concurrent terms of fifteen years in the custody of the Mississippi Department of Corrections (MDOC). The court suspended nine years of each sentence conditioned on Carey's good conduct and satisfactory completion of a five-year term of post-release supervision (PRS). Following a term of imprisonment, Carey was released, but he failed to complete his term of PRS. On March 25, 2013, Carey pled guilty to the offense of kidnapping, which he committed while on PRS. The same day, the circuit court also revoked Carey's concurrent suspended sentences for aggravated assault and armed robbery and ordered Carey remanded to the custody of the MDOC until he had served the sentences in full.

¶3. On January 23, 2018, Carey filed a motion for post-conviction relief alleging that his suspended sentences had been unlawfully revoked. Carey asserted that there was insufficient evidence to support his revocation for new criminal activity. The circuit court dismissed Carey's motion as time-barred. See Miss. Code Ann. § 99-39-5(2) (Rev. 2015) (providing that, subject to certain exceptions, a motion for post-conviction relief shall be filed within three years of the entry of a guilty plea). Carey filed a timely notice of appeal.

¶4. We affirm. The circuit court properly dismissed Carey's motion because it clearly fails on the merits. See Miss. Code Ann. § 99-39-11(2) (Rev. 2015) (providing that a judge may summarily dismiss a motion for post-conviction relief that "plainly" fails to state a claim). There was sufficient evidence to revoke Carey's suspended sentences because he pled guilty to a new crime, kidnapping, which he committed while on PRS.

¶5. On appeal, Carey advances a new argument: that he was entitled to credit against his concurrent nine-year suspended sentences for the approximately two years and eight months that he served on PRS. That argument is procedurally barred because it is raised for the first time on appeal. Gardner v. State , 531 So.2d 805, 808-09 (Miss. 1988). It is also without merit. As this Court has held, "probation does not equal time served and cannot be credited toward a suspended sentence." Simmons v. State , 913 So.2d 1011, 1012 (¶ 7) (Miss. Ct. App. 2005). Likewise, no credit is allowed against a suspended sentence for time spent on PRS. Schwend v. State , 996 So.2d 174, 175-76 (¶ 7) (Miss. Ct. App. 2008) ; Fluker v. State , 2 So.3d 717, 720 (¶ 12) (Miss. Ct. App. 2008) ; Johnson v. State , 802 So.2d 110, 112-13 (¶¶ 9-10) (Miss. Ct. App. 2001). Therefore, upon revocation of Carey's PRS, the circuit court had authority to order Carey to serve his full suspended sentences for aggravated assault and armed robbery.

¶6. Carey's claims for relief are plainly without merit. Therefore, the circuit court properly dismissed his motion for post-conviction relief.

¶7. AFFIRMED.

GRIFFIS, C.J., BARNES AND CARLTON, P.JJ., GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. McDONALD, LAWRENCE AND McCARTY, JJ., NOT PARTICIPATING.

      The court also sentenced Carey to a consecutive term of fifteen years in MDOC custody on his new conviction for kidnapping. The court suspended all but eighteen months of the new sentence and imposed a new five-year term of PRS commencing upon Carey's release from MDOC custody.

      Carey's claim that his suspended sentence was unlawfully revoked is excepted from the statute of limitations. See Miss. Code Ann. § 99-39-5(2)(b) ; Evans v. State , 188 So.3d 1256, 1259-60 (¶¶ 12-13) (Miss. Ct. App. 2016). "It is a familiar rule that this Court will affirm the lower court where the right result is reached, even though we may disagree with the reason for the result." Stewart v. Walls , 534 So.2d 1033, 1035 (Miss. 1988). We affirm the circuit court's dismissal of Carey's motion for post-conviction relief for the reasons stated in this opinion.

      See Brown v. State , 864 So.2d 1058, 1060 (¶ 9) (Miss. Ct. App. 2004) ("Where the State seeks to revoke one's probation based upon an allegation of criminal activity, it must show proof of an actual conviction, or that a crime has been committed and that it is more likely than not that the probationer committed the offense."). Carey's revocation order found that Carey had committed two new offenses, kidnapping and sexual battery. The record does not disclose the final disposition or underlying facts of the sexual battery charge. However, the issue is immaterial because Carey's conviction for kidnapping clearly provided a sufficient basis for the court to revoke his suspended sentences.