text:
    Timothy Gene PRYER v. Thomas GARDNER, III
    NO. 2017-CP-00723-SCT
    Supreme Court of Mississippi.
    May 17, 2018 Rehearing Denied August 2, 2018
    ATTORNEY FOR APPELLANT: TIMOTHY GENE PRYER (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JUSTIN L. MATHENY, JACKSON
    BEFORE KITCHENS, P.J., BEAM AND CHAMBERLIN, JJ.
   KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. A prisoner, Timothy Gene Pryer, filed an action in chancery court against the Itawamba County Sheriff's Department and the Itawamba County Circuit Clerk. Pryer claimed that the defendants wrongfully had denied him access to public records under the Mississippi Public Records Act, entitling him to civil damages. See Miss. Code Ann. § 25-61-15 (Rev. 2010). More than three years after filing the complaint, Pryer filed a motion for leave to amend it to add a Public Records Act claim against Circuit Judge Thomas Gardner, III. Pryer alleged that, in deeming his public records request a motion for post-conviction relief, and then denying it, Judge Gardner had violated the Public Records Act, entitling Pryer to civil damages. The Chancery Court of Itawamba County granted Judge Gardner's motion to dismiss, and Pryer appeals. Because Pryer's claim against Judge Gardner is barred by the doctrine of judicial immunity, we affirm the dismissal of his amended complaint.

FACTS

¶ 2. This cause of action arises from a request Pryer filed in the Circuit Court of Itawamba County for "the Order givin[g] Carol Gates the Office of Judge de facto or pro tempore and the order givin[g] Carol Gates authority to appoint indigent counsel for December 2, 2004 [hearing] and the names of the 40 plus souls and their addresses according to the record." Pryer v. State , 139 So.3d 713, 713-14 (Miss. 2014). According to Pryer's allegations in a subsequent Motion to Show Cause, the circuit court entered an order on June 6, 2011, that denied his request and construed it as a motion for post-conviction relief.

Id. at 714. In his show cause motion, Pryer alleged that, in the absence of the circuit judge, the Circuit Clerk of Itawamba County, Carol Gates, presided over arraignments and appointed counsel for some or all of the "forty (40) plus souls." Id. Pryer filed a petition for mandamus in this Court, requesting that we compel the circuit court to rule on his Motion to Show Cause. Id. We granted the petition; and, on February 1, 2012, the circuit court entered an order that denied the motion. Pryer v. State , 139 So.3d 719, 720 (Miss. Ct. App. 2013). Although the record now before the Court does not contain that order, the Court of Appeals quoted from it as follows:

This cause comes before this [c]ourt on [Pryer's] pro se [m]otion to [s]how [c]ause. [Pryer] requests this [c]ourt to order the Itawamba County Circuit Clerk to forward [Pryer] a free copy of the documents not contained within the [c]ircuit [c]lerk's file. This motion contains the exact same requests as the previously filed motions. In addition, the [m]otion to [s]how [c]ause contains completely unfounded and slanderous allegations against several court offices. The [m]otion to [s]how [c]ause has no legal merit and shall be DENIED.

Id. at 721.

¶ 3. Pryer appealed from the order of February 1, 2012, and this Court assigned his appeal to the Court of Appeals, which affirmed. Id. at 721. The Court of Appeals found that "we have no reason to believe that any such documents do exist," and deemed Pryer's filings a "fishing expedition." Pryer , 139 So.3d at 721. This Court granted Pryer's petition for certiorari . Pryer , 139 So.3d at 713. On certiorari , Pryer complained that, because he had filed a public records request, the circuit court had lacked jurisdiction to treat the request as a motion for post-conviction relief. Id. at 714. This Court found that Pryer had filed a motion to show cause in circuit court rather than following the statutory procedure set forth by the Public Records Act, which provides for the institution of a suit in chancery court by "any person denied the right granted by Section 25-61-5 to inspect or copy public records." Id. at 715-16 (citing Miss. Code Ann. § 25-61-13(1)(a) (Rev. 2010) ). We held that the circuit court had jurisdiction to rule on Pryer's motion and that nothing in the circuit court's order indicated that it had treated Pryer's motion as one for post-conviction relief. Id. at 716.We found that the Court of Appeals had been incorrect to assume that the circuit court had considered the motion as a motion for post-conviction relief; but we agreed with the Court of Appeals' finding that there was no reason to believe the documents Pryer sought actually existed. Id. Therefore, we affirmed the decision of the Court of Appeals that affirmed the Circuit Court of Itawamba County's denial of the public records request. Id. In our decision, we did recognize that

If Pryer so desires, he may, pursuant to the statute, institute a suit in the Chancery Court of Itawamba County. Nothing in the Court of Appeals decision or in the order of the circuit court prevents his doing so, and this Court's ruling today does not impede Pryer's statutory right to file such an action, should he choose to do so.

Id.

¶ 4. During the pendency of his appellate litigation, on July 3, 2013, Pryer filed the instant action in the Chancery Court of Itawamba County against the Itawamba County Sheriff's Department and the Itawamba County Circuit Clerk. He claimed that these entities were liable for civil penalties for failing to respond to his public records requests made on May 18, 2011;

July 5, 2011; August 2, 2012; and September 13, 2012, asking for copies of capiases served on December 2, 2004. Pryer claimed that, because the defendants had ignored his public records requests on four occasions, he was entitled to damages of $400, plus reasonable expenses, pursuant to Mississippi Code Section 25-61-15, which provides:

Any person who shall deny to any person access to any public record which is not exempt from the provisions of this chapter or who charges an unreasonable fee for providing a public record may be liable civilly in his personal capacity in a sum not to exceed One Hundred Dollars ($100.00) per violation, plus all reasonable expenses incurred by such person bringing the proceeding.

Miss. Code Ann. § 25-61-15 (Supp. 2017).

¶ 5. Despite his efforts at achieving proper service, Pryer never served the defendants with his complaint. On June 23, 2014, he filed a motion to amend his complaint to add Judge Gardner as a defendant. On October 13, 2016, the chancellor entered an order granting the motion to amend, finding that no responsive pleading had been filed and that amendment would not be prejudicial to adverse parties. Pryer filed his amended complaint on November 1, 2016. In the amended complaint, Pryer made the following allegations against Judge Gardner:

Defendant Thomas J. Gardner is Circuit Court Judge in Itawamba County. After receiving the request for Public Records addressed to Defendant Gates, Gardner held the request to be a Post-Conviction Relief Petition, and den[ied] those records to Pryer on June 3, 2011. On June 15, 2011 A.D. Pryer filed a Motion to Show Cause in the Circuit Court asking why he was being denied access to Public Records by the Circuit Court even after offering payment for said records. On December 19, 2011 A.D., Pryer filed a Petition for Writ of Mandamus with the Supreme Court of Mississippi to compel Defendant Gardner to answer Pryer[']s Motion to Show Cause. Defendant Gardner was ordered to respond and on January 20, 2012 denied Pryer Public Records citing "no free documents." Defendant Gardner has denied Pryer access to Public Records twice in violation of MCA § 25-61-5.

He claimed that Judge Gardner's two alleged violations of the Public Records Act entitled him to an additional $200 in damages.

¶ 6. Pryer served Judge Gardner with process. On January 12, 2017, Judge Gardner moved to dismiss Pryer's claim against him under Mississippi Rule of Civil Procedure 12(b)(6) on the basis of judicial immunity or, alternatively, because the statute of limitations had expired. On March 30, 2017, the chancellor granted Judge Gardner's motion to dismiss. The chancellor found that Pryer's complaint was against a judge in his judicial capacity and that judicial immunity shielded Judge Gardner from liability. The chancellor also held that the action against Judge Gardner was time barred because the amended complaint was filed outside the limitations period. Finding no just reason for delay, the chancellor directed the entry of a final judgment in favor of Judge Gardner pursuant to Mississippi Rule of Civil Procedure 54(b). The chancellor denied Pryer's motion for reconsideration. Pryer has appealed.

STANDARD OF REVIEW

¶ 7. On review of the disposition of a motion to dismiss for failure to state a claim, this Court does not defer to the trial court's ruling. Jourdan River Estates, LLC v. Favre , 212 So.3d 800, 803 (Miss. 2015). Rather, the issue presents a question of law, which is reviewed de novo . Id. A motion to dismiss for failure to state a claim tests the legal sufficiency of the complaint. Lagniappe Logistics, Inc. v. Buras , 199 So.3d 675, 677 (Miss. 2016). The Court limits its review to the face of the complaint, accepting all allegations therein as true. City of Meridian v. $104,960.00 U.S. Currency , 231 So.3d 972, 974 (Miss. 2017). A Rule 12(b)(6) motion should not be granted unless "it appears beyond a reasonable doubt that the plaintiff will be unable to prove any set of facts in support of the claim." Id. (citing Rose v. Tullos , 994 So.2d 734, 737 (Miss. 2008) ).

DISCUSSION

THE CHANCELLOR PROPERLY DISMISSED PRYER's AMENDED COMPLAINT AGAINST JUDGE GARDNER BECAUSE IT WAS BARRED BY THE DOCTRINE OF JUDICIAL IMMUNITY.

¶ 8. The doctrine of judicial immunity long has been recognized in Mississippi. Newsome v. Shoemake , 234 So.3d 1215, 1223 (Miss. 2017). "[T]he best interests of the people and public order require that judges be immune from civil liability." Loyacono v. Ellis , 571 So.2d 237, 238 (Miss. 1990). It is the sound public policy of this state that judges are empowered to make decisions in the absence of fear that they will be held liable for their actions. Id. A person who believes a judge has acted contrary to or in excess of his or her authority may, however, file a complaint with the Mississippi Commission on Judicial Performance. Newsome , 234 So.3d at 1225.

¶ 9. In Stump v. Sparkman , 435 U.S. 349, 355-56, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978), the United States Supreme Court held that "judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly." In Loyacono , this Court recognized that, in the prior case of DeWitt v. Thompson , 192 Miss. 615, 7 So.2d 529, 532 (1942), the Court seemingly left for another day the question of whether judicial immunity applies to malicious or corrupt acts. But Loyacono ultimately held that "[t]he doctrine of judicial immunity is fully recognized in Mississippi." Loyacono , 571 So.2d at 238. In Newsome , the Court held that, notwithstanding the plaintiff's allegation that a judge was corrupt in his handling of a conservatorship, the judge was immune from civil liability. Newsome , 234 So.3d at 1225. So judicial immunity in Mississippi extends even to acts of malice or corruption. The reason is that it is "a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, [should] be free to act upon his own convictions, without apprehension of personal consequences to himself." Id. (quoting Stump , 435 U.S. at 355-56, 98 S.Ct. 1099 ). Further:

It is a judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decisionmaking but to intimidation.

Pierson v. Ray , 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).

¶ 10. Judicial immunity does not extend to acts taken in the clear absence of jurisdiction. Weill v. Bailey , 227 So.3d 931, 936 (Miss. 2017). However, judicial acts in excess of jurisdiction are subject to judicial immunity. Newsome , 234 So.3d at 1223. In Newsome , the Court provided the following explanation of this distinction:

In Bradley , the Court illustrated the distinction between lack of jurisdiction and excess of jurisdiction with the following examples: if a probate judge, with jurisdiction over only wills and estates, should try a criminal case, he would be acting in the clear absence of jurisdiction and would not be immune from liability for his action; on the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction and would be immune.

Newsome , 234 So.3d at 1224 (quoting Stump , 435 U.S. at 357 n.7, 98 S.Ct. 1099 (citing Bradley v. Fisher , 80 U.S. 335, 352, 13 Wall. 335, 20 L.Ed. 646 (1871) ). We have said that "[i]n order to determine the existence of judicial immunity one must look to whether at the time [the judge] took the challenged action he had jurisdiction over the subject matter before him." Loyacono , 571 So.2d at 238 (quoting Stump , 435 U.S. at 356, 98 S.Ct. 1099 ).

¶ 11. Pryer contends that Judge Gardner lacked jurisdiction to enter the 2011 and 2012 orders, so judicial immunity does not apply to his actions. The difficulty with Pryer's argument is that this Court explicitly has held that Judge Gardner had jurisdiction to enter the orders. In Pryer's earlier action challenging the denials of his requests for documents, he argued that "the Circuit Court had no jurisdiction to entertain a Public Records request as a Post Conviction Relief petition." Pryer , 139 So.3d at 716. This Court held that, because the 2011 order was not in the record and nothing in the 2012 order showed Judge Gardner had treated Pryer's filings as a post-conviction relief matter, "the record provides no indication that the circuit court treated Pryer's Motion to Show Cause as a petition for post-conviction relief." Id. at 716. Recognizing the fact that the Mississippi Constitution vests jurisdiction in the circuit courts "in all matters civil and criminal in this state not vested by this Constitution in some other court," the Court held that the circuit court had jurisdiction to rule upon Pryer's filings. Id. at 715, 716 (citing Miss. Const. Art. 6 § 156 ). Because it is beyond question that Judge Gardner had jurisdiction to rule on Pryer's filings, judicial immunity insulates him from Pryer's civil action.

¶ 12. Pryer also argues that the provision in Section 21-61-15 that "[a]ny person" may be liable for denying another access to public records abrogates judicial immunity. He argues that, because Section 21-61-15 says "any person," and because a judge is a person, Section 21-61-15 includes a private right of action against a judge. This argument tasks the Court with determining whether Section 21-61-15 abrogates the common law doctrine of judicial immunity. "The function of the Court is not to decide what a statute should provide, but to determine what it does provide." Lawson v. Honeywell Int'l, Inc. , 75 So.3d 1024, 1027 (Miss. 2011). When engaging in this function, the Court seeks to give effect to the intent of the legislature. Id. The Court first examines the language of the statute; if the statutory language is plain and unambiguous, the Court will apply the plain meaning of the statute and refrain from applying principles of statutory construction. Id.

¶ 13. The State points out that the United States Supreme Court rejected an extremely similar argument to Pryer's in Pierson . There, the Supreme Court examined 42 U.S.C. § 1983, which creates a cause of action against "every person" who under color of law deprives another person of his civil rights, to determine whether the statute abrogated judicial immunity. Pierson , 386 U.S. at 554, 87 S.Ct. 1213. The Supreme Court held that the language of the statute itself contained no indication that Congress intended to abolish the hallowed common law principle of judicial immunity to provide a cause of action against a judge for a Section 1983 violation. Id. at 554-55, 87 S.Ct. 1213. Likewise, the language of Section 25-61-15 contains no indication that, by its enactment, the Mississippi Legislature intended to abrogate judicial immunity. Because there is no textual indication whatsoever that the legislature intended to abrogate judicial immunity, we decline to read the "any person" language in Section 25-61-15 as a limitation on judicial immunity. See Burns v. Allen , 202 Miss. 240, 243, 31 So.2d 125, 126 (1947) (if the legislature intended to abrogate a requirement of the common law, "it must be held to have retained so much thereof as is not specifically dispensed with.").

¶ 14. Finally, Pryer argues that this Court, in its opinion affirming the denial of his documents requests, held that he was entitled to seek damages from Judge Gardner in chancery court. This argument is without merit. While in the earlier case we mentioned that Pryer could file a suit seeking the documents under Section 25-61-13(1)(a) in chancery court, the Court in no way condoned, encouraged, or authorized Pryer to file an action against Judge Gardner seeking civil damages under Section 25-61-15. Pryer , 139 So.3d at 716.

¶ 15. Pryer and Judge Gardner both make arguments pertaining to the circuit court's finding, in the alternative, that the amended complaint against Judge Gardner was barred by the statute of limitations. Because we affirm the dismissal of Pryer's amended complaint on the ground of judicial immunity, we decline to address the circuit court's alternative finding that the claim also was time barred.

CONCLUSION

¶ 16. Because Pryer's claim against Judge Gardner is barred by the doctrine of judicial immunity, we affirm the chancery court's dismissal of the amended complaint for failure to state a claim.

¶ 17. AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., KING, COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

      Although the order does not appear in the record, in a prior decision of this Court, we quoted Pryer's allegations concerning the order made in his "Motion to Show Cause," filed on June 20, 2011. Pryer , 139 So.3d at 714.

      On December 11, 2017, the State filed a motion to strike six exhibits attached to Pryer's reply brief and his arguments associated with those exhibits on the ground that the exhibits were not in the record. By order entered on February 2, 2018, the motion was passed for consideration with the merits of the appeal. Mississippi Rule of Appellate Procedure 30(a) provides that "[a]ppeals shall be on the record as designated pursuant to Rule 10." M.R.A.P. 30(a). It is well established that this Court does not consider information outside the record. We grant the State's motion and strike the extra-record exhibits attached to Pryer's reply brief and the portions of Pryer's reply brief that rely on those exhibits.


source: Caselaw Access Project

author: WALLER, CHIEF JUSTICE, FOR THE COURT:

license: Public Domain

text:
    Andre Jermaine THOMAS a/k/a Andre Thomas v. STATE of Mississippi
    NO. 2017-KA-00904-SCT
    Supreme Court of Mississippi.
    July 19, 2018
    ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK, GEORGE T. HOLMES, Jackson
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT, Jackson
    BEFORE WALLER, C.J., COLEMAN AND MAXWELL, JJ.
   WALLER, CHIEF JUSTICE, FOR THE COURT:

¶ 1. A Harrison County jury found Andre Jermaine Thomas guilty of one count of felony shoplifting. Finding Thomas's arguments to be without merit, and finding no other arguable issues in the record, we affirm Thomas's conviction and sentence.

FACTS & PROCEDURAL HISTORY

¶ 2. Andre Jermaine Thomas and Anthony Ledet went to the Sam's Club in Gulfport, Mississippi, at around 8:00 p.m. on February 27, 2015. The store's surveillance video shows that Thomas and Ledet entered the store, walked to the electronics department, loaded two flat-screen television boxes onto a flat cart, and then pushed the cart past the cash registers to the store's exit. Sam's Club employee Chase Ladner was working at the store's exit door on the night in question and was tasked with checking customers' receipts as they left the store. As Thomas and Ledet approached Ladner, Ledet stepped away from the store's exit and feigned a heart attack. Ladner came to Ledet's aid, which allowed Thomas to exit the store without paying for the televisions.

¶ 3. Devin Darby, the store's asset-protection manager, responded to a "code white" call for a health/injury concern at the store's exit door and observed Ledet sitting at a bench between the store's entrance and exit. Moments later, Darby was informed that someone may have taken some televisions from the store. Darby went to the parking lot to investigate and saw a man smoking a cigarette next to a car with two television boxes protruding from its trunk. Darby did not get a good look at the man's face because it was dark outside, but he noticed that the man was wearing a hat and a camouflage jacket. Darby asked the man if he needed help loading the televisions into his car, but company policy prevented him from asking to see the man's receipt for the televisions. After returning to the store, Darby checked the surveillance cameras and discovered that the man he had seen in the parking lot had taken the televisions from the store without paying for them.

¶ 4. Ledet was transported to the hospital but was released on the same night. A few weeks later, Ledet was arrested and charged with felony shoplifting. Ledet admitted that Thomas had helped him steal the televisions, and he identified Thomas from a six-person photographic lineup. An officer with the Gulfport Police Department also identified Thomas from the surveillance footage due to his prior dealings with Thomas. Thomas was arrested and charged with shoplifting. A Harrison County grand jury subsequently indicted Thomas for felony shoplifting in violation of Section 99-23-93(7) of the Mississippi Code.

¶ 5. Two months prior to Thomas's trial, the State moved to amend Thomas's indictment to charge him as a habitual offender under Section 99-19-81 of the Mississippi Code. In support of this motion, the State alleged that Thomas previously had been convicted of burglary, receiving stolen property, and arson, and had received at least a one-year prison sentence for each conviction. Thomas claimed that he was not aware that he had three prior convictions, but admitted that he was eligible for habitual-offender sentencing. Accordingly, the trial court granted the State's motion to amend Thomas's indictment.

¶ 6. At Thomas's trial, the State admitted into evidence surveillance video and photographs from Sam's Club on the night in question and played the video for the jury. Darby testified that the televisions Thomas stole were Samsung 60-inch 3D LED smart televisions, each valued at $2,678. Darby also confirmed that no one had purchased the televisions. The State also called Ledet as a witness. Ledet had pleaded guilty to one count of felony shoplifting prior to Thomas's trial and had received a three-year prison sentence. Ledet testified that he and Thomas had gone to Sam's Club to purchase an iPad Mini tablet, but the store was sold out. Ledet contended that he did not know that Thomas had intended to steal the televisions. He also admitted that he had provided several different stories to the police about why he had gone to the Sam's Club and whether he was with anyone else.

¶ 7. Thomas moved for a directed verdict at the close of the State's case-in-chief, which was denied. Thomas did not testify, nor did he present any other evidence in his defense. At the conclusion of trial, the jury returned a verdict finding Thomas guilty of felony shoplifting. The trial court then held a hearing on Thomas's habitual-offender status. The State presented sentencing orders showing that Thomas previously had been convicted of three felonies in Harrison County Circuit Court. On September 15, 2003, Thomas pleaded guilty to burglary of a dwelling and receiving stolen property. Thomas received a ten-year sentence for burglary and a five-year sentence for receiving stolen property. The State also presented the indictment for these charges, which indicated that the two offenses occurred on different dates. In addition, on February 28, 2011, Thomas pleaded guilty to first-degree arson. Thomas received an eight-year sentence for this conviction. Based on this evidence, Thomas qualified as a habitual offender under Section 99-19-81. Because the value of the property stolen was at least $5,000 but less than $25,000, Thomas was sentenced under Section 97-17-41(2) to serve ten years in the custody of the Mississippi Department of Corrections (MDOC) without the possibility of parole.

¶ 8. Following the denial of his post-trial motions, Thomas filed a notice of appeal with this Court.

DISCUSSION

¶ 9. Thomas's appellate counsel has filed a Lindsey brief, asserting that he has scoured the record and has been unable to identify any issues warranting appellate review. Thomas has filed a pro se supplemental brief challenging his sentence. In Lindsey v. State , 939 So.2d 743, 748 (Miss. 2005), this Court established a procedure "to govern cases where appellate counsel represents an indigent criminal defendant and does not believe his or her client's case presents any arguable issues on appeal[.]" In such a case, the defendant's attorney must certify in his or her brief that:

there are no arguable issues supporting the client's appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding the arrest; (b) any possible violations of the client's right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.

Id. The attorney must send a copy of this brief to the defendant, inform the defendant that no appealable issues have been identified, and notify the defendant of the right to file a pro se brief. Id. After receiving a Lindsey brief, this Court will review the record and any pro se brief filed by the defendant to determine whether any arguable issue exists. Id. If arguable issues are identified by this Court, the defendant's appellate counsel will be required to submit supplemental briefing on those issues. Id.

¶ 10. We submit that Thomas's appellate counsel's brief meets the requirements of Lindsey . The State agrees with Thomas's counsel that no arguable issues exist and asks this Court to affirm Thomas's conviction and sentence. Thomas has filed a pro se brief raising two issues, both of which are related to his sentence. First, Thomas argues that the trial court erred in its application of the grand-larceny sentencing statute. Second, Thomas asserts that the trial court erred in sentencing him as a habitual offender. We addresses each of these arguments separately below.

I. Whether the trial court misapplied Section 97-17-41 in sentencing Thomas.

¶ 11. The crime of shoplifting is considered a felony if the merchant's stated price for the merchandise in question exceeds $1,000. Miss. Code Ann. § 97-23-93(7) (Rev. 2014). Section 97-23-93 provides that a person convicted of felony shoplifting shall be sentenced "as provided in Section 97-17-41 for the offense of grand larceny." Id. Section 97-17-41 contains several graduated sentencing options based on the value of the property in question. In this case, the trial court sentenced Thomas under Section 97-17-41(2), which provides:

Any person who shall be convicted of taking and carrying away, feloniously, the personal property of another, of the value of Five Thousand Dollars ($5,000.00) or more, but less than Twenty-five Thousand Dollars ($25,000.00), shall be guilty of grand larceny, and shall be imprisoned in the Penitentiary for a term not exceeding ten (10) years; or shall be fined not more than Ten Thousand Dollars ($10,000.00), or both. The total value of property taken and carried away by the person from a single victim shall be aggregated in determining the gravity of the offense.

Miss. Code Ann. § 97-17-41(2) (Rev. 2014). Thomas was sentenced under this provision based on Darby's testimony that the televisions had a combined value of $5,356.

¶ 12. On appeal, Thomas claims that the trial court erred in its application of the grand-larceny sentencing statute. Thomas contends that the value of the property in question must be at least $5,500, rather than $5,000, for a person to be sentenced under Section 97-17-41(2). In support of this position, Thomas alleges that the Mississippi Legislature passed a law in 2017 that requires a $500 "sale tax" to be added to the values in the shoplifting and grand-larceny statutes. Thus, Thomas claims that he cannot be sentenced to ten years' imprisonment because the items he stole did not meet this $5,500 threshold.

¶ 13. We find Thomas's argument to be without merit. "[S]entencing is at the discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute." Nichols v. State , 826 So.2d 1288, 1291 (Miss. 2002). Section 97-17-41(2) clearly provides for a maximum sentence of ten years' imprisonment for larceny of property valued at $5,000 or more, but less than $25,000. Miss. Code Ann. § 97-17-41(2) (Rev. 2014). Sections 97-17-41 and 97-23-93 were last amended in 2014, and no other statute affects the values contained in Section 97-17-41. Thomas's claim that such a law exists is insufficient to vacate his sentence. See Simmons v. State , 805 So. 2d 452, 487 (Miss. 2001) ("Failure to cite relevant authority obviates the appellate court's obligation to review such issues."). Because the State presented evidence that the televisions Thomas stole were valued at $5,356, the trial court did not err in sentencing Thomas to ten years' imprisonment under Section 97-17-41(2).

II. Whether the trial court erred in sentencing Thomas as a habitual offender.

¶ 14. Section 99-19-81 requires the trial court to sentence a defendant to the maximum prescribed term of imprisonment, without eligibility for parole or probation, under the following circumstance:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Miss. Code Ann. § 99-19-81 (Rev. 2015). Here, the trial court found that Thomas previously had been convicted of three separate felonies - burglary, receiving stolen property, and arson - and had been sentenced to a term of at least one year in the custody of MDOC for each prior offense. Accordingly, Thomas was sentenced to ten years' imprisonment, the maximum term allowed by Section 97-17-41(2), without the possibility of parole.

¶ 15. On appeal, Thomas asserts that the trial court erred in sentencing him as a habitual offender because he has served time in prison only once. This argument is without merit, because a defendant is not required to have actually served time in prison for Section 99-19-81 to apply. Rather, the relevant inquiry is whether the defendant was sentenced to a term of imprisonment of one year or more for two prior felony convictions. See Miss. Code Ann. § 99-19-81 (Rev. 2015). Here, the State presented evidence that Thomas previously had been convicted of (1) burglary of a dwelling, for which he received a ten-year sentence, (2) receiving stolen property, for which he received a five-year sentence, and (3) arson, for which he received an eight-year sentence. While the burglary charge and receiving-stolen-property charge were brought in the same indictment, the underlying offenses occurred on separate dates and involved separate victims. Accordingly, these two charges were "separately brought and arising out of separate incidents" under Section 99-19-81. See Kolb v. State , 568 So.2d 288, 289 (Miss. 1990) ("[T]he mere form of presenting two charges as separate counts of a single information (or indictment) in no way merges those charges except for the limited purpose of judicial economy."). But even if these charges could not be considered separately from each other, they certainly are separate from Thomas's arson conviction, which was imposed in 2011. Whether Thomas actually served time in prison for these prior offenses is irrelevant. See Jackson v. State , 381 So.2d 1040, 1042 (Miss. 1980) ("[W]e think the statutory intention [of Section 99-19-81 ] is satisfied where ... the accused has been twice previously adjudged guilty of distinct felonies upon which sentences of one year or more have been pronounced, irrespective of subsequent probation or suspension of the sentences."). Based on the evidence presented by the State, we find that the trial court did not err in finding that Thomas was a habitual offender under Section 99-19-81.

III. Whether the record contains any other arguable issue warranting appellate review.

¶ 16. As part of the Lindsey procedure, this Court must determine, based on a review of the record and any pro se brief filed, whether any arguable issue exists. Lindsey , 939 So.2d at 748. After a thorough review of the record, including the indictment, all pretrial and post-trial motions, the trial transcript, and the trial exhibits, we find that no arguable issues exist warranting appellate review.

CONCLUSION

¶ 17. For the foregoing reasons, we affirm Thomas's conviction and sentence.

¶ 18. AFFIRMED.

RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

      Thomas was being held in police custody in Hancock County on unrelated charges and was transferred to the Gulfport Police Department.

      "Any merchant or his agent or employee may testify at trial as to the stated price or ownership of merchandise." Miss. Code Ann. § 97-23-93(4) (Rev. 2014).

      Lindsey v. State , 939 So.2d 743 (Miss. 2005).

      In contrast, Section 99-19-83 requires that the defendant had been sentenced to and had served terms of one year or more for two prior felony convictions, one of which must have been for a crime of violence. See Miss. Code Ann. § 99-19-83 (Rev. 2015).


text:
    Henry Earl HARVEY a/k/a Henry E. Harvey a/k/a Henry Harvey v. STATE of Mississippi
    NO. 2017-KA-01030-SCT
    Supreme Court of Mississippi.
    July 19, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, JACKSON
    BEFORE RANDOLPH, P.J., COLEMAN AND CHAMBERLIN, JJ.
   RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. After a jury trial, Henry Earl Harvey was convicted of first-degree murder in violation of Mississippi Code Section 97-3-19(1)(a). He was sentenced to a term of life in prison. Harvey's counsel filed a brief pursuant to this Court's holding in Lindsey v. State , 939 So.2d 743 (Miss. 2005). Harvey was given additional time to file a pro se brief; however, he did not do so. Finding no error, we affirm the judgment and sentence of the Circuit Court of the First Judicial District of Harrison County.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶ 2. On the night of January 26, 2015, Jasmine Brown, Eddie Briggs, and Shondra Gardner were living at the Emerald Pines Apartments. After running errands, Jasmine and Shondra returned to their apartment. Some time that evening, Harvey arrived at the apartment and all three began drinking, smoking spice, and using cocaine. Dexter Washington arrived at some point after Harvey, but Jasmine did not recall him smoking spice. Shondra mentioned to everyone that Eddie "jump[ed] on" Jasmine and that Jasmine deserved better. Harvey responded that if he "offed" Eddie, he did not want anyone to say anything about it. Jasmine told Harvey that Eddie was the father of her children and she did not want anything to happen to him.

¶ 3. Jasmine testified that she did not recall seeing Harvey or Dexter when Eddie arrived at the apartment. Jasmine testified that she recalled Shondra and Eddie talking privately in his room for approximately thirty minutes to an hour. Eddie then asked Jasmine to come in the room, and he "closed the door behind him and I turn[ed] around towards him, and he punched me in the head." Jasmine asked why he hit her, and Eddie told her that Shondra had just told him Jasmine was trying to sleep with Harvey and Dexter. Shondra and Harvey both attempted to check on Jasmine and Eddie, but Eddie told them to "stay out [of] our business."

¶ 4. A fight broke out between Eddie and Harvey, although Eddie continued to tell Harvey that he did not want to fight him. Jasmine testified that as she was leaving the apartment, she saw a gun on a table. She grabbed the gun and hid it outside the apartment. She ran to another apartment to get help, but no one answered. Jasmine then heard the alarm on Eddie's mother's truck sound. Then she heard two gunshots. As Jasmine walked back to her apartment, she saw Eddie lying on the ground. She testified that he had been shot through his eye. Jasmine identified Harvey from a photo lineup as the man fighting with Eddie before he was shot.

¶ 5. Dexter testified that, on the night Eddie was killed, he went to the Emerald Pines Apartment complex to hang out with Jasmine, Shondra, and Harvey. Dexter was smoking spice while the other three were drinking and doing cocaine. Dexter testified that Jasmine mentioned that Eddie continuously had abused her:

Jasmine, she was saying that whenever Eddie get there, he going to want to beat her up because that's all he do is beat her up. So they went to talking about it, you know, they-something need to be done about it. And she said she was tired of him beating her up. And saying that [Harvey] her cousin, he needed to help her out. So he [Harvey] was saying, you know, he going to do something about that. He'll put an end to that.

¶ 6. Later that night, Dexter and Harvey left the apartment so that Harvey could buy more cocaine. They returned to the apartment and continued to drink and use drugs. Dexter testified that when Eddie arrived, Eddie and Jasmine went to their bedroom and then Shondra and Harvey went to Shondra's bedroom. Dexter had a gun that he laid on a table while he made himself a sandwich. Jasmine came out of her room, and Dexter saw "a hand come around and slap her and put her in a headlock and drag her to the room." Jasmine started screaming and Dexter saw Harvey kick the door in. Dexter heard Harvey tell Eddie to "get off my cousin." Harvey and Eddie started fighting. Dexter testified that he heard Eddie tell Harvey that he did not want to fight Harvey and that Harvey needed to "chill out." Dexter tried to break up the fight, but the two men continued to wrestle. At the same time, Jasmine and Shondra started fighting. Dexter finally broke up the fight the second time and told Eddie to go home. Eddie picked up his keys and left.

¶ 7. After breaking up the women's fight, Dexter heard a gunshot. He and Shondra were in the apartment at that moment, and he did not see his gun on the table. He looked out the window and saw Eddie lying on the ground. He then saw Harvey walking toward Eddie. Dexter testified that he saw "[Harvey] step over Eddie, bend over, and I heard another gunshot." Scared that Harvey might shoot him, Dexter ran back upstairs as Harvey came back to the apartment. Dexter saw that Harvey had a gun with him. Dexter testified that:

I ask him, I say did you do this? Did you shoot him? Did you kill him? What did you do? He just told me to shhh, like that.... Just stood there. I ain't do nothing. He left, he went back down out the apartment. He said he would be back. So he went back out the apartment, I just follow him to kind of creep behind him or whatever. So I get to the door, I peak again see where he at, that's when I see him dragging, pulling the leg. Dragging the body.

Dexter then ran home. He later identified Harvey in a photo lineup.

¶ 8. Gulfport police officer Randall Voellmann testified that when he arrived on the scene, he observed Jasmine holding the victim. Voellmann testified that Jasmine stated:

Henry Harvey and Dexter Washington were hanging out with her and Shondra Gardner when Eddie Briggs came home. Shondra Gardner told Eddie Ms. Brown had been having sexual intercourse with the other two males. This started a physical fight between Eddie and Ms. Brown. Upon seeing this fight, she said [Harvey] started fighting with Mr. Briggs, Eddie Briggs, which spilled outside. And she stated twice that he was running for his life and they shot at him.

¶ 9. Gulport police officer Wesley Majure testified that, when he arrived on the scene, he observed a black male wearing a black hoodie, white t-shirt, and black pants, walking through the apartment's courtyard. When Majure called to the man, the man ran into a field next to the complex. During this time, Majure's body camera and microphone were activated, as was the video of a nearby patrol car. Majure requested that a K-9 unit be dispatched to the scene. Once the K-9 unit arrived, Majure accompanied the officer and dog through the field. The dog was released and then apprehended the subject. Majure testified that the subject was the same individual he previously had seen at the complex, wearing the same clothes. The individual identified himself as Henry Harvey. Majure returned to the woods and located a firearm approximately ten feet from where he had found Harvey.

¶ 10. Lori Beall, a forensic scientist with the Mississippi Forensics Laboratory and expert in the field of firearm and projectile analysis, testified that the .40 caliber projectiles and shell casings found at the scene and the projectile recovered from the victim were fired from the .40 caliber Smith & Wesson semiautomatic pistol also found at the crime scene.

¶ 11. Detective Alvin Kingston testified that the Emerald Pines Apartment Complex had a surveillance camera. Kingston reviewed the video, which depicted Harvey dragging Eddie's body. Kingston took a DNA swab from Harvey, and the parties stipulated to the fact that DNA found on the pistol grip belonged to Harvey.

¶ 12. Mark LeVaughn, M.D., the chief medical examiner for the State of Mississippi, testified that Eddie had a close-range (within one to two feet) gunshot wound to his left eye and a gunshot wound to the back of his left shoulder. LeVaughn testified that the gunshot wound to Eddie's shoulder would have been fatal, as it perforated both lungs and his aorta. Eddie's cause of death was multiple gunshot wounds.

¶ 13. The State rested, and Harvey moved for a directed verdict, which was overruled by the trial court.

¶ 14. Shondra testified on Harvey's behalf. She said that, during the day, prior to the shooting, she had seen Harvey with a gun. She acknowledged that Eddie and Jasmine fought constantly. Shondra testified that when Harvey and Eddie began fighting, Harvey pulled out a gun, but Dexter took it from him and ran downstairs. She testified that Eddie ran out of the apartment, with Harvey and Dexter following him. Shondra heard gunshots after Harvey ran out. She testified that Dexter was the last person she saw with the gun. She acknowledged that she did not see who shot Eddie.

¶ 15. On cross-examination, Shondra acknowledged that she had been drinking and using cocaine the entire day of the shooting. After her testimony, the defense rested.

¶ 16. Alvin Kingston was called as a rebuttal witness. He testified that he had questioned Shondra on two occasions. Kingston testified that Shondra never had told him that she had seen Dexter with a gun inside her apartment or that Dexter had grabbed the gun from Harvey and had run outside.

¶ 17. The jury found Harvey guilty of first-degree murder. Harvey was sentenced to a term of life in prison. Harvey filed a Motion for New Trial and for Acquittal Notwithstanding the Verdict, which was denied.

ANALYSIS

¶ 18. In Lindsey , this Court outlined a procedure that appellate counsel must follow when they determine that there are no appealable issues in the record. Lindsey , 939 So.2d at 748. This Court stated as follows:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(1)-(4),(7); see also Smith v. Robbins , 528 U.S. 259, 280-81, 120 S.Ct. 746, 145 L.Ed. 2d 756 (2000) (stating that "[c]ounsel's summary of the case's procedural and factual history, with citations of the record, both ensures that a trained legal eye has searched the record for arguable issues and assists the reviewing court in its own evaluation of the case.").
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client's appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of the client's right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing. See Robbins , 528 U.S. at 280-81, 120 S.Ct. 746 ; Turner v. State , 818 So.2d 1186, 1189 (Miss. 2001).
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief. Turner , 818 So.2d at 1189 ; cf. People v. Wende , 25 Cal. 3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071, 1074 (Cal. 1979).
(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant's success on appeal. Robbins , 528 U.S. at 280, 120 S.Ct. 746 (citing Wende , 158 Cal.Rptr. 839, 600 P.2d at 1074 ).
(5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Lindsey , 939 So.2d at 748.

¶ 19. We find that Harvey's attorney complied with all the requirements of Lindsey . Counsel filed a brief stating he "diligently searched the procedural and factual history of this criminal action and scoured the record," finding no arguable issues for appeal. Counsel specifically asserted he considered and reviewed: (a) the reason for the arrest and the circumstances surrounding the arrest; (b) any possible violation of Harvey's right to counsel; (c) the entire trial transcript; (d) the rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions including the right to an instruction on Harvey's theory of the case; (g) all exhibits, whether admitted into evidence or not; (h) possible misapplication of the law in sentencing; (i) the indictment and all pleadings in the record; (j) any possible ineffective-assistance-of-counsel issues; (k) any speedy-trial issues; (l) any Fourteenth-Amendment due-process issues; (m) evidence of other bad acts; (n) hearsay testimony, including expert testimony using another's report and autopsy notes; (o) use of depositions at trial; and (p) any other possible reviewable issues. Counsel also stated, and this Court confirmed, that he had mailed a copy of his brief to Harvey, notifying him that he had found no arguable issues and that Harvey had a right to file a pro se brief. Harvey did not file a pro se brief.

¶ 20. After a complete review of the record, we find sufficient evidence supports the jury's verdict and Harvey's conviction. The State was required to prove that Harvey killed Eddie "without the authority of law ... with deliberate design. ..." Miss. Code Ann. § 97-3-19 (Rev. 2014). The record contains more than sufficient proof to establish that Harvey shot and killed Eddie Briggs within the meaning of the statute.

CONCLUSION

¶ 21. We find that Harvey's counsel complied with this Court's holding in Lindsey in submitting his brief, and the State proved the requisite elements of first-degree murder as defined in Mississippi Code Section 97-3-19(1)(a). Therefore, we affirm the judgment and sentence of the First Judicial District of the Harrison County Circuit Court.

¶ 22. AFFIRMED.

WALLER, C.J., KITCHENS, P.J., KING, COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

      The indictment subsequently was amended to reflect Harvey's habitual status.

      Spice is a mix of herbs (shredded plant material) and manmade chemicals with mind-altering effects. It is often called "synthetic marijuana" or "fake weed" because some of the chemicals in it are similar to ones in marijuana; but its effects are sometimes very different from marijuana, and frequently much stronger. See https://teens.drugabuse.gov/drug-facts/spice (last visited July 19, 2018).

      "Offed" is a slang word meaning to kill.

      Dexter acknowledged that, at the time of trial, he was incarcerated after being convicted of armed robbery and sale of a controlled substance.


text:
    Nitin MALIK v. STATE of Mississippi
    2016-CT-01495-COA
    Supreme Court of Mississippi.
    Filed: April 20, 2018 Closed: July 26, 2018
    Certiorari - Denied.


text:
    Allen CRONIER v. ALR PARTNERS L.P.
    2016-CT-00521-COA
    Supreme Court of Mississippi.
    Filed: April 24, 2018 Closed: July 19, 2018
    Certiorari - Denied.


text:
    Henry GIBBS, Jr. v. STATE of Mississippi
    2017-CT-00007-COA
    Supreme Court of Mississippi.
    Filed: May 8, 2018 Closed: July 19, 2018
    Certiorari - Denied.


text:
    Christopher CARBIN v. STATE of Mississippi
    2016-CT-01646-COA
    Supreme Court of Mississippi.
    Filed: April 23, 2018 Closed: July 19, 2018
    Certiorari - Denied.


text:
    Gregory Tyler MOORE v. STATE of Mississippi
    2016-CT-01 032-COA
    Supreme Court of Mississippi.
    Filed: April 23, 2018 Closed: July 19, 2018
    Certiorari - Denied.


text:
    Sylvia F. MINOR v. UNITED SERVICES AUTOMOBILE ASSOCIATION
    2014-CT-00372-COA
    Supreme Court of Mississippi.
    Filed: April 3, 2018 Closed: July 26, 2018
    Certiorari - Denied.


text:
    Richard Harrison MASON v. MISSISSIPPI DEPARTMENT OF CORRECTIONS
    2017-CT-00179-COA
    Supreme Court of Mississippi.
    Filed: May 2, 2018 Closed: July 19, 2018
    Certiorari - Denied.


text:
    Michael ISHEE v. STATE of Mississippi
    2016-CT-01033-COA
    Supreme Court of Mississippi.
    Filed: May 1, 2018 Closed: July 19, 2018
    Certiorari - Denied.


text:
    Eric Denorris KENNEDY v. STATE of Mississippi
    2016-CT-00755-SCT
    Supreme Court of Mississippi.
    Filed: May 21, 2018 Closed: July 26, 2018
    Certiorari - Granted.