author: GREENLEE, J., FOR THE COURT:

text:
    Jerome VAN Jr. a/k/a Jerome Van, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00931-COA
    Court of Appeals of Mississippi.
    October 23, 2018
    ATTORNEY FOR APPELLANT: JEROME VAN JR. (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER, Jackson
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. The Madison County Circuit Court dismissed Jerome Van's third motion for post-conviction relief (PCR). Van appeals. He asserts that: (1) he received ineffective assistance of counsel; and (2) his fundamental right to be free from an unlawful sentence was violated. We affirm the circuit court's order and find the PCR motion was properly dismissed.

FACTS AND PROCEDURAL HISTORY

¶ 2. A grand jury indicted Van for armed carjacking, armed robbery, kidnapping, felony evasion, possession of a stolen firearm, and conspiracy to commit armed robbery. Van avoided jury trial and pled guilty to armed carjacking, armed robbery, and kidnapping. The Madison County Circuit Court sentenced him to concurrent terms of thirty years for armed carjacking, fifty years with twenty suspended for armed robbery, and thirty years for kidnapping in the custody of the Mississippi Department of Corrections. The judgment of conviction was entered in August 2012.

¶ 3. Van began his successive PCR motions shortly after. He filed his first in October 2013. The circuit court denied it. He filed his second in September 2015. Again, the circuit court denied it. This is his third, which he filed in April 2017. The circuit court dismissed this PCR as well. In his appeal, Van claims that procedural bars do not apply because: (1) he received ineffective assistance of counsel; and (2) his fundamental right to be free from an unlawful sentence has been violated. We affirm the circuit court's dismissal of Van's PCR.

STANDARD OF REVIEW

¶ 4. We reverse PCR dismissals only if we find the decision "clearly erroneous." Duncan v. State , 226 So.3d 127, 129 (¶ 7) (Miss. Ct. App. 2017), cert. dismissed , 246 So.3d 68 (Miss. 2018). But when the appellant raises issues of law, we review those issues de novo. Stokes v. State , 199 So.3d 745, 748 (¶ 7) (Miss. Ct. App. 2016), reh'g denied (Sept. 13, 2016). The Mississippi Code states that "[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the petitioner to be notified." Miss. Code Ann. § 99-39-11(2) (Rev. 2015). "This Court will affirm the summary dismissal of a PCR motion if the movant fails to demonstrate a claim procedurally alive substantially showing the denial of a state or federal right." Stokes , 199 So.3d at 748 (¶ 7) (quoting Dickens v. State , 119 So.3d 1141, 1143-44 (¶ 6) (Miss. Ct. App. 2013) ).

DISCUSSION

¶ 5. Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA)-codified in title 99, chapter 39 of our State code-a PCR motion is timely only if filed within three years after entry of the judgment of conviction. Smith v. State , 118 So.3d 180, 182 (¶ 7) (Miss. Ct. App. 2013) (citing Watts v. State , 97 So.3d 722, 725 (¶ 7) (Miss. Ct. App. 2012) ). The entry of the judgment of conviction was filed in August 2012. Nearly five years later, Van filed this third PCR motion in April 2017. Therefore, this PCR motion is time barred.

¶ 6. Additionally, the UPCCRA bars successive PCR motions after a court denied or dismissed a PCR motion. Duncan , 226 So.3d at 129 (¶ 9). Van filed PCR motions twice before, each of which was denied. Therefore, this PCR motion is successive-writ barred.

¶ 7. But Van's PCR motion contains both an ineffective-assistance-of-counsel claim and a fundamental-right claim, each of which can overcome procedural bars. Therefore, we address both of those claims below.

I. Can Van's ineffective-assistance-of-counsel claim overcome procedural bars?

¶ 8. Van asserts that because his attorney did not object to a fatally defective indictment or advise him that the victim's name is an essential element for an indictment, he received ineffective assistance of counsel.

¶ 9. "The Mississippi Supreme Court has consistently held that the UPCCRA's procedural bars apply to [PCR] claims based on ineffective assistance of counsel." Stokes , 199 So.3d at 749 (¶ 12). And although our supreme court has also determined that due-process violations are excepted from PCR procedural bars, Chapman v. State , 167 So.3d 1170, 1174 (¶ 13) (Miss. 2015), the record indicates that Van's ineffective-assistance-of-counsel claim does not meet that exception: specifically, in his "Petition to Enter Guilty Plea," Van indicates satisfaction with his attorney and notes that he fully discussed the charges with her. We place great weight on this. Baldwin v. State , 923 So.2d 218, 222 (¶ 11) (Miss. Ct. App. 2005).

¶ 10. Furthermore, during the plea hearing, Van indicated that he was satisfied with his attorney and did not wish to make any complaints against her. He acknowledged his participation in the armed carjacking, armed robbery, and kidnapping. "Where a defendant does not question his guilt, nor does he suggest any impairment to any defense which might have been available to him, this Court has declined to hold that such defendant received ineffective assistance of counsel." Id. at (¶ 13) (quoting Sutton v. State , 873 So.2d 120, 124 (¶ 19) (Miss. Ct. App. 2004) ). This claim is without merit.

II. Can Van's fundamental-right claim overcome procedural bars?

¶ 11. Van claims that procedural bars should not apply because his fundamental right to be free from an unlawful sentence has been violated. Van is correct in his assertion that fundamental-right violations overcome procedural bars. Carter v. State , 203 So.3d 730, 731 (¶ 7) (Miss. Ct. App. 2016). He is also correct that freedom from an unlawful sentence is a fundamental right. Id. But a mere assertion of a fundamental-right violation does not by itself overcome procedural bars. Duncan , 226 So.3d at 129 (¶ 10). Instead, "there must at least appear to be some basis for the truth of the claim before the procedural bar will be waived." Id. (quoting Fluker v. State , 170 So.3d 471, 475 (¶ 11) (Miss. 2015) ). Van merely asserts the violation without making a sufficient showing to implicate the fundamental-right exception. Finally, the Circuit Court properly sentenced him under Mississippi Code Annotated sections 97-3-117 (Rev. 2014), 97-3-79 (Rev. 2014), and 97-3-53 (Rev. 2014). This argument, too, is without merit.

CONCLUSION

¶ 12. Neither Van's ineffective-assistance-of-counsel argument nor his fundamental-right argument in his PCR motion overcome the procedural bars imposed under the UPCCRA. His PCR motion is time barred and successive-writ barred. We affirm the circuit court's dismissal of this PCR motion.

¶ 13. AFFIRMED.

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


source: Caselaw Access Project

author: WILSON, J., FOR THE COURT:

license: Public Domain

text:
    Brooke Nejam HOFFMAN, Appellant v. Michael Joseph HOFFMAN, Appellee
    NO. 2017-CA-00469-COA CONSOLIDATED WITH NO. 2015-CA-00329-COA
    Court of Appeals of Mississippi.
    October 23, 2018 Rehearing Denied December 11, 2018
    ATTORNEYS FOR APPELLANT: PAMELA L. HANCOCK, JEFFREY BRYAN MCGUIRE, Jackson
    ATTORNEYS FOR APPELLEE: J. PEYTON RANDOLPH II, Ridgeland, RICK D. PATT, Jackson
    BEFORE GRIFFIS, P.J., WILSON AND TINDELL, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. Brooke Nejam Hoffman sought a divorce from her husband Michael (Mike) Hoffman, alleging as grounds habitual cruel and inhuman treatment and constructive desertion. The chancery court found that Brooke failed to prove that she was entitled to a divorce on either ground and dismissed her complaint. The court also awarded Mike attorney's fees based on both Brooke's contempt and Mike's inability to pay. Brooke challenges both rulings on appeal. For the reasons discussed below, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Brooke and Mike were married in January 2005. Their marriage has produced three children, born in 2005, 2011, and 2013. In October 2012, while pregnant with the couple's third child, Brooke moved out of the marital home. Brooke filed a complaint for divorce in January 2013, about two weeks before the child was born. She later filed an amended complaint that alleged both habitual cruel and inhuman treatment and constructive desertion. Mike answered and denied that Brooke was entitled to a divorce. The case eventually proceeded to trial in July 2014. The parties agreed to bifurcate the case and first try the grounds for divorce. The issues of child custody, support, and division of the marital estate were reserved pending the court's ruling on Brooke's entitlement to a divorce.

¶ 3. Brooke testified that she and Mike were in counseling "[p]retty much" from the start of their marriage until they separated. Brooke's mother agreed that the marriage was "troubled" from the start. She testified that she and her husband (Brooke's father) "kind of talked [Brooke and Mike] into getting married because ... [Brooke was] pregnant." Brooke testified that she and Mike "both went to counseling," they would "follow and stick through it for a few weeks" at a time, and there was "some" intimacy in their marriage. But then they would argue, and "things would get back like they were."

¶ 4. Brooke alleged that during an argument in 2011, Mike "stabbed [her] back with a pencil while [she was] holding [their six-month old son] and pulled [her] hair and threw [her] down some steps." She filed a police report, but she testified that she later decided not to press charges. Brooke testified that photographs, taken by her mother, documented her alleged injuries. However, the police officer who took Brooke's report noted in the report that he "did not see any signs of physical abuse on [Brooke]."

¶ 5. The police were also called to the Hoffmans' home during an argument on the night that Brooke left the marital home in October 2012. Brooke testified that the incident initially resulted in charges against her, but the charges were later dropped.

¶ 6. Brooke testified that the incident with the pencil was the only "violent episode"

during the marriage. However, Brooke and her mother claimed that Mike was verbally abusive. Brooke also alleged that Mike falsely accused her of using drugs during the marriage.

¶ 7. Brooke alleged that after she moved out of the marital home, Mike destroyed, threw out, or gave away many of her personal belongings. She also accused Mike of vandalizing her new home with pink paint, although she had no direct proof that he was involved.

¶ 8. Brooke admitted that she had an affair in 2010. She told Mike about that affair, and they decided to stay together. Brooke also admitted that in 2012 she became romantically involved with a married man, Chad. Brooke claimed that her relationship with Chad did not become intimate until after she and Mike separated. However, a letter that Brooke wrote to Chad indicated that the affair began in September 2012. Brooke's letter also indicated that, although they both were still married, Chad had asked Brooke to marry him. At the time of trial, Brooke was still having an affair with Chad, who was also still married. Chad was called as a witness at trial and admitted to the affair.

¶ 9. Mike worked as a realtor and owned rental properties throughout the marriage. At some point, Mike also began working for an interior designer, Matt, who is related to Brooke and a godfather to one of the Hoffmans' children. Mike does not have any expertise in interior design but provided manual labor for Matt's business on an as-needed basis.

¶ 10. Brooke testified that Matt is gay. Brooke complained that Mike and Matt spent a lot of time together and went on business trips for "days at a time." She claimed that Mike would not answer his phone while he was out of town, and she did not believe that all of the trips were work-related. Brooke testified, "[I]t ... was an ongoing problem in our marriage, and it caused [Mike] to be ... emotionally and physically absent from the marriage, and it is not possible to have a marriage with three people involved in it." As the chancellor recognized, Brooke clearly implied that Mike was having an affair with Matt. However, Brooke was unwilling to make that accusation expressly, nor did she allege adultery as a ground for divorce.

¶ 11. Mike denied that there was any improper relationship between him and Matt. Mike testified that Matt was Brooke's relative, a friend, and a godfather to one of his children, but otherwise their relationship was "strictly business." Mike testified that he began working for Matt only because the real estate market went down, and he "was just doing everything [he could] to make ends meet to pay for Brooke and [his] young family." Mike stopped working for Matt after he and Brooke separated.

¶ 12. Matt's business partner also testified at trial. She testified that she worked and traveled with Mike and Matt on many occasions and never saw anything that suggested an inappropriate relationship. She testified that they all traveled together to provide design services for large parties, weddings, or commercial buildings.

¶ 13. Mike also testified about the night in October 2012 when Brooke left the marital home. Mike testified that he walked into their bedroom around 1:30 a.m. and heard Brooke talking on the phone in a "giddy and flirtatious" manner. According to Mike, when he asked Brooke who she was talking to, Brooke began screaming at him and threatened to call the police. Brooke did call the police, and when the police arrived, they apparently considered arresting Brooke. However, the police allowed Brooke to spend the night at her parents' house instead of arresting her. Mike was not arrested or charged. He later learned that Brooke had been on the phone with Chad.

¶ 14. Mike denied that he ever stabbed Brooke with a pencil or hit or "hurt Brooke at all." He also denied that he was verbally abusive, that he vandalized Brooke's house, or that he destroyed or disposed of any of Brooke's property. Mike testified that he wanted to work through the couple's issues and did not want a divorce.

¶ 15. On September 23, 2014, the chancery court entered an opinion finding that Brooke was not entitled to a divorce because she had not proven either habitual cruel and inhuman treatment or constructive desertion. On October 20, 2014, the court entered a judgment dismissing Brooke's complaint for a divorce. The judgment simply incorporated the court's prior opinion finding that Brooke failed to prove either of her alleged grounds for divorce. The next day, Brooke filed a motion for reconsideration of the judgment.

¶ 16. On September 23, 2014, the court also entered a separate opinion and judgment finding Brooke in contempt for repeatedly denying Mike visitation with his children. In its ruling, the court found that Mike was entitled to attorney's fees in an amount to be determined at a later hearing. On September 30, 2014, Mike filed a notice of hearing on the issue of attorney's fees. On October 2, 2014, Brooke filed a motion for reconsideration of the judgment finding her in contempt. On October 22, 2014, the court denied Brooke's motion for reconsideration. On November 11, 2014, Mike filed a second notice of hearing and a motion requesting attorney's fees related to his motion for contempt and for the divorce proceeding as a whole.

¶ 17. On January 27, 2015, the chancery court entered a judgment awarding Mike attorney's fees. The court awarded Mike fees of $9,437.50 for prosecution of his motion for contempt. In addition, the court awarded Mike fees of $22,134.59 for his defense of Brooke's complaint for divorce. The court found that Mike was financially unable to pay those fees, while Brooke was financially able to pay. Thus, the court entered a total judgment in favor of Mike for $31,572.09 plus five percent post-judgment interest.

¶ 18. Brooke's motion for reconsideration of the judgment dismissing her complaint for a divorce remained pending. Nonetheless, on February 25, 2015, Brooke filed a notice of appeal from the judgment awarding Mike attorney's fees. On appeal, Mike argued that this Court lacked jurisdiction due to the lack of a final, appealable judgment. This Court agreed with Mike and dismissed the appeal for lack of jurisdiction. See Hoffman v. Hoffman , 200 So.3d 465, 468 (¶ 14) (Miss. Ct. App. 2016).

¶ 19. On March 6, 2017, the chancery court denied Brooke's motion for reconsideration of the court's judgment dismissing her complaint for divorce. The court also awarded Mike an additional $11,837.50 for attorney's fees incurred subsequent to the court's original award. Finally, the court awarded Mike $3,157.20 for interest on the original award. Thus, the court entered a new judgment in favor of Mike for $46,566.79 plus five percent post-judgment interest. On April 4, 2017, Brooke filed a notice of appeal.

ANALYSIS

¶ 20. "When reviewing a decision of a chancellor, this Court applies a limited abuse of discretion standard of review." Mabus v. Mabus , 890 So.2d 806, 810 (¶ 14) (Miss. 2003). "This Court will not disturb the chancellor's opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Holloman v. Holloman , 691 So.2d 897, 898 (Miss. 1996). "A chancellor's conclusions of law are reviewed de novo." Lowrey v. Lowrey , 25 So.3d 274, 285 (¶ 26) (Miss. 2009).

¶ 21. On appeal, Brooke argues that the chancery court erred by finding that she failed to prove her alleged grounds for divorce. She also argues that the court erred by awarding Mike attorney's fees because Mike filed for bankruptcy in April 2014, and was discharged from bankruptcy in September 2014, but failed to disclose a debt to his divorce attorney in the bankruptcy proceeding. She argues that the doctrine of judicial estoppel bars Mike from recovering attorney's fees. She also claims that any debt to Mike's attorney was discharged in bankruptcy. We address these issues in turn. We also address Mike's request for appellate attorney's fees.

I. Grounds for Divorce

¶ 22. As discussed above, Brooke alleged that she was entitled to a divorce on the grounds of habitual cruel and inhuman treatment and constructive desertion. As a practical matter, there is little difference between these two grounds. "In effect, conduct that would qualify as habitual, cruel, and inhuman treatment becomes constructive desertion when the innocent spouse leaves the home rather than remaining." Deborah H. Bell, Mississippi Family Law § 4.02[5][d], at 80 (2d ed. 2011).

¶ 23. "Habitual cruel and inhuman treatment is conduct that either: (1) endangers life, limb, or health, or creates a reasonable apprehension of such danger and renders the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to render the marriage revolting to the non-offending spouse, making it impossible to carry out the duties of the marriage, therefore destroying the basis for its continuance." Farris v. Farris , 202 So.3d 223, 231 (¶ 29) (Miss. Ct. App. 2016) (quotation marks omitted) (quoting Heimert v. Heimert , 101 So.3d 181, 184 (¶ 8) (Miss. Ct. App. 2012) ). "To prove habitual cruelty, the plaintiff must show more than mere unkindness, rudeness, or incompatibility." Smith v. Smith , 90 So.3d 1259, 1263 (¶ 13) (Miss. Ct. App. 2011). "Although in cases of violence a single incident may be sufficient for a divorce, generally the plaintiff must show a pattern of conduct." Id.

¶ 24. Similarly, "constructive desertion" occurs when the innocent spouse "is compelled to leave the home and seek safety, peace, and protection elsewhere" because the offending spouse has engaged in conduct that "would reasonably render the continuance of the marital relation, unendurable or dangerous to life, health or safety." Griffin v. Griffin , 207 Miss. 500, 505, 42 So.2d 720, 722 (1949). "Chancellors should grant a divorce on the ground of constructive desertion only in extreme cases." Hoskins v. Hoskins , 21 So.3d 705, 710 (¶ 20) (Miss. Ct. App. 2009). The burden of proof is on the party seeking the divorce to prove her ground by a preponderance of the evidence. Id. at 707 (¶ 6).

¶ 25. We affirm the chancery court's judgment that Brooke failed to prove grounds for divorce. The chancery court noted that Brooke alleged only one incident of physical violence, which Mike denied. The court then noted that Brooke's single allegation of violence was undermined by a police officer's observation that she exhibited no signs of physical abuse immediately after the alleged injury. The court also noted that the day following the alleged abuse Brooke wrote in a diary "that the parties made love and that she could 'really tell that he (Mike) was emotionally present.' "

¶ 26. The chancery court also found that Brooke's allegations related to Mike's relationship with Matt were not credible. Mike denied Brooke's allegations and another witness corroborated his testimony. Furthermore, the court found that Brooke offered "no proof" of an actual affair or physical relationship.

¶ 27. "It requires little familiarity with the institutional structure of our judicial system to know that this Court does not sit to redetermine questions of fact." Johnson v. Black , 469 So.2d 88, 90 (Miss. 1985). "The chancellor is the finder of fact, and the assessment of witness credibility lies within his sole province." Darnell v. Darnell , 234 So.3d 421, 423-24 (¶ 8) (Miss. 2017) (quotation marks omitted). "This Court gives deference to a chancellor's findings in regard to witness testimony, because the chancellor is able to observe and personally evaluate the witnesses' testimony and the parties' behavior." McNeese v. McNeese , 119 So.3d 264, 275 (¶ 32) (Miss. 2013) (quotation marks omitted). Applying our familiar standard of review, we cannot say that the chancery court clearly erred in finding that Brooke's allegations were not credible.

¶ 28. The same is true of the chancery court's finding that Brooke's allegations of emotional abuse were "unpersuasive." The court noted that Brooke only testified to "a discreet number of unpersuasive specific incidents." And, again, Mike denied Brooke's allegations that he was emotionally abusive. It is for the chancellor "alone" to "judge[ ] the credibility of the witnesses" and weigh any "conflicting evidence." Irle v. Foster , 175 So.3d 1232, 1237 (¶ 32) (Miss. 2015). This Court does not reweigh conflicting evidence on such issues of fact. Mayton v. Oliver , 247 So.3d 312, 322 (¶ 33) (Miss. Ct. App. 2017).

¶ 29. Suffice it to say there was conflicting evidence with respect to each of Brooke's various allegations against Mike. Those conflicts represent issues of fact for the chancery court to decide. Id. The chancery court summarized its reasons for dismissing Brooke's complaint for divorce as follows:

Brooke may very well have determined for herself that she is no longer willing to countenance the ways in which she and Mike seem no longer to get along, especially when considered from the perspective of another man's arms with whom she may now seem more compatible. However, ... for a divorce to be granted on the ground of habitual cruel and inhuman treatment there must be proof of systematic and continuous behavior on the part of the offending spouse which goes beyond mere incompatibility ....
....
The theory of constructive desertion as a grounds for divorce is reserved for extreme cases. Although Brooke's and Mike's marriage might reasonably be characterized on the record made as unhappy and unfulfilling, the evidence does not support a finding that it is to be considered unendurable to Brooke.
....
The [c]ourt takes no pleasure in declining to award relief in a circumstance where the parties are separated and one party professes to be so unhappy as to seek to be officially unshackled from the bonds of matrimony. The [L]egislature, as the policy makers for this [S]tate, have consistently declined to amend the divorce statutes to provide that one party can obtain a divorce from the other spouse without a showing of fault. Our appellate courts have not expanded the definition of cruel and inhuman treatment to include circumstances which would otherwise comprise mere incompatibility. The [c]ourt is, therefore, constrained by the evidence presented to it and the record made, and cannot find that Brooke's and Mike's marriage was unendurable at the time that Brooke left. Thus, the [c]ourt cannot find that Mike is guilty of constructive desertion.

We find no clear error, legal error, or abuse of discretion in the chancery court's findings and conclusions. Therefore, we affirm the judgment of the chancery court dismissing Brooke's complaint for a divorce.

II. Attorney's Fees

¶ 30. On the issue of attorney's fees, we begin by noting several points that Brooke does not dispute in this appeal. Brooke does not dispute (1) that she was in contempt, (2) that Mike is unable to pay the attorney's fees that he incurred defending against her complaint for divorce, (3) that, by contrast, she is financially able to pay those fees, and (4) that the hours expended and hourly rates and total fees charged by Mike's attorneys were all reasonable. As Brooke has not raised those issues on appeal, we do not address them. See Layton v. Layton , 181 So.3d 275, 283 (¶¶ 21-23) (Miss. Ct. App. 2015).

¶ 31. Brooke's arguments on appeal focus entirely on Mike's bankruptcy. Specifically, as noted above, she argues that Mike's claims for attorney's fees are barred (1) by the doctrine of judicial estoppel because he failed to disclose a debt to his attorney in his bankruptcy proceeding and/or (2) because any debt to Mike's attorney was discharged in the bankruptcy proceeding. We conclude that the former issue is procedurally barred because Brooke did not raise the issue in the chancery court. Moreover, we conclude that Brooke failed to make a record sufficient to support her arguments.

¶ 32. As Mike points out, Brooke did not raise the issue of judicial estoppel in the chancery court. Instead, she raised that issue for the first time on appeal. "It is well-settled that issues presented for the first time on appeal are procedurally barred from consideration." Lewis v. Forest Family Practice Clinic P.A. , 124 So.3d 654, 658 (¶ 16) (Miss. 2013). "One of the most fundamental and long established rules of law in Mississippi is that [an appellate court] will not review matters on appeal that were not raised at the trial court level." Estate of Myers v. Myers , 498 So.2d 376, 378 (Miss. 1986). This rule has special force here because "we review [a trial] court's application of judicial estoppel using the abuse of discretion standard." Adams v. Graceland Care Ctr. of Oxford LLC , 208 So.3d 575, 580 (¶ 13) (Miss. 2017) (explaining that the issue on appeal is not whether the trial judge's ruling "was 'right' or 'wrong' in our view," but whether "it was 'arbitrary and clearly erroneous' "). Because Brooke did not raise this issue in the trial court, there is no discretionary ruling for this Court to review. See Alexander v. Daniel , 904 So.2d 172, 183 (¶ 25) (Miss. 2005) (explaining that appellate consideration of issues "raised for the first time on appeal" not only "depriv[es] the trial court of the first opportunity to rule" but also prevents the appellate court from applying "the appropriate standard of review"). Accordingly, we apply our settled rule that issues not raised in the trial court may not be raised for the first time on appeal.

¶ 33. In addition, the record is inadequate to support either of Brooke's claims related to Mike's bankruptcy proceeding. During the hearing on attorney's fees in the chancery court, Mike testified that he filed for bankruptcy in April 2014 and was discharged in September 2014. Mike also testified that his obligation to pay his divorce attorney "was not discharged" in bankruptcy, although he did not "know of any" debt that was "affirmed" in the bankruptcy proceeding. Finally, Mike testified that he did not believe that he had "listed" a debt to his divorce attorney in any filings in the bankruptcy proceeding. Mike's divorce attorney testified that he was aware of Mike's bankruptcy and that his "fees were exempted from" the bankruptcy and were not "discharged"; however, Mike's attorney also stated that he was "not a bankruptcy person" and could not explain why his fees were not discharged. That is all that the record shows regarding Mike's bankruptcy. Brooke failed to introduce any pleadings, schedules, or orders filed in the bankruptcy court.

¶ 34. Citing Chmelicek v. Chmelicek , 51 So.3d 1000, 1003 (¶ 8) (Miss. Ct. App. 2010), Brooke now argues that this Court should take judicial notice of records from Mike's bankruptcy. However, Chmelicek is clearly inapposite. There, the appellee filed a motion to supplement the record with-and asked the Supreme Court to take judicial notice of-specific schedules and decrees from the appellant's bankruptcy, which was filed after final judgment was entered in the chancery court. Id. The Supreme Court granted that motion. Id. Here, in contrast, Mike was discharged from bankruptcy years ago-months before the first hearing on attorney's fees in the chancery court and prior to Brooke's (premature) first appeal. Brooke was aware of the bankruptcy prior to the first hearing in the chancery court on this issue, but she failed to introduce any documents at the hearing. She also failed to submit any relevant documents during subsequent proceedings in the chancery court following the dismissal of her first appeal. Finally, even in this second appeal, Brooke has not filed a motion to supplement the record with any pleadings, schedules, or orders from the bankruptcy court. She simply argues that we should log onto PACER, find Mike's case, and then find the relevant documents ourselves.

¶ 35. We decline to search for "information outside of the record that neither party presented." Pruitt v. Pruitt , 144 So.3d 1249, 1253 (¶ 11) (Miss. Ct. App. 2014) (holding that the chancellor abused his discretion by doing just that). The parties-not the chancery court, and certainly not an appellate court-must produce evidence sufficient to support their contentions. Brooke had ample opportunity in the chancery court to make a record to support her argument. "[S]he failed to do so, and so [s]he lost." McGriggs v. McGriggs , 192 So.3d 350, 356 (¶ 27) (Miss. Ct. App. 2015).

¶ 36. Accordingly, we do not address Brooke's legal arguments that Mike's debt to his attorney was discharged in part in bankruptcy, that the chancery court should not have awarded Mike attorney's fees that (allegedly) were discharged, or that the doctrine of judicial estoppel bars Mike's request for fees. We do not address these issues because the record is inadequate to determine whether the debt was discharged or what exactly was represented in the bankruptcy proceeding. Therefore, the chancery court's award of attorney's fees to Mike is affirmed.

III. Appellate Attorney's Fees

¶ 37. On appeal, Mike requests an additional award of attorney's fees "of up to one-half of the prior amount awarded" by the chancery court. "Generally, on appeal this Court awards attorney's fees of one-half of what was awarded in the trial court." Riley v. Riley , 196 So.3d 1159, 1164 (¶ 23) (Miss. Ct. App. 2016). However, "allowing attorney fees on appeal in an amount equal to one-half of the fees allowed by the trial court may not be fair and equitable in all cases." Hatfield v. Deer Haven Homeowners Ass'n Inc. , 234 So.3d 1269, 1277 (¶ 30) (Miss. 2017). In some cases, "the better practice ... would be for the party seeking attorney fees on appeal to file a motion in this Court, supported by affidavits and time records that establish the actual fees expended on appeal." Id.

¶ 38. The chancery court awarded only $6,000 or so in attorney's fees for the first appeal in this case. That amount was based on time actually spent on the appeal by Mike's attorneys. We have no way of knowing whether the second appeal required more attorney time than the first. However, given the actual cost of the first appeal, it "may not be fair and equitable" to award additional fees equal to half of the $43,409.59 already awarded by the chancery court. Id. Therefore, at this time, we deny Mike's request for appellate attorney's fees without prejudice. If Mike wants to pursue attorney's fees for the appeal, he should "file a motion in this Court, supported by affidavits and time records that establish the actual fees expended on appeal." Id. Any such motion should be filed before the mandate issues.

CONCLUSION

¶ 39. The final judgment of the chancery court is affirmed in all respects. We deny Mike's request for appellate attorney's fees without prejudice.

¶ 40. AFFIRMED.

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

      Brooke testified that she was in treatment for opioid addiction in 2002. She testified that she was prescribed Suboxone when she left treatment, and still took the drug three times a day. Brooke testified that she also took Vyvanse and Gabitril by prescription. Brooke alleged that Mike used cocaine and marijuana, although she did not believe that he had a drug problem. Mike denied that he used drugs.

      Mike suggested that Chad's wife could have been responsible for the vandalism.

      Mike was entitled to visitation pursuant to a March 7, 2013 temporary order. The issue of contempt was tried in July and September 2013, but the court agreed to reserve its ruling until after the trial on Brooke's complaint for a divorce.

      The record does not contain the case style or number of Mike's bankruptcy.

      Brooke appears to concede that Mike's discharge from bankruptcy would have no impact on fees that he incurred after the bankruptcy.


author: BARNES, J., FOR THE COURT:

text:
    Only AL-KHIDHR a/k/a Manuel Sullivan, Appellant v. Ron KING and Jeworski Mallett, Appellees
    NO. 2017-CP-00269-COA
    Court of Appeals of Mississippi.
    October 23, 2018
    ATTORNEY FOR APPELLANT: ONLY AL-KHIDHR (PRO SE)
    ATTORNEY FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL BY: DARRELL CLAYTON BAUGHN, Jackson
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. Only Al-Khidhr, appearing pro se, appeals the judgment of the Circuit Court of Harrison County, which dismissed his motion to clarify his sentence. We affirm the dismissal.

FACTS AND PROCEDURAL HISTORY

¶ 2. In December 2013, Al-Khidhr pleaded guilty to unlawful possession of a firearm by a convicted felon and possession of a controlled substance in the Second Judicial District of the Harrison County Circuit Court. Al-Khidhr was sentenced to five years for the firearm charge and four years for the drug-possession charge, to run consecutively in the custody of the Mississippi Department of Corrections (MDOC). The drug-possession sentence was enhanced because he qualified as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015), requiring him to serve the four-year sentence day-for-day, although he would be eligible for parole on the five-year sentence. Additionally, the sentencing order stated that Al-Khidhr would "be given credit for any and all time served as to these charges." It is undisputed that Al-Khidhr had 613 days of jail-time served before he pleaded guilty.

¶ 3. In February 2016, Al-Khidhr filed an appeal through the MDOC Administrative Remedy Program (ARP), disputing the calculation of his parole date and credit for pre-conviction jail time. In May 2016, prison officials, through the ARP, determined that his parole date was correct. Al-Khidhr disputed this administrative decision, filing a petition for judicial review in the Rankin County Circuit Court the following month. On June 30, 2016, the circuit court affirmed the decision and dismissed Al-Khidhr's petition. In July 2016, Al-Khidhr filed a motion for reconsideration.

¶ 4. While this motion was pending before the circuit court, on July 28, 2016, Al-Khidhr filed the instant case's "Emergency Writ of Habeas Corpus Motion to Clarify Sentence" in the Harrison County Circuit Court against MDOC officials Ron King, Superintendent of the Central Mississippi Correctional Facility, and Jeworski Mallett, Director of Records. He made the same argument as he did before the Rankin County Circuit Court-that his credit for time served prior to his conviction should be applied to both charges, which would double his 613 days of time served. On May 1, 2017, the Harrison County Circuit Court dismissed Al-Khidhr's motion, finding it was a successive writ and that venue was improper. Al-Khidhr timely appealed. On July 14, 2017, approximately one and one-half months after filing his appeal, Al-Khidhr was released from prison, having completed serving his sentences.

¶ 5. On April 24, 2018, while his appeal on this case was pending, our Court affirmed the Rankin County Circuit Court's dismissal of his first motion in Al-Khidhr v. King , 245 So.3d 552 (Miss. Ct. App. 2018). In that appeal, MDOC responded that Al-Khidhr's arguments were moot because he had already been released from MDOC's custody; nevertheless, this Court briefly addressed the merits of his claim. Id. at 554 (¶ 9). MDOC contended that Al-Khidhr was given proper credit under section 99-19-23 for time served before he pleaded guilty. Id. at (¶ 10). MDOC cited to Foster v. Durr , 123 So.3d 940, 941 (¶ 8) (Miss. Ct. App. 2013), which we found directly on point for the proposition that a defendant "cannot receive credit twice for the same presentence jail-time served for multiple offenses." Al-Khidhr , 245 So.3d at 554-55 (¶ 10). In Foster , similar to here, the defendant was found

entitled to 233 days of credit for jail time served while awaiting trial. He was convicted ... of two charges which had individual and joint presentence jail-time attributable to them. Foster-just like Al-Khidhr-argued that his jail-time credit should have been applied to each of his sentences individually because his sentences were consecutive.

Al-Khidhr , 245 So.3d at 555 (¶ 10) (citing Foster , 123 So.3d at 941 (¶¶ 3, 6) ). We found Foster 's pronouncement that the defendant "cannot receive credit twice for the same presentence jail-time served for multiple offenses" dispositive of Al-Khidhr's first appeal. Id. at 554 (¶ 10) (citing Foster , 123 So.3d at 941 (¶ 8) ). This Court affirmed the circuit court's denial of Al-Khidhr's request for double-credit of pre-trial imprisonment and held that credit for time served could only be applied to one of the prisoner's sentences-not both consecutive sentences. Id. at 555 (¶ 10).

STANDARD OF REVIEW

¶ 6. This Court has articulated the proper standard of review for administrative agency decisions as follows:

The decision of an administrative agency shall not be disturbed unless unsupported by substantial evidence; arbitrary or capricious; beyond the agency's scope or powers; or violative of the constitutional or statutory rights of the aggrieved party. There is a rebuttable presumption which favors the agency's decision and the challenging party has the burden of proving the contrary.

Ross v. Epps , 922 So.2d 847, 849 (¶ 4) (Miss. Ct. App. 2006) (citations and internal quotation mark omitted).

ANALYSIS

¶ 7. The only issue Al-Khidhr raises before this Court is that MDOC should have applied his pre-trial jail time of 613 days to both of his sentences. He claims Mississippi Code Annotated section 99-19-23 (Rev. 2015), which provides that a prisoner shall be credited with any jail time served while awaiting trial, was violated.

¶ 8. The circuit court, in dismissing Al-Khidhr's motion to clarify his sentence, found the motion procedurally barred as "successive" and the venue improper. We find the circuit court's dismissal proper, but for partly different reasons. Al-Khidhr's motion cannot be considered a "successive writ" because this procedural bar only applies to motions for post-conviction relief. Both this motion and his first motion were requests to the MDOC to clarify and recalculate his sentence-not requests for post-conviction relief.

¶ 9. The Harrison County Circuit Court did, however, correctly find that Al-Khidhr improperly filed his motion to appeal the MDOC's ARP decision in the county of his conviction. This Court has repeatedly held that "[i]n applying section 11-11-3 [the statute on venue for civil actions] to a prisoner's appeal of an MDOC decision or policy ... such appeals 'must be made in the circuit court of the county where the prisoner resides.' " Roberts v. Miss. Dep't of Corr. , 219 So.3d 588, 591 (¶ 9) (Miss. Ct. App. 2017) (quoting Hearron v. Miss. Dep't of Corr. , 166 So.3d 53, 55-56 (¶ 8) (Miss. Ct. App. 2015) ). At the time of his appeal to the circuit court, Al-Khidhr was imprisoned in Rankin County; therefore, his first appeal was filed in the proper jurisdiction. But this second appeal was filed in the incorrect venue, as correctly determined by the circuit court.

¶ 10. Additionally, we find Al-Khidhr's appeal before this Court is moot because Al-Khidhr has already been released from prison. "Cases in which an actual controversy existed ... but the controversy has expired at the time of review, become moot." J.E.W. v. T.G.S. , 935 So.2d 954, 959 (¶ 14) (Miss. 2006) (quoting Monaghan v. Blue Bell Inc. , 393 So.2d 466, 466-67 (Miss. 1980) ). "A case is moot so long as a judgment on the merits, if rendered, would be of no practical benefit to the plaintiff or detriment to the defendant."

Fails v. Jefferson Davis Cty. Pub. Sch. Bd. , 95 So.3d 1223, 1225 (¶ 10) (Miss. 2012) (quoting Gartrell v. Gartrell , 936 So.2d 915, 916 (¶ 8) (Miss. 2006) ). Because Al-Khidhr was released from imprisonment approximately one and one-half months after he filed this appeal, there is no longer a controversy to review, and any judgment rendered would have no practical benefit to Al-Khidhr.

¶ 11. Lastly, this Court has already determined Al-Khidhr's substantive arguments to be without merit. See Al-Khidhr , 245 So.3d at 554-55 (¶ 10).

¶ 12. Thus, for the foregoing reasons, we affirm the Harrison County Circuit Court's dismissal.

¶ 13. AFFIRMED.

LEE, C.J., GRIFFIS, P.J., FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., NOT PARTICIPATING.

      At the time of the Rankin County Circuit Court's decision, Al-Khidhr was housed at MDOC's facility in Pearl, Mississippi, in Rankin County, and he was still incarcerated there when the circuit court dismissed his motion in this case.

      The Rankin County Circuit Court ultimately denied the motion for reconsideration, and on October 18, 2016, Al-Khidhr timely appealed.

      Under the Uniform Post-Conviction Collateral Relief Act, any order denying or dismissing a motion for post-conviction relief bars a second motion. Miss. Code Ann. § 99-39-23(6) (Rev. 2015).


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

text:
    BAPTIST MEMORIAL HOSPITAL-NORTH MISSISSIPPI INC. d/b/a Baptist Memorial Hospital-North Mississippi and BMH North Mississippi Imaging Services LLC d/b/a Oxford Diagnostic Center, Appellants v. MISSISSIPPI STATE DEPARTMENT OF HEALTH and Oxford Pre-Op & Imaging Center LLC, Appellees
    NO. 2017-SA-01252-COA
    Court of Appeals of Mississippi.
    October 23, 2018
    ATTORNEY FOR APPELLANTS: BARRY K. COCKRELL, Jackson
    ATTORNEYS FOR APPELLEES: JEFFREY SCOTT MOORE, STEVEN BLAKE ADAMS
    BEFORE LEE, C.J., GREENLEE AND TINDELL, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. Baptist Memorial Hospital-North Mississippi Inc. d/b/a Baptist Memorial Hospital-North Mississippi and BMH North Mississippi Imaging Services LLC d/b/a Oxford Diagnostic Center (collectively "Baptist") opposed Oxford Pre-Op & Imaging Center LLC's (OPIC) application for a Certificate of Need (CON) for magnetic resonance imaging (MRI) services. The Mississippi State Department of Health (MSDH) later granted the CON. Baptist appealed the MSDH's decision to the Hinds County Chancery Court, First Judicial District, and the chancery court affirmed the MSDH's grant of the CON.

¶ 2. Baptist now appeals to this Court, arguing that the chancery court erred when it affirmed the MSDH's decision, claiming that OPIC's CON application did not substantially comply with the 2015 State Health Plan (SHP). Specifically, Baptist contends that OPIC's application (1) did not meet the SHP's "Need Criterion"; (2) did not comply with the SHP's policy on utilization of existing MRI units; and (3) did not comply with the "General Review Criterion 4" regarding economic viability. Finding that the MSDH's decision to grant OPIC's CON application was supported by substantial evidence, we affirm.

BACKGROUND FACTS AND PROCEDURAL HISTORY

¶ 3. OPIC is a free-standing imaging center in Oxford, Lafayette County, Mississippi. Prior to receiving CON approval for MRI services, OPIC already offered pre-operative and imaging diagnostic services, including laboratory, x-ray, CT, and EKG services. On August 27, 2015, OPIC filed with the MSDH a notice of intent to apply for a CON to acquire MRI equipment and begin offering MRI services. OPIC then filed its CON application on February 22, 2016. In its application, OPIC proposed to lease a 1.5 Tesla MRI machine and to begin providing MRI services at its existing facility. OPIC also proposed to lease and renovate existing space adjacent to its imaging facility to accommodate the acquisition of the MRI unit. According to its CON application, OPIC's objective was to provide residents of Lafayette County and surrounding areas with "same day" MRI services to "alleviate the current unacceptably long waiting times to receive an MRI from facilities located in Lafayette County."

¶ 4. OPIC completed its CON application with the aid of health planning expert, Noel Falls, and Joe Repper, the Chief Financial Officer for North Mississippi Health Services Inc.-OPIC's joint-venture partner. Falls developed population-based statistical projections to show that OPIC would meet the SHP's "Need Criterion" required to obtain a CON for MRI services-a minimum threshold of 2,700 MRI procedures by the end of its second year of operation. Based on the population of OPIC's service area and the MRI Use Rate, Falls projected that OPIC would perform a total of 3,381 MRI procedures by the end of its second year. Additionally, OPIC supported its CON application with affidavits from physicians and nurse practitioners who projected they would collectively refer 3,288 procedures during OPIC's first year of operation and 3,996 procedures during its second year. Following an error correction, the projections were amended to reflect 3,120 procedures during OPIC's first year and 3,804 procedures during its second year. Thus, OPIC projected in its CON application that it would not only meet the 2700 procedure threshold but easily exceed it.

¶ 5. At the time of OPIC's application, Baptist was the sole MRI provider in Oxford and Lafayette County, Mississippi. Baptist utilized two units: a 3.0 Tesla fixed-site unit at its hospital site (BMH-NM) and a 1.5 Tesla fixed-site unit at its diagnostic center (ODC). At least as early as 2013, Baptist began to experience backlogs in MRI scheduling due to the increased demand for services. Patients' wait times for non-emergent MRIs routinely exceeded one week and at times were up to two weeks. To help alleviate the backlog and decrease wait times, Baptist extended its hours for services at both the BMH-NM and the ODC sites, reduced its appointment slots from 60 minutes to 45 minutes, and began opening the ODC on the weekends. Yet even with these efforts, Baptist was still unable to accommodate the demand for MRI services and reduce wait times. As a result, around November 2014, Baptist began making its own plans to add a third MRI unit in Oxford.

¶ 6. In an email dated November 5, 2014, Peyton Warrington, BMH-NM's Chief Operating Officer, proposed two routes for adding a third MRI site: (1) relocating the hospital's 3T magnet to the ODC, relocating the ODC's 1.5T to the new hospital (then under construction) and adding an "Open Magnet" unit at the ODC, or (2) relocating the hospital's 3T magnet to the new hospital and purchasing a new 1.5T magnet for the new hospital. ODC's board of managers also discussed the need for a third MRI unit by potentially acquiring a second unit for the ODC. Board minutes from January 25, 2015 reflected that "Discussion of potential MRI strategy to be implemented over next several years was discussed. The need for both 3.0 MRI and a true open magnet was discussed."

¶ 7. Baptist formalized its plans for adding a third MRI unit in Oxford in a document titled "Oxford Diagnostic Center: MRI Strategy." The MRI-strategy document stated that there were "currently 2 MRIs in the Oxford-Lafayette community" and that based on Baptist's research, it "believe[d] the community c[ould] support a third MRI." The document acknowledged that "[t]he ability to accommodate a 3rd MRI in the community leaves the door open for another investor group/system to enter the market" and proposed a plan "[i]n order to avoid this scenario[.]" The strategy also included that "consideration should be given as to the need for a mobile [unit] during the interim in order to secure the slot for the 3rd MRI."

¶ 8. So, when Baptist learned of OPIC's notice of intent to seek a CON and enter Oxford/Lafayette County's market with a third MRI fixed-site unit, Baptist expedited its efforts to secure the third MRI slot in Oxford by acquiring a temporary, mobile MRI unit. The MSDH approved the utilization of a temporary, mobile MRI unit only until the construction of the new hospital in Oxford was completed.

¶ 9. On May 16, 2016, following a review and staff analysis of OPIC's CON application, the MSDH published its recommendation that OPIC's MRI project be approved. Baptist requested a public hearing on the application, which was held October 24 to 26, 2016, where Baptist opposed OPIC's CON application. All parties were represented by counsel and presented testimony and exhibits during the hearing. In a forty-six-page "Findings of Fact, Conclusions of Law and Recommendation," the MSDH hearing officer concluded that

OPIC presented substantial and credible evidence in its CON Application and during the hearing that its project is in substantial compliance with the 2015 SHP standards and criteria for the acquisition or control of MRI equipment and the offering of MRI services, as well as the general review criteria contained in the CON Review Manual. For these reasons, the Hearing Officer concurs with the Department's Staff Analysis and recommends that the State Health Officer approve OPIC's project.

¶ 10. On April 10, 2017, the MSDH issued its approval of OPIC's application, granting OPIC a CON for MRI services. Baptist appealed the decision to the chancery court, which affirmed the MSDH's decision granting the CON. Baptist now appeals to this Court, and we address its issues in turn. Additional facts are discussed as relevant to the analysis.

STANDARD OF REVIEW

¶ 11. The judicial standard of review in an appeal from the MSDH's order granting or denying a CON is set forth by statute:

The order shall not be vacated or set aside, either in whole or in part, except for errors of law, unless the court finds that the order of the State Department of Health is not supported by substantial evidence, is contrary to the manifest weight of the evidence, is in excess of the statutory authority or jurisdiction of the State Department of Health, or violates any vested constitutional rights of any party involved in the appeal.

Miss. Code Ann. § 41-7-201(2)(f) (Supp. 2016).

¶ 12. "On appeal, we give great deference to [the] MSDH's decisions." Baptist Mem'l Hosp.-DeSoto Inc. v. Miss. State Dep't of Health , 214 So.3d 277, 279 (¶ 3) (Miss. 2017). "A presumption of validity attaches to the MSDH's decision, ... and this Court is limited to reviewing the lower court's decision to determine whether the record can support this finding." Miss. State Dep't of Health v. Baptist Mem'l Hosp.-Desoto Inc ., 984 So.2d 967, 975 (¶ 12) (Miss. 2008) (citation and internal quotation marks and citation omitted). We will affirm the MSDH's decision so long as it is supported by substantial evidence, even if the analysis or review is imperfect. Baptist Mem'l Hosp.-DeSoto Inc., 214 So.3d at 281 (¶ 14). "Substantial evidence means more than a scintilla or a suspicion." Miss. State Dep't of Health , 984 So.2d at 974-75 n.13. "The burden of proof rests on the challenging party to prove that [the] MSDH erred." Baptist Mem'l Hosp.-DeSoto Inc. , 214 So.3d at 281 (¶ 14).

DISCUSSION

¶ 13. Mississippi Code Section 41-7-193(1) (Supp. 2016) governs the grant of a CON. "The statute is clear that no CON shall be granted unless it has been 'reviewed for consistency with the specifications and criteria established by the State Department of Health and substantially complies with the projection of need as reported in the State Health Plan in effect at the time[.]' " Baptist Mem'l Hosp.-DeSoto Inc. , 214 So.3d at 281 (¶ 12) (quoting § 41-7-193(1) ). The 2015 SHP was in effect at the time of the OPIC's CON for MRI services and therefore applies to the instant case.

I. SHP's Need Criterion

¶ 14. Baptist's main argument on appeal is that OPIC did not meet the 2015 SHP's "Need Criterion" for the offering of MRI services. Specifically, Baptist states that OPIC failed to demonstrate that it would perform the requisite threshold number of MRIs required under the SHP because the projections cited by OPIC in the physician affidavits do not constitute substantial evidence.

¶ 15. Section 112.01.04 of the 2015 SHP states the following in regard to CON approval for MRI services:

An entity proposing to offer MRI services shall obtain Certificate of Need (CON) approval before offering such services.
1. Need Criterion: The entity desiring to offer MRI services must document that the equipment shall perform a minimum of 2,700 procedures (or 1,700 procedures for rural hospitals) by the end of the second year of operation. This criterion includes both fixed and mobile MRI equipment. The applicant must show methodology used for the projections.
a. Applicants for non-hospital based MRI facilities may submit affidavits from referring physicians. MRI procedures projected in affidavits shall be based on actual MRI procedures referred during the year.
b. The applicant shall document a reasonable population within its service area to justify 2,700 procedures per year per proposed MRI unit (1,700 procedures per year per proposed mobile MRI unit on a route exclusively serving rural hospitals).

¶ 16. To comply with the SHP, OPIC was required to document that it would perform a minimum of 2,700 MRI procedures by the end of its second year of operation. OPIC did so through physician affidavits and population-based statistical projections. Baptist argues that the affidavits submitted by OPIC do not constitute substantial evidence because they are not accompanied or supported by actual medical records or other documented numerical data. For this reason, Baptist alleges that OPIC's projections "were nothing more than unsupported estimates of the number of patients that the physicians might refer to OPIC for an MRI procedure" and therefore, are "in direct contravention of [the supreme court's] controlling decision in [ Mississippi State Department of Health v. Natchez Community Hospital , 743 So.2d 973 (Miss. 1999) ]."

A. Physician Affidavits

¶ 17. First, we note that the 2015 SHP allows projections in the form of physician affidavits as an optional means of meeting the need criterion. See section 112.01.04 subsection (1)(a), stating that applicants "may submit affidavits from referring physicians." Affidavits are not required, and they are not the only means for showing need. Nevertheless, when utilizing physician affidavits for support, the projections in the affidavits "shall be based on actual MRI procedures referred during the year," according to the SHP. The requirement that the affidavit projections be based on actual MRI procedures referred during the year is not synonymous with requiring the submission of medical records or other documented data. The SHP does not require or specify that such documents be submitted, and-contrary to Baptist's reading of Natchez -neither has our caselaw interpreted it to mean such.

¶ 18. Second, in regard to Baptist's reliance on Natchez Community Hospital , 743 So.2d at 978 (¶ 26), in which the supreme court held that the projections in the physician affidavits were unsupported statements and did not constitute substantial evidence on which to grant a CON, the facts undergirding the supreme court's holding in Natchez are significantly different from those in this case.

¶ 19. In Natchez , the MSDH granted a CON to QSC, a surgical center, to establish a freestanding ambulatory surgery center. Id. at 975 (¶ 1). The SHP in effect at that time required QSC to show that it would perform 800 procedures per operating/procedure room each year. Id. at 977 (¶ 15). The MSDH's staff analysis recommended that the MSDH should not grant the CON to QSC. Id. at 975 (¶ 6). Natchez Community Hospital requested a public hearing, which was granted, and opposed QSC's application. Id. at (¶¶ 2-4). The hearing officer heard testimony from several of QSC's supporting physicians as well as physician letters and affidavits. Id.

¶ 20. In Natchez , QSC's owner, Dr. Arnold Feldman, had proposed in the application that QSC would perform 1,600 surgeries per year. Id. at 977 (¶ 17). He testified at the hearing that his projection was based on the State's requirement that each operating room perform 800 procedures, and there were two operating rooms at QSC. Id. Dr. Feldman's projection was not based on facts but rather an unsupported, perfunctory recitation in an attempt to satisfy the CON requirements. Id. Further, Dr. Feldman testified that he would be the primary referring physician, speculating that he would personally perform 800-1,000 procedures, when records demonstrated he had only performed 322 the previous year, making his estimate wholly unrealistic. Id. at (¶ 18). Similarly, Dr. James Todd Jr. testified that he would perform 200 surgeries per year at QSC but then later testified that he had only performed 90 and 57 surgeries in the previous two years. Id. at 978 (¶ 19). He also stated that he would only utilize QSC for half of all his surgeries. Id. The supreme court noted that "taking Dr. Todd's information as true, ... he would have to more than triple his current rate of surgery to meet his estimate." Id. at (¶ 20). The supreme court also noted that "Dr. Todd, in previous litigation, swore under oath that he was permanently and totally disabled and that he had severe difficulties in performing even the simplest tasks. This further casts doubt on the ability of Dr. Todd to triple his current rate of surgery." Id. at (¶ 21).

¶ 21. In Natchez , another physician, Dr. Richard Meyers Jr., testified that he would transfer 350-500 cases to QSC from his office and the hospital where he operated, yet actual records showed he had only performed 165 and 119 procedures in the preceding two years and 130 procedures in 1995, 119 procedures in 1996, and 130 procedures in the first ten months of the then-current year. Id. at (¶ 23). He "then changed his testimony to state that he would probably only transfer 100 cases to the [QSC]." Id. Likewise, Dr. Bernadette Sherman, without evidence to support her projection, stated in her affidavit that she would use the QSC for over 100 cases per year, yet actual records showed she had only performed 21 total procedures the year of QSC's application. Id. at (¶ 24). Dr. Frank Guerdon stated he would perform between 50 and 100 procedures at QSC, but records showed he had performed only 51 procedures that year. Id. at (¶ 25). Dr. Alphonse Reed estimated he would use QSC for 100 or more procedures, though he had only performed 11 that year. Id.

¶ 22. Thus, in Natchez , it was undeniably clear that the physician estimates projected in the CON application and accompanying affidavits had-as the supreme court stated-"no factual basis," were "contradicted by the actual numbers of procedures these physicians have performed in the past," and "appeared to be pure speculation." Id. at 978-79 (¶¶ 26, 28). Based on these specific facts, the supreme court affirmed the chancery court's reversal of the order granting the CON and held that "unsupported statements by physicians do not provide substantial evidence upon which the Department should grant a CON." Id. at (¶ 28). While clear that unsupported statements do not constitute substantial evidence, Natchez did not hold that physician affidavits require the submission of medical records to constitute substantial evidence. Neither does the 2015 SHP-only that the projections in the affidavits "be based on actual MRI procedures referred during the year," as provided in section 112.01.04(1)(a).

¶ 23. In the present case, the hearing officer found that OPIC's physician-affidavit projections were based on actual MRI procedures referred during the year. Each of OPIC's supporting physicians' affidavits stated that its projections were based on "records and historical referral patterns." By supplemental affidavits and testimony at the hearing, the referring physicians stated that while some of their practices did have electronic medical records, their systems were not capable of tracking the number of MRIs referred. As such, the testimony reflected that the referral projections were based on the provider's knowledge of current referrals, historical referral patterns, recollection of the medical records that were generated contemporaneous with each patient contact, MRI orders that were pending completion, consultation with their scheduling assistants, and so on. As such, the projections cited in the CON application were based on actual MRI procedures referred during the year.

¶ 24. Baptist also argues that the projections in the affidavits were contradicted by the actual number of MRIs referred by the OPIC-supporting physicians. Baptist's health-planning expert, Dan Sullivan, contended that OPIC's supporting physicians had only referred approximately 2,000 procedures on an annualized basis in 2016. However, the hearing officer rejected Baptist's evidence as conflicting and incredible.

¶ 25. During discovery prior to the hearing, OPIC issued a subpoena to Baptist requesting all documents that identified the "ordering or referring physician, payor, date of service, and patient origin data of all patients who received MRI services from Baptist from 2013-2016 year to date" for both the ODC and BMH-NM MRI sites. Baptist produced an initial set of spreadsheets-one for the ODC and another for BMH-NM, but the spreadsheets did not include the referring provider information. OPIC protested that this production did not comply with its subpoena, and Baptist agreed to provide the data. Baptist produced a second set of spreadsheets with the referring provider information, but the number of MRIs reflected in the second data set contained significantly fewer MRIs than the first data set. As the hearing officer noted, without explanation, "over 1[,]000 procedures disappeared" from the first data set to the second data set for both 2015 and 2016. As such, the hearing officer concluded that Baptist's and Sullivan's estimates of the number of MRI procedures historically referred by OPIC's Supporting Practitioners for the purposes of rebuttal were "based entirely on deeply flawed data" and further found that Baptist failed to provide a satisfactory explanation for the discrepancies between the two data sets which were, according to the hearing officer, "completely irreconcilable." Accordingly, OPIC's physician-affidavit projections were based on actual MRI referrals during the year, and Baptist did not rebut this showing.

B. Population-Based Statistical Projections

¶ 26. OPIC also presented evidence that it would meet the need criterion through a population-based, market-share analysis. Falls projected that based on the population of OPIC's service area, OPIC would perform between 3,075 total MRIs for the second year utilizing a conservative market-share percentage, and 3,426 total MRIs for the second year when utilizing a slightly higher market-share percentage. These market-share percentages were based on Baptist's market-share at BMH-NM and the ODC. Falls, who was not at all involved with the physician-affidavit projections, testified that the two methods served as a cross-check of each other. Falls opined that in this case, the physician-affidavit projections and the population-based projection cross-checked each other very well because the numbers demonstrated in the two methods were closely reflective of the other.

C. Additional Evidence of Need

¶ 27. In addition to OPIC's physician-affidavit and population-based projections, the hearing officer found that there was other evidence supporting the need criterion. The hearing officer noted that Lafayette County was the fastest-growing county in Mississippi based on growth rates from 2010 to 2014 and that several of OPIC's referring providers testified that their practices-as well as the overall healthcare market in Oxford/Lafayette County-were experiencing sizable growth, noting this would further increase demand for MRIs. The hearing officer also recognized that Baptist's temporary, mobile MRI unit was performing 1,248 procedures per year on an annualized basis while only operating three days per week. The hearing officer stated that "Baptist's witnesses were unable to provide any meaningful response on how Baptist would handle the MRI workload currently being serviced by its temporary mobile unit after the new hospital is complete and the temporary mobile MRI unit is no longer in service." The hearing officer found that "Sullivan was evasive and equivocal when asked about Baptist's future plans for a second unit at the hospital." There was space designated in the new hospital's plans for a second MRI unit, although Baptist had only a CON for one unit at the hospital.

¶ 28. Most significantly, the hearing officer found that Baptist's own internal documents supported OPIC's CON application, specifically in regard to the need criterion:

the most telling evidence of all is Baptist's own internal MRI strategy and planning documents which admits that the "community can support a third MRI" and the "door [is] open for another investor/group system to enter the market." In accordance with Baptist's strategy, it has already begun operating on a temporary-basis a third mobile MRI unit in an attempt to "secure the slot" for the third fixed-site unit. This unit, which is operating three (3) days a week and performing on average eight (8) procedures per day (annualized to 1,248 per year), is strong evidence of the need for an additional, permanent fixed-site unit in the Oxford community and further supports Mr. Falls' conclusion that the area can support an additional fixed-site MRI unit . The two permanent MRI machines are already at full capacity. The temporary mobile unit currently being used at Baptist is performing a significant number of procedures, approximately 1,249 annualized.

¶ 29. We agree with the hearing officer that this evidence is especially telling. The hearing officer's decision that OPIC demonstrated that its proposal met the need criterion was supported by substantial evidence, including the physician-affidavits and population-based statistical projections. This issue is without merit.

II. SHP's Utilization Policy

¶ 30. Baptist also argues that OPIC's CON application did not comply with the 2015 SHP's policy on utilization of existing MRI units. In section 12.01.01, the policy requires that no new MRI services should be approved unless "the proposed new services would not reduce the utilization of existing providers in the service area."

¶ 31. Baptist's expert, Sullivan, argued at the hearing that if OPIC's application was approved, it would result in a material reduction in utilization of MRI services by existing providers. Sullivan opined that "there's not going to be any material growth in the number of MRI procedures in the service area as a whole" and testified that "you've got a relatively fixed pie in terms of the number of procedures." Sullivan concluded that if OPIC achieved its projected volumes, it would "necessarily be at the expense of existing providers," in violation of the SHP's utilization policy.

¶ 32. In contrast, Falls testified that there was plenty of volume in the service area for OPIC to not only meet 2,700 MRIs by the end of OPIC's second year of operation but support the projected 3,804 MRIs without having any impact on existing MRI providers. In fact, Falls testified that even with OPIC meeting its projection, there would still be an unmet need in OPIC's service area of between 8,386 and 10,487 procedures in 2019. Falls's estimations were based on data from the 2015 SHP and the United States Census Bureau. The 2015 SHP showed that there was a steady increase in the volume of MRI procedures being performed in the OPIC service area: 10,146 in 2009 to 12,404 in 2013-a growth rate of 11.5%. Falls explained that in 2013, according to the United States Census Bureau, Mississippi had an estimated population of 2,992,206 inhabitants; and, according to the 2015 SHP, there were 258,189 MRI procedures in Mississippi for 2013. Thus, in 2013, Mississippi's MRI Use Rate was 86.3 MRIs for every 1,000 Mississippians. Utilizing the MSDH's own population-based formula for the projection of MRI Service Volume, Falls estimated that there should have been approximately 25,132 MRI procedures performed in OPIC's defined service area during 2013. Using the MSDH's MRI Use Rate and MRI Service Volume formula, along with the 2015 SHP's 2020 population data, Falls estimated there should be 25,527 MRI procedures projected for OPIC's defined service area during 2020. As such, Falls testified that there was sufficient volume of needed MRIs in the defined service area to meet OPIC's projection of 3,804 without taking volume away from any of the existing units.

¶ 33. The hearing officer found OPIC's evidence on the issue more credible, stating "Mr. Falls [was] a more creditable witness on this issue than Mr. Sullivan." The hearing officer explicitly "reject[ed] Mr. Sullivan's assumption that 'there's not going to be any material growth in the number of MRI procedures in the service area as a whole.' " The hearing officer found that Sullivan's conclusions were "contradicted by other substantial evidence in the case" and their basis "too limited in scope" by only looking at two years of data rather than the five years of data OPIC relied on. Further, the hearing officer found that the "volumes of MRI procedures being performed at Baptist-NM and the ODC in FYs 2015 and 2016 year to date also directly contradict Mr. Sullivan's assumption that there will be no growth in MRI procedure volumes in the service area."

¶ 34. We find that the MSDH's hearing officer's determination that the proposed new services would not reduce the utilization of existing providers in the service area was supported by substantial evidence. This issue is without merit.

III. SHP's Economic Viability Requirement

¶ 35. In its final argument on appeal, Baptist contends that OPIC's CON application did not comply with the MSDH's General Review Criterion 4 on Economic Viability. Miss. State Dept. Health, CON Review Manual, Ch. 8.1.4. The CON Review Manual requires that CON applications be reviewed for economic viability, defined as "[t]he immediate and long-term financial feasibility of the proposal ...." Baptist contends that because OPIC's financial projections and economic viability assessment were based on the physician affidavits, and-as previously argued-the physician affidavits do not constitute substantial evidence, the affidavits cannot be used to project OPIC's revenue. Baptist further contends "[w]ithout evidence of revenue, it is legally impossible for OPIC to demonstrate economic viability of the proposed project as required by General Review Criterion 4."

¶ 36. First, as previously addressed in this opinion, the hearing officer's determination that the physician affidavits constituted substantial evidence is affirmed. Thus, Baptist's argument that the projected volume in the physician affidavits cannot serve in demonstrating economic viability fails. Second and moreover, the hearing officer found that OPIC demonstrated its project was economically viable, and we agree there was substantial evidence to support this finding.

¶ 37. During the hearing, OPIC's financial expert, Lynn Holland, testified regarding the economic viability of OPIC's proposal. Utilizing OPIC's projected volumes, Holland conducted his own financial analysis of the project which showed that it would be profitable by the end of its second year, generating a net operating income of approximately $312,044. Holland testified that this estimate was actually a conservative estimate because it used low assumptions for net revenue per procedure when compared to similar imaging facilities. Based on even these conservative estimates, Holland testified that the project would be cash-flow positive at 2,085 procedures. Holland also stated that even if OPIC only met the minimum volume of 2,700 procedures, the project would be economically viable with positive income and cash flow by the end of its second year. Holland concluded that OPIC's proposed MRI project satisfied the criteria for economic viability.

¶ 38. As such, the hearing officer's determination that OPIC's project was economically viable per the CON review criterion was supported by substantial evidence. To dispute this finding, Baptist only offers its argument that OPIC's projections as stated in the physician affidavits are not substantial evidence-which the hearing officer, the chancery court, and now this Court have rejected. This issue is without merit.

CONCLUSION

¶ 39. Having reviewed the record, particularly the MSDH's hearing officer's extensive and detailed report, we find that OPIC "substantially complie[d] with the projection of need as reported in the state health plan in effect at the time ...." Miss. Code Ann. § 41-7-193(1). Additionally, Baptist has failed to show that MSDH's decision that OPIC substantially complied with the 2015 SHP was not based on substantial evidence, and thus fails to meet its burden. We find that there was substantial evidence to support the MSDH's decision, and therefore affirm MSDH's grant of a CON to OPIC to provide MRI services.

¶ 40. AFFIRMED.

IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      OPIC defined its service area as the thirteen counties from which it was drawing approximately 90% of its patients for its already-offered pre-operative and imaging diagnostic services.

      Based on the 2015 SHP data, Mississippi's MRI use rate in 2013 was 86.27, meaning that a health planner could reasonably conclude that there will be 86.27 MRI scans per 1,000 individuals.


text:
    Jacob WRIGHT a/k/a Jacob Brian Wright a/k/a Jacob Wright Jr., Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00651-COA
    Court of Appeals of Mississippi.
    November 6, 2018 Rehearing Denied February 26, 2019
    ATTORNEY FOR APPELLANT: JACOB WRIGHT (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS
    BEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. This is an appeal from the Jackson County Circuit Court's denial of Jacob Wright's motion for post-conviction relief (PCR) as meritless. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Wright pleaded guilty to statutory rape and sexual battery. The Jackson County Circuit Court sentenced him to fourteen years to serve in the custody of the Mississippi Department of Corrections on each charge, with the sentences running concurrently, followed by sixteen years of post-release supervision. The court also fined Wright $1,000.

¶ 3. He moved for post-conviction relief. The court denied his motion, and Wright appeals. He contends that: (1) he received ineffective assistance of counsel; (2) his plea was involuntary; and (3) his constitutional right to a speedy trial was violated. We affirm the circuit court's judgment.

DISCUSSION

¶ 4. "A circuit court's denial of a PCR motion is reviewed for abuse of discretion and will not be disturbed unless the circuit court's decision was clearly erroneous." Campbell v. State , 233 So.3d 904, 905 (¶ 3) (Miss. Ct. App. 2017) (citing Crosby v. State , 16 So.3d 74, 77 (¶ 5) (Miss. Ct. App. 2009) ).

I. Did Wright receive ineffective assistance of counsel?

¶ 5. Wright contends that his attorney was constitutionally deficient for advising him that if he did not accept the State's recommendation, then he was guaranteed a 120-year sentence.

¶ 6. To succeed on an ineffective-assistance-of-counsel claim, "the defendant must prove that counsel's performance was deficient and that the deficient performance prejudiced the defense." Carson v. State , 161 So.3d 153, 155 (¶ 3) (Miss. Ct. App. 2014) (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). Additionally, the defendant must produce "more than conclusory allegations on a claim of ineffective assistance of counsel." Pittman v. State , 192 So.3d 1147, 1149 (¶ 6) (Miss. Ct. App. 2016) (quoting Carpenter v. State , 899 So.2d 916, 921 (¶ 23) (Miss. Ct. App. 2005) ). "In cases involving [post-conviction]

collateral relief, 'where a party offers only [his] affidavit, then [his] ineffective-assistance-of-counsel claim is without merit.' " Id. (quoting Watts v. State , 97 So.3d 722, 726 (¶ 12) (Miss. Ct. App. 2012) ).

¶ 7. The trial court found that Wright had offered "only a bare assertion that his lawyer was ineffective ...." Furthermore, the guilty plea and sentencing transcript reveals that Wright knew there was no minimum sentence and that the maximum sentence that could be imposed was sixty years. Wright also acknowledged that he willfully entered his plea and that he was fully satisfied with his attorney's services. Wright has failed to prove any deficiency on the part of his attorney; therefore, under an abuse-of-discretion standard, we find this claim is without merit.

II. Was Wright's plea involuntary?

¶ 8. Closely related to the first issue, Wright asserts that because he received ineffective assistance of counsel, his plea was involuntary. Specifically, he states that he was "misled into believing that he was guaranteed a 120-year sentence if he did not plea[d] ...." As we stated above, he has failed to show that he received ineffective assistance of counsel.

¶ 9. "A defendant's guilty plea may be deemed involuntary if the evidence shows that the defendant was misinformed regarding the applicable minimum or maximum sentence and that the misinformation was never corrected by the defendant's attorney or during his plea colloquy." Bolton v. State , 243 So.3d 796, 801 (¶ 24) (Miss. Ct. App. 2018). As we discussed above, the circuit court clearly informed Wright that there was no minimum sentence and that the maximum sentence that could be imposed was sixty years; therefore, he was not misinformed. Under an abuse-of-discretion standard, we find Wright's involuntary-plea claim to be without merit.

III. Was Wright's constitutional right to a speedy trial violated?

¶ 10. Wright alleges again that his ineffective-assistance-of-counsel claim is the root of this issue. He asserts that because his attorney was deficient, his waiver of the constitutional right to a speedy trial is invalid. Therefore, he calls upon our court to reverse his conviction.

¶ 11. If a defendant voluntarily pleads guilty to an offense, then he waives all nonjurisdictional rights to trial-including the constitutional right to a speedy trial. Anderson v. State , 577 So.2d 390, 391-92 (Miss. 1991). Furthermore, that guilty plea is "binding where it is entered voluntarily, knowingly, and intelligently." Kyles v. State , 185 So.3d 408, 411 (¶ 5) (Miss. Ct. App. 2016). Again, the record indicates that Wright voluntarily, knowingly, and intelligently entered his plea and that he was fully satisfied with his attorney's services. As stated previously, his counsel was not ineffective. And, in pleading guilty, he waived his right to a speedy trial. We find this issue is without merit.

CONCLUSION

¶ 12. We find that the circuit court properly denied Wright's PCR motion because his counsel was not ineffective, his plea was not involuntary, and his constitutional right to a speedy trial was not violated. Thus, we affirm the circuit court's judgment.

¶ 13. AFFIRMED.

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