author: CHAMBERLIN, JUSTICE, FOR THE COURT:

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Judge Frank SUTTON
    NO. 2019-JP-00072-SCT
    Supreme Court of Mississippi.
    July 18, 2019
    ATTORNEYS FOR APPELLANT: MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE BY: DARLENE D. BALLARD, RACHEL W. MICHEL, MCCOMB, MEAGAN C. BRITTAIN
    ATTORNEY FOR APPELLEE: FRANK SUTTON (PRO SE)
    EN BANC.
   CHAMBERLIN, JUSTICE, FOR THE COURT:

¶1. The Mississippi Commission on Judicial Performance (the "Commission") recommends that the Court publicly reprimand and assess a $500 fine against Judge Frank Sutton, a justice court judge for Post Three in Hinds County. The Commission made this recommendation after finding by clear and convincing evidence that Judge Sutton's conduct constituted misconduct in violation of the Code of Judicial Conduct as well as Section 177A of the Mississippi Constitution of 1890.

¶2. We agree with the Commission that Judge Sutton's conduct constituted misconduct. We disagree with the Commission's imposition of sanctions. Instead, we order a public reprimand, fine Judge Sutton $500 and suspend Judge Sutton for thirty days without pay.

FACTS AND PROCEDURAL HISTORY

¶3. Based on complaints against Judge Sutton, the Commission initiated an inquiry into his role in two matters. This investigation led to the Commission's filing a formal complaint. Judge Sutton did not file an answer to the complaint; instead, he and the Commission stipulated to agreed facts. The Commission then unanimously adopted those facts in its findings of fact and recommendation. The Commission recommended that Judge Sutton be publicly reprimanded and fined $500.

Count One

¶4. On January 31, 2018, Investigator Nick Brown with the Hinds County Sheriff's Department arrested and charged Amanda Howard with prostitution. Howard's hearing was scheduled for February 22, 2018. The day after Howard's arrest, Michael Liddell approached Judge Sutton in court and asked Judge Sutton if he could help Liddell with the charges pending against Howard. That afternoon, Judge Sutton called Investigator Brown and asked him if he could "help him out" on the prostitution charge against Howard because he knew her family. Investigator Brown told Judge Sutton that he would not "help him out" with the prostitution charge. That same day-February 1, 2018, Judge Sutton, sua sponte and without a hearing, remanded Howard's prostitution charge to the file, subject to recall.

Count Two

¶5. On June 26, 2018, Investigator Keith Burnett, with the Hinds County Sheriff's Department, arrested Barry Jones and charged him with possession of marijuana. Jones's mother, who is a parishioner at Fairfield Missionary Baptist Church where Judge Sutton serves as pastor, approached Judge Sutton and asked if he could help Jones. Judge Sutton called Investigator Burnett and inquired about Jones's arrest and pending charges. Judge Sutton asked about the weight of the marijuana collected from Jones and whether the charge was a misdemeanor or felony. Investigator Burnett informed Judge Sutton that 35.2 grams of marijuana had been collected from Jones's apartment and that he was charging Jones with "Possession of a Controlled Substance Felony." The record is silent as to what Judge Sutton did with this information.

ANALYSIS

¶6. Section 177A of the Mississippi Constitution provides, in part,

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

Miss. Const. art. 6, § 177A.

¶7. In a judicial-performance case, this Court conducts an independent review of the entire record and "makes the final determination as to the appropriate action to be taken when a judge has committed willful misconduct or conduct prejudicial to the administration of justice that brings the judicial office into disrepute." Miss. Comm'n on Judicial Performance v. Skinner , 119 So. 3d 294, 299 (Miss. 2013) (citing Miss. Comm'n on Judicial Performance v. Thompson , 80 So. 3d 86, 88 (Miss. 2012) ). Making the final determination, the Court "may accept, reject, or modify, in whole or in part, the findings and recommendation of the Commission." R. Miss. Comm'n on Judicial Performance 10E. Further, the Court is not bound by a joint recommendation between the Commission and the judge. Skinner , 119 So. 3d at 299 (citing Miss. Comm'n on Judicial Performance v. Sanford , 941 So. 2d 209, 217-18 (Miss. 2006) ). "To impose sanctions, the Court 'must find clear and convincing evidence of misconduct.' " Miss. Comm'n on Judicial Performance v. Shoemake , 191 So. 3d 1211, 1216 (Miss. 2016) (quoting Miss. Comm'n on Judicial Performance v. Carver , 107 So. 3d 964, 969 (Miss. 2013) ).

I. Willful misconduct and conduct prejudicial to the administration of justice that brings the judicial office into disrepute

¶8. The Commission and Judge Sutton agreed that he violated Canons 1, 2A, 2B, 3A, 3B(1), 3B(2), 3B(8), 3B(11), 3C(1), 3E(1) and 4A of the Code of Judicial Conduct. We agree, but we add that Judge Sutton violated Canon 3B(7) as well.

¶9. The Court has discussed willful misconduct and conduct prejudicial to the administration of justice:

Willful misconduct in office is the improper or wrongful use of power of his office by a judge acting intentionally, or with gross unconcern for his conduct and generally in bad faith. It involves more than an error of judgment or a mere lack of diligence. Necessarily, the term would encompass conduct involving moral turpitude, dishonesty, or corruption, and also any knowing misuse of the office, whatever the motive. However, these elements are not necessary to a finding of bad faith. A specific intent to use the powers of the judicial office to accomplish a purpose which the judge knew or should have known was beyond the legitimate exercise of his authority constitutes bad faith ....
Willful misconduct in office of necessity is conduct prejudicial to the administration of justice that brings the judicial office into disrepute. However, a judge may also, through negligence or ignorance not amounting to bad faith, behave in a manner so as to bring the judicial office into disrepute.

Miss. Comm'n on Judicial Performance v. Boykin , 763 So. 2d 872, 874-75 (Miss. 2000) (quoting In re Quick , 553 So. 2d 522, 524-25 (Miss. 1989) ).

¶10. Canon 1 of the Code of Judicial Conduct provides,

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code should be construed and applied to further that objective.

Judge Sutton's contacting the investigators, his sua sponte actions on behalf of Howard and his conversation with Jones's mother violated the "high standards of conduct" required by Canon 1. Further, his actions did not preserve the integrity and independence of the judiciary.

¶11. Canon 2A states that "[a] judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Also, Canon 2B, in part, provides,

Judges shall not allow their family, social, or other relationships to influence the judges' judicial conduct or judgment. Judges shall not lend the prestige of their offices to advance the private interests of the judges or others; nor shall judges convey or permit others to convey the impression that they are in a special position to influence the judges.

Judge Sutton did not promote public confidence in the integrity and impartiality of the judiciary. His actions were also influenced by social relationships and conveyed the impression that those acquaintances were in a position to influence his actions as a judge. As to Count One, Liddell approached Judge Sutton in court to request his assistance with Howard's charges. Judge Sutton should have immediately declined to assist Howard and informed Liddell that his request was improper because Judge Sutton was bound by his oath to be impartial. Also, while the telephone communication in Count Two was less public, Jones's mother was left with the impression that Judge Sutton would help her son.

¶12. Under Canon 3A, "judicial duties of judges take precedence over all their other activities." Canon 3B(1) declares that a judge should not hear and decide cases in which disqualification is required. Further, Canon 3B(2) requires a judge to "be faithful to the law and maintain professional competence in it" and "not [to] be swayed by partisan interests, public clamor, or fear of criticism." In part, Canon 3B(7) provides,

A judge shall accord to all who are legally interested in a proceeding, or their lawyers, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding ....

Also, Canon 3B(8) requires a judge to "dispose of all judicial matters promptly, efficiently and fairly." Canon 3B(11) provides that "[a] judge shall not disclose or use, for any purpose unrelated to judicial duties, nonpublic information acquired in a judicial capacity." Canon 3C(1) requires a judge to cooperate with other judges and court officials in the administration of justice. Canon 3E(1) describes when judges should disqualify themselves.

¶13. None of Judge Sutton's actions were in accordance with Canon 3 of the Code of Judicial Conduct. In Howard's case, Judge Sutton improperly contacted Investigator Brown, and-after Investigator Brown said he would not "help him out"-Judge Sutton remanded Howard's prostitution charge to the files, sua sponte. In Jones's case, Judge Sutton improperly contacted Investigator Burnett. Once Judge Sutton agreed to contact the investigators, he had a duty to disqualify himself from both cases.

¶14. Also, the discussion of each case with a nonparty, the contact with the investigators in each case and Judge Sutton's action on behalf of Howard violated Canon 3B(7)'s prohibition against ex parte communications. Notably, the Commission's findings of fact and recommendation did not find that Judge Sutton violated Canon 3B(7). Thus, it did not consider Judge Sutton's ex parte communications.

¶15. Last, Canon 4A provides,

A judge shall conduct all of the judge's extra-judicial activities so that they do not:
(1) cast reasonable doubt on the judge's capacity to act impartially as a judge;
(2) demean the judicial office; or
(3) interfere with the proper performance of judicial duties.

Judge Sutton's intermingling of his role as pastor and justice court judge did not comport with Canon 4A when he agreed to contact Investigator Burnett about the charges against Jones.

¶16. After a review of the Commission's findings of fact and recommendation, it is evident that Judge Sutton committed willful misconduct and conduct prejudicial to the administration of justice that brings the judicial office into disrepute. We now determine what sanctions against Judge Sutton are appropriate.

II. Sanctions

¶17. "The sanctions in judicial-misconduct cases should be proportionate to the judge's offense." Miss. Comm'n on Judicial Performance v. Sheffield , 235 So. 3d 30, 34 (Miss. 2017) (quoting Miss. Comm'n on Judicial Performance v. Littlejohn , 172 So. 3d 1157, 1161 (Miss. 2015) ). To determine the appropriateness of sanctions, the Court weighs six factors:

"(1) the length and character of the judge's public service; (2) whether there is any prior caselaw on point; (3) the magnitude of the offense and the harm suffered; (4) whether the misconduct is an isolated incident or evidences a pattern of conduct;" (5) whether the conduct was willful, intended to deprive the public of assets, or if it exploited the judge's position; and "(6) the presence or absence of mitigating or aggravating factors."

Miss. Comm'n on Judicial Performance v. Harris , 131 So. 3d 1137, 1144 (Miss. 2013) (quoting Miss. Comm'n on Judicial Performance v. Skinner , 119 So. 3d 294, 300, 307 (Miss. 2013) ).

A. The length and character of Judge Sutton's public service

¶18. Judge Sutton has served as a justice court judge for fourteen years. Aside from Judge Sutton's history with the Commission, which will be discussed as an aggravating factor, the Commission's findings of fact and recommendation does not relay any additional information relating to the character of Judge Sutton's public service.

B. Whether there is any caselaw on point.

¶19. A number of similar cases are described below in order to determine if the recommended sanctions fit Judge Sutton's offenses and are consistent with the Court's previous holdings. The cases described involve ex parte communications, as well as instances of judges' remanding charges to the files.

Mississippi Commission on Judicial Performance v. Warren , 791 So. 2d 194 (Miss. 2001).

¶20. Judge Warren admitted engaging in ex parte communications with a defendant's mother-in-law concerning the defendant's DUI charge. Id. at 196. The defendant was tried and convicted by a different justice court judge. Id. Judge Warren also admitted to being "engaged in the practice of improperly remanding traffic and other tickets to the file based upon his ex parte communications with the defendant or other person or persons indicated without notice to the officer or without a hearing or trial being held." Id. Judge Warren remanded approximately ten cases to the files in this manner over a period of at least eight months. Id. The Court ordered a public reprimand, fined Judge Warren $765 and assessed costs of $100. Id. at 199.

Mississippi Commission on Judicial Performance v. Boykin , 763 So. 2d 872 (Miss. 2000).

¶21. Judge Boykin admitted dismissing traffic tickets and other tickets based on ex parte communications with the defendant or other persons without a hearing or notice to the issuing officer. Id. at 875. Judge Boykin dismissed approximately eleven cases in this manner over a period of one year and five months. Id. Judge Boykin had served as a justice court judge for twenty years, and this complaint was the first against her. Id. The Court ordered a public reprimand, fined Judge Boykin $861.50 and assessed all costs against her. Id. at 876-77.

Mississippi Commission on Judicial Performance v. Bowen , 662 So. 2d 551 (Miss. 1995).

¶22. Judge Bowen admitted dismissing eighteen speeding tickets based on ex parte communication with defendants and others. Id. at 551. The Court ordered a public reprimand, fined Judge Bowen $1,450 and assessed all costs against him. Id.

Mississippi Commission on Judicial Performance v. Vess , 10 So. 3d 486 (Miss. 2009).

¶23. Judge Vess admitted committing several instances of ex parte communications. Id. at 488-89. Judge Vess entered a plea on behalf of a defendant, spoke with the victim's family before a hearing and required a defendant to pay fines on an incomplete order without affording the defendant notice and opportunity to secure counsel. Id. at 488. Also, Judge Vess communicated with the defendant after her conviction, contacted a local paper on behalf of the defendant concerning an error in a story about the defendant's crime and wrote a note to the defendant's employer concerning the verdict after another ex parte communication with the defendant. Id. at 488-89. The Court ordered a public reprimand, fined Judge Vess $2000 and assessed costs of $100 against him. Id. at 495.

Mississippi Commission on Judicial Performance v. Cowart , 936 So. 2d 343 (Miss. 2006).

¶24. Judge Cowart admitted remanding a number of traffic charges to the files over a period of almost a year. Id. at 345-46. Judge Cowart also admitted to a number of ex parte communications, including asking law enforcement officers for "help on the tickets." Id. at 345. When the issuing officer inquired about the status of the charges, Judge Cowart reactivated the charges and placed them on the docket for hearings. Id. at 346. Aside from remanding traffic tickets to the files, Judge Cowart continued to preside over a case after she acknowledged that she had a conflict of interest. Id. at 345. The Court ordered a public reprimand, suspended Judge Cowart from office for thirty days without pay and assessed costs of $100. Id. at 351.

Mississippi Commission on Judicial Performance v. Chinn , 611 So. 2d 849 (Miss. 1992).

¶25. The Commission determined that Judge Chinn had engaged in "ticket fixing" in eighteen cases. Id. at 849-50. Among other violations, it also determined that Judge Chinn had dismissed seven misdemeanor cases without assessing court costs and had exceeded his authority on twenty-seven occasions. Id. at 850. The Court removed Judge Chinn from office. Id. at 857.

¶26. Judge Sutton's actions are similar to the conduct in Warren , Boykin and Bowen . Judge Sutton remanded Howard's criminal charge to the files. Also, as discussed below, Judge Sutton has committed multiple instances of misconduct-including misconduct related to ex parte communications. In general, Judge Sutton's conduct is not as severe as the conduct described in Vess , Cowart and Chinn . Judge Sutton, however, did ask Investigator Brown to "help him out," similar to Judge Cowart's request.

C. The magnitude of the offense and the harm suffered

¶27. The magnitude of Judge Sutton's offenses is significant. In Count One, Judge Sutton was approached in court and asked to help a defendant charged with a criminal offense. While the agreed facts before the Court do not include Judge Sutton's in-court response to the request, it is clear that he agreed to help in some manner, given his subsequent ex parte communication with Investigator Brown. As to both Counts One and Two, the primary harm suffered from Judge Sutton's actions is to the public, which was left with the impression that members of the judiciary might be partial to certain litigants. Judge Sutton's actions also lent the prestige of his office to advance the private interest of others. "This Court has stated, '[o]fficial integrity of our Justice Court Judges is vitally important, for it is on that level that many citizens have their only experience with the judiciary.' " Vess , 10 So. 3d at 493 (quoting In re Inquiry Concerning Garner , 466 So. 2d 884, 887 (Miss. 1985), overruled on other grounds by Miss. Comm'n on Judicial Performance v. Boone , 60 So. 3d 172, 176-77 (Miss. 2011) ).

D. Whether the misconduct is an isolated incident or evidences a pattern of conduct.

¶28. Given Judge Sutton's past improper ex parte communications (discussed below)

and the multiple improper ex parte communications in this case, Judge Sutton "has evinced a pattern of improper and unethical behavior." Miss. Comm'n on Judicial Performance v. Brown , 918 So. 2d 1247, 1258 (Miss. 2005).

E. Whether the conduct was willful, intended to deprive the public of assets, or if it exploited Judge Sutton's position.

¶29. " 'To determine the extent to which the conduct was willful, "we will examine whether the judge acted in bad faith, good faith, intentionally, knowingly, or negligently." ' " Sheffield , 235 So. 3d at 35 (quoting Harris , 131 So. 3d at 1146 ). Judge Sutton's conduct in both Counts was willful and exploited his position as a justice court judge. As to Count One, Judge Sutton willingly contacted Investigator Brown and asked if Investigator Brown would "help him out." Once Investigator Brown declined, Judge Sutton-the same day-willfully remanded Howard's charge to the file despite Howard's hearing already having been scheduled. As to Count Two, Judge Sutton willfully contacted Investigator Burnett concerning the charge against Jones. Judge Sutton did not, however, deprive the public of any assets. Further, there is no indication that Judge Sutton personally profited from his actions.

F. The presence or absence of mitigating or aggravating factors

Mitigating Factors

¶30. Judge Sutton's cooperation with the Commission's inquiry is a mitigating factor. The Commission and Judge Sutton have submitted a joint recommendation to this Court. Also, nothing indicates that Judge Sutton personally profited from his actions in these two cases.

Aggravating Factors

¶31. Prior complaints and censures, though, weigh against Judge Sutton. During his fourteen-year tenure, he has had nine complaints against him. Of those nine complaints, the Commission resolved five of them by informal action resulting in letters of caution to Judge Sutton, two of them by formal complaints resulting in private admonishment and two of them by formal complaint, which were consolidated and submitted to this Court. See Miss. Comm'n on Judicial Performance v. Sutton , 985 So. 2d 322 (Miss. 2008), overruled on other grounds by Boone , 60 So. 3d at 176-77.

¶32. The Commission has issued cautionary letters to Judge Sutton five times: once in 2012, twice in 2016 and twice in 2017. In 2012, Judge Sutton failed to start court on time and treat the litigants and attorneys with the appropriate demeanor. In 2016, Judge Sutton failed to properly jail litigants in a contempt matter and failed to exhibit the appropriate judicial demeanor. In 2017, Judge Sutton twice failed to exhibit the appropriate judicial demeanor.

¶33. Also, the Commission has privately reprimanded Judge Sutton twice: once in 2005 and once in 2008. In 2005, Judge Sutton personally solicited funds for his reelection campaign. He entered into a memorandum of understanding with the Commission and received a private admonishment.

In 2008, Judge Sutton engaged in improper ex parte communication. He entered into an agreed statement of facts and proposed recommendation with the Commission and received a private admonishment. The record is silent as to any details concerning this ex parte communication.

¶34. Last, in 2008, the Commission consolidated two formal complaints against Judge Sutton and submitted them to this Court. Sutton , 985 So. 2d at 324. There, this Court publicly reprimanded Judge Sutton and assessed costs of $1,900.89 against him for his misconduct in three cases. Id.

¶35. In the first case, Judge Sutton had awarded a realty company a judgment for past-due rent and removal of a tenant. Id. On December 8, 2005, Judge Sutton signed a warrant of removal to evict the defendant. Id. According to the realty company, Judge Sutton-on December 19, 2005-called the realty company and informed the company that he had spoken with the tenant, decided to stay the warrant of removal and demanded that the company return the tenant's apartment key to the court. Id. at 325. The company returned the key to the court and sued the tenant again in Hinds County Justice Court after the tenant failed to pay November and December 2005 rents. Id.

¶36. In the second and third cases, Judge Sutton presided over two suits in which the same plaintiff sought to evict two different tenants from their apartments due to alleged lease violations that did not involve past-due rent. Id. After hearing testimony in one of the cases, Judge Sutton arranged to inspect the tenant's apartment during the noon recess. Id. Judge Sutton failed to meet the parties and-during the afternoon hearing-publicly chastised the plaintiff's attorney for having attempted to contact him through his chambers when he did not appear at the apartment complex during the noon recess. Id. The next day, Judge Sutton inspected the apartment without the plaintiff's attorney present and informed the tenant that he was holding her case in abeyance. Id. at 326. The Commission also determined that Judge Sutton failed to make a final ruling in either case. Id.

¶37. After review, the Court agreed with the Commission that Judge Sutton violated Code of Judicial Conduct Canons 1, 2A, 3B(2), 3B(4), 3B(7), 3B(8) and 3C(1). Id. at 326-27. The Court agreed with the Commission's recommended sanctions. Id. at 330.

¶38. The aggravating factors most relevant to Judge Sutton's current misconduct are, of course, his past ex parte communications. These communications, though, occurred more than ten years ago. Still, given the number of violations that Judge Sutton has had in the interim and the fact that he has been publically and privately reprimanded, as well as sanctioned for improper ex parte communication, his past conduct should factor into the Court's decision. As the Commission did not find that Judge Sutton violated Canon 3B(7)-the Canon pertaining to ex parte communication-there is no indication that the Commission placed any special emphasis on Judge Sutton's past ex parte communications.

¶39. Given Judge Sutton's history with the Commission and his past sanctions for improper ex parte communication, we suspend Judge Sutton for thirty days without pay, in addition to the Commission's recommended sanctions of a public reprimand and a $500 fine. Judge Sutton remanded a criminal charge to the files, engaged in multiple ex parte communications and left the public and the law-enforcement community with the impression that he was biased and was willing to act partially on behalf of certain litigants. Judge Sutton's misconduct merits a thirty-day, unpaid suspension, a $500 fine and a public reprimand.

CONCLUSION

¶40. Judge Sutton committed misconduct in violation of the Code of Judicial Conduct and section 177A of the Mississippi Constitution of 1890. We impose the Commission's proposed sanctions, but we add a thirty-day suspension without pay. These sanctions are proportionate to Judge Sutton's offense and are warranted by his misconduct. Thus, Judge Sutton is to be publicly reprimanded, fined $500 and suspended without pay for thirty days. We order that this public reprimand shall be read in open court when the venire panel meets on the first day of the next term of the Circuit Court of the First Judicial District of Hinds County, with Judge Sutton present.

¶41. HINDS COUNTY JUSTICE COURT JUDGE FRANK SUTTON SHALL BE SUSPENDED FROM OFFICE FOR A PERIOD OF THIRTY (30) DAYS WITHOUT PAY, EFFECTIVE ON THE DATE OF ISSUANCE OF THIS COURT'S MANDATE AND SHALL BE PUBLICLY REPRIMANDED AND FINED $500. THE PUBLIC REPRIMAND SHALL BE READ IN OPEN COURT BY THE PRESIDING JUDGE ON THE FIRST DAY OF THE NEXT TERM OF THE CIRCUIT COURT OF HINDS COUNTY IN WHICH A JURY VENIRE IS PRESENT AFTER THE ISSUANCE OF THIS COURT'S MANDATE, WITH JUDGE SUTTON PRESENT.

RANDOLPH, C.J., KING, P.J., COLEMAN, MAXWELL, BEAM, ISHEE AND GRIFFIS, JJ., CONCUR. KITCHENS, P.J., NOT PARTICIPATING.

      Ex parte , Black's Law Dictionary (10th ed. 2014) ("Done or made at the instance and for the benefit of one party only, and without notice to, or argument by, anyone having an adverse interest.").

      There is some question as to whether Judge Sutton has had eight or nine complaints against him that were resolved by Commission action. The Commission's agreed facts and recommendation summarize only eight complaints. Describing the complaints, though, the Commission's filing lists seven separate complaints by number along with Mississippi Commission on Judicial Performance v. Sutton , 985 So. 2d 322 (Miss. 2008), which the Commission states is two consolidated complaints.


source: Caselaw Access Project

author: BEAM, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    Bobby OSBOURNE v. STATE of Mississippi
    NO. 2017-KA-01549-SCT
    Supreme Court of Mississippi.
    July 18, 2019
    ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF, GEORGE T. HOLMES, JACKSON, BOBBY OSBOURNE (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER
    BEFORE KING, P.J., COLEMAN AND BEAM, JJ.
   BEAM, JUSTICE, FOR THE COURT:

¶1. Bobby Osbourne was convicted in the Tate County Circuit Court of aggravated assault, following a jury trial. Osbourne appeals from that conviction, claiming that his trial counsel was constitutionally ineffective for numerous reasons: (1) for failing to move for a mistrial after discovering at trial that the handwritten notes taken by one of investigators, who had taken a statement from Osbourne, had not been provided to Osbourne's defense before trial, (2) for failing to investigate possible exculpatory evidence; (3) for failing to perfect Osbourne's direct appeal; and (4) for failing to obtain video evidence that corroborated Osbourne's trial testimony.

¶2. The State contends that the only ineffective-assistance claim that can be addressed on this record is the claim that Osbourne's trial counsel failed to perfect a direct appeal from Osbourne's conviction. Accordingly, the State declines to stipulate that the record is adequate to address Osbourne's remaining ineffective-assistance claims.

¶3. We agree with the State. Given the record before us, we address only the ineffective-assistance claim pertaining to trial counsel's purported failure to perfect a direct appeal.

FACTS AND PROCEDURAL HISTORY

¶4. Osbourne was found guilty of aggravated assault for shooting John McCarver during an altercation between the two men at a gas station following a traffic incident that occurred on Interstate 55. Multiple witnesses testified for the State. Osbourne was the only witness to testify for the defense during the guilt phase at trial.

¶5. Evidence was presented that McCarver, his wife Tressa, and his seven-year-old child were traveling south on I-55 to their home in Coldwater, Mississippi, in the afternoon on March 18, 2016. Tressa was driving, and McCarver was sitting in the passenger seat. Tressa passed a white van that she testified was traveling slowly in the passing lane. After passing the van, Tressa remained in the fast lane. The white van then drove up behind the McCarvers' vehicle and began tailgating their rear bumper. McCarver told Tressa to slow down and to get over into the other lane because their exit was coming up.

¶6. According to Tressa, when she exited I-55 at the Coldwater exit, the white van followed. Tressa pulled into a Shell gas station located close to the exit and parked at one of the gas pumps. The white van pulled into the gas station and parked nearby.

¶7. Osbourne, the driver of the van, got out of the van and approached the McCarvers' vehicle. McCarver got out of his vehicle and walked toward Osbourne. An argument ensued, and, according to witnesses for the State, Osbourne hit McCarver in the face. Osbourne then pulled a gun from the back of his waistband, walked backed to his van, and got back inside it. McCarver and Tressa testified that McCarver did not have a gun on his person or inside his vehicle.

¶8. McCarver followed Osbourne to the van. McCarver reached inside the van, grabbed Osbourne's keys from the ignition switch, and threw them to the ground. McCarver told Osbourne he had to wait for the police.

¶9. At that point, Osbourne reached for his gun. Seeing this, McCarver shut the driver's-side door to the van to keep Osbourne from getting out. Osbourne then fired a shot at McCarver. The bullet shattered the driver's-side window and hit McCarver in his left side.

¶10. Emergency personnel and law enforcement were called to the scene. McCarver was transported to the hospital, and Osbourne was arrested.

¶11. While in custody, Osbourne told investigators Mark Sansom and Eric Ainsworth that he had been traveling south on I-55 when a white vehicle came up behind him, began going fast and slow, and eventually passed him. Osbourne said he turned off the same exit and stopped at the Shell gas station to get an energy drink. Osbourne parked his van near the curb closest to the road in front of the gas station. Osbourne said he saw the white vehicle's male passenger reach under the seat. So Osbourne grabbed a gun from his console, put it in his waistband, and exited the van. The male passenger exited his vehicle and began arguing with Osbourne and struck Osbourne with his hands. Osbourne went back to his van and got inside. The man came over to his van and reached inside the partially lowered van window, grabbed Osbourne's keys, and threw them to the ground. Osbourne told investigators that he felt threatened at that point, and he shot the man through the window of the van.

¶12. At trial, Osbourne testified that he was traveling south on I-55 in rush-hour traffic. He approached the McCarvers' vehicle, which was traveling in the passing lane. Osbourne flashed his lights for the vehicle to allow him to pass, but the vehicle would not move into the other lane. When Osbourne tried to pass in the other lane, the vehicle changed lanes to block him. Osbourne said he was traveling about ninety miles per hour, and "the lady driving the car" started hitting the brakes.

¶13. Osbourne said he signaled to turn off the Coldwater exit, not knowing that the McCarver vehicle was exiting there also. Osbourne said he always gets off I-55 at the Coldwater exit because that is where he likes to stop to get an energy drink. He said he pulled into the gas station the McCarvers also had pulled into because he wanted to identify the person who "liked to have killed" him.

¶14. Osbourne said his heart was still pounding from the incident on I-55. He got out of his van and grabbed his gun. He explained that he always carries a gun because he often has to travel to Memphis, Tennessee. Osbourne said he started walking toward the door of the store, when McCarver quickly walked up to him and put his chest against his. Osbourne said that he did not hit McCarver but instead that he pushed McCarver away from him. He claimed that McCarver reached for something in his right back pocket, which Osbourne believed was a gun. Osbourne then pulled his gun in response and was backing away, but McCarver "bum-rushed" him.

¶15. Osbourne said he got back into his van, and McCarver started beating, kicking, and rocking the van. Osbourne said he was trying to get the van out of gear to drive away, but McCarver came up, hit Osbourne, and tried to open the door. Osbourne said McCarver was hitting him through the window with his right hand, and McCarver snatched Osbourne's keys with his left hand. Osbourne said that, while McCarver was hitting him, he reached down and picked up his gun and just shot it.

¶16. Osbourne said he was frightened, and he told his friend, who was a passenger in the van, "get in the van, let's go." Osbourne then called 911.

¶17. Osbourne told the jury that the police interviewed him for approximately one hour. And he told the jury that the police had lied about what he had told them.

¶18. The trial took place on June 26, 2017. The trial court held a sentencing hearing on July 12, 2017. On July 13, 2017, Osbourne's trial counsel filed a post-trial motion for a judgment of acquittal, or, in the alternative, for a new trial. On August 9, 2017, the trial court sentenced Osbourne to ten years in the custody of the Mississippi Department of Corrections, with five years of nonreporting post-release supervision.

¶19. On November 3, 2017, trial counsel filed a notice of appeal and a motion for leave to appeal in forma pauperis. The trial court denied the motion, because Osbourne's notice of appeal was not timely filed, and no motion for an out-of-time appeal had been filed.

¶20. On November 8, 2017, trial counsel filed a notice of appeal. On November 29, 2017, trial counsel filed a motion to substitute counsel. That same day, the Office of Indigent Appeals filed an entry of appearance in Osbourne's appeal.

¶21. On December 13, 2017, this Court denied Osbourne's motion to substitute appellate counsel, because Osbourne had not been deemed indigent. On February 28, 2018, a three-judge panel of this Court held that insufficient information before the panel allowed for an out-of-time appeal and remanded the matter to the trial court for an evidentiary hearing on Osbourne's request for an out-of-time appeal.

¶22. On remand, the trial court heard conflicting testimony from Osbourne and his trial counsel as to whether or when an appeal had been requested. "[O]n the side of caution," the trial court decided to granted Osbourne an opportunity to file an out-of-time appeal. Represented by the Office of Indigent Appeals, this appeal followed.

DISCUSSION

¶23. To succeed on an ineffective-assistance-of-counsel claim, Osbourne must meet both prongs of the test set forth in Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), as adopted by this Court in Stringer v. State , 454 So. 2d 468, 476-78 (Miss. 1984). "First, the defendant must show that counsel's performance was deficient." Strickland , 466 U.S. at 687, 104 S.Ct. 2052. Second, the defendant must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

¶24. In Dartez v. State , this Court reiterated that, "generally, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings." Dartez v. State , 177 So. 3d 420, 422-23 (Miss. 2015) (citing Archer v. State , 986 So. 2d 951, 955 (Miss. 2008) ). This is because "[a]n appellate court is limited to the trial-court record in its review of the claim(s), and there may be instances in which insufficient evidence and/or information exists within the record to address the claim adequately." Id. at 423 (citing Archer , 986 So. 2d at 955 ).

¶25. This Court has also said it will address ineffective-assistance claims on direct appeal only when "the record affirmatively shows ineffectiveness of constitutional dimensions, or the parties stipulate that the record is adequate and the Court determines that findings of fact by a trial judge able to consider the demeanor of witnesses, etc., are not needed." Robinson v. State , 247 So. 3d 1212, 1228 (Miss. 2018) (internal quotation marks omitted) (quoting Read v. State , 430 So. 2d 832, 841 (Miss. 1983) ).

¶26. As mentioned, we agree with the State that the only ineffective-assistance claim that can be decided on this record is trial counsel's purported failure to perfect a timely appeal. The other claims concern matters outside this record.

¶27. Therefore, we will address only that particular claim. We dismiss Osbourne's other ineffective-assistance claims without prejudice in order to allow Osbourne to raise such claims in a post-conviction relief action, if he chooses.

Whether trial counsel was ineffective per se for failing to perfect Osbourne's appeal.

¶28. At the outset, regardless of whether trial counsel's performance was deficient in that he failed to timely perfect the direct appeal, Osbourne fails to articulate how he was prejudiced by trial counsel's failure, given that the trial court granted Osbourne an out-of-time appeal. The Strickland Court advised as follows:

[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.

Strickland , 466 U.S. at 697, 104 S.Ct. 2052.

¶29. Here, Osbourne's appellate counsel cites Triplett v. State , 579 So. 2d 555 (Miss. 1991), and Holland v. State , 656 So. 2d 1192 (Miss. 1995), for the blanket contention that Osbourne should be granted a new trial because trial counsel did not timely perfect an appeal. But neither Triplett nor Holland support any such notion.

¶30. In Triplett , a post-conviction relief proceeding, this Court reversed and rendered the trial court's denial of an out-of-time appeal after finding that trial counsel had been derelict in failing to perfect the defendant's direct appeal. Triplett , 579 So. 2d at 556-59. The Triplett Court, however, simply directed the trial court to permit the defendant's appeal. Id. at 559. It did not hold that the defendant was entitled to a new trial.

¶31. In Holland , the defendant was convicted of possession of cocaine with intent to distribute. Holland , 656 So. 2d at 1198. On direct appeal, this Court found that the evidence was insufficient to support a conviction of possession with intent to distribute but that it was sufficient to support a conviction for simple possession. Id. at 1198-99. The Holland Court prefaced the opinion by affirming that the defendant was barred from raising a sufficiency-of-the-evidence claim on appeal because trial counsel had "failed to renew his motion for a directed verdict, request a peremptory instruction, or file any post-trial motions concerning the sufficiency of the evidence." Id. at 1198. But the Holland Court also determined that trial counsel's failures denied the defendant constitutionally effective assistance of counsel because "the trial court would have undoubtedly been reversed and a decision rendered for simple possession but for the deficient representation of counsel." Id.

¶32. Thus, the ineffective-assistance claim in Holland was predicated on a reversible error that occurred at trial. That is not the case here. The ineffective-assistance claim is predicated only on trial counsel's purported failure to perfect an appeal and nothing more. Accordingly, we find no merit to it.

CONCLUSION

¶33. Osbourne's conviction and sentence are affirmed.

¶34. AFFIRMED.

RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, MAXWELL, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.


author: MAXWELL, JUSTICE, FOR THE COURT:

text:
    GREEN HILLS DEVELOPMENT COMPANY, LLC v. The SECRETARY OF STATE of the State of Mississippi, Delbert Hosemann, in His Official Capacity, UMB Bank, N.A., Stonebridge Holdings I, LLC, Stonebridge Holdings II, LLC, Stonebridge Holdings III, LLC, Rankin County Tax Collector, Judy Fortenberry, in Her Official Capacity, Rankin County Tax Assessor, John A. Sullivan, in His Official Capacity, the Rankin County Board of Supervisors, Rankin County Chancery Clerk, Larry Swales, in His Official Capacity, Kenneth Paul Bradley, Jr.
    NO. 2018-CA-00182-SCT
    Supreme Court of Mississippi.
    July 18, 2019
    ATTORNEYS FOR APPELLANT: MICHAEL A. HEILMAN, JOHN WILLIAM NISBETT, EDWARD TAYLOR POLK, JACKSON
    ATTORNEYS FOR APPELLEES: MICHAEL O. GWIN, JASON ERIC FORTENBERRY, CRAIG LAWSON SLAY, KENNETH PAUL BRADLEY, JR. (PRO SE), ALICIA NICOLE NETTERVILLE, JACKSON
    BEFORE KING, P.J., MAXWELL AND GRIFFIS, JJ.
   MAXWELL, JUSTICE, FOR THE COURT:

¶1. Green Hills Development Company, LLC, forfeited property to the State for failure to pay taxes. Five years later, the State sold the property, following the statutory procedure under which the Secretary of State accepts written applications to purchase and, if an application is approved, issues a land patent. After learning of the sale, Green Hills sued the Secretary of State and the purchasers to have the land patents set aside.

¶2. Green Hills argued it had been entitled to notice-which was never given-of the purchasers' pending applications. Had it been properly notified, Green Hills asserts it would have filed its own application. And its application would have received priority based on Green Hills' status as former owner. Green Hills also sued one of the purchasers for interfering with its rights as developer to enforce protective covenants and maintain common areas within the development.

¶3. The Defendants successfully moved for summary judgment on Green Hills' notice-based claims. The trial court ruled that the notice provision on which Green Hills relied was no longer in effect when the purchasers submitted their applications. And under the current administrative rules, Green Hills undisputedly received all required notice. The court further ruled the priority status for former owners' applications was contingent on Green Hills' filing an application, which Green Hills never did. After review, we affirm this part of the trial court's judgment. The record confirms the material facts are not in dispute-Green Hills received all required notice and never filed an application to purchase, despite multiple opportunities. So the Defendants are entitled to a judgment as a matter of law on Green Hills' notice-based claims.

¶4. But the trial court's ruling went beyond dismissing the notice-based claims. The court also ruled that Green Hills lacked standing to challenge the validity of the land patents and that the land patents were "in all respects ... valid and proper." We reverse these two rulings.

¶5. Still pending before the trial court are Green Hills' claims based on the development's protective covenants and common areas. As developer, Green Hills has colorable interest in whether the purchasers hold valid land patents. Green Hills has also suffered an adverse effect from the purchasers' countersuit to declare the protective covenants unenforceable and to divest Green Hills of its interest in the common areas. Thus, Green Hills has standing to challenge the land patents' validity.

¶6. Part of that challenge is Green Hills' assertion that one of the purchasers was statutorily prohibited from owning the tax-forfeited property, rendering its land patents void. In response to the Defendants' motion for summary judgment, Green Hills moved for a continuance to conduct discovery on this issue. Given the lack of record evidence and the potential impact of this issue on the remaining claims, the trial court's summary-judgment ruling that the land patents are "in all respects ... valid and proper" was premature.

¶7. Thus, we reverse the parts of the judgment finding that Green Hills lacked standing and that the land patents are categorically valid. We remand the issue of whether the land patents are void by operation of statute to the trial court to be considered with the remaining claims.

Background Facts and Procedural History

I. Loss of Subject Property

¶8. Green Hills' loss of ownership of its property to the State is not in dispute in this case.

¶9. Green Hills was the developer and significant owner of a multi-use development in Rankin County called Stonebridge. To finance the development, the Stonebridge Public Improvement District (SPID) was formed in 2007. The SPID board issued bonds through a trust indenture in September 2007. The board then levied special assessments on the property within the SPID to repay the bonds. These assessments were certified to the Rankin County Tax Assessor and Tax Collector to be collected and enforced "in the same manner and at the same time as ad valorem taxes." Miss. Code Ann. § 19-31-33(3) (Rev. 2012).

¶10. Undisputably, Green Hills did not pay the special assessments levied on 106 parcels in Stonebridge (the Subject Property). Although Green Hills had two years to pay the back taxes and redeem the Subject Property, it did not. On November 1, 2011, the Secretary of State sent Green Hills a letter informing it that some of the parcels now belonged to the State. The Secretary of State's letter included an application to purchase the Subject Property and a notification that it "may have an applicant who is interested in purchasing the property." So if the Secretary of State did not hear from Green Hills within fifteen days, it would assume Green Hills was no longer interested. On October 24, 2013, the Secretary of State sent identically worded notice letters concerning the remaining parcels, which had also become property of the State.

II. Purchase of Subject Property

¶11. Green Hills' counsel timely called the Secretary of State's office to express his client's continued interest in the Subject Property. But counsel also expressed concern that his client would have to repurchase all 106 parcels and pay all the levied special assessments, including penalties and interest. This phone call was the first of a four-year, back-and-forth conversation between Green Hills and the Secretary of State's office about purchasing the property. Importantly, Green Hills never submitted an application to purchase the property, despite the Secretary of State's written reminders that it had "yet to receive applications to purchase from Green Hills" but was "continuing to accept applications on the property until a suitable purchaser is found."

¶12. Instead, in January 2015, the Secretary of State received Kenneth Bradley's applications to purchase two parcels. Three months later, three limited liability companies-Stonebridge Holdings I, LLC; Stonebridge Holdings II, LLC; and Stonebridge Holdings III, LLC (collectively, the Stonebridge Companies)-submitted applications to purchase the remaining parcels. The sole member of the Stonebridge Companies is UMB Bank, N.A., an out-of-state banking corporation, which is the successor trustee for the SPID bondholders.

¶13. In June 2016, the Secretary of State issued land patents to Bradley for two of the parcels. That same month, the Secretary of State issued land patents to the Stonebridge Companies for the remaining parcels. A month before issuing the Stonebridge Companies' land patents, the Secretary of State-along with the Stonebridge Companies, UMB Bank, the Rankin County Tax Assessor, and the Rankin County Tax Collector-entered a forbearance agreement. This agreement allowed the Stonebridge Companies to purchase the property without satisfying the entirety of the unpaid special assessments.

III. Green Hills' Complaint

¶14. When Green Hills learned of not only the land patents but also the forebearance agreement, it sued the Secretary of State, UMB Bank, the Stonebridge Companies, the Rankin County Tax Collector, the Rankin County Tax Assessor, the Rankin County Chancery Clerk, and Bradley. Central to its complaint was Green Hills' contention that, as the original owner of the Subject Property, it was entitled to notice that Bradley and the Stonebridge Companies had filed applications to purchase. Had it been properly notified, Green Hills contended, it would have filed an application as well. And, by rule, its application would have enjoyed priority status. Further, Green Hills complained the Secretary of State gave the Stonebridge Companies preferential treatment in the application process-namely by entering the forbearance agreement. Green Hills also alleged UMB Bank and the Stonebridge companies had breached and/or interfered with the protective covenants binding the Subject Property, which Green Hills claimed it had the right to enforce.

¶15. The Stonebridge Companies countered with claims of their own, based on Green Hills' attempted enforcement of the protective covenants and control over common areas of the development.

IV. Summary Judgment

¶16. Green Hills had filed its complaint in the Chancery Court of Hinds County, the county in which the Secretary of State's office is located. But the Secretary of State successfully moved for transfer to the chancery court of Rankin County, where the Subject Property is located.

¶17. Soon after the transfer to Rankin County, the Secretary of State-joined by the other Defendants-moved for summary judgment. The Defendants argued Green Hills' notice argument was based on an outdated regulation. Under current regulations, the Secretary of State had provided all required notice. The Defendants also argued Green Hills lacked standing to challenge the validity of the land patents because it no longer owned the Subject Property.

¶18. Green Hills countered with a Rule 56(f) motion for continuance to conduct discovery. See Miss. R. Civ. P. 56(f). In its rebuttal, Green Hills for the first time invoked the statutory prohibition against a banking corporation's direct or indirect purchase of tax-forfeited land for which it does not hold a mortgage or deed of trust. See Miss. Code Ann. § 29-1-75 (Supp. 2018). Green Hills asserted the need for discovery as to UMB Bank's statutory authority to indirectly purchase the land through the Stonebridge Companies. But at the summary judgment hearing, the trial court refused to consider Green Hills' argument that UMB Bank's status as a banking corporation rendered the land sale void under Section 29-1-75, concluding, "[t]hat's not what we're here about today."

¶19. The court instead focused on the Defendants' argument that Green Hills could not establish the two assertions undergirding its claims-(1) the Secretary of State failed to give Green Hills notice of Bradley's and the Stonebridge Companies' applications, and (2) the Secretary of State failed to acknowledge Green Hills' priority status in the application process. The court agreed with the Defendants. It ruled that Green Hills had "received all legally required notice." Further, because Green Hills did not submit an application to purchase the Subject Property, it "at no time has possessed any priority, preference or purchase rights." Consequently, "Green Hills ha[d] established no right, claim or standing to challenge the validity of the land patents issued for the Subject Property."

¶20. Despite finding Green Hills lacked standing to challenge the validity of the land patents, the court deemed all the land patents issued for the Subject Property "in all respects [were] valid and proper."

¶21. The court's judgment dismissed all claims against the Secretary of State, Bradley, the Rankin County Tax Assessor, the Rankin County Tax Collector, and the Rankin County Chancery Clerk. But the court excepted from dismissal Green Hills' claims specifically aimed at UMB Bank and the Stonebridge Companies relating to the protective covenants. So the grant of summary judgment was only partial. However, the trial judge found there was no just reason for delay and expressly directed the entry of a final judgment. See Miss. R. Civ. P. 54(b).

VII. Appeal

¶22. Green Hills timely appealed. Green Hills argues:

(1) it has standing to challenge the land patents' validity;
(2) the trial court erred in finding the land patents valid instead of void based on evidence in the record;
(3) the trial court erred in finding the land patents were valid;
(4) the Secretary of State was obligated to follow pre-2015 administrative rules governing notice;
(5) alternatively, the Secretary of State failed to follow current administrative rules governing notice;
(6) the trial court erred by not granting Green Hills' Rule 56(f) motion for a continuance to conduct discovery; and
(7) the Hinds County Chancery Court erred in transferring the case to the Rankin County Chancery Court.

¶23. This Court "review[s] the court's grant of summary judgment de novo, viewing the evidence in the light most favorable to the party against whom the summary-judgment motion has been made." Hyde v. Martin , 264 So. 3d 730, 734 (Miss. 2019). Likewise, we review the jurisdictional question of standing de novo. Hotboxxx, LLC v. City of Gulfport , 154 So. 3d 21, 27 (Miss. 2015) (citing City of Madison v. Bryan , 763 So. 2d 162, 166 (Miss. 2000) ; In re City of Biloxi , 113 So. 3d 565, 570 (Miss. 2013) ). But we "review a trial court's grant or denial of a motion for change of venue for an abuse of discretion," unless questions of law arise, such as the interpretation of the general venue statute. Laurel Ford Lincoln-Mercury, Inc. v. Blakeney , 81 So. 3d 1123, 1125 (Miss. 2012) (citing Hedgepeth v. Johnson , 975 So. 2d 235, 237 (Miss. 2008) ).

Discussion

I. Notice

¶24. We begin with the issue of notice. The trial court ruled, as a matter of undisputed fact and law, Green Hills received all legally required notice related to the Subject Property and had no "priority, preference, or purchase right." We agree.

¶25. Green Hills asserts that, as the original owner of the Subject Property, it was entitled to notice of the Stonebridge Companies' and Bradley's land-patent applications. Had it been given proper notice, Green Hills contends, it would have filed an application, and such application would have enjoyed priority status. But the first assertion is not supported by fact or law. Instead, the undisputed record shows Green Hills was given all required notice. So the second contention likewise fails. The undisputed record shows-regardless of Green Hills' intention-Green Hills never applied to purchase the Subject Property. Thus, no right to priority application status arose.

A. 1 Mississippi Administrative Code Part 11, Rule 1.6: 2011 Version

¶26. Green Hills insists the 2011 version of 1 Mississippi Administrative Code Part 11, Rule 1.6 (adopted November 30, 2011), Westlaw, controlled. An application to purchase State land triggers a thirty-day waiting period. And under the 2011 version of Rule 1.6, during the thirty-day waiting period, the Secretary of State had to "make reasonable efforts to locate and notify record owners at the time the property was forfeited to the state that application to purchase the property has been made." 1 Miss. Admin. Code Pt. 11, R. 1.6C (2011). Green Hills concedes this version was replaced effective January 3, 2015. And the 2015 version does not require the Secretary of State to notify the prior owner that an application to purchase has been submitted. See 1 Miss. Admin. Code Pt. 11, R. 1.6 (amended Jan. 3, 2015), Westlaw. But Green Hills argues the Secretary of State was still obligated to follow the 2011 version of the rule and provide Green Hills notice of Bradley's and the Stonebridge Companies' applications.

¶27. Green Hills first reasons the old rule controlled because the Subject Property vested in the State before January 3, 2015. But there is nothing in the old rule's language that ties notice to when the property was forfeited to the State. Instead, under the old rule, the time to locate and notify the prior owner was "[d]uring the thirty (30) day waiting period." See 1 Miss. Admin. Pt. 11, R. 1.6C (2011). And this waiting period did not begin until an application to purchase had been filed. 1 Miss. Admin. Pt. 11, R. 1.6A (2011). In this case, no application was filed until after January 3, 2015. At that point, the application-notice requirement was no longer in effect. See 1 Miss. Admin. Code Pt. 11, R. 1.6 (2015).

¶28. Green Hills next makes something akin to a detrimental-reliance or estoppel argument. It claims the rule change should not apply because it did not know the rule had changed. But Green Hills cites no law in support of binding a State agency to an outdated regulation simply because an adversely affected member of the public did not know the regulation had changed. Instead, "[i]t is a familiar rule that ignorance of the law excuses no one, or that every person is charged with knowledge of the law." Hoskins v. Howard , 214 Miss. 481, 497, 59 So. 2d 263, 269 (1952). Here, Green Hills' unfamiliarity with the rule change-and its assumption that it would be notified if another applied to purchase the Subject Property-does not excuse it from not submitting an application during the years-long span the Subject Property was available to purchase.

B. 1 Mississippi Administrative Code Part 11, Rule 1.6: 2015 Version

¶29. Green Hills alternatively argues, if the 2015 version of the rule controls, the Secretary of State still failed to comply. In so arguing, Green Hills does not contend it did not receive notice or that the notice lacked the required information. Nor can it. The record clearly shows the Secretary of State notified Green Hills that the Subject Property had forfeited to the State, that the Subject Property could be purchased from the State, how to contact the Secretary of State to arrange for purchase of the Subject Property, and that the failure to contact the Secretary of State within fifteen days could result in the Subject Property being sold to another application. See 1 Miss. Admin. Code Pt. 11, R. 1.6C (2015).

¶30. Rather, Green Hills challenges when the Secretary of State gave this notice. Essentially, Green Hills argues this notice was inadequate because it was given four years too early . Green Hills argues that-even under the new rule-the Secretary of State must give notice during the thirty-day waiting period for an application to purchase. In other words, Green Hills claims notice still must be given based on a pending application to purchase. But the language of the new rule does not support this interpretation. Instead, the updated rule directs the Secretary of State to give notice to an owner that its property has forfeited to the State "[a]fter a Parcel is certified to the State[.]" Id. As explained by Rule 1.2, a parcel is certified to the State when it is struck from the local tax rolls for failure to pay taxes. 1 Miss. Admin. Code Pt. 11, R. 1.2 (amended Jan. 3, 2015), Westlaw. That is what the Secretary of State did here. After the Subject Property was certified to the State, in November 2011 and October 2013, respectively, the Secretary of State provided Green Hills notice its property now belonged to the State and instructed Green Hills to contact the Secretary of State if interested in purchasing it. So Green Hills' lack-of-required-notice claim fails.

C. Failure to File an Application

¶31. The long and short of it is that, over the course of four years, Green Hills never submitted an application as directed by the Secretary of State's multiple written communications and statutory law. See Miss. Code Ann. § 29-1-37(1)

(Rev. 2010) ("[A]ny person desiring to purchase any state forfeited tax land shall make application in writing to the Secretary of State ....").

¶32. While Green Hills claims it was entitled to priority purchaser status based on its former ownership, the administrative rule on which Green Hills relies is clear that an original owner's priority purchase right only arises "[i ]f an application to purchase is received from the original assessed owner." 1 Miss. Admin. Code Pt. 11, R. 1.6D (2015) (emphasis added). Admittedly, Green Hills never submitted an application. Therefore, the trial court did not err in ruling Green Hills had no "priority, preference or purchase right as to the Subject Property." Nor did the trial court err in dismissing on summary judgment Green Hills' claims based on alleged rights to notice and preference in the application process-i.e. , violation of the "patent process," violation of substantive due process, violation of procedural due process, violation of equal protection, declaratory judgment that the land patents are void for failure to provide notice, and review of a final agency decision.

II. Standing

¶33. The trial court's ruling, however, went beyond finding Green Hills failed to establish triable issues on the above claims. The chancellor also held Green Hills lacked standing to challenge the validity of the land patents issued for the Subject Property. To the extent the chancellor's standing ruling went beyond Green Hills' ability to challenge the Secretary of State's handling of the patent application process, we find that ruling was error.

¶34. While Mississippi's standing rules are quite liberal, a party must "assert a colorable interest in the subject matter of the litigation or experience an adverse effect from the conduct of the defendant, or as otherwise provided by law." City of Picayune v. S. Reg'l Corp. , 916 So. 2d 510, 525 (Miss. 2005) (quoting State v. Quitman Cty. , 807 So. 2d 401 (Miss. 2001) ). Moreover, "the adverse effect experienced must be different from the adverse effect experienced by the general public." Hall v. City of Ridgeland , 37 So. 3d 25, 34 (Miss. 2010) (citing Burgess v. City of Gulfport , 814 So. 2d 149, 153 (Miss. 2002) ).

¶35. Green Hills asserts no present ownership interest in the Subject Property. Green Hills concedes it forfeited its ownership in the Subject Property to the State when it failed to redeem it. And the Legislature directs that "[t]he courts shall not recognize claims by the original owner, his heirs or assigns after unredeemed lands are sold to the state for taxes and received by the Secretary of State's office ...." Miss. Code. Ann. § 29-1-21 (Rev. 2010). Nor can Green Hills assert any interest in the application process because it never filed an application. See Davis v. City of Jackson , 240 So. 3d 381, 384 (Miss. 2018) (holding that the potential to have one's application denied does not constitute a colorable interest creating standing to challenge a municipality's application requirements). For this same reason, Green Hills cannot claim any adverse effect based on how the Secretary of State conducted the application process for the Subject Property that differs from the Secretary of State's treatment of any other member of the general public who did not file an application. So, in that sense, the trial court did not err. Green Hills has no standing to challenge the Secretary of State's handling of the application process.

¶36. That said, the chancellor did err to the extent he broadly ruled Green Hills lacked any standing to challenge the validity of the land patents.

¶37. Still pending before the trial court are Green Hills' claims against the Stonebridge Companies based on the protective covenants. So are the Stonebridge Companies' counterclaims to strip Green Hills of its rights to enforce the covenants and its title to the common-area property. If, as Green Hills contends, the land patents issued to the Stonebridge Companies are void by operation of Mississippi Code Section 29-1-75 -which prohibits a banking corporation that did not hold a mortgage or deed of trust on the property at the time it was forfeited to the State from directly or indirectly purchasing or becoming the owner of public land-then the Stonebridge Companies do not own the Subject Property. And they can neither prevent Green Hills from enforcing the protective covenants nor divest Green Hills of title to common-area property within the Stonebridge development.

¶38. In this respect, Green Hills certainly has a colorable interest in whether the Stonebridge Companies in fact own the Subject Property subject to the protective covenants. Similarly, Green Hills has experienced an adverse effect by the Stonebridge Companies' conduct-namely, their stymieing Green Hills' attempts to enforce the protective covenants and maintain the common areas in the development. So Green Hills has standing to assert that the Stonebridge Companies lack ownership rights to the Subject Property because their land patents are void by statutory operation. Cf. SASS Muni-V, LLC v. DeSoto Cty. , 170 So. 3d 441, 449 (Miss. 2015) (holding that, under Mississippi's liberal standing requirements, a tax-sale purchaser had standing to challenge the validity of a tax sale based on noncompliance with tax-sale statutes). We therefore reverse the trial court's judgment to the extent it held that Green Hills lacked standing to challenge the land patents' validity.

III. Land Patents' Validity

¶39. The chancellor also erred by broadly ruling, on summary judgment, that the land patents for the Subject Property were "in all respects ... valid and proper." (Emphasis added.) To the extent this ruling covers Green Hills' claim that the land patents are void under Section 29-1-75, this ruling is premature.

¶40. Admittedly, Green Hills did not plead Section 29-1-75 as a grounds on which it was seeking to declare the land patents void. See Dynasteel Corp. v. Aztec Indus., Inc. , 611 So. 2d 977, 984 (Miss. 1992) (holding that Rule 8 of the Mississippi Rules of Civil Procedure requires a pleading to "provide sufficient notice to the defendant of the claims and grounds upon which relief which is sought"). While UMB Bank and the Stonebridge Companies contend Green Hills has waived this issue, we disagree. Section 29-1-75 expressly states that "every patent issued in contravention hereof shall be void "-not merely voidable, but void ab intio . (Emphasis added.) So this issue cannot be waived. See Osborne v. Neblett , 65 So. 3d 311, 313 (Miss. Ct. App. 2011) (holding that failure to raise the issue of a foreclosure sale's statutory noncompliance was "irrelevant because the sale is a nullity and unenforceable under the law"). See also Huber v. Freret , 138 Miss. 238, 103 So. 3, 5 (1925) (holding that, when a State agency lacked statutory authority to issue a land patent, the patent is void and may be attacked collaterally).

¶41. Green Hills had also specifically requested a continuance to conduct discovery on, among other things, whether UMB Bank's status as a banking corporation rendered the patents issued to the Stonebridge Companies void. Under the circumstances, the chancellor abused his discretion by denying Green Hills' Rule 56(f) motion. See Stanley v. Scott Petroleum Corp. , 184 So. 3d 940, 943 (Miss. 2016) (holding the trial court abused its discretion by denying a motion to continue because plaintiffs had "complied with Rule 56(f) by presenting specific facts indicating why additional time for discovery would assist them in opposing the motion for summary judgment"). This is especially so because the chancellor acknowledged the claims and counterclaims related to the protective covenants were not ripe for summary judgment.

¶42. Whether UMB Bank, as trustee for the bondholders, could indirectly purchase the Subject Property through the Stonebridge Companies is a material disputed fact. Therefore, we reverse the grant of summary judgment in favor of the Secretary of State, UMB Bank, and the Stonebridge Companies on the issue of the validity of the land patents and remand this issue to the chancellor to be considered with the other remaining claims.

¶43. But we affirm the grant of summary judgment in favor of Bradley and the ruling the patents issued to him are in all respects valid and proper. Green Hills' only challenge to the validity of Bradley's patents was that Green Hills was not provided notice of Bradley's application. As Green Hills was not entitled to such notice, there is no material factual dispute regarding the validity of Bradley's patents and Bradley is entitled to a judgment as a matter of law.

III. Venue

¶44. Finally, contrary to Green Hills' assertion, the Chancery Court of Hinds County did not abuse its discretion in granting the Secretary of State's motion to transfer venue to the Chancery Court of Rankin County. Suits to confirm title to real property must be brought in the county where the land is located. Miss. Code Ann. § 11-5-1 (Rev. 2014). And the Subject Property is located in Rankin County.

¶45. Green Hills had argued its lawsuit was not about the Subject Property's title but rather the Secretary of State's conduct, so venue was proper in Hinds County because the Secretary of State is located there. But according to Green Hills' complaint, the consequences of the Secretary of State's conduct is that the land patents had to be set aside. So this case has always been about title. Thus, venue lies in Rankin County.

Conclusion

¶46. In conclusion, we affirm the grant of summary judgment on Green Hills'

claims of (1) violation of the Mississippi Administrative Code's land-patent process, (2) violation of procedural due process, (3) violation of substantive due process, (4) violation of equal protection, (5) declaratory judgment that the land patents are void for failure to provide notice, and (6) review of a final agency decision.

¶47. But we reverse the parts of the judgment finding Green Hills lacked standing to challenge the validity of the land patents and that the land patents issued by the Secretary of State to UMB Bank through the Stonebridge Companies are in all respects valid and proper. We remand the issue of whether the Stonebridge Companies' patents are void by statute to the trial court to consider with the pending claims. Because the validity of the land patents issued to the Stonebridge Companies is still at issue, the Secretary of State shall remain a party in this case.

¶48. Finally, we discern no viable remaining claim against the Rankin County Tax Collector, the Rankin County Tax Assessor, or the Rankin County Chancery Clerk. Nor does it appear Green Hills has appealed their dismissal from this suit. So as with Bradley, we affirm the final judgment dismissing them as defendants.

¶49. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.

      Though only a partial grant of summary judgment, the trial court certified its judgment as final and appealable. See Miss. R. Civ. P. 54(b).

      See Miss. Code Ann. § 29-1-75 (Supp. 2018).

      A public-improvement district is a special district within one or two counties specially organized for the delivery of public-improvement services. Miss. Code Ann. § 19-31-5(e) (Rev. 2012). See Miss. Code Ann. § 19-31-1 to 19-31-51 (Rev. 2012) (governing public-improvement districts).

      As late as October 2015, Green Hills' counsel sent the Secretary of State a letter acknowledging that, while it remained "very interested" in repurchasing the property, "no formal offer has been made at this point."

      In all, Green Hills asserted eight causes of action. Against the Secretary of State, Green Hills brought causes of action for: (1) violation of the Mississippi Administrative Code's land-patent process, (2) violation of procedural due process, (3) violation of substantive due process, (4) violation of equal protection; and (5) review of a final agency decision. Against UMB Bank and the Stonebridge Companies, Green Hills brought causes of action for: (6) breach of the contract and interference with contract rights and (7) interference with prospective business relations. Against all Defendants, Green Hills sought: (8) a declaratory judgment that (a) the land patents issued to the Stonebridge Companies and Bradley were void and (b) the protective covenants were fully enforceable.

      The Stonebridge Companies sought: (1) a declaratory judgment that the protective covenants were void, (2) an injunction against Green Hills from enacting, enforcing, or amending the protective covenants, (3) the transfer of title of common area property from Green Hills to the homeowners' association, (4) the transfer of all rights, duties, powers, and other management and/or governing authority vested in Green Hills or others under the protective covenants to the Stonebridge Companies or, alternatively, to the homeowners' association, and (5) a judgment against Green Hills for slander of title, breach of the covenant of good faith and fair dealing, and tortious interference with business relations and/or property interest.

      Green Hills also filed its own motion for partial summary judgment, seeking a declaratory judgment that the land patents and forbearance agreement are void.

      Section 29-1-75 was to "stand repealed on July 1, 2019." Miss. Code Ann. § 29-1-75(3) (Supp. 2018). But effective July 1, 2019, the Legislature amended Section 29-1-75(3) to extend the date of repealer to July 1, 2022. See 2019 Miss. Laws H.B. 807.

      Green Hills actually goes farther than that, insinuating the Secretary of State's office intentionally misled it into believing the old rules were still in effect to keep Green Hills from repurchasing the Subject Property. But this argument is belied by the record, which shows the Secretary of State's office reminded Green Hills it had yet to file an application to purchase and invited the developer to do so. As late as November 4, 2015-after it had received Bradley's and the Stonebridge Companies' applications but before it had issued land patents-the Secretary of State informed Green Hills' counsel, "While you indicate in this most recent letter Green Hills is interested in acquiring the property, we have yet to receive applications to purchase from Green Hills. We are continuing to accept applications on the property until a suitable purchaser is found ." (Emphasis added.)

      This administrative rule directs:
      After a Parcel is certified to the State, the Secretary of State will send by first class U.S. Mail a notification to the original assessed owner at his address as shown on the List of Land Certified to the State by the Chancery Clerk. The notification will include the parcel number and property description as shown on said List of Land Certified to the State and will state in substance that (1) the Parcel has forfeited to the State of Mississippi, (2) the property can be purchase from the State, (3) the address, telephone number and e-mail for contacting the Office of the Secretary of State to arrange for purchase of the Parcel, and (4) the failure to contact the Office of the Secretary of State within fifteen (15) days may result in the property being sold to another applicant.

      We note the following correspondence from the Secretary of State to Green Hills:
      • November 1, 2011 Letter: "If you ... are interested in obtaining title to the property, please complete the enclosed application and return it with the appropriate filing fee."
      • October 14, 2013 Letter: "A letter was sent from our office to Green Hills Development, Company, LLC on November 1, 2011 advising that the property was now owned by the State and could be repurchased upon application. No application to repurchase the property was ever filed on behalf of your client. We will continue to accept applications on the property until a suitable purchaser is found."
      • October 23, 2013 Letter: "If you ... are interested in obtaining title to the property, please complete the enclosed application and return it with the appropriate filing fee."
      • November 4, 2015 Letter: "While you indicate in this most recent letter Green Hills is interested in acquiring the property, we have yet to receive applications to purchase from Green Hills. We are continuing to accept applications on the property until a suitable purchaser is found. ... Effective November 1, 2015, all applications to purchase Tax Forfeited property must be made online at www.sos.ms.gov."

      The written-application requirement has two exceptions, neither of which applies here. Miss. Code Ann. § 29-1-37(2), (3) (Supp. 2018).

      See supra note 4.

      In its response to the Secretary of State's motion to transfer venue, Green Hills expressly stated to the trial court that "Green Hills is not the owner of land at issue in this case and has asserted no rights as a landowner."

      After Green Hills filed suit, the Legislature amended Mississippi Code Section 29-1-87(2) (Supp. 2018), effective March 5, 2018, to ensure that "the question of failure of title" of a State issued land patent "can only be determined in a suit filed in the county in which the land is situated."


text:
    Loren ROSS a/k/a Loren Wendell Ross v. STATE of Mississippi
    NO. 2018-KA-00570-SCT
    Supreme Court of Mississippi.
    July 25, 2019
    ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, Jackson, PHILLIP BROADHEAD
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, Jackson
    BEFORE KITCHENS, P.J., BEAM AND ISHEE, JJ.
   KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶1. Loren Ross was convicted of felony driving under the influence (DUI), fourth offense. The Circuit Court of Rankin County imposed the maximum sentence of ten years in the custody of the Mississippi Department of Corrections (MDOC). Ross appeals, arguing that the trial court erred by not polling the jury to assure that the jurors had been unanimous in specifying the particular subsection of the DUI statute Ross had violated. He argues also that the trial court erred by sentencing him to the maximum statutory penalty instead of ordering rehabilitative treatment for his alcoholism. Finding no error, we affirm Ross's conviction and sentence.

FACTS

¶2. At 12:10 a.m. on April 17, 2017, Brandon Holifield, a patrolman with the Richland Police Department, was traveling south on Highway 49 in the City of Richland in Rankin County. Upon approaching the Bud Street intersection, Officer Holifield observed a parked car positioned halfway in the road and halfway in a parking lot. He approached the driver's side door and discovered Loren Ross passed out inside the car with the engine running and the transmission in the "park" position. He opened the door, awakened Ross, and asked to see his driver's license. After viewing Ross's license, Officer Holifield had him step out of the car. Ross denied having diabetes or any other medical issues. When Officer Holifield asked whether Ross knew where he was, Ross answered, erroneously, that he was in Madison County. He said he had dropped a friend off at work and was on the way home. During the conversation, Officer Holifield detected the odor of intoxicating beverages emanating from Ross's breath and noticed that Ross had difficulty balancing himself. Ross was cooperative but appeared disoriented and confused, with red, bloodshot, glassy eyes. Based on his observations of Ross, Officer Holifield arrested him for DUI.

¶3. At the police station, Officer Holifield placed Ross in a holding cell. Ross began banging on the holding cell door and, when no one responded, he urinated in the holding cell. A few minutes later, Officer Holifield removed Ross from the holding cell and obtained Ross's rights waiver and his consent to administer the Intoxilyzer 8000 test. The test, administered at 1:24 a.m., revealed that Ross's blood alcohol content was .17 percent, based on a chemical analysis of his breath as measured by the Intoxilyzer 8000 machine.

¶4. Wendy Hathcock, a forensic toxicologist with the Mississippi Forensics Laboratory, testified that she is responsible for maintaining the Intoxilyzer 8000 machines used throughout the state. She testified that the Intoxilyzer 8000 machine used to test Ross's blood alcohol content had been calibrated on April 1, 2017, on May 1, 2017, and also moments before and after the test itself. She testified that, in her opinion, the results of Ross's blood alcohol test were reliable and accurate. The defense and State stipulated that Ross had three prior DUI convictions. The jury convicted Ross of felony DUI, fourth offense.

LAW AND ANALYSIS

I. Whether the trial court erred by failing to poll the jury to ascertain its unanimity in specifying the particular subsection of the DUI statute Ross violated.

¶5. Ross was indicted for fourth offense DUI in violation of Mississippi Code Section 63-11-30 (Rev. 2013). His indictment charged that he had driven "while under the influence of intoxicating liquor and/or" had "an alcohol concentration of eight one-hundredths percent (.08%) or more in his blood based upon grams of alcohol per two hundred ten (210) liters of breath as shown by chemical analysis of his breath ...." Ross's indictment tracked Mississippi Code Section 63-11-30(1)(a) and (1)(c). Subsection (1) deems it "unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor." Miss. Code Ann. § 63-11-30(1)(a) (Rev. 2013). And under subsection (1)(c), one who drives or otherwise operates a vehicle with "an alcohol concentration of eight one-hundredths percent (.08%) or more ... in the person's blood based upon ... grams of alcohol per two hundred ten (210) liters of breath as shown by a chemical analysis of the person's breath, blood, or urine" is guilty of DUI. Miss. Code Ann. § 63-11-30(1)(c) (Rev. 2013).

¶6. In Young v. City of Brookhaven , 693 So. 2d 1355, 1358 (Miss. 1997), this Court held that Section 63-11-30 "sets forth numerous methods of committing the same crime." The Young Court arrived at this holding by examining the DUI statutes of Alabama and Arkansas, which were similar to Mississippi's. Id. at 1357-58. The courts of those states had found "that the two[ ]subsections are 'simply two different ways to prove a single violation.' " Id. at 1358 (quoting Johnston v. City of Fort Smith , 15 Ark. App. 102, 690 S.W.2d 358, 359 (1985) ).

¶7. This Court applied Young in Kramm v. State , 949 So. 2d 18 (Miss. 2007). Kramm was convicted of "driving a motor vehicle while under the influence and causing death," "driving a motor vehicle with a blood alcohol level of .08% or more and causing death," and "leaving the scene of an accident which resulted in the death of another person." Id. at 19. Kramm's two DUI counts were based on the same incident and, on appeal, he argued that the two counts described the same crime. Id. at 22. The Court examined Young 's holding that 63-11-30(1)(a) and (1)(c) set forth different methods of committing the same crime and held that "Kramm [wa]s correct that his conviction and sentence under Count I and Count II amounted to being convicted and sentenced twice for the same crime." Id. at 23. Therefore, the Court reversed and vacated Kramm's conviction on Count II. Id.

¶8. In this case, after much discussion, the trial court secured both parties' agreement on the wording of the elements instruction. That instruction told the jury that it must find, unanimously, the elements of subsection (1)(a), or, unanimously, the elements of subsection (1)(c). The elements instruction also set forth that, if the jury found neither the elements of subsection (1)(a) nor the elements of subsection (1)(c), then it must acquit Ross of fourth offense DUI. After the jury returned its verdict of guilty, Ross requested that the jury be "polled in terms of the unanimity issue." The trial court polled the jury by asking each juror whether the verdict of guilty was that juror's verdict; each juror answered affirmatively. Without objection from Ross, the trial court found that the verdict was unanimous and discharged the jury.

¶9. On appeal, Ross argues that the trial court erred by failing to poll the jury to assure that it unanimously found either the elements of subsections (1)(a) or (1)(c) as required by the elements instruction. Ross's argument is procedurally barred. Although Ross requested that the jury be "polled in terms of the unanimity issue," the trial court did poll the jury, all of whom acknowledged having voted guilty, and Ross did not object to the manner in which the jury had been polled. "In order to preserve an issue for appeal, counsel must object. The failure to object acts as a waiver." Havard v. State , 928 So. 2d 771, 791 (Miss. 2006) (internal quotation marks omitted) (quoting Carr v. State , 873 So. 2d 991, 1004 (Miss. 2004) ).

¶10. Notwithstanding the procedural bar, the issue is without merit. Ross's arguments misapprehend the purpose of jury polling. Mississippi Rule of Criminal Procedure 24.5 provides for the court to poll the jurors individually at a party's request or sua sponte "[a]fter a verdict is returned, but before the jury is discharged." If the jurors are not unanimous on the verdict, the trial court may direct further deliberations or declare a mistrial. MRCrP 24.5. The purpose of jury polling "is to determine with certainty that 'each of the jurors approves of the verdict as returned; that no one has been coerced or induced to sign a verdict to which he does not fully assent.' " MRCrP 24.5 cmt. (quoting Humphries v. Dist. of Columbia , 174 U.S. 190, 194, 19 S. Ct. 637, 43 L. Ed. 944 (1899) ). Thus, jury polling is a means of ensuring that all of the individual jurors agree on the verdict. It is not a method for exploring whether the jurors unanimously found particular facts. We observe that Mississippi Rule of Criminal Procedure 24.2(a) mandates, except in specified situations, a general verdict, which "gives the jury discretion over the disposition of the case which it would not have if restricted to finding particular facts in special verdicts." MRCrP 24.2(a) cmt.

¶11. Ross also makes vague attacks on the decision in Young , arguing that this Court should follow the reasoning of the Young dissent that Section 63-11-30(1) sets forth five separate offenses in each subsection. But a dissent has no precedential value. Buffington v. State , 824 So. 2d 576, 580 (Miss. 2002) (noting that "a majority of all sitting judges is required to create precedent"). Ross also argues that Kramm strengthens his argument that a defendant cannot be convicted under both subsections. But Kramm solidified that Section 63-11-30 establishes a single offense of DUI with alternative methods of proof. Unlike Kramm, who was convicted of two violations of Section 63-11-30 for the same incident, Ross was convicted of a single violation of Section 63-11-30 ; so Kramm provides no basis for reversal of Ross's conviction.

¶12. Finally, while not assigning as error the grant of the elements instruction, Ross makes amorphous complaints that the elements instruction was confusing. An appellant's brief must "identify the issues presented for review." M.R.A.P. 28(a)(3). "No issue not distinctly identified shall be argued by counsel, except upon request of the court, but the court may, at its option, notice a plain error not identified or distinctly specified." Id. Because Ross did not assign the grant of the elements instruction as an issue on appeal, we do not address his vague arguments about the instruction to which he never objected at trial.

II. Whether the trial court's imposition of the maximum sentence rather than ordering rehabilitation was an abuse of discretion.

¶13. Ross argues that the trial court erred by imposing the maximum sentence instead of ordering rehabilitation. The record reveals that Judge Chapman held a thorough sentencing hearing and carefully considered the sentence to be imposed. The judge said he had reviewed a presentencing report, a letter from Ross's mother, and Ross's resumé. Ross's counsel stressed that Ross was "as serious an alcoholic" as she ever had encountered. She argued that, rather than imposing a lengthy sentence, the court should craft a punishment that addressed his addiction problem. The State, noting that Ross had several prior DUI convictions and had been on probation for another felony DUI when this offense was committed, requested the maximum sentence.

¶14. In contemplating the appropriate sentence, Judge Chapman said that "I honestly don't think there is any sentence I can hand down in this case that's going to make me feel comfortable ...." He recognized that Ross's resumé showed that he had a good job and a good education. Judge Chapman observed that the drug and alcohol treatment services available at the MDOC are limited. He considered ordering Ross to serve a term of years followed by post-release supervision and drug court. But he also considered the need to protect society given Ross's record of five or six DUI convictions, one other having been a felony. Judge Chapman concluded that, "I don't think it's a fair sentence for the protection of society for me to do anything other than send him to the penitentiary for as long as I can, because I know society is protected then," and that "I don't know that they're protected if I don't do that and he gets into some program that's going to help him and he fails for the fifth, sixth, or seventh time." He imposed the maximum sentence of ten years, ordered Ross to pay a fine and court costs, and ordered that Ross's vehicle be equipped with an ignition interlock device for ten years following his release from incarceration.

¶15. "The general rule in this state is that this Court cannot disturb a sentence on appeal so long as it does not exceed the maximum term allowed by statute." Wilkerson v. State , 731 So. 2d 1173, 1183 (Miss. 1999) (citing Hoops v. State , 681 So. 2d 521, 538 (Miss. 1996) ). Mississippi Code Section 63-11-30(2)(d) (Rev. 2013) prescribes a sentence for fourth offense DUI of no less than two years and no more than ten years. Ross's sentence was for the maximum of ten years. Therefore, his sentence was within the statutory limits and is not subject to appellate review.

¶16. Ross's own argument acknowledges that his sentence was within the trial court's discretion; he cites the concurring opinion from the Court of Appeals in which Judge Roberts acknowledged that, if a sentencing court determines that an offender needs treatment for addiction, the court "may certainly request or recommend to the MDOC that the offender receive short term, long term, or therapeutic drug and alcohol treatment while an inmate." Jefferson v. State , 958 So. 2d 1276, 1287 (Miss. Ct. App. 2007) (Roberts, J., concurring) (emphasis added). Judge Roberts's use of the word "may" recognizes that a judge's decision to order substance abuse treatment for an addicted defendant is discretionary, not mandatory.

¶17. Ross also cites State v. Burns , 723 So. 2d 1013, 1017-20 (La. Ct. App. 1998), in which a Louisiana appellate court found that a life sentence as an habitual offender was unconstitutionally excessive for a young defendant whose nonviolent drug crimes stemmed entirely from his substance abuse problems and who had a good chance of rehabilitation. Ross relies on Burns to argue that rehabilitation would be the only way to meet the goals of the criminal justice system in this case. But here, the trial court explicitly considered ordering a shorter sentence and drug and alcohol rehabilitation but declined to do so because of the danger to society the court found that Ross posed, given his multiple DUI convictions. The sentence was within the trial court's discretion because it was within the statutory limits.

CONCLUSION

¶18. Ross is procedurally barred from arguing that the trial court erred by not polling the jury to ascertain its unanimity in specifying the particular subsection of the DUI statute Ross violated. Regarding Ross's maximum sentence of ten years, because the sentence was within the statutory limits, its imposition was within the trial court's discretion.

¶19. AFFIRMED.

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

      The presentencing report was not included in the record on appeal.

      The State referenced additional convictions noted in the presentencing report, but there was confusion about whether Ross had five or six total DUI convictions.

      "Whe[n] a sentence is 'grossly disproportionate' to the crime committed," it can be attacked on Eighth Amendment grounds even if it is within the limits prescribed by statute. Wallace v. State , 607 So. 2d 1184, 1188 (Miss. 1992) (citing Fleming v. State , 604 So. 2d 280, 302 (Miss. 1992) ). Ross makes no argument that his sentence is grossly disproportionate to the crime. His sole contention is that the trial court should have ordered rehabilitation instead of imposing the maximum sentence.