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

text:
    Kacy WILLIAMS, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01485-COA
    Court of Appeals of Mississippi.
    January 30, 2018 Rehearing Denied October 2, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: BENJAMIN ALLEN SUBER
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH
    BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.
    PROCEDURAL HISTORY
   LEE, C.J., FOR THE COURT:

¶ 1. After a bench trial in the Leflore County Circuit Court, Kacy Williams was convicted of possession of a firearm by a convicted felon. Williams was sentenced as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2015) to life without parole. Williams filed posttrial motions, which the trial court denied.

¶ 2. Williams now appeals. He is represented by the Office of State Public Defender. His appellate attorney raised two issues on appeal: (1) Williams's sentence is disproportionate to the crime, and (2) the evidence was insufficient to support the guilty verdict. Williams also filed a pro se brief, raising additional issues on appeal: (3) defective indictment; (4) the trial court erred by granting the State's motion to amend the indictment; (5) the State failed to disclose a witness; and (6) ineffective assistance of counsel. Finding no error, we affirm.

FACTS

¶ 3. On December 17, 2014, officers from the Greenwood Police Department were dispatched to the scene of a reported shooting near McLaurin Street and Avenue F in Greenwood, Mississippi. At the scene of the shooting, officers secured the area, noting several spent shell casings, a bicycle, and bullet holes in nearby vehicles. The victim, Alfonzo Hemphill, had already been transported to the local hospital. When interviewed by the police, Alfonzo told officers that Williams had shot him twice in the stomach.

¶ 4. Williams and Alfonzo's sister, Diane Hemphill, had been in a relationship and had a son together. Their relationship deteriorated such that Diane, fearing for herself and her son, obtained a domestic-violence protection order on December 10, 2014. This order, which was still in effect at the time of the shooting, prohibited Williams from contacting Diane, her child with Williams, her other two children, and Alfonzo. Alfonzo and Diane each testified that Williams had threatened them on different occasions with violence. Diane testified that Williams told her he would "blow her brains out." Alfonzo testified that Williams had threatened to shoot him.

¶ 5. Alfonzo stated that on the day of the shooting, he was waiting outside a local store when he saw Williams and Williams's father drive past in a truck. Due to Williams's recent threats, Alfonzo retrieved his gun from his car. Williams came back a few minutes later, riding a bicycle. Alfonzo testified that Williams brandished a gun and then shot him twice, stating, "I told you I was going to get you." Alfonzo fired back, but did not hit Williams. Williams then fled the scene, leaving the bicycle behind. Williams was arrested months later in Georgia. Williams was indicted for attempted murder and possession of a firearm by a convicted felon. The charges were tried separately.

DISCUSSION

I. Sentence

¶ 6. In his first issue, Williams argues that a life sentence for possession of a firearm by a convicted felon is disproportionate to the crime and constitutes cruel and unusual punishment. Williams claims that applying the proportionality test found in Solem v. Helm , 463 U.S. 277, 290-91, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), necessitates a finding that his sentence was disproportionate. However, Solem was overruled in Harmelin v. Michigan , 501 U.S. 957, 965, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), to the extent that the proportionality test should only apply when a comparison of the crime to the sentence leads to an inference of "gross disproportionality." Case law has consistently held that sentences under the habitual-offender statute do not constitute cruel and unusual punishment. See Huntley v. State , 524 So.2d 572, 575 (Miss. 1988) ; Jackson v. State , 483 So.2d 1353, 1355 (Miss. 1986) ; McKnight v. State , 187 So.3d 635, 653 (¶ 64) (Miss. Ct. App. 2015) ; Cummings v. State , 29 So.3d 859, 861 (¶ 5) (Miss. Ct. App. 2010). Here, Williams's life sentence complies with section 99-19-83, which provides:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more, whether served concurrently or not, in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence, as defined by Section 97-3-2, shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole, probation or any other form of early release from actual physical custody within the Department of Corrections.

¶ 7. The State presented evidence showing that Williams was sentenced to and served terms of one year or more in a state penal institution for two prior felony convictions-aggravated assault and sale of cocaine-and one of these felonies-aggravated assault-was a crime of violence. See Miss. Code Ann. § 97-3-2(1)(c) (Rev. 2014); Davis v. State , 680 So.2d 848, 851 (Miss. 1996) (Aggravated assault is a crime of violence within the meaning of the habitual-offender statute.). Thus, it is clear that Williams met the requirements to be sentenced as a habitual offender to life imprisonment without parole under section 99-19-83. Williams's sentence does not lead to an inference of "gross disproportionality" as is required to reach the Solem analysis. This issue is without merit.

II. Insufficient Evidence

¶ 8. In his next issue, Williams argues that the evidence was insufficient to support the guilty verdict. When determining whether the State presented legally sufficient evidence to support the verdict, "[t]his Court may only reverse 'where one or more of the elements of the offense charged is lacking to such a degree that reasonable jurors could only have found the defendant not guilty.' " Robinson v. State , 794 So.2d 293, 296 (¶ 12) (Miss. Ct. App. 2001) (quoting Reed v. State , 749 So.2d 179, 180 (¶ 3) (Miss. Ct. App. 1999) ). "[A]ll evidence supporting a guilty verdict is accepted as true, and the prosecution must be given the benefit of all reasonable inferences that can be reasonably drawn from the evidence." Jerninghan v. State , 910 So.2d 748, 751 (¶ 6) (Miss. Ct. App. 2005) (citation omitted). In a bench trial, the trial judge is charged with the responsibility of weighing and considering the conflicting evidence of the witnesses and determining whose testimony should be believed. Van Norman v. State , 114 So.3d 799, 802 (¶ 16) (Miss. Ct. App. 2013).

¶ 9. Mississippi Code Annotated section 97-37-5(1) (Rev. 2014) states that "[i]t shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm.

..." The State had to prove that Williams was a convicted felon and that he possessed a firearm. Williams admitted that he was a convicted felon. And Alfonzo Hemphill testified that he saw Williams holding a gun. "[W]itness testimony may be sufficient to convict a defendant of possession of a weapon by a felon. ... This is so even if no weapon is recovered." Edwards v. State , 966 So.2d 837, 839 (¶ 10) (Miss. Ct. App. 2007). We find that there was sufficient evidence from which the trial judge could find all the elements of the crime existed beyond a reasonable doubt. This issue is without merit.

III. Defective Indictment

IV. Motion to Amend Indictment

¶ 10. Both of these issues are related, so we will address them together. Williams argues that his indictment was defective for incorrectly charging him with possession of Alfonzo's gun and that the trial court erred in granting the State's motion to amend the indictment.

¶ 11. On the morning of trial, the State moved to amend the indictment in order to remove the language describing the type of gun. The indictment stated that Williams "did unlawfully, willfully and feloniously have or possess unlawfully a firearm; a SAR Arms 9mm semi-automatic handgun ...." The gun described was the one used by Alfonzo and turned over to the police after the shooting. The gun used by Williams was never recovered. Once the State realized the error, it moved to amend the indictment to remove the language describing the type of gun. Williams objected, stating that the change was substantive and prejudicial. The trial court granted the State's motion, finding that the change was one of form and that Williams was not unfairly surprised or prejudiced.

¶ 12. Amendments to indictments are allowed if they contain defects of form and not of substance. Ivy v. State , 792 So.2d 319, 321 (¶ 4) (Miss. Ct. App. 2001). An indictment can be amended "if it does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant's case." Miller v. State , 740 So.2d 858, 862 (¶ 13) (Miss. 1999) (citation omitted). In this instance, "[t]he language in section 97-37-5(1) is clear. Possession of any firearm is prohibited." Jones v. State , 203 So.3d 657, 660 (¶ 2) (Miss. Ct. App. 2016). "[T]he listing in the indictment of the type of firearm possessed ... is not an element of the crime ...." Estes v. State , 782 So.2d 1244, 1254 (¶ 26) (Miss. Ct. App. 2000). The State was required to prove that Williams possessed a gun, not a specific type of gun. Furthermore, Williams's defense was that he did not possess a gun and did not shoot Alfonzo. We cannot find any error by the trial court in granting the motion to amend the indictment. This issue is without merit.

V. Failure to Disclose Witness

¶ 13. Williams next contends that the State failed to disclose that Diane would be called as a witness. Williams never objected when Diane was called to testify, nor did he raise the issue in posttrial motions; thus, this issue is waived. See Jones v. State , 915 So.2d 511, 513 (¶ 7) (Miss. Ct. App. 2005). Furthermore, nothing in the record indicates that the State failed to disclose Diane as a witness prior to trial. This issue is without merit.

VI. Ineffective Assistance of Counsel

¶ 14. In his final issue on appeal, Williams argues his trial counsel was ineffective "for failing to discontinue cross and request mistrial on insufficient testimony showing substantial contradiction of two state witnesses." On direct appeal, a claim for ineffective assistance of counsel, "should only be addressed when '(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.' " Reed v. State , 204 So.3d 785, 789 (¶ 16) (Miss. Ct. App. 2016) (quoting Johnson v. State , 196 So.3d 973, 975 (¶ 7) (Miss. Ct. App. 2015) ). Here, the parties do not stipulate that the record is adequate for the appellate court to make a finding on direct appeal. "Thus, the only proper inquiry is whether the record affirmatively shows that [the defendant] was denied effective assistance of counsel." Id. "Where the record cannot support an ineffective-assistance-of-counsel claim on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant's right to argue the same issue through a petition for [postconviction relief]." Id. (quoting Johnson , 196 So.3d at 975 (¶ 8) ).

¶ 15. In an ineffective-assistance-of-counsel claim,

a defendant must show that: (1) his counsel's performance was deficient, and (2) this deficiency prejudiced his defense. The burden of proof rests with the defendant to prove both prongs. Under Strickland ,[ ] there is a strong presumption that counsel's performance falls within the range of reasonable professional assistance. To overcome this presumption, the defendant must show that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different.

Renfrow v. State , 202 So.3d 633, 636 (¶ 7) (Miss. Ct. App. 2016) (quoting Maggitt v. State , 26 So.3d 363, 365 (¶ 12) (Miss. Ct. App. 2009) ). We look "at the totality of circumstances to determine whether counsel's efforts were both deficient and prejudicial." Howell v. State , 163 So.3d 240, 259 (¶ 49) (Miss. 2014) (quoting Williams v. State , 73 So.3d 1125, 1129 (¶ 12) (Miss. 2011) ).

¶ 16. Williams contends that Diane's and Alfonzo's testimonies were contradictory; thus, his attorney should have ended his cross-examination of Alfonzo and moved for a mistrial. It is possible that Williams's trial counsel continued his cross-examination in order to highlight the inconsistencies, hoping that the trial judge would resolve them in Williams's favor. Regardless, there is a presumption that decisions made by defense counsel are strategic, and this Court "will not second-guess counsel's decisions that fairly may be characterized as strategic." Shinn v. State , 174 So.3d 961, 966 (¶ 12) (Miss. Ct. App. 2015). "We presume that decisions not to object to testimony were strategic if they fairly can be characterized as such." Id. Williams has failed to show his trial counsel's performance was deficient. This issue is without merit.

¶ 17. AFFIRMED.

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

      Testimony during trial indicated that this protective order had been put in place earlier and renewed several times. However, the only order in the record on appeal is dated December 10, 2014.

      Section 97-37-5(1) contains exceptions for anyone who "has received a pardon for such felony, has received a relief from disability pursuant to Section 925(c) of Title 18 of the United States Code, or has received a certificate of rehabilitation pursuant to subsection (3) of this section." None of these exceptions apply to Williams.

      Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


source: Caselaw Access Project

author: CARLTON, J., FOR THE COURT: TINDELL, J., CONCURRING IN PART AND DISSENTING IN PART:

license: Public Domain

text:
    In the MATTER OF the ESTATE OF Brenda Louise Bargas FLOWERS:
    Claire C. Flowers and Brenda Jane Flowers Paixao, Appellants v. The Estate of Brenda Louise Bargas Flowers, through its Executor, Knox Lemee Flowers, Cecil C. Lang and Linda S. Lang, Appellees
    NO. 2016-CA-00800-COA
    Court of Appeals of Mississippi.
    February 6, 2018 Rehearing Denied July 17, 2018
    ATTORNEY FOR APPELLANTS: DAVID NEIL MCCARTY
    ATTORNEYS FOR APPELLEES: FLOYD M. MELTON JR., RICHARD A. OAKES, FLOYD M. MELTON III
    BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. Claire Clements Flowers (Claire) and Brenda Jane Flowers Paixao (Jane) appeal the judgment of the Leflore County Chancery Court denying their request for an accounting of the estate and testamentary trust of their mother, Brenda Bargas Flowers, and finding that they had no current interest in their mother's estate. Claire and Jane also appeal the chancery court's denial of Claire's motion for leave to amend several of her previously filed petitions.

¶ 2. Upon review, we affirm the chancellor's denial of Claire's motion to amend her petitions. However, we find that Claire and Jane have limited rights and related standing as holders of a shifting executory interest to prevent future waste, and we therefore find that the sisters have standing to request an accounting of their mother's estate and testamentary trust pursuant to their limited rights. As a result, we reverse the portion of the chancellor's judgment denying their request for an accounting, and we remand this case for further proceedings consistent with this opinion.

FACTS

¶ 3. Richard and Brenda Flowers married and had three children: a son, Knox Lemee' Flowers, and two daughters, Claire and Jane. In 2004, Claire gave birth to a son, D.A. Richard and Brenda adopted D.A. in 2005. On April 15, 2006, Richard passed away. About three months later, on July 24, 2006, Brenda executed her last will and testament. Almost a month later, on August 25, 2006, Brenda passed away.

¶ 4. Brenda's will appointed Knox as her estate executor and provided that he "serve without bond, inventory, appraisal[,] or accounting to any [c]ourt." The will also established a trust that named D.A. and his descendants as the income beneficiaries. The will provided for the trust's termination either at the time of D.A.'s thirtieth birthday or his death, whichever event occurred first. The will further stated that, at the time of termination, the trust's assets were to be divided evenly between D.A. and Knox. The will then granted Claire and Jane a shifting executory interest by providing that, if both D.A. and Knox passed away without any descendants before the trust's termination, the trust's assets were to be distributed to Claire and Jane as beneficiaries, either directly or through conservatorships. While the will relieved the trustees from having to render a periodic accounting to any court, it stated that the trustees "shall ... account fully and completely annually, throughout the term of this [t]rust, to such income and/or corpus beneficiaries as there may be or[,] in the event such beneficiary is a minor or a ward, then to such beneficiary's guardian."

¶ 5. As stated, a month after executing her will, Brenda passed away on August 25, 2006. Her will was probated in Leflore County, and Knox was appointed her estate executor. Also upon his mother's death, Knox was appointed executor de bonis non of his father's estate. In November 2007, the chancery court awarded custody of D.A. to his paternal grandfather and step-grandmother, Carter and Linda Lang. In a subsequent judgment, the chancellor found that adoption by the Langs served D.A.'s best interests.

¶ 6. On February 8, 2008, Chancellor William Willard signed an order that addressed the disposition of numerous motions and petitions filed below by the parties. In so doing, the chancellor granted Claire's requests to withdraw her previously filed motion for an accounting of her mother's estate and her petition for Knox's disqualification as estate executor. The chancellor further ordered that upon the closing of Brenda's estate, Knox, as executor, take the following actions:

[L]ist the household goods and personal belongings of Brenda ..., as well as lockbox contents[,] that came into his possession as [e]xecutor and ... state where these items are presently located, and any items converted to his personal possession or disposed of for his benefit will be noted and charged against any [e]xecutor's fee, as may be determined and approved by this [c]ourt[; and]
....
[F]urnish an accounting of [Brenda's] [e]state from the date of death to the date of any final decree granting Claire ... [g]uardianship of [D.A.] due to the appeal on file at this time ... and[ ] that Claire ... is entitled to an accounting, if and when she becomes a vested remainder beneficiary of this estate from the date of such vesting until delivery of assets to her .

(Emphasis added).

¶ 7. Despite withdrawing her prior motion for an accounting, on August 7, 2015, Claire filed a petition for a full accounting of her mother's estate and testamentary trust. Claire's petition alleged that Knox and others associated with the administration of Brenda's estate had mismanaged and misappropriated estate and trust assets. Claire's petition further contended that, even though she was a remainder beneficiary of her mother's will, she still possessed the standing to demand an accounting. Jane also joined Claire's petition for a full accounting.

¶ 8. On September 15, 2015, Claire filed a petition for relief from various chancery court judgments, and a petition for compensatory and punitive damages. On January 4, 2016, she filed an amended petition for compensatory and punitive damages. In her amended petition, Claire sought to include claims against the various attorneys who represented the interests of Brenda's estate, the testamentary trust, and D.A.'s guardianship. On January 8, 2016, Claire filed a motion seeking leave under Mississippi Rule of Civil Procedure 15(a) to admit her amended petition for compensatory and punitive damages. On January 19, 2016, Judge Michael Ward, who was specially appointed to the case, dismissed the claims against the attorneys after he found that Claire had failed to state a claim under Mississippi Rule of Civil Procedure 12(b)(6). On February 16, 2016, Claire filed a motion for leave to amend her petition under Rule 15(a). Claire's motion asked that she be allowed to amend her petition to include the claims against the attorneys and to allege "fraud and negligence per se with the correct specificity."

¶ 9. Each of the attorneys responded to Claire's motion to amend. In their responses, the attorneys noted that Claire had failed to "attach a proposed amended petition that would permit the [c]ourt to determine whether justice requires that leave to amend be granted." Furthermore, due to their prior dismissal from the litigation, the attorneys argued that, even if the court granted Claire's motion to amend, the amendments would not affect them.

¶ 10. On February 19, 2016, Knox filed a final accounting in his mother's estate and a petition to be discharged as executor. The final accounting was not set forth in the chancellor's final decree or made available to all interested parties. Instead, as provided in the final decree, Knox prepared the estate accounting and presented it in camera to the chancellor, D.A., and D.A.'s guardians, the Langs. On March 11, 2016, Judge Ward signed an order denying Claire's August 7, 2015 petition for a full accounting of her mother's estate and testamentary trust. Judge Ward acknowledged the prior court ruling stating that Claire would be entitled to an accounting "if and when she [became] a vested remainder beneficiary" of her mother's estate. However, after determining that Claire failed to constitute such a beneficiary, Judge Ward denied Claire's petition for a full accounting. On March 21, 2016, Claire filed a motion for reconsideration of her petition for a full accounting.

¶ 11. Following a hearing on March 30, 2016, Judge Ward denied Claire's Rule 15(a) motion for leave to amend her petition with respect to the various attorneys involved with the estate, the trust, and D.A.'s guardianship. Judge Ward ruled that Claire failed "to state how she would amend her prior pleadings or ... to attach a proposed amended pleading [that] would allow the [c]ourt to determine whether justice required that she be given leave to file amended pleadings[.]"

¶ 12. On May 6, 2016, Judge Ward signed a final decree in the matter. Judge Ward ratified Knox's final accounting and granted Knox's petition for discharge as estate executor. In discussing Claire's requests for a full accounting of her mother's estate and testamentary trust, Judge Ward found that the February 8, 2008 order denying her request for an accounting "was not only a final order but that the time to appeal that [o]rder ha[d] long since passed and ... that the [o]rder of February 8, 2008, was an [a]greed [o]rder that all of the parties agreed upon while adjudicating all of the issues ... contained in that [o]rder." Judge Ward also dismissed Claire's September 2, 2008 petition to contest Brenda's will and to demand a jury trial. Judge Ward found the September 2, 2008 petition was not only stale but was also filed in bad faith since, in the court's February 8, 2008 agreed order, Claire agreed to withdraw her previously filed petition to investigate the will's validity.

¶ 13. As to all other motions, petitions, and filings made by Claire and Jane, Judge Ward dismissed them, stating that the sisters possessed "no standing in this cause, nor are they beneficiaries of [their mother's e]state with standing to seek any relief from the [e]state." Judge Ward further concluded that the only persons with a vested interest in the administration of Brenda's estate were Knox, D.A., and D.A.'s adoptive parents, the Langs. As to D.A.'s testamentary trust, Judge Ward found the trust was never funded "due to the [e]state not being of sufficient size."

¶ 14. Aggrieved by the chancery court's various rulings denying their requested relief, Claire and Jane appeal.

STANDARD OF REVIEW

¶ 15. This Court applies a limited standard of review on appeals from chancery court. Jackson v. Mills , 197 So.3d 430, 437 (¶ 30) (Miss. Ct. App. 2016). If supported by substantial credible evidence, we leave a chancellor's factual findings undisturbed unless the chancellor applied an incorrect legal standard, was manifestly wrong, or was clearly erroneous. Id. We review questions of law de novo. Id.

DISCUSSION

I. Standing

¶ 16. On appeal, the parties disagree as to whether Claire and Jane have standing to request an accounting of their mother's estate and testamentary trust. Since standing is a jurisdictional issue, we review it de novo. SASS Muni-V LLC v. DeSoto Cty. , 170 So.3d 441, 445 (¶ 12) (Miss. 2015). Standing is to be determined at the commencement of a lawsuit. In re Estate of Baumgardner , 82 So.3d 592, 599 (¶ 21) (Miss. 2012). Regarding the applicable caselaw on standing, the Mississippi Supreme Court has stated the following:

To have standing to sue, 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 authorized by law. An interest is deemed colorable if it appears to be true, valid, or right. An individual's legal interest or entitlement to assert a claim against a defendant must be grounded in some legal right recognized by law, whether by statute or by common law. For a plaintiff to establish standing on grounds of experiencing an adverse effect from the conduct of the defendant/appellee, the adverse effect experienced must be different from the adverse effect experienced by the general public.

SASS Muni-V , 170 So.3d at 446 (¶ 13) (internal citations and quotation marks omitted).

¶ 17. Mississippi precedent clearly establishes that vested remainder beneficiaries of a testamentary trust have standing to file suit and that holders of a shifting executory interest have some limited rights that can provide standing to file suit. See Baumgardner , 82 So.3d at 600-01 (¶¶ 27-28) ; Hemphill , 245 Miss. at 46, 145 So.2d at 461. Claire and Jane claim they are vested remainder beneficiaries of their mother's testamentary trust while Knox asserts his sisters have an unvested executory interest. As previously discussed, the chancellor found Claire and Jane were unvested contingent remainder beneficiaries.

¶ 18. In applying precedent to the instant case, we find that Claire and Jane possess a shifting executory interest in their mother's testamentary trust. A review of the will's terms reflects that Brenda's estate vests in D.A. and Knox, but that D.A. and Knox inherit subject to a condition of survivorship. See Hemphill , 245 Miss. at 46, 145 So.2d at 461. D.A. and Knox may be divested if the condition of survivorship is not fulfilled. If the survivorship condition is not fulfilled, D.A. and Knox are then divested of their interests, which shift to Claire and Jane as beneficiaries. Precedent establishes that, as the owners of a shifting executory interest, Jane and Claire possess limited rights to prevent future waste. See id. See also Columbus & Greenville Ry. Co. v. City of Greenwood , 390 So.2d 588, 592 (Miss. 1980) (applying the Hemphill holding to find that the heirs of original land grantors possessed a reversionary interest capable of evaluation). "An executory interest is a future interest, which is held by a third person, that either terminates another's interest before its natural termination, or begins after the natural termination of a preceding estate." K.F. Boackle, Real Property-Deeds and Conveyances, 7 Encyclopedia of Mississippi Law § 62:29 (2d. ed. Jeffrey Jackson et al. eds.). "A shifting executory interest occurs when ownership shifts from one transferee to another upon the occurrence of the subsequent event." Scott v. Brunson , 351 S.C. 313, 569 S.E.2d 385, 387 (S.C. Ct. App. 2002). We now turn to a more specific review of the terms of Brenda's will and the legal consequences of those terms.

¶ 19. In applying caselaw to the terms of Brenda's will, we find the will's terms reflect that, in creating the testamentary trust, Brenda named D.A. the income beneficiary with the principal to be placed in trust until the earliest of either D.A.'s thirtieth birthday or his death. At either D.A.'s thirtieth birthday or his death, Brenda's will directed that the trust's principal be evenly divided between D.A. and Knox "per stirpes to include adopted children." The terms of the will next discussed disbursement of trust assets to beneficiaries who were under the age of twenty-one at the time of the trust's termination, or who died before the trust's termination. Finally, in establishing that D.A. and Knox inherit subject to a condition subsequent of survivorship, the will stated as follows:

If there are no surviving beneficiaries, descendants of deceased former beneficiaries, former beneficiaries who are living, or descendants of deceased former beneficiaries, then his or her interest shall be distributed share and share alike to the [c]onservatorships for my two daughters[, Claire and Jane;] should either one or both of them not have a [c]onservatorship at the termination of this trust[,] then distribute their portion outright to them.

¶ 20. Thus, Brenda's will established that, if D.A. and Knox failed to satisfy the condition of survivorship, they would be divested of their interests, which would then shift and be distributed to Claire and Jane. Accordingly, a review of Brenda's will reflects that she gave Claire and Jane a shifting executory interest in the assets of the testamentary trust. As stated, Mississippi precedent reflects that holders of a shifting executory interest enjoy limited rights to enjoin the possessory owner from waste of the inheritance. See Hemphill , 245 Miss. at 38, 145 So.2d at 457. We now turn to a review of applicable and instructive Mississippi precedent.

¶ 21. In Hemphill , the supreme court explained that an executory-interest owner's limited right rests upon the constitutional provision for due process. Id. at 46, 145 So.2d at 461. The Hemphill court found that Mississippi precedent and statutory law "place an independent value and significance on future interests, whether 'vested' or not." Id. at 47, 145 So.2d at 462. The Hemphill court further explained that a contingent remainder interest "has achieved status as a protectable interest for many purposes" when the "contingent remainder is limited to an existing ascertained person[,]" like Claire and Jane in the instant case. Id. at 48, 145 So.2d at 462. According to the Hemphill court, "[w]hen a contingent remainder is limited to an existing ascertained person[,] there is no question but that the courts will recognize the interest as having present existence." Id.

¶ 22. Thus, upon review of relevant caselaw and the record before us, we find the chancellor erred in denying Claire and Jane's request for an accounting of their mother's estate and testamentary trust. As holders of a shifting executory interest in their mother's estate, Claire and Jane possess limited rights to enjoin the possessory owners from future waste of the estate. See id. at 38, 145 So.2d at 457. As a result, we reverse the chancellor's judgment finding they lack standing to request an accounting, and we remand the case for further proceedings consistent with this opinion.

II. Rule 15(a) Motion to Amend

¶ 23. We next consider Claire and Jane's contention that the chancellor erroneously denied Claire's Rule 15(a) motion to amend her petition. The sisters argue that none of the various attorneys asserted they would suffer prejudice if the chancellor granted the motion to amend. We review the denial of a motion to amend for abuse of discretion. Crater v. Bank of New York Mellon , 203 So.3d 16, 19 (¶ 7) (Miss. Ct. App. 2016).

¶ 24. As previously discussed, Claire filed an amended petition for compensatory and punitive damages in which she sought to assert claims of fraud and negligence per se against the attorneys who represented the interests of Brenda's estate, the testamentary trust, and D.A.'s guardianship. Claire then filed a Rule 15(a) motion for leave to admit her amended petition. The specially appointed judge denied Claire's motion for leave to admit and dismissed her claims against the attorneys, finding that Claire failed to state a claim under Rule 12(b)(6). The special judge also granted the attorneys' motions to strike themselves as defendants due to Claire's failure to obtain leave to join them under Mississippi Rule of Civil Procedure 21.

¶ 25. Following the Rule 12(b)(6) dismissal of her claims, Claire filed a motion for leave to amend her petition under Rule 15(a) to include claims against the attorneys and to allege "fraud and negligence per se with the correct specificity." However, Claire's motion for leave to amend failed to provide the substance of the amendment to inform the court of what facts or acts constituted the fraud or negligence per se. See M.R.C.P. 9(b) (providing that fraud must be pled with specificity); Faul v. Perlman , 104 So.3d 148, 156 (¶ 26) (Miss. Ct. App. 2012) (discussing the elements a plaintiff must show to establish negligence per se). The motion to amend instead contained only bare allegations and no facts from which to determine the existence of a cause of action.

¶ 26. One of the attorneys identified in Claire's petition and amended petition filed a response that the other attorneys joined. In asking the court to deny Claire's Rule 15(a) motion to amend, the attorneys noted that Claire had failed to "attach a proposed amended petition that would permit the [c]ourt to determine whether justice requires that leave to amend be granted." The attorneys also noted they had been "dismissed as [respondents] ... as a result of [Claire's] failure to obtain leave of court to add [them] as [parties]." Furthermore, the attorneys contended that, even if the court granted Claire's motion to amend, the amendments would not affect them because of their prior dismissal from the matter under Rule 21. As discussed, the record shows that Claire's motion for leave to amend indeed failed to inform the chancellor of what facts or acts constituted fraud or negligence per se.

¶ 27. Where a trial court dismisses a complaint under Rule 12(b)(6) for failure to state a claim, Rule 15(a) requires the trial court to freely give the plaintiff the opportunity to amend her complaints "when justice so requires." M.R.C.P. 15(a). As previously discussed, we will affirm the chancellor's decision "unless the discretion he used is found to be arbitrary and clearly erroneous." Breeden v. Buchanan , 164 So.3d 1057, 1064 (¶ 27) (Miss. Ct. App. 2015) (quoting Poole v. Avara , 908 So.2d 716, 721 (¶ 8) (Miss. 2005) ). In the present case, we have the benefit of the chancellor's explanation since the record sets forth why he denied Claire's Rule 15(a) motion to amend. See Breeden , 164 So.3d at 1064 (¶¶ 28-31) (finding an abuse of discretion where a chancellor failed to explain his denial of the plaintiff's Rule 15(a) motion). The specially appointed judge found that Claire had failed "to state how she would amend her prior pleadings or ... to attach a proposed amended pleading [that] would allow the [c]ourt to determine whether justice required that she be given leave to file amended pleadings[.]"

¶ 28. The record here demonstrates that Claire failed to meet her burden to sufficiently support an amendment of her petition. Furthermore, the chancellor dismissed the attorneys from the litigation under Rule 21 because Claire failed to obtain the court's leave to join them, and Claire filed no appeal of the attorneys' dismissal. See Crater , 203 So.3d at 21 (¶ 16) (finding no abuse of discretion in the denial of a Rule 15(a) motion to amend where the motion only asserted claims against a nonparty and the claims were futile). For these reasons, we find no abuse of discretion from the chancellor's denial of Claire's Rule 15(a) motion to amend. See id. at 19 (¶ 7). We therefore affirm the chancellor's judgment with regard to this issue.

CONCLUSION

¶ 29. We affirm the portion of the chancellor's judgment denying Claire's Rule 15(a) motion to amend her petition. However, upon finding that Claire and Jane, as holders of a shifting executory interest, have some limited rights, we reverse the portion of the chancellor's judgment holding that the sisters lack standing to request an accounting of their mother's estate and testamentary trust. We therefore remand this case so the chancellor may grant an accounting consistent with Claire and Jane's limited rights as holders of a shifting executory interest to prevent future waste.

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

LEE, C.J., GRIFFIS, P.J., BARNES AND GREENLEE, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. TINDELL, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY WILSON, J. FAIR AND WESTBROOKS, JJ., NOT PARTICIPATING.

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

¶ 31. It is said that all good things must come to an end. In this case, it is time for a bad thing to come to an end. I agree with the majority's finding that no abuse of discretion arose from the chancellor's denial of Claire's Rule 15(a) motion to amend. However, I disagree with the majority's finding that the chancellor erred by denying Claire and Jane's request for an accounting of the estate and testamentary trust of their mother, Brenda. Because I would affirm the chancellor's judgment bringing this case to an end, I concur in part and dissent in part from the majority's opinion.

¶ 32. I do not find Hemphill v. Mississippi State Highway Commission , 245 Miss. 33, 145 So.2d 455 (1962), a case heavily relied upon by the majority, to be determinative of or applicable to the present case. In Hemphill , the discussion of the future executory interests centered entirely on the constitutional guaranty of protection from governmental taking of and damage to real property without compensation. Id. at 37, 145 So.2d at 457. To ensure protection of that constitutional guaranty, the court therein focused on the potential for a compensable interest in property to those holding any and all "future interests, whether 'vested or not.' " Id. at 48, 145 So.2d at 462. The appellants' standing question in Hemphill was grounded in that particular and limited executory interest and determined by the appellants' legal right to compensation for governmental taking of and damage to lands without compensation as provided in Article 3, Section 17 of the Mississippi Constitution. Id. at 37-48, 145 So.2d at 457-62.

¶ 33. Unlike Hemphill , Claire's accounting request infringes upon no constitutional right of any party with any future, shifting, contingent, remainder, or other interest. And, as stated by the majority, "[a]n individual's legal interest or entitlement to assert a claim against a defendant must be grounded in some legal right recognized by law, whether by statute or by common law." Maj. Op. at (¶ 16) (quoting SASS Muni-V LLC v. DeSoto Cty. , 170 So.3d 441, 446 (¶ 13) (Miss. 2015) ) (internal citations and quotation marks omitted). The present case does not involve the legal right at issue in Hemphill , one recognized by law and set forth in Article 3, Section 17 of the Mississippi Constitution. The "vested or not" status of the shifting executory interests is an important distinction that must be considered. And furthermore, unlike the majority, I find that the sisters' executory interest has never vested.

¶ 34. Brenda's will named D.A. the income beneficiary of her testamentary trust. At either D.A.'s death or his thirtieth birthday, the trust's principal was to be evenly divided between D.A. and Knox "per stirpes to include adopted children." The will then discussed the disbursement of trust assets to beneficiaries who were under twenty-one years old when the trust terminated or who died before the trust's termination. Finally, the will provided:

If there are no surviving beneficiaries, descendants of deceased former beneficiaries, former beneficiaries who are living, or descendants of deceased former beneficiaries, then his or her interest shall be distributed share and share alike to the [c]onservatorships for [Brenda's] two daughters[, Claire and Jane;] should either one or both of them not have a [c]onservatorship at the termination of this trust[,] then distribute their portion outright to them.

¶ 35. The will established that the trust assets vested in D.A. and Knox. Their interests shifted to the sisters only after the natural termination of D.A. and Knox's estate and only if D.A. and Knox died with no descendants. Based upon this reading of Brenda's will, I agree with the majority that Brenda provided the sisters with a shifting executory interest in her testamentary trust. However, unlike the majority, I find that the language of Brenda's will gave the sisters a purely executory interest that has not become possessory. Their shifting executory interest remains unvested and, as a result, they lack standing necessary to demand an accounting of their mother's trust. See Bridgforth v. Gray , 222 So.2d 670, 672 (Miss. 1969) ("So long as an executory interest remains a future interest, it is non-vested."). See also 31 C.J.S. Estates § 144 (2017) (recognizing that executory interests remain unvested until they become possessory).

¶ 36. As a result, I would therefore affirm the chancellor's judgment that the sisters lack standing to request an accounting. Accordingly, I concur in part and dissent in part from the majority's opinion.

WILSON, J., JOINS THIS OPINION.

      See Hemphill v. Miss. State Highway Comm'n , 245 Miss. 33, 46, 145 So.2d 455, 461 (1962) (holding that executory-interest owners have "certain limited rights to enjoin the possessory owner from waste of the inheritance and to recover damages for injuries [that] ... substantially [diminish] its value"). Cf. Cannon v. Barry , 59 Miss. 289, 302-05 (1881) (holding that contingent remainder beneficiaries could not recover damages from a life tenant for past waste but could enjoin the life tenant from future waste to the inheritance's detriment).

      Because D.A. is a minor, we refer to him by his initials.

      Cf. Cannon , 59 Miss. at 302-05 (holding that contingent remainder beneficiaries could prevent a life tenant from future waste to the detriment of the inheritance).

      See Hemphill , 145 So.2d at 457 (finding that individuals who possessed a shifting executory interest in land taken and allegedly damaged by the Mississippi Highway Commission possessed limited compensable rights in the land); White v. Inman , 212 Miss. 237, 256, 54 So.2d 375, 381-82 (1951) (finding the testator's will devised to his daughter an estate in fee simple defeasible subject to an executory limitation).

      Cf. Cannon , 59 Miss. at 302-05 (holding that contingent remainder beneficiaries could not recover damages from a life tenant for past waste but could enjoin the life tenant from future waste to the inheritance's detriment).

      Compare Baumgardner , 82 So.3d at 600-01 (¶¶ 27-28) (holding that vested remainder beneficiaries possessed standing to file suit), Cannon , 59 Miss. at 302-05 (holding that contingent remainder beneficiaries could enjoin a life tenant from future waste).

      See also Price v. Price , 430 So.2d 848, 849 (Miss. 1983) ("When a party proposes to amend his pleading, he should ordinarily make known to the trial court the substance of his proposed amendment.").

      The estate has been open for over ten years. After voluminous pleadings by the Appellants, the assets of the estate have been depleted to a point that the trust cannot even be funded.


author: CARLTON, J., FOR THE COURT:

text:
    Gregory L. GILL a/k/a Gregory Gill, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01618-COA
    Court of Appeals of Mississippi.
    February 13, 2018 Rehearing Denied October 2, 2018
    ATTORNEY FOR APPELLANT: GREGORY L. GILL (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER
    BEFORE LEE, C.J., CARLTON AND GREENLEE, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. Gregory Gill pleaded guilty to two counts of touching a child for a lustful purpose in violation of Mississippi Code Annotated section 97-5-23(1) (Supp. 2017). The trial court sentenced Gill to fifteen years in the custody of the Mississippi Department of Corrections (MDOC) for each count, with the sentences to run consecutively, with fifteen years suspended and five years of postrelease supervision.

¶ 2. Gill filed a motion for postconviction relief (PCR), which the trial court denied. Gill now appeals, asserting the following assignments of error: (1) his right against double jeopardy was violated; (2) the State failed to amend his indictment; (3) the trial court erred in admitting evidence of Gill's prior convictions; (4) his counsel was ineffective; and (5) his right to a speedy trial was violated. Finding no error, we affirm the Hancock County Circuit Court's denial of Gill's PCR motion.

FACTS

¶ 3. On February 3, 2014, Gill pleaded guilty to two counts of touching a child for lustful purposes. The trial court sentenced Gill to fifteen years in the custody of the MDOC for each count, with the sentences to run consecutively, with fifteen years suspended and five years of postrelease supervision.

¶ 4. On July 29, 2016, Gill filed a petition to vacate his conviction and sentence, which the trial court treated as a PCR motion. In his PCR motion, Gill argued that: (1) his right to a speedy trial was violated; (2) his counsel was ineffective; and (3) his right against double jeopardy was violated.

¶ 5. On September 21, 2016, the trial court entered an order denying Gill's PCR motion. Regarding Gill's speedy-trial claim, the trial court explained that a valid guilty plea operates as a waiver of the right to a speedy trial. The trial court found that since Gill entered a guilty plea and failed to show that his plea was not valid, his claim lacked merit.

¶ 6. The trial court also found that Gill's claim of ineffective assistance of counsel lacked merit because Gill "failed to show that his counsel's representation fell below an objective standard of reasonableness and that, but for his counsel's alleged errors, he would not have pled guilty." The trial court explained that Gill failed to present evidence to support his claim of ineffective assistance of counsel. Citing Mississippi Code Annotated section 99-35-101 (Rev. 2015), the trial court also provided that since Gill pleaded guilty to the charges against him, he had no right to directly appeal his sentence and no right to counsel for a direct appeal.

¶ 7. Finally, the trial court held that Gill was not subjected to double jeopardy because Gill "pled guilty to two (2) separate acts of touching of a child for a lustful purpose, both of which took place on or between January 1, 2004[,] and December 31, 2007."

¶ 8. Gill filed his notice of appeal on November 3, 2016.

STANDARD OF REVIEW

¶ 9. "When reviewing a trial court's denial ... of a motion for PCR, we will only disturb the trial court's factual findings if they are clearly erroneous; however, we review... legal conclusions under a de novo standard of review." Chapman v. State , 167 So.3d 1170, 1172 (¶ 3) (Miss. 2015) (quotation omitted).

DISCUSSION

I. Double Jeopardy

¶ 10. Gill claims that he was subjected to double jeopardy because he was charged twice for the same crime-touching a child for a lustful purpose. "[T]he Fifth Amendment to the United States Constitution, as well as Article 3, Section 22 of the Mississippi Constitution, protect[s] against double jeopardy, providing that no person shall be prosecuted twice for the same offense." Williams v. State , 167 So.3d 252, 257 (¶ 15) (Miss. Ct. App. 2015). Specifically, "[t]he Double Jeopardy Clause prevents a second prosecution for the same offense after acquittal, protects against a second prosecution for the same offense after conviction, and protects against multiple punishments for the same offense." Avery v. State , 102 So.3d 1178, 1181 (¶ 9) (Miss. Ct. App. 2012) (quoting Ewing v. State , 34 So.3d 612, 616 (¶ 14) (Miss. Ct. App. 2009) ) (internal quotation marks omitted).

¶ 11. On August 1, 2013, a Hancock County grand jury indicted Gill on the charges of sexual battery (Count I) and touching a child for a lustful purpose (Count II) in Cause No. B2301-13-0120. The record also contains a bill of information entered on February 3, 2014, charging Gill with one count of touching of a child for a lustful purpose in a separate cause number, Cause No. B2301-14-0017. Gill pleaded guilty to two counts of touching a child for lustful purposes pursuant to section 97-5-23(1) : one count of touching of a child for lustful purposes as charged in Count II of B2301-13-0120, and one count of touching of a child for lustful purposes as charged in B2301-14-0017. As a result of his guilty pleas, the trial court sentenced Gill to serve fifteen years for each count, with the two sentences to run consecutively.

¶ 12. The charge in Count II of Cause No. B2301-13-0120 alleged that:

[Gill,] being at the time in question over the age of eighteen years, for the purpose of gratifying his lust or indulging his depraved licentious sexual desires, did unlawfully, willfully[,] and feloniously handle, touch[,] or rub with his hands, the vagina of the said G.A.G., a child who was at the time in question under the age of sixteen (16) years ....

(Emphasis added).

¶ 13. The bill of information in cause number B2301-14-0017 charged that:

[Gill,] being at the time in question over the age of eighteen years, for the purpose of gratifying his lust or indulging his depraved licentious sexual desires, did unlawfully, wilfully[,] and feloniously handle, touch or rub with his hands the breasts of G.A.G. a child who was at the time in question under the age of sixteen (16) years ....

(Emphasis added).

¶ 14. The plea-hearing transcript reflects that the trial court informed Gill that he was pleading guilty to two separate charges of touching a child for a lustful purpose-one count in Cause No. B2301-13-0120 and one count in Cause No. B2301-14-0017. The trial court then told Gill that each of the charges carried a minimum sentence of two years and a maximum sentence of fifteen years and a minimum fine of $1,000 and a maximum fine of $5,000. The trial court also asked, "Sir, do you understand if you plead guilty today, you could be sentenced to a maximum [of thirty] years in prison and imposed a maximum fine of $10,000?" Gill confirmed that he understood, and he informed the trial court that he still intended to plead guilty. Additionally, during the plea hearing, the State set forth the facts surrounding Gill's charges as follows:

[T]he juvenile victim brought out that she had experienced inappropriate sexual activity with the defendant between the years when she was between six and [eleven] years old, and she described the different things that occurred[,] which include[d] different types of touching all over her body, and it occurred multiple times in multiple locations both in Mississippi and outside Mississippi before and after Hurricane Katrina.

¶ 15. When reviewing double-jeopardy claims on appeal, we utilize the test established in Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which "instructs courts to determine whether each offense contains an element not present in the other; if not, they are labeled the same offense[ ] for double-jeopardy purposes." Kelly v. State , 80 So.3d 802, 805 (¶ 11) (Miss. 2012). The Mississippi Supreme Court has stated that "[t]he rule plainly states that 'where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one[ ] is whether each provision requires proof of a fact which the other does not.' " Id. (quoting Blockburger , 284 U.S. at 304, 52 S.Ct. 180 ).

¶ 16. In Byers v. State , 157 So.3d 98, 104 (¶ 17) (Miss. Ct. App. 2014), the defendant, Daniel Byers, was indicted for three counts of felony child abuse under Mississippi Code Annotated section 97-5-39(2) (Supp. 2011), and the jury found him guilty of two counts, Count I and Count III. Byers appealed, claiming that he was subjected to double jeopardy. Id. at 103 (¶ 16). This Court acknowledged that Byers was indicted under section 97-5-39(2) on both counts of felony child abuse, and as a result, "the statutory elements were the same." Byers , 157 So.3d at 104 (¶ 17). The Byers Court clarified, however, that "the types of injuries constituting the abuse in the two counts are different: Count I concerns the leg fracture ; Count III concerns the bruises and abrasions." Id. This Court cited Nelson v. State , 10 So.3d 898, 907 (¶ 37) (Miss. 2009), where the supreme court explained that "[e]ven though there may be a substantial overlap in the proof supporting the convictions of the different crimes, the Blockburger test is met where each offense requires proof of an element not necessary to the other." Byers, 157 So.3d at 104 (¶ 18). The Byers Court thus held that "Count III required 'proof of a fact' not found in Count I; namely, that [the victim] suffered serious bodily harm in the form of 'severe bruising, abrasions, and lacerations.' " Id.

¶ 17. In the present case, the record shows that Count II of Gill's indictment in Cause No. B2301-13-0120 charged Gill with "unlawfully, willfully[,] and feloniously handl[ing], touch[ing,] or rub[bing] with his hands, the vagina" of the victim. In contrast, the bill of information in Cause No. B2301-14-0017 charged Gill with "unlawfully, wilfully[,] and feloniously handl[ing], touch[ing,] or rub[bing] with his hands the breasts" of the victim. Similar to Byers , we find that each of the charges against Gill required "proof of a fact" not found in the other charge. Further, it is clear that Gill "was not prosecuted for the same offense after acquittal; he was not subjected to a second prosecution for the same offense after conviction; and he did not receive multiple punishments for the same offense." Avery , 102 So.3d at 1181 (¶ 9). The factual predicate for the pleas provided by the State reflects that Gill touched the victim inappropriately multiples times when she was between the ages of six and eleven years old, in violation of section 97-5-23(1), and Gill pleaded guilty to charges for two of those occasions. See Brown v. State , 198 So.3d 325, 335-36 (¶¶ 39-40) (Miss. Ct. App. 2015) (finding that a sufficient factual predicate existed for the guilty plea); see also Corley v. State , 585 So.2d 765, 766-67 (Miss. 1991) (discussing the factual basis required for a guilty plea). Accordingly, we find that Gill's double-jeopardy claim lacks merit.

II. Indictment

¶ 18. Gill submits that the State failed to amend his indictment to reflect that he was pleading guilty to two counts of touching a child for lustful purposes; as a result, he claims that he pleaded guilty to an untrue indictment.

¶ 19. The record reflects that Gill failed to raise this assignment of error in his PCR motion before the trial court. "A defendant who fails to raise an issue in his motion for post[ ]conviction relief before the trial court may not raise that issue for the first time on appeal." Marshall v. State , 136 So.3d 443, 445 (¶ 3) (Miss. Ct. App. 2013). Furthermore, the supreme court has held that "a knowing and voluntary guilty plea waives certain constitutional rights[.]" Joiner v. State , 61 So.3d 156, 158 (¶ 7) (Miss. 2011). "[B]eyond the constitutional rights that may be waived, the law is settled that ... the entry of a knowing and voluntary guilty plea waives all other defects or insufficiencies in the indictment." Id. at 158-59 (¶ 7). However, "[a] guilty plea does not waive an indictment's failure to charge an essential element of the crime[.]" Id. at 159 (¶ 7).

¶ 20. This Court has held that "the chief objective of an indictment is to provide a defendant fair notice of the crime charged." Jones v. State , 215 So.3d 508, 510-11 (¶ 8) (Miss. Ct. App. 2017). In order to provide a defendant fair notice of the crime charged, "[a]n indictment must contain (1) the essential elements of the offense charged, (2) sufficient facts to fairly inform the defendant of the charge against which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense." Id. at 511 (¶ 8).

¶ 21. The record before us reflects that Gill was sufficiently aware of the charges against him. The plea-hearing transcript shows that the trial court read aloud each charge of touching a child for a lustful purpose. After reading each charge, the trial court asked Gill, "Did you do that?" Gill responded, "Yes, sir." Gill then entered a guilty plea to each charge. The record further reflects that the trial court determined that Gill knowingly, voluntarily, and freely entered his guilty pleas. Gill bears the burden of showing that his pleas were not voluntary, and Gill does not claim his pleas were invalid. See Hannah v. State , 943 So.2d 20, 25 (¶ 11) (Miss. 2006). We thus find that this issue lacks merit.

III. Prior Convictions

¶ 22. Gill next argues that the State induced the trial court to render the maximum sentence allowable, even though Gill was not charged as a habitual offender, by offering evidence of Gill's prior convictions. Gill claims that this caused the judge "to have a prejudicial state of mind" regarding Gill's character. Gill argues that his prior convictions were "of a totally nonrelevant nature" to the crime of touching a child for a lustful purpose. Gill further submits that Federal Rule of Evidence 609(a)(1) states that past criminal convictions are not admissible in court if a period of more than ten years has passed since the date of release from that conviction.

¶ 23. The record reflects that Gill failed to raise this assignment of error in his PCR motion before the trial court, and he "may not [now] raise [this] issue for the first time on appeal." Marshall , 136 So.3d at 445 (¶ 3). Additionally, "a plea of guilty waives any evidentiary issue." Jefferson v. State , 855 So.2d 1012, 1014 (¶ 11) (Miss. Ct. App. 2003) (citing Bishop v. State , 812 So.2d 934, 945 (¶ 39) (Miss. 2002) ).

¶ 24. Procedural bar notwithstanding, the plea-hearing transcript reflects that after Gill admitted to having three prior convictions, the trial court advised Gill how these prior convictions would affect his decision to plead guilty in the context of any future crimes. The trial court informed Gill as follows:

[I]f you were to be charged with an additional crime at some time in the future, the [S]tate could potentially proceed against you as what's commonly referred to as a life habitual. Ultimately what that could mean is whatever the minimum or the maximum is on that new charge you're potentially charged with in the future, you could potentially serve a term of life in prison on that charge.

¶ 25. Our review of the record reveals no indication of any misconduct on the part of the prosecutor or any prejudice on the part of the judge. We find this issue lacks merit.

IV. Ineffective Assistance of Counsel

¶ 26. Gill next argues that his counsel was ineffective for failing to disclose to the trial court that Gill's prior conviction was committed in North Carolina, not in Mississippi. Gill also asserts that his counsel was "uncaring," and Gill claims that his counsel told him that if Gill did not take the plea deal and instead went to trial, he would receive a life sentence plus fifteen years if found guilty by a jury. Gill states that "based on court proceedings that did occur uncontested and without comment by counsel," he was poorly represented.

¶ 27. To prevail on his claim of ineffective assistance of counsel, Gill must show: (1) his counsel's performance was deficient, and (2) the deficiency was prejudicial. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland provides that an attorney is deficient if he fails to meet "an objective standard of reasonableness." Id. at 688, 104 S.Ct. 2052. "[A] strong presumption [exists] that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Id. at 689, 104 S.Ct. 2052.

¶ 28. In order to establish prejudice, Gill must show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. Since Gill pleaded guilty, he "must show that, were it not for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Burrough v. State , 9 So.3d 368, 375 (¶ 22) (Miss. 2009).

¶ 29. As stated previously, "a knowing and voluntary guilty plea waives certain constitutional rights[.]" Joiner , 61 So.3d at 158 (¶ 7). "This 'waiver includes all claims of ineffective assistance of counsel, except insofar as the alleged ineffectiveness relates to the voluntariness of the ... guilty plea.' " Hill v. State , 60 So.3d 824, 827 (¶ 6) (Miss. Ct. App. 2011) (quoting United States v. Cavitt , 550 F.3d 430, 441 (5th Cir. 2008) ).

¶ 30. After reviewing the record, we find that Gill's allegations of ineffective assistance of counsel are not supported by any proof except his own affidavit. "A PCR movant bears the burden of showing he is entitled to relief by a preponderance of the evidence." Ducksworth v. State , 134 So.3d 792, 794 (¶ 3) (Miss. Ct. App. 2013). The supreme court has held that a PCR movant may not rely solely on his own affidavit and unsupported allegations in his brief. Vielee v. State , 653 So.2d 920, 922 (Miss. 1995). Additionally, "where an affidavit is overwhelmingly belied by unimpeachable documentary evidence in the record[-]such as, for example, a transcript or written statements of the affiant to the contrary[-]to the extent that the court can conclude that the affidavit is a sham[,] no hearing is required." Williams v. State , 770 So.2d 1048, 1051 (¶ 9) (Miss. Ct. App. 2000).

¶ 31. In the present case, the plea-hearing transcript shows that Gill confirmed that he was satisfied with his attorney's service and also satisfied that his attorney familiarized himself with the facts of Gill's case. Gill acknowledged that his attorney had explained the elements of the crimes for which Gill was charged, as well as any available defenses to these crimes.

¶ 32. Gill informed the trial court that no one had threatened or coerced him to plead guilty. Furthermore, Gill's guilty-plea petition reflects that Gill believed that his lawyer had "done all that anyone could do to counsel and assist" him. Gill also provided in his guilty-plea petition that he was satisfied with his attorney's advice and help. After our review, we find this issue lacks merit.

V. Speedy Trial

¶ 33. Finally, Gill asserts that since he was incarcerated for 479 days prior to his court appearance, his right to a speedy trial was violated. "It is well established that where a defendant voluntarily pleads guilty to an offense, he waives nonjurisdictional rights incident to trial, including the constitutional right to a speedy trial." Kyles v. State , 185 So.3d 408, 411 (¶ 5) (Miss. Ct. App. 2016) (citing Anderson v. State , 577 So.2d 390, 391-92 (Miss. 1991) ). Gill does not argue that his guilty plea was involuntary.

¶ 34. In denying Gill's PCR motion, the trial court explained that Gill's valid guilty pleas operate as a waiver of the right to a speedy trial. The trial court also found that Gill failed to show that his pleas were not valid. We agree, and we find that this issue lacks merit.

¶ 35. After our review of the record and claims in Gill's PCR motion, we find that the trial court did not err in denying Gill's motion. See Chapman , 167 So.3d at 1172 (¶ 3).

¶ 36. AFFIRMED.

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

      On June 12, 2017, Gill filed a motion asking this Court not to "release any decision of its judgment on [his] appeal to any public broadcasting network or TV news group." He also asked the Court not to "release its decision to the public." On June 20, 2017, this Court entered an order interpreting Gill's motion as a request for a per curiam opinion and passed Gill's motion for consideration with the merits of his appeal.
      This Court finds that per curiam affirmance is not called for in this case. See M.R.A.P. 35-B(d). Gill provides no authority for the concept that he is entitled to confidentiality in the context of his appeal, which is a matter of public record. Consequently, Gill's motion for an unpublished decision is denied.

      Gill's sentencing order reflects that Gill "entered his plea of [g]uilty to the charge of Touching of a Child for Lustful Purposes, Count II only[,] in B2301-13-0120 and Touching of a Child for Lustful Purposes in B2301-14-0017."

      The record reflects that Gill made an earlier attempt to file his notice of appeal. This prior notice of appeal appears in the record, and Gill handwrote the month and the day on the document. The document shows the month October and the year 2016, but the day is illegible. The record also contains an October 25, 2016 letter from the Hancock County Circuit Clerk informing Gill that she was returning his notice of appeal because the circuit court clerk does not accept filings by fax.


author: WESTBROOKS, J., FOR THE COURT:

text:
    Immanuel MANNING a/k/a Papoose a/k/a Immanuel D. Manning a/k/a Immanuel Dewayne Manning a/k/a Emmanuel Manning a/k/a Emmanuel D. Manning a/k/a Emmanuel Dewayne Manning a/k/a Hollywood, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01301-COA
    Court of Appeals of Mississippi.
    March 6, 2018 Rehearing Denied October 2, 2018
    OFFICE OF STATE PUBLIC DEFENDER, BY: JUSTIN TAYLOR COOK, FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL, BY: BARBARA WAKELAND BYRD, LADONNA HOLLAND, FOR APPELLEE
    BEFORE IRVING, P.J., GREENLEE AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. A jury in the Oktibbeha County Circuit Court convicted Immanuel Manning of murder and witness intimidation. On the charge of murder, Manning was sentenced as a habitual offender to life in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole or early release. On witness intimidation, the circuit court sentenced Manning to two years in MDOC custody.

¶ 2. On appeal, Manning argues that (1) Lieutenant Brett Watson's lay opinion testimony was inadmissible; (2) the State presented insufficient evidence to support the conviction for witness intimidation; (3) jury instruction S-3(A) constructively amended Manning's indictment; and (4) this Court should reverse Manning's murder conviction under the doctrine of retroactive misjoinder. Because we find the evidence was sufficient to support a conviction of witness intimidation, we will only address assigned errors 1-3.

FACTS AND PROCEDURAL HISTORY

¶ 3. On March 7, 2014, Christopher Houston was shot and killed at his home in Starkville, Mississippi. Houston shared that home with his girlfriend Natalla Carter. Carter testified that she was cleaning a bathtub at the time of the shooting. After Houston was shot, Carter stated that she ran outside when she heard Houston call her name. Once outside, Carter saw Houston on the ground near a four wheeler. According to Carter, Houston, in making his final statement, told her that "Papoose shot [him]." Carter testified that she knew "Papoose" to be Manning, and Houston addressed Manning with the same moniker.

¶ 4. Deputy Mahyar Netadji, of the Oktibbeha County Sheriff Department, was the first law-enforcement officer to arrive on the scene. Carter relayed that Houston had said that "Papoose" shot him. According to Netadji, he knew that "Papoose" was Manning's moniker.

¶ 5. Netadji unsuccessfully tried to get a verbal response from Houston. Houston died at the scene, despite emergency responders' attempts to revive him there and at the hospital. After Houston was transported to the hospital, Netadji spoke to Carter again, who informed Netadji that Manning likely was headed to Jackson, Mississippi.

¶ 6. In response, Netadji notified dispatchers of Manning's possible involvement in the shooting and sent a "be on the lookout" (BOLO) alert to neighboring counties and the Mississippi Highway Patrol. Next, Netadji then spoke with Reginald Ferguson, Carter's neighbor. According to Ferguson, he was outside barbecuing when he noticed a gray Pontiac Bonneville, with a wing on the back, drive into the area before the shooting. Ferguson went inside his home for a moment, and when he returned he saw a man running back to the Pontiac. Ferguson described the driver as wearing mustard-colored pants and a dark-colored jacket.

¶ 7. Netadji provided that description to dispatch, Lieutenant Watson, and other law-enforcement officers. Watson also responded to the scene. Watson also knew Manning was referred to as Papoose and proceeded to search for information on Manning. While the record is unclear on how Watson ascertained Manning's cell phone number, Watson used it to contact T-Mobile to discover where the phone had been used earlier that day. T-Mobile emailed Watson coordinates of Manning's cell phone throughout the day. This information eventually led to Manning's apprehension in Pearl, Mississippi. After being detained, Officer Greg Jones tested Manning's hands for gunshot residue at the Pearl Police Department.

¶ 8. Manning eventually was released on bond. While on bond, Carter encountered Manning twice. According to Carter, Manning made kissing gestures toward her during this first encounter. During the second encounter, Carter testified Manning said something that she took as a threat, although she could not remember exactly what he had said. She filed charges against him shortly thereafter.

¶ 9. On July 18, 2014, Manning was indicted and charged with first-degree murder, possession of stolen property, and witness intimidation. Manning's trial began on August 1, 2016. The State called nine witnesses during its case-in-chief. Manning called one witness and then chose to testify. Afterward, the State called three rebuttal witnesses and rested. The jury found Manning guilty of murder and witness intimidation. Manning appeals.

DISCUSSION

I. Whether Brett Watson's lay opinion was inadmissible .

¶ 10. Manning argues that Watson's testimony was inadmissible lay opinion testimony, because cell-tower pings are technical in nature. Additionally, Manning argues that the State's leading questions evoked affirmative answers from Watson when discussing how he tracked Manning's direction of travel through his cell phone's coordinates.

¶ 11. "The standard of review for both the admission or exclusion of evidence is abuse of discretion." Walls v. State , 928 So.2d 922, 926 (¶ 9) (Miss. Ct. App. 2006) (citing Harrison v. McMillan , 828 So.2d 756, 765 (¶ 27) (Miss. 2002) ). "Even if this Court finds an erroneous admission or exclusion of evidence, we will not reverse unless the error adversely affects a substantial right of a party." Id. "There is a two-part test to determine the admissibility of lay witness opinion testimony." Id. at (¶ 10). "The information must assist the trier of fact and the opinion must be based upon first hand knowledge." Id. (citing Jones v. State , 678 So.2d 707, 710 (Miss. 1996) ). "A layperson is qualified to give an opinion based upon his first hand knowledge that other lay people do not possess." Id.

¶ 12. Manning cites to Collins v. State , 172 So.3d 724 (Miss. 2015), in support of his contentions. In Collins , Jairus Collins was convicted of murdering Ebony Jenkins. Id. at 727 (¶ 1). Jenkins's body was discovered behind a building in Hattiesburg, Mississippi. Id. "During the course of the investigation, police officers identified Collins as a suspect in Jenkins's murder." Id. "Collins initially told officers he did not know Jenkins very well and was working the night of December 7, 2011." Id. at 732 (¶ 4). "Officers subpoenaed Collins's work schedule, however, which showed that Collins was not at work on December 7, 2011." Id.

¶ 13. After officers showed Collins phone records from the night of Jenkins's murder, Collins admitted to having some contact with Jenkins that night. Id. "Based on the phone records they obtained, officers determined that Collins and Jenkins exchanged several phone calls and text messages the night of December 7, 2011." Id. One of the detectives involved in the investigation testified regarding longitude and latitude coordinates and cell phone towers that Collins and Jenkins's cell phones used to make and receive calls.

¶ 14. The Mississippi Supreme Court found that the admission of the detective's testimony was a reversible error. Id. at 744 (¶ 29). The Court opined "that testimony that simply describes the information in a cell phone record is properly lay testimony." Id. at 743 (¶ 28). "Likewise, testimony that merely informs the jury as to the location of cell phone towers may properly be lay testimony when it is based upon the personal observations of the witness." Id. "But testimony that goes beyond the simple descriptions of cell phone basics, specifically testimony that purports to pinpoint the general area in which the cell phone user was located based on historical cellular data, requires scientific, technical, or other specialized knowledge that requires expert testimony." Id.

¶ 15. Relying on our Supreme Court's holding in Collins , Manning argues that Watson provided improper expert testimony when he testified regarding the coordinates and real-time locations provided by T-Mobile. However, this issue is waived on appeal because Manning's defense attorney failed to object to Watson's testimony and the State's presentation of the evidence. "The failure to object to testimony at trial waives any assignment of error on appeal." Ross v. State , 16 So.3d 47, 57 (¶ 21) (Miss. Ct. App. 2009) (internal quotation marks omitted).

¶ 16. Procedural bar notwithstanding, the State argues that Manning's assignment of error is without merit. The State notes that Watson's testimony is markedly distinguishable from the testimony that the Supreme Court warned against in Collins . We agree. The detective's testimony in Collins purported to pinpoint the general area that the cell phone users were located. Here, Watson merely placed the coordinates from the records supplied by T-Mobile into Google maps. Watson's testimony was not complex or technical, necessitating specialized knowledge or training. Moreover, Watson's testimony did not implicate Manning as the detective's testimony did in Collins . Therefore, we find that the admission of Watson's testimony was not in error.

II. Whether the State presented sufficient evidence to convict Manning of witness intimidation.

¶ 17. "When reviewing a challenge to the sufficiency of the evidence, this Court will reverse and render only if the facts and inferences point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty." Hughes v. State , 983 So.2d 270, 275-76 (¶ 10) (Miss. 2008) (internal quotation marks omitted). "This Court considers the evidence in the light most favorable to the state." Id. "The state receives the benefit of all favorable inferences that may reasonably be drawn from the evidence." Id. (internal citations omitted).

¶ 18. Manning argues that Carter's allegations regarding her two encounters with him after he was released on bond were insufficient to support his conviction for witness intimidation. Specifically, Manning argues that Carter's testimony regarding the threatening statement he made was so patchy, nondescript, and nebulous that it is impossible to conclude what Manning said to her. As a result, Manning asserts that the State failed to prove witness intimidation beyond a reasonable doubt.

¶ 19. Mississippi Code Annotated section 97-9-113 states that "[a] person commits the crime of intimidating a witness if he intentionally or knowingly: ... [h]arasses or intimidates or attempts to threaten, harass or intimidate a witness or a person reasonably expected to be a witness." As stated prior, Carter testified to two incidents that she perceived as threats. In the first encounter, Carter stated this occurred when she was leaving the complex where both her mother and Manning resided: "I was coming in to Brooksville Garden and he was leaving out making kissing gestures." In the second encounter, Carter testified that she could not hear exactly what Manning stated to her, but she could make out the words "do something." "The [Supreme Court] has stated that a single witness's uncorroborated testimony is sufficient to support a conviction." Cousar v. State , 855 So.2d 993, 998-99 (¶ 16) (Miss. 2003). Moreover, "[t]he jury determines the weight and credibility to give witness testimony and other evidence." Gillett v. State , 56 So.3d 469, 505 (¶ 102) (Miss. 2010) (citing Massey v. State , 992 So.2d 1161, 1163 (¶ 12) (Miss. 2008) ). "This Court may not pass upon the credibility of witnesses and, where the evidence justifies a verdict, it must be accepted as having been found worthy of belief." Id. (internal quotation marks omitted).

¶ 20. In the case at hand, the jury found Carter's testimony as to the threatening nature of Manning's gestures credible. Carter was the only individual who heard Houston's final statements regarding who shot him. Carter also identified Manning as "Papoose" and was a key state witness. In viewing the evidence in the light most favorable to the State, it was reasonable for the jury to find Manning guilty of witness intimidation.

III. Whether instruction S-3(A) constructively amended Manning's indictment.

¶ 21. Manning argues that the variance between his indictment and one of the State's jury instructions constructively amended the indictment. Specifically, Manning asserts that the State's jury instruction neglected to allege an overt act because the grand jury indicted Manning on the allegations that he engaged in conversation and blowing kisses. However, Manning waived this error on appeal because his defense counsel failed to object to the lack of an overt act in the instruction. "The failure to object to testimony at trial waives any assignment of error on appeal." Ross, 16 So.3d at 57 (¶ 21). Therefore, this matter is procedurally barred.

¶ 22. Procedural bar notwithstanding, Manning's indictment informed him that he was being charged with intimidating a witness by "unlawfully, willfully[,] and feloniously attempt[ing] to intimidate or otherwise influence ... Carter, a witness to a crime, by threats, force[,] or abuse, by engaging in conversation and blowing kisses at ... Carter, to obstruct or impede the administration of justice ...."

¶ 23. Instruction S-3(A) informed the jury that it should find Manning guilty of intimidating a witness if it found from the evidence beyond a reasonable doubt that Manning: "did unlawfully, willfully[,] and feloniously; attempt to intimidate or otherwise influence ... Carter, a witness to a crime; by threats, communication with her with threats, force or abuse; to obstruct or impede the administration of [j]ustice in any [c]ourt."

¶ 24. In Bell v. State , 725 So.2d 836, 855-56 (Miss. 1998), the [Supreme Court] held that reversal is required where a defendant was convicted of an element of the offense not contained in the indictment, and "... reversal is automatic because the defendant may have been convicted on a ground not charged in the indictment." Bishop v. State , 812 So.2d 934, 941 (¶ 25) (Miss. 2002) (internal quotations omitted). However, "[n]ot all variances between the indictment and instructions constitute a constructive amendment, nor do they rise to plain error."

Bell , 725 So.2d at 855 (¶ 61). "The central question is whether the variance is such as to substantially alter the elements of proof necessary for a conviction." Id.

¶ 25. Manning argues that the State's failure to include an allegation of an overt act creates such a considerable variance that it warrants reversal. We do not agree. The omission of an overt act did not change any element of the offense or broaden the grounds upon which he could be found guilty. Accordingly, we find this argument without merit.

¶ 26. AFFIRMED .

LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON, GREENLEE AND TINDELL, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      The State ultimately chose to retire the possession-of-stolen-property charge to the files.