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

text:
    Terry Lee ING, Appellant v. Song ADAMS, Appellee
    NO. 2017-CA-00084-COA
    Court of Appeals of Mississippi.
    May 15, 2018
    ATTORNEY FOR APPELLANT: JOSEPH WHITTEN COOPER, Ashland
    ATTORNEY FOR APPELLEE: KENT E. SMITH, Holly Springs
    EN BANC.
   WILSON, J., FOR THE COURT:

¶ 1. This case involves an option to purchase in a lease agreement between Terry Lee Ing and Song Adams. Ing gave Adams timely written notice of his intent to exercise the option, but Adams refused to convey the property. Adams subsequently sued Ing for eviction, and Ing counterclaimed for breach of contract. After a bench trial, the circuit court ruled that Ing had forfeited his right to purchase the property because he did not "adequately exercise" the option. The trial court also ruled that Ing was liable for rent for the period after the expiration of the initial lease term. Ing challenges both of these rulings on appeal.

¶ 2. We hold that Ing took sufficient steps to exercise the purchase option. Once Adams expressly refused to sell the property, Ing was not required to tender funds or obtain an appraisal. We also hold that Ing is not liable for rent for the period following Adams's wrongful refusal to convey the property. During that period, Ing was the equitable owner of the property, not a "holdover tenant." Therefore, no "holdover rent" is owed. We reverse and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 3. Adams owns a three-level building on West Van Dorn Street on the courthouse square in Holly Springs. Adams owns and operates a liquor store on the main level of the building, and she rents out the upstairs as an apartment. The basement houses Victor's Pizza, a restaurant formerly owned by Adams's husband, Mike. Mike sold Victor's Pizza to Ing.

¶ 4. On January 26, 2010, Adams and Ing entered into a five-year lease for the basement. The lease agreement required Ing to pay Adams rent of $2,500 per month plus thirty-three percent of the property taxes on the building. The agreement also provided that at the end of the initial five-year lease term, Ing would have "the option to extend the lease for an additional five years or to purchase the building at it's [sic] then appraised value."

¶ 5. On January 22, 2015, four days before the end of the initial lease term, Ing provided Adams with a signed, handwritten notice of his intent to exercise the purchase option. The notice stated that the purchase price would "be at appraised value as agreed." On January 26, 2015, Adams responded to Ing through a letter from her attorney. Adams acknowledged Ing's desire to exercise the purchase option but expressly stated that she did "not desire to sell the building to [him]." Adams stated that she was willing to continue to lease the basement to Ing but only "on a month to month basis." Adams also alleged that Ing had "committed several [unspecified] violations of the terms of the lease."

¶ 6. Ing remained in the building and continued to operate Victor's Pizza, but he stopped paying rent. On March 19, 2015, Adams filed a complaint in circuit court for eviction, damages, and other relief. Adams's complaint acknowledged that Ing had given notice of his intent to exercise the purchase option. However, Adams alleged that Ing had "failed to tender any money toward the purchase of the property" and had "made no other overt actions toward purchasing the property." The complaint failed to mention Adams's own refusal, through counsel, to sell the building. Adams also alleged that Ing had committed several violations of the lease, such as operating a gold buying business on the premises, residing on the premises, failing to maintain insurance, and failing to pay his share of the property taxes. The complaint sought damages, a declaration that the lease had terminated and that the purchase option had expired, and an order requiring Ing to vacate the premises.

¶ 7. Ing answered and asserted a counterclaim. Ing denied that he had breached the lease agreement, he denied that Adams was entitled to damages or any other relief, and he alleged that Adams had breached the agreement by refusing to sell the building. Ing alleged that he had not taken steps to purchase the property only because "Adams ha[d] explicitly stated that she [was] not going to sell him the property."

¶ 8. The case proceeded to a bench trial on May 26, 2016. Ing testified that he attempted to exercise the purchase option prior to the expiration of the initial lease term, but Adams refused to sell him the building-both orally and through the letter from her lawyer. Ing also proved that he had insurance and had paid his share of the property taxes. He testified that he had not incurred the expense of an appraisal only because Adams refused to sell him the building. He also testified that he had inquired with banks about a loan to buy the building; however, the banks told him that this litigation needed to be resolved first.

¶ 9. Adams's husband, Mike, testified that he had obtained an appraisal for the building from a licensed appraiser. The February 2015 appraisal, which was introduced into evidence, estimated the market value of the building to be $350,000. There is no evidence that the appraisal was ever disclosed or provided to Ing prior to trial, and on appeal, Ing denies that it was. On cross-examination, Mike testified that he thought that his wife still "want[ed] to sell" the building to Ing. When asked why, then, her lawyer sent Ing a letter refusing to sell, Mike said, "I may be out of the loop on that."

¶ 10. Adams's testimony was confusing to say the least. She testified that she was willing to sell the building to Ing, but she thought that Ing would pay her $700,000. Adams did not explain why she thought that Ing would pay her $700,000 other than that she thought her building was "a million-dollar building." When asked why her attorney sent Ing a letter refusing to sell the building, Adams finally said, "I don't know what's going on."

¶ 11. After both sides rested, Adams's lawyer conceded that his "client [had] just testified that she was still willing to sell the building"; therefore, most of Adams's allegations that Ing had violated the lease "would not matter because [Adams] ha[d] indicated her willingness to sell the building for fair market value consistent with the provisions of the lease."

¶ 12. The parties' attorneys then debated whether Ing was liable for rent for the period after the expiration of the initial lease term. Ing argued that he was not liable for rent because Adams had breached their agreement by refusing to convey the property. Adams argued that Ing was liable for rent because he had done nothing to purchase the property. The court took the case under advisement.

¶ 13. The court subsequently entered a final judgment with findings of fact. The court first found that Ing was not in material breach of the lease during the initial lease term; therefore, Ing "had the right to exercise the option to purchase up to January 26, 2015." However, the court also found that Ing "did NOT adequately exercise his option to purchase the property." The court noted that Ing did not tender money to purchase the property or obtain an appraisal. The court next ruled that Ing owed Adams rent of $2,500 per month for each month following the expiration of the initial lease term. Finally, the court ordered Ing to vacate the premises within thirty days. The judgment was stayed pending appeal.

ANALYSIS

¶ 14. Two issues are before this Court on appeal: whether Ing adequately exercised his purchase option and whether he is liable for rent for the period after the expiration of the initial lease term. "The standard of review for a judgment entered following a bench trial is well settled." Maldonado v. Kelly , 768 So.2d 906, 908 (¶ 4) (Miss. 2000). Any findings of fact made by the trial judge will not be disturbed when "they are supported by substantial, credible, and reasonable evidence." Id. However, we review issues of law de novo. Id.

I. Ing Adequately Exercised the Option to Purchase

¶ 15. "A valid and enforceable option contract requires: (1) an adequate description of the property, (2) consideration, and (3) a date when the option must be exercised." Prestenbach v. Collins , 159 So.3d 531, 533 (¶ 9) (Miss. 2014). These conditions are satisfied in this case. There is no dispute as to the property involved or that there was consideration. Finally, the lease granted Ing the right to exercise the option "[a]t the end" of the initial lease term, and Ing gave timely notice four days prior to the expiration of the lease term.

¶ 16. On appeal, Adams briefly argues that option is unenforceable because it fails to specify a sales price. However, this issue was not raised or addressed in the trial court.

¶ 17. In response, Ing argues that the option is enforceable under this Court's decision in Crow v. Crow's Sports Center Inc. , 119 So.3d 352 (Miss. Ct. App. 2012). In Crow , this Court addressed a lease that granted the lessee an option to purchase the "property for a fair market value as determined by appraisal by a licensed real estate appraiser or such other term as the parties [might] negotiate between themselves." Id. at 354 (¶ 2) (alteration omitted). The lessor argued the option was unenforceable because it "fail[ed] to state a specific purchase price." Id. at 356 (¶ 10). However, this Court disagreed. We held that although "there was no stated purchase price, ... there was a clear method of determining one"-i.e., an appraisal by a licensed appraiser. Id. at (¶ 12). Ing notes that the option at issue in this case provides that the purchase price shall be the building's "then appraised value." Ing argues that "appraised value" necessarily implies an appraisal by a licensed real estate appraiser, which we deemed sufficiently definite in Crow .

¶ 18. Given that Adams did not raise this issue in the trial court, we agree with Ing that the price term is sufficiently definite to be enforced. We also note that at oral argument, Ing essentially conceded that he was "stuck" with the $350,000 appraisal presented by Adams at trial since he had not offered a competing appraisal.

¶ 19. Adams's primary argument on appeal is that the trial court correctly found that Ing failed to take sufficient steps to exercise the option. Adams argues that Ing "made no attempt to have the building appraised," "has not tendered any payment towards the purchase price," and "has given no assurances of his ability to pay." However, once Adams expressly refused to convey the property, Ing was not required to take any of these steps.

¶ 20. "[W]ritten notice to the seller of intent of the option holder to exercise an option has the effect of an acceptance, converting the option into an enforceable bilateral contract. It is not necessary for an option holder to tender the purchase price in order to exercise the option ."

Creely v. Hosemann , 910 So.2d 512, 519 (¶ 29) (Miss. 2005) (emphasis added) (citing Busching v. Griffin , 542 So.2d 860, 864-65 (Miss.1989) ). Indeed, "[a]bsent language in the contract to the contrary, an option holder has no obligation or duty to show an ability to pay the entire sales price before the closing." Prestenbach , 159 So.3d at 534 (¶ 12) (emphasis added). "The holder of an option is entitled to specific performance of the optioner's duty to convey, so long as the holder is willing to pay the option price." Creely , 910 So.2d at 519 (¶ 29).

¶ 21. Thus, contrary to Adams's arguments, it was not necessary for Ing to tender the purchase price or prove or provide assurances of his ability to pay. The law is clear that Ing's written notice to Adams effectively converted the option into an enforceable sales contract. Id. ; Prestenbach , 159 So.3d at 533-34 (¶¶ 10-12). We also hold that Ing did not forfeit his right to exercise the option by not obtaining an appraisal. When Ing attempted to exercise his option, he received a prompt response from Adams's lawyer that Adams did "not desire to sell the building to [him]," and Adams then sued him for eviction. In the face of Adams's clearly stated refusal to honor the option and convey the property, Ing was not required to incur the expense of an appraisal. See, e.g. , Cooley v. Stevens , 240 Miss. 581, 592, 128 So.2d 124, 128 (1961) ("The law does not require one to do a vain and useless thing.").

¶ 22. We hold that Ing's written notice to Adams was sufficient to exercise the purchase option. There was no valid basis for Adams to refuse to convey the property, and Ing was entitled to specific performance of the option to purchase.

II. Ing Does Not Owe Adams "Holdover Rent"

¶ 23. Adams also argues that the trial court properly ordered Ing to pay rent of $2,500 per month for the period after the initial lease term, which would now amount to approximately $100,000. We disagree. Ing was prevented from purchasing the building because Adams breached the parties' contract. Under these circumstances, Ing was not a "holdover tenant," and he was not required to pay holdover rent.

¶ 24. Two federal district courts have addressed this issue recently. As those courts have held, when a landlord refuses to convey property to its tenant pursuant to a validly exercised purchase option, the tenant is not transformed into a "holdover tenant." Straus v. United States Postal Serv. , No. 16-4117, 2018 WL 741791, at *2 (E.D. Pa. Feb. 6, 2018) ; United States Postal Serv. v. Jamke , No. 1:15-cv-01806-LJO-EPG, 2017 WL 1650625, at *3 (E.D. Cal. May 2, 2017). Rather, once the tenant exercises the option, the tenant becomes the "equitable owner" of the property. Straus , 2018 WL 741791, at *2 ; Jamke , 2017 WL 1650625, at *3. Under these circumstances, the tenant cannot "be both the rightful owner ... and a holdover tenant." Jamke , 2017 WL 1650625, at *3. "Thus, no holdover rent [is] due by law, as [the tenant is] the equitable owner of the property and [is] not a holdover tenant." Straus , 2018 WL 741791, at *2.

¶ 25. These recent federal district court decisions are consistent with a long line of rulings of other courts. They are also consistent with this Court's decision in Fairchild v. Bilbo , 166 So.3d 601, 606-07 (¶¶ 15-16) (Miss. Ct. App. 2015). In Fairchild , this Court held that a landlord wrongfully refused to convey property pursuant to the purchase option of a lease-purchase agreement. See id. at 606 (¶ 13). This Court then held that the landlord's refusal to convey the property was a breach of the contract and excused the tenants from their duty to continue to pay rent. Id. at 607 (¶ 16) ("Because it was the [landlord] that breached the contract, the [tenants] are not in default for discontinuing their monthly payments.").

¶ 26. The result is the same in this case. Following Adams's refusal to convey the property pursuant to the purchase option, Ing was the "rightful and equitable owner" of the property, not a mere "holdover tenant." Jamke , 2017 WL 1650625, at *3. Ing "could not be both the rightful owner ... and a holdover tenant. This point bears emphasis: at no point was [Ing] a holdover tenant." Id. "Thus, no holdover rent was due by law, as [Ing] was the equitable owner of the property and was not a holdover tenant." Straus , 2018 WL 741791, at *2.

CONCLUSION

¶ 27. Ing took sufficient steps to exercise the option to purchase and is entitled to specific performance. We therefore reverse and remand this case to the circuit court with instructions to set a reasonable closing date for the sale-taking into account Ing's need, if any, to secure financing-based on the sole appraisal offered at trial. See Prestenbach , 159 So.3d at 533-34 (¶¶ 10, 13). As the equitable owner of the property, Ing was never a holdover tenant and is under no obligation to pay holdover rent. Therefore, we reverse that part of the circuit court's judgment as well. Accordingly, this case is reversed and remanded for further proceedings consistent with this opinion.

¶ 28. REVERSED AND REMANDED.

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

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

¶ 29. I agree with the majority's finding that Ing adequately exercised his option to purchase the property pursuant to the terms of the lease agreement. However, I find no error in the circuit court's award to Adams of past-due rent payments owed by Ing for the period when the written lease agreement was expired. Our applicable standard of review requires that we affirm the findings of fact by the trial court if supported by substantial evidence. Falkner v. Stubbs , 121 So.3d 899, 902 (¶ 8) (Miss. 2013). I would therefore affirm the circuit court's judgment in part, and reverse and remand in part.

¶ 30. On January 26, 2010, Ing and Adams entered into a five-year lease agreement. The terms of the agreement provided that Ing would rent the basement and parking lot of the three-story building located at 110 Van Dorn Avenue, Holly Springs, Mississippi, from Adams at a rate of $2,500 per month for five years. The lease agreement also included the following language: "At the end of this current five[-]year lease, provided that [Ing] is current upon all conditions of this lease, he has the option to extend the lease for an additional five years or to purchase the building[ ][for] it's [sic] then appraised value." The lease contained no provision allowing Ing to remain in the property rent free after expiration of the lease.

¶ 31. On January 22, 2015, four days prior to the expiration of the lease agreement, Ing hand-delivered a letter to Adams stating that he intended to exercise his right to purchase the property. In his letter, Ing stated that "[t]he purchase price shall be at appraised value as agreed." According to Ing, when Adams realized that he intended to purchase the property, Adams told him "no," and refused to sell the property.

¶ 32. On January 26, 2015, the day the lease agreement expired, Ing received a letter from Adam's attorney alleging that Ing had committed several violations of the terms of the lease agreement. The letter further stated that Adams "[did] not desire to sell the building" to Ing but offered to lease the premises to Ing on a month-to-month basis.

¶ 33. Ing testified that after receiving Adams's letter stating that he would not be able to purchase the property, he withheld rent payments but maintained his presence in the property. At the time of trial, Ing testified that as a result of Adams's refusal to sell, he had not made rent payments to her in sixteen months.

¶ 34. Adams filed a complaint on March 19, 2015, claiming Ing was in breach of the lease agreement and a holdover tenant, according to the terms of the lease agreement. Adams specifically alleged that Ing violated the terms of the lease agreement by failing to tender the agreed portion of the ad valorem tax liability, failing to comply with the city's ordinance regarding commercial add-ons, and failing to maintain liability insurance. Adams requested that the circuit court award her damages as a result of Ing's breach of the lease agreement and evict Ing from the property. As I will discuss later in this separate opinion, the record shows that the lease agreement expired on January 26, 2015, and Ing had not paid rent since that date.

¶ 35. Ing filed his answer on April 16, 2015. He also filed a counterclaim for damages alleging that Adams was in breach of contract by not selling him the property.

¶ 36. At a bench trial on May 26, 2016, the circuit court heard testimony from Ing and Adams, as well from as Adams's husband, Michael Adams. Ing testified that as a result of Adams refusing to allow him to exercise his option to purchase the property, he had withheld rent payments since January 2015. The following exchange occurred:

Q. And you haven't paid her any rent since January 2015, have you?
A. No. Because she breached the contract, sir.
Q. Okay. So your testimony and position is that she breached the contract and so you've been there February through December of 2015, 11 months no rent?
A. Yeah.
Q. And you've been there January through May 2016 and you've paid no rent?
A. I haven't paid anything since she said, "no."
....
Q. So we have 16 months of unpaid rent over there?
A. Yes.

¶ 37. Regarding whether Ing paid his portion of the ad valorem taxes as required by the lease agreement, Ing testified as follows:

Q. So the 2015 taxes you have not paid; is that right?
A. Well, they breached the contract, yeah.
Q. I understand that's your position. I'm asking you have you paid the taxes?
A. No.

However, Ing testified and presented evidence that he did pay taxes for 2014.

¶ 38. Michael testified that after learning that Ing intended to purchase the property, he contacted Mike Shaw with Shaw Appraisals, a real estate appraiser, to perform an appraisal. Michael testified that Shaw provided Michael with a real estate appraisal for the property. The appraisal was admitted into evidence as Exhibit 3, and the appraisal listed the value of the property as of February 13, 2015 (approximately three weeks after the lease agreement expired) to be $350,000. The record reflects that Ing failed to provide an appraisal to dispute the appraisal Michael obtained.

¶ 39. Adams testified that she did want to sell the property to Ing. Adams stated that after Ing sent her the January 2015 letter stating that he intended to purchase the property, she told him that he could purchase the building for $700,000, and Ing agreed to the price. When Ing failed to make any payment towards the amount, Adams asked Ing at what date he intended to purchase the property. Adams testified that Ing told her that he would talk to his attorney. Adams testified that Ing never made any payments towards the purchase of the building, and that Ing also stopped making rent payments. Adams testified that she would still allow Ing to pay the past-due rent he owed her and also purchase the property for the fair market value.

¶ 40. At trial, Adams refuted Ing's claim that she refused to allow him to exercise his option to purchase the property. Adams maintained she wanted to sell Ing the property, and that she and her husband even celebrated after Ing made the offer. Adams testified as follows:

Q. One final question, Mrs. Adams, did you ever tell Terry Ing that you would sell him the building?
A. Yeah, I tell sell building. [sic]
Q. How come four days later he received a letter saying you will not sell him the building?
A. I don't know what's going on. I don't know what is going on. I tell him why my husband say sell. Tell I'm so happy. [sic]

¶ 41. On December 13, 2016, the circuit court entered an order finding that Ing did not materially breach the terms of his lease agreement with Adams, and thus Ing had the right to exercise the right to purchase the property up to end of the lease agreement. However, the circuit court found that Ing never offered Adams any money for purchase of property and "no appraisal was performed to complete the purchase option." As a result, the circuit court held that Ing "did NOT adequately exercise his option to purchase" the property.

¶ 42. The circuit court also found that after the lease period expired, Ing "was a hold-over tenant who had a month-to-month lease[,]" and that "[Adams] was obligated to give [Ing] a thirty (30) day notice of the termination of said 'amended' lease." The circuit court determined that "[Adams] implied a termination of said lease through the letter claiming violation of the terms of the lease and thereafter by verbally communicating the same to [Ing]." The circuit court found Ing in arrears and ordered Ing to vacate the property and pay Adams rent payments "in the monthly amount of $2500.00 per month as of the last rents paid minus any credit for partial payment, if any."

¶ 43. A review of the record reflects that the amount of monthly rent in arrears assessed by the trial court was consistent with the terms of the lease agreement that allowed Ing to extend the lease beyond its expiration and continue to make rent payments in the amount of $2,500 a month. The trial court assessed Ing $2,500 a month in rent payments for the occupancy of the premises after the lease expiration.

¶ 44. "[W]e give a circuit-court judge presiding in a bench trial the same deference with regard to his findings as a chancellor." Falkner , 121 So.3d at 902 (¶ 8) (internal quotation mark omitted). "[W]e review the circuit court's interpretation and application of the law de novo, and its findings of fact will not be reversed if supported by substantial evidence." Id.

¶ 45. As stated, I agree with the majority's decision to reverse the circuit court's determination as to the issue of the option contract and remand this case to the circuit court with instructions to order specific performance of the lease agreement utilizing the sole appraisal offered at trial and to set a closing date for the sale of the property. However, I disagree with the majority's determination that the circuit court erred in finding that Ing owes Adams unpaid rent from the time of the expiration of the lease agreement. The evidence in the record clearly supports the findings and determination of the circuit court in awarding Adams unpaid rent for the time period at issue, after the expiration of the lease agreement.

¶ 46. In reviewing the lease agreement in the case and the jurisprudence, I acknowledge that the law does not require that the purchase in an option contract occur prior to expiration of the lease. The law requires only that the option be exercised in accordance with the contract terms. The record reflects that in the written lease agreement, Ing possessed the right to extend the lease for an additional five years beyond its expiration and continue to rent the premises for $2,500 a month. However, Ing remained beyond the expiration of the written lease agreement without paying rent after the lease expired. The record shows that the trial court assessed Ing $2,500 in monthly payments for the sixteen months he occupied the premises after the written lease expired. This amount reflects the same amount of monthly rent as set forth in the lease agreement. In sum, the record shows that Ing did not pay rent after the lease expired in January 2015, and during this time of unpaid rent, no written lease agreement existed.

¶ 47. The circuit court made the following findings of fact in his judgment:

[Adams] asserted that [Ing] was in violation of the terms of the lease by not tendering [his] agreed portion of the ad valorem tax liability, by failing to comply with city ordinance on commercial add-ons, and by failing to maintain insurance; and thus, the purchase option was null and void. [Adams,] in writing, gave notice to [Ing] of his breach of the lease. The alleged lease breaches were refuted by [Ing] with proof.
....
[Ing] was a hold-over tenant who had a month-to-month lease after said written lease period expired. [Adams] was obligated to give [Ing] a thirty (30) day notice of the termination of said "amended" lease.
[Adams] implied a termination of said lease through the letter claiming violation of the terms of the lease and thereafter by verbally communicating the same to [Ing].

The circuit court thus determined that Ing "is in arrears and said rents are due to [Adams] in the monthly amount of $2500.00 per month as of the last rents paid minus any credit for partial payment, if any." The circuit court ordered Ing to vacate the premises.

¶ 48. Regarding Ing's claim that he was entitled to withhold rent payments because Adams materially breached the lease agreement, I recognize that the supreme court has held that where a tenant holds over beyond the expiration of his lease, the "action against a hold over tenant is separate and distinct from an action based on the lease agreement." Murphree v. Aberdeen-Monroe Cty. Hosp. by Bd. of Trustees , 671 So.2d 1300, 1303-04 (Miss. 1996). In Murphree , the supreme court explained as follows:

[t]he common law is that holding over beyond the expiration of a lawful tenancy creates a distinct cause of action for each term of the implied tenancy. Splitting an action into separate claims for separate terms may or may not still be appropriate. It remains true, however, that an action based on a prolonged holdover rests on different facts and law than those at issue in a possessory action at the conclusion of a lease term.

Id. at 1303 (quoting 650 Park Avenue Corp. v. McRae , 665 F.Supp. 228, 233 (S.D.N.Y. 1987) (citations omitted) ).

¶ 49. The record reflects that the written lease agreement at issue expired on January 26, 2015, and the record contains no evidence to show that the terms of the lease agreement were extended by either party. I find that since the written lease agreement expired and the terms were not extended, a month-to-month tenancy was then implied after January 25, 2015. Accordingly, I would affirm the circuit court's determination that Ing owed rent to Adams for occupying the premises as a month-to-month tenant after expiration of the lease, since such finding is supported by substantial evidence. Falkner , 121 So.3d at 902 (¶ 8) ; 110 S. St. LLC v. Atrium Gentlemans Club , 217 So.3d 794, 802 (¶ 35) (Miss. Ct. App. 2017).

      Ing's counterclaim does not specifically request specific performance, although it does request "any and all additional, general, and/or special relief available to [Ing] at law or in equity which the Court may ... deem appropriate, just, and proper." At trial, Ing testified that he wanted to buy the building in January 2015 and still wanted to buy it. At the conclusion of the evidence, both Adams and Ing moved, without objection, to amend the pleadings to conform to the proof at trial. In the trial court's final judgment, the court treated Ing's counterclaim as including a claim for specific performance.

      The parties agree that Ing was granted an "option ... to purchase the building"-i.e., the entire building, not just the basement, which was the subject of the lease.

      See, e.g. , United States v. Turley , No. 15-CV-78-JHP, 2016 WL 8671924, at *11 (E.D. Okla. Nov. 18, 2016), aff'd , 878 F.3d 953 (10th Cir. 2017) ; United States v. Americo Fisco Revocable Tr. , No. 1:14-cv-2579, 2016 WL 4565470, at *6 (N.D. Ohio Aug. 31, 2016) ; United States v. Bethlehem Steel Co. , 215 F.Supp. 62, 71-72 (D. Md. 1962) ("The cases hold that where there has been an effective exercise of an option by the purchaser's giving proper notice, followed by a delay on the part of the seller in consummating the transaction, the seller may not recover rent for the intervening period ...."), aff'd , 323 F.2d 655 (4th Cir. 1963) (per curiam); Sacks v. Hayes , 146 Cal.App.2d Supp. 885, 304 P.2d 281, 282 (Cal. Super. Ct. App. Dep't 1956) ; Cities Serv. Oil Co. v. Viering , 404 Ill. 538, 89 N.E.2d 392, 402 (1949) ; Rosenthal v. Shapiro , 333 Mich. 302, 52 N.W.2d 859, 861-62 (1952) ; Shupe v. Ham , 98 Nev. 61, 639 P.2d 540, 543-44 (1982) ; Chapman Drug Co. v. Chapman , 207 Tenn. 502, 341 S.W.2d 392, 397 (1960) ; Pitman v. Sanditen , 626 S.W.2d 496, 497-98 (Tex. 1981).

      The partial dissent's reliance on Murphree v. Aberdeen-Monroe County Hospital , 671 So.2d 1300 (Miss. 1996), is misplaced. Murphree did not have anything to do with a purchase option. It involved a landlord who filed two lawsuits against its tenant-the first to recover unpaid rent under the lease agreement and a second to recover "holdover" rent for a period after the expiration of the lease. The Supreme Court simply held that the judgment in favor of the landlord in the first suit did not bar a second judgment in favor of the landlord in the second suit-i.e., res judicata did not apply. See id. at 1302-04. Murphree did not hold that a landlord is entitled to collect "holdover" rent following the landlord's own wrongful refusal to convey title pursuant to a valid purchase option.

      We note that it would be especially inequitable to award Adams "holdover rent" on the facts of this case. We would be rewarding Adams's wrongful refusal to convey the property with an additional $100,000 in rent that she would not have been entitled to had she honored the parties' agreement. In addition, Adams has been able to operate her liquor store rent-free during the three-plus years since she refused to convey the property. If Adams had honored the parties' agreement, she presumably would have had to pay rent to Ing for that space. Finally, Adams has continued to collect rent on the upstairs apartment for three years. If Adams had fulfilled her obligation to convey the property, Ing presumably would have collected that rent as well.

      In the event that Ing fails to meet his obligations to tender the purchase price and close on the contract, the issue of holdover rent would have to be revisited.

      At trial, Ing clarified in his testimony that the option to purchase set forth in the lease agreement referred to the entire building and not just the basement.

      In her complaint, Adams sought only "past-due rent," and did not request double rent.

      The appraisal reflects that Shaw is a state-certified real-estate appraiser.

      The circuit court awarded Adams past-due rent payments in the monthly amount as set forth in the lease agreement. The circuit court did not award Adams double rent payments.

      See Miss. Code Ann. § 89-7-7 (Rev. 2011) (remedy for arrears).

      See K.F. Boackle, Mississippi Landlord and Tenant Law with Forms § 7:3 (2005) ("The landlord can sue for rent in arrears"; "The action against the holdover tenant is a separate action from one based on the lease agreement."); see also Johnny C. Parker, Mississippi Law of Damages § 27:14 (3d ed. 2014).

      See Murphree , 671 So.2d at 1303-04.


source: Caselaw Access Project

author: BARNES, J., FOR THE COURT:

license: Public Domain

text:
    Quendarius Berjuan ROBINSON a/k/a Quendarius Robinson a/k/a Quendarius B. Robinson a/k/a Quendarius Brejuan Robinson, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01723-COA
    Court of Appeals of Mississippi.
    May 15, 2018 Rehearing Denied July 17, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JOSEPH SCOTT HEMLEBEN
    BEFORE IRVING, P.J., BARNES AND WILSON, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. After a jury trial in Panola County Circuit Court, Quendarius Robinson was convicted of two counts of first-degree murder and one count of possession of a firearm by a felon. For the murder convictions, he was sentenced to two consecutive life terms in the custody of the Mississippi Department of Corrections (MDOC). For the conviction of possession of a firearm, he was sentenced to ten years to run consecutively to his life sentences. He filed a post-trial motion, which the trial court denied.

¶ 2. On appeal, Robinson asserts only one issue-whether the trial court committed reversible error by admitting certain hearsay evidence at trial, specifically statements made by his minor son during a forensic interview, the trial testimony by the interviewer, and the video recording of the forensic interview. We find that while the trial judge failed to make an on-the-record finding that the hearsay evidence was "more probative on the point for which it [was] offered" than other evidence under Mississippi Rule of Evidence 803(24), such failure constituted harmless error. We affirm Robinson's convictions and sentences.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 3. Robinson had an "off and on" relationship with the mother of his child, Cearea Jackson. Jackson lived in Como, Mississippi, with her two sons-four-year-old Quendarius Robinson Jr. (Junior) and two-month old Quendez Robinson -and her grandmother, Emma.

¶ 4. On the evening of November 27, 2015, Junior ran to the house of his next-door neighbor, Sherry Boyce, "in a state of shock" and "hysterical." Junior told Boyce that Robinson had shot his mother and Emma. Law enforcement and emergency medical services responded to find Jackson and Emma dead from gunshot wounds. Police discovered that Jackson's vehicle, a 2007 Nissan Altima, was missing and issued a BOLO ("be on the lookout") for Robinson as a person of interest. The Mississippi Bureau of Investigation (MBI) was called to assist with the investigation. On November 30, the MBI located Robinson and the Nissan Altima in Batesville, Mississippi, and Robinson was taken into custody. Forensic testing revealed that a swab of blood found in the Altima was consistent with Robinson's DNA. Particles indicative of gunshot residue were also detected on the car's steering wheel and on the sleeve of a black hooded jacket found in the car. On April 20, 2016, Robinson was indicted of Count I, murder in the first degree for the murder of Emma; Count II, murder in the first degree for the murder of Jackson; and Count III, possession of a firearm by a felon.

¶ 5. A jury trial was held on October 31-November 3, 2016. Prior to jury selection, the State moved to admit a video recording containing a forensic interview of Junior taken two days after the murders. Tina Roberson, a forensic interviewer employed by Healing Hearts Child Advocacy Center, conducted the interview. The defense argued this evidence would be cumulative of other testimony and did not "fall under any of the other exceptions to hearsay." The State responded that the interview went "into more detail as to what happened inside" (i.e., "what happened inside the home as to what room they were in, what color the gun was, where [Robinson] had the gun.") Therefore, it argued that this was the "best evidence that could be offered by the State." The trial judge held the motion in abeyance until he had an opportunity to view the video.

¶ 6. Prior to opening statements, the trial judge viewed the recording and granted the State's motion to admit the evidence, noting that the State intended to introduce the video during Roberson's testimony and after Junior had testified. The trial judge also observed that the interview techniques "illustrate[d] to the [c]ourt the requisite trustworthiness necessary for this to be properly admissible, that being one of the factors to come within the requirements of ... Mississippi Rule of Evidence 803(24)." He found that the defense had notice and the evidence was "material." He concluded that the video's "probative value [was] certainly outweighed by any potential prejudice in this matter," and it would be in the "interest of justice" to permit the video to be viewed by the jury.

¶ 7. Eloise Jackson, Emma's daughter and Jackson's mother, testified that she lived at the home with her mother, daughter, and grandchildren. She said Robinson was at the home with her sister, mother, and the children that evening when she left to go out with a friend. She returned a short time later, after being alerted to the shootings, and Robinson was not there. Neither was Jackson's car.

¶ 8. Five-year-old Junior testified that Robinson, his "daddy," had "shot [his] momma and [his] grandmomma." Junior also said that he ran next door to Boyce's home and told her what had happened. He reiterated on redirect examination that Robinson shot Jackson and Emma.

¶ 9. The State called Roberson, the forensic interviewer, as a witness. Before taking the stand, defense counsel objected to her testimony, asserting that Roberson was not qualified as an expert; therefore, it would be "improper for [her] to render an opinion as to [Junior's] veracity" during the interview. The trial judge noted its prior ruling that the video and statement by Junior "was sufficiently trustworthy and reliable to be permitted to be introduced under 803(24)." The State assured defense counsel it had no intention of having Roberson render any opinion. After voir dire, the trial court received her as an expert in the field of forensic interviewing. When the State offered Roberson's summary report into evidence, defense counsel argued it should be excluded as the video recording was the "best evidence as to what [Junior] stated[.]" The trial court overruled the objection. Roberson's summary report of the interview stated:

[Junior] reported his daddy shot his mama and now she is dead. [Junior] reported his daddy shot his mama and his grandmama Emma Jean at his mother's house. [Junior] reported he heard the gun and he [ (Junior) ] started running. [Junior] reported he saw a black gun that his daddy keeps in his pants. [Junior] reported he was in his grandmama Emma Jean's bedroom when he heard the gun. [Junior] reported his daddy, Emma Jean, and his mother were also in the room. [Junior] reported he saw the gun shoot his mother in her head.

The State subsequently offered the video recording of the interview into evidence, and the defense reiterated its earlier objection, which the court overruled. The video was played for the jury. In the video, Junior mentioned his daddy had a "black" gun; he kept it in his pants. Afterward, Roberson acknowledged that Junior had stated initially in the interview that he was at the neighbor's home when the shooting occurred, but later after she asked the rephrased the question, he indicated that he was in the room. She explained that children will sometimes "remove[ ] themselves" from a "traumatic experience in their life."

¶ 10. Boyce, the neighbor, testified that Junior appeared at her house that evening "hysterical" and "shaking," exclaiming that his "dad done shot my momma and shot my grandmomma." Her boyfriend, Kentry Holmes, corroborated Boyce's testimony, saying that Junior appeared at their home "scared [and] screaming." There were also two witnesses at Boyce's home that evening, Jeremy Ramsey and Steven Taylor, who testified that Junior came to Boyce's house. Ramsey, who knew the family, said that Junior "was traumatized" and "his voice was trembling." Both witnesses affirmed that Junior told Boyce that his "dad" had shot his mother and grandmother. Ramsey also stated that he noted someone on Jackson's porch, who was "trying to tell [Junior] to come back or come here[.]" Neither Ramsey nor Taylor knew Robinson, however.

¶ 11. Chase Harris, Emma's granddaughter and Jackson's first cousin, and her friend, Alexis Pettis, testified they were at Jackson's home that evening and saw Robinson there. They left to go to visit a nearby neighbor's home. Standing in the neighbor's driveway, they saw Junior run to Boyce's house and, shortly thereafter, observed Robinson exit Jackson's home, get into the Nissan Altima, and leave. Pettis testified that Robinson was wearing a black "hoodie."

¶ 12. Brenda Simpson, the mother of Robinson's friend, testified at trial that Robinson came by her home in Batesville, Mississippi, around 10:30 p.m. that evening. Robinson asked if he could use her bleach to clean his hands, and she gave him a towel. She stated he was wearing "a black pullover ...with hoodie." He left shortly after washing his hands.

¶ 13. Robinson was found guilty on all counts. For Counts I and II, Robinson received consecutive life sentences in the custody of the MDOC. For Count III, he received a ten year sentence to run consecutively to his sentence in Count II. On November 14, 2016, Robinson filed a motion for a judgment of acquittal, or in the alternative, for a new trial. In addition to other assignments of error, Robinson argued the trial court committed reversible error (1) "in allowing the forensic interviewer's report to be admitted into evidence" as the report "was totally prejudicial to [Robinson] receiving a fair trial"; (2) in allowing Roberson to testify; and (3) by admitting the video recording of the forensic interview with Junior into evidence. The motion was denied, and Robinson now appeals.

ANALYSIS

¶ 14. Robinson claims the trial court committed reversible error by allowing hearsay evidence from Junior's forensic interview through Roberson's testimony, Roberson's summary report, and the video recording of the interview. Robinson asserts that the interviewer "deviated from established protocols and asked Junior to go over the details several times in an effort to correct his inconsistencies." He also argues that because Junior testified, the interview evidence was "less probative than Junior's testimony."

¶ 15. Regarding the admission or exclusion of evidence, we employ an abuse-of-discretion standard of review. Osborne v. State , 942 So.2d 193, 200-01 (¶ 28) (Miss. Ct. App. 2006) (citing Lewis v. State , 905 So.2d 729, 732 (¶ 7) (Miss. Ct. App. 2004) ). "Reversal based on an error involving the admission or exclusion of evidence is proper only when the error 'adversely affects a substantial right of a party.' " Id. at 201 (¶ 28) (citing Lewis , 905 So.2d at 732 (¶ 7) ). The basis for the trial judge's admission of this particular evidence was Mississippi Rule of Evidence 803(24), which provides a "catch-all" hearsay exception:

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: ...
(24) Other Exceptions. A statement not specifically covered by this Rule if:
(A) the statement has equivalent circumstantial guarantees of trustworthiness;
(B) it is offered as evidence of a material fact;
(C) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts;
(D) admitting it will best serve the purposes of these rules and the interests of justice; and
(E) before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant's name and address, so that the party has a fair opportunity to meet it.

M.R.E. 803(24). As already discussed, the trial judge determined that the evidence had "the requisite trustworthiness necessary for [it] to be properly admissible ... [and the video's] probative value [was] certainly outweighed by any potential prejudice in this matter." Generally, an on-the-record finding as to Rule 803(24)'s five factors is required; "the trial judge has considerable discretion in determining whether to admit hearsay evidence under this exception[,] and his decision will not be overturned except for an abuse of discretion." Rubenstein v. State , 941 So.2d 735, 752 (¶ 30) (Miss. 2006) (quoting Parker v. State , 606 So.2d 1132, 1138 (Miss. 1992) (overruled on other grounds by Goff v. State , 14 So.3d 625 (Miss. 2009) ) ). However, the Mississippi Supreme Court has cautioned that the "catch-all exception should be carefully considered and applied rarely, so as not to devour the hearsay rule." Bailey v. Woodcock (In re Interest of C.B.) , 574 So.2d 1369, 1373 (Miss. 1990) (citing Mitchell v. State , 539 So.2d 1366, 1370 (Miss. 1989) ). We find no abuse of discretion in the trial judge's determination that the evidence was "sufficiently trustworthy and reliable" and "material." But the trial court failed to make an on-the-record finding that this hearsay evidence was "more probative on the point for which is it offered than any other evidence," instead finding that the evidence's "probative value [was] ... outweighed by any potential prejudice[.]"

¶ 16. The supreme court has held:

M.R.E. 803(24) would not be available to admit the disputed hearsay unless the hearsay statement offered is more probative on point for which it is offered than any other evidence which the proponent can procure through reasonable efforts. Hence, if the child were available to testify, then this catch-all exception would not be available. The child's testimony, not the hearsay, would be "more probative on point for which it is offered than any other evidence which the proponent could procure."

Id. at 1373. Although not controlling authority, we find discussion of this issue from the Supreme Court of North Carolina-which relies on a "necessity" requirement in such instances-instructive. It stated:

This requirement of "necessity" has been inherent in the analysis of hearsay exceptions long before even the Federal Rules of Evidence were codified.... The requirement imposes the obligation of a dual inquiry: were the proponent's efforts to procure more probative evidence diligent, and is the statement more probative on the point than other evidence that the proponent could reasonably procure?
Where a declarant is available at trial, the degree of necessity to admit his or her hearsay statement through the testimony of another is greatly diminished. Usually, but not always , the live testimony of the declarant will be the more (if not the most) probative evidence on the point for which it is offered. Because Rule 803(24) allows hearsay evidence to be admitted "even though the declarant is available as a witness," the trial judge must, in this event, take care in documenting for the record his basis for finding that this "necessity" requirement is met .... Should the trial court determine that the proffered evidence is not "more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts," his inquiry must end, and the evidence may not be admitted under Rule 803(24).

State v. Smith , 315 N.C. 76, 337 S.E.2d 833, 846 (1985) (internal citations omitted and emphasis added). We acknowledge that the State argued during the pre-trial motion hearing that the forensic interview provided more details regarding the shooting, and was, therefore, the "best evidence." Further, the forensic interview occurred only two days after the shootings. The recollection of the four-year-old declarant, Junior, was likely fresher during the interview than at trial almost a year later. However, the trial judge failed to document on the record the basis for the "necessity" of this hearsay evidence. He simply determined that the evidence was more probative than prejudicial. This is not what the rule requires.

¶ 17. Nevertheless, the court's failure to make such a determination is harmless error. Our supreme court has determined that "[w]here corroborative evidence exists and the hearsay evidence is merely cumulative, the admission may be held to be harmless." Young v. State , 679 So.2d 198, 203 (Miss. 1996) (citing Jones v. State , 606 So.2d 1051, 1057 (Miss. 1992) ). In this case, there was overwhelming evidence through other witnesses' testimony and the evidence to support the jury's finding that Robinson was guilty of the charged crimes. Jackson's mother, Eloise, testified that Robinson was at the house that evening when she left. Boyce, Holmes, Ramsey, and Taylor gave consistent testimony that Junior ran over to Boyce's home and exclaimed that Robinson had shot his mother and grandmother. Harris and Pettis testified that they observed Junior's running to Boyce's home and Robinson's leaving the house a short time later in Jackson's car. Simpson testified that Robinson came to her home late that evening and washed his hands with bleach. Both Pettis and Simpson said Robinson was wearing a black "hoodie" that night, and a black hooded jacket with gunshot residue on the left sleeve was found in Jackson's vehicle. Defense counsel even argued at trial that the interview was "cumulative" of the other evidence being presented. Also, during Junior's cross-examination, the defense referenced the statements Junior had made to the interviewer.

¶ 18. Accordingly, we find the trial court's admission of the hearsay evidence was not reversible error, and we affirm the judgment.

¶ 19. AFFIRMED.

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

      Rule 803(24) provides a "catch-all" hearsay exception to the exclusion of hearsay. A statement is not covered by the rule if it is (1) trustworthy; (2) "offered as evidence of a material fact"; (3) "more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts"; (4) its admission will "best serve the purposes of these rules and the interests of justice"; and (5) the proponent gives the adverse party "reasonable notice."

      Quendez is not Robinson's child.

      It was stipulated at trial that Robinson had a prior felony conviction.


author: WESTBROOKS, J., FOR THE COURT:

text:
    Henry J. LANERI, III a/k/a Henry Joseph Laneri, III, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00407-COA
    Court of Appeals of Mississippi.
    May 22, 2018
    ATTORNEY FOR APPELLANT: HENRY J. LANERI, III, (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON, JACKSON
    BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. Henry J. Laneri III, appearing pro se, appeals the Pearl River County Circuit Court's denial of his motion for postconviction relief (PCR). Finding no error, we affirm.

FACTS

¶ 2. On April 21, 2011, the Grand Jury of Pearl River County indicted Laneri on the charge of possession of contraband in a correctional facility. At the time of his indictment, Laneri was currently serving an eight-year sentence for possession of a controlled substance. On January 13, 2012, Laneri filed a petition to enter a guilty plea for the possession of contraband charge. At this plea hearing the judge stated, "I'll sentence you to serve a term of eight years. Six will be suspended, with the two you already served to run concurrent with the sentence you're serving in Hancock County."

¶ 3. The Order of Conviction and Sentence, filed on January 19, 2012, reflected that Laneri was sentenced to eight years in the custody of Mississippi Department of Corrections (MDOC) with two years to serve and the remaining six years to be served under the post-release provisions set forth in Mississippi Code Annotated section 47-7-34 (Rev. 2011), with a five-year supervision period.

¶ 4. Late February 2016, Laneri was released from custody. Shortly after, Laneri inquired whether he was sentenced to post-release supervision (PRS). The parole officer in Hancock County confirmed that he was sentenced to PRS. On July 18, 2016, Laneri was arrested in the front of his home by the Hancock Sheriff's Department for possession of a controlled substance and paraphernalia. During that time, Laneri was also sixteen payments behind on his court fines. Laneri later filed a motion to dismiss arguing (1) he was not sentenced to PRS in his plea hearing and (2) his charges were misdemeanors. Later, Laneri pleaded guilty. Pursuant to Laneri's admission, the court revoked Laneri's probation and reinstated the remaining five years and seven months of his previous sentence.

¶ 5. On January 25, 2017, Laneri filed a petition for habeas corpus and asserted (1) the Circuit Court of Pearl River County did not have jurisdiction to revoke his PRS and (2) the court's written order did not reflect the court's verbal pronouncement of his sentence. The circuit court denied Laneri's petition stating his first assertion was without merit and his second was successive as he had previously raised the issue. Without much detail, the order states "Laneri previously raised this issue before the Court[.] See Pearl River County Circuit Court No. 2013-0174M-PC. This argument is therefore barred as a subsequent writ." Because Laneri sought review of his sentence, the circuit court treated Laneri's petition as a motion for PCR. Laneri timely appeals.

STANDARD OF REVIEW

¶ 6. "When reviewing a trial court's denial or dismissal of a PCR motion, we will only disturb the trial court's factual findings if they are clearly erroneous; however, we review the trial court's legal conclusions under a de novo standard of review." Purnell v. State , 126 So.3d 949, 951 (¶ 4) (Miss. Ct. App. 2013) (citing Hughes v. State , 106 So.3d 836, 838 (¶ 4) (Miss. Ct. App. 2012) ).

DISCUSSION

¶ 7. The circuit court held that Laneri's PCR motion was without merit and successive. We agree. "[A] trial court's denial of a PCR motion is a final judgment and bars a second or successive motion unless an exception applies." Kennedy v. State , 179 So.3d 82, 83 (¶ 6) (Miss. Ct. App. 2015). Laneri asserts his PCR is exempt from the procedural bar because his sentence was in violation of double jeopardy, his due process rights were violated, his arrest was illegal, and the order revoking his PRS was erroneous.

¶ 8. This Court has held that, "only four types of fundamental rights have been expressly found to survive PCR procedural bars: (1) double jeopardy; (2) illegal sentence; (3) denial of due process at sentencing; and (4) ex post facto claims." Id. at 83-84 (¶ 8) (citing Boyd v. State , 155 So.3d 914, 918 (¶ 13) (Miss. Ct. App. 2014) ). Furthermore, "to find an exception to the successive-writ bar, 'there must at least appear to be some basis for the truth of the claim' a fundamental constitutional rights violation." Mays v. State , 228 So.3d 946, 948 (¶ 5) (Miss. Ct. App. 2017) (quoting Stovall v. State , 873 So.2d 1056, 1058 (¶ 7) (Miss. Ct. App. 2004) ). This Court does not find a "basis for the truth" under any of the four exceptions. Id. Notwithstanding the procedural bar, we briefly discuss the issues below.

I. Double Jeopardy

¶ 9. Laneri argues that his right against double jeopardy was violated when he had to attend two revocation hearings. We disagree. Furthermore, Laneri states that through the theory of double jeopardy he is "protected from being placed in jeopardy of his life limb or liberty." However, that is not a guaranteed protection. The Supreme Court of Mississippi has held that double jeopardy provides three constitutional protections: "(1) protection from a second prosecution for the same offense after acquittal, (2) protection from a second prosecution for the same offense after conviction, and (3) protection from multiple punishments for the same offense." Kelly v. State , 80 So.3d 802, 805 (¶ 10) (Miss. 2012). Here, Laneri first attended a PRS revocation hearing in Hancock County Circuit Court. Hancock County soon determined they did not have jurisdiction over the hearing. As a result, the Pearl River County Circuit Court exercised its jurisdiction and reinstated Laneri's suspended sentence. Therefore, we find this issue without merit.

II. Due Process

¶ 10. Laneri raises three issues in support of his due process claim: (1) he was never informed of the possibility of revocation and the reinstatement of his suspended sentence, (2) three of the six due process requirements for revoking probation were not met, and (3) he was denied counsel at the second PRS revocation hearing.

¶ 11. First, Laneri argues that he was never informed of the possibility of revocation and the reinstatement of his suspended sentence. However, the court order stated that any

violation of any one of the above enumerated conditions shall violate the terms and conditions of the defendant's Post-Release Supervision and the Court shall have the authority to revoke the defendant from Post-Release Supervision and remand him back into the custody of the Mississippi Department of Corrections to serve the revoked portion of his eight (8) year sentence.

¶ 12. In 2016, Laneri was arrested and pleaded guilty to possession of a controlled substance and possession of paraphernalia. Thus, this new conviction served as a proper basis to reinstate his suspended sentence.

¶ 13. Secondly, Laneri claims that three of the six due process requirements for revoking probation were violated. This Court has held that "mere allegations of constitutional-rights violations do not suffice to overcome the procedural bar." Stokes v. State , 199 So.3d 745, 749 (¶ 10) (Miss. Ct. App. 2016). Notwithstanding the procedural bar, according to the record, Laneri was represented by counsel during his trial and was made known of the charges against him when he pleaded guilty.

¶ 14. Thirdly, Laneri states that he was denied the right to counsel during his PRS revocation hearing. The Mississippi Supreme Court has held that there is no per se "right to counsel at revocation hearings." Riely v. State , 562 So.2d 1206, 1209 (Miss. 1990). The record does not reflect Laneri's alleged request for assistance of counsel. Accordingly, we find these issues without merit.

III. Illegal Arrest

¶ 15. Laneri argues that the arrest leading to his PRS revocation hearing and subsequent reinstatement of his suspended sentence was illegal. We do not agree. As previously stated, "mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar." Stokes , 199 So.3d at 749 (¶ 10). Moreover, the record before this Court only reflects an arrest and a guilty plea. Therefore, we find this issue without merit.

IV. Erroneous Order of Revocation

¶ 16. Laneri argues that no terms or conditions of PRS were "pronounced in open court" during his 2012 sentencing. This Court has held that "due process requires that the trial judge at least orally inform the defendant of the terms and conditions upon which his suspended sentence is contingent before it may be properly revoked for violations of those terms and conditions." McClinton v. State , 799 So.2d 123, 126 (¶ 6) (Miss. Ct. App. 2001). Moreover, it "does not require a court to orally inform the probationer of the terms and conditions of his probation, when such information has been recorded in written form." Id.

¶ 17. As previously stated, Laneri was notified that violation of the terms of his sentence could result in the reinstatement of his suspended portion of the sentence. Accordingly, we find this issue without merit.

CONCLUSION

¶ 18. Finding no error, this Court finds that the circuit court did not err in denying Laneri's PCR motion.

¶ 19. AFFIRMED.

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


text:
    Sammie Henry PETTIS a/k/a Sammie Pettis a/k/a Sammie H. Pettis, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00979-COA
    Court of Appeals of Mississippi.
    May 22, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER
    BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. A Forrest County Grand Jury indicted Sammie Henry Pettis for armed robbery as a nonviolent habitual offender. After a two-day trial, Pettis was found guilty and was sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole or probation. Following his unsuccessful motion for a judgment notwithstanding the verdict (JNOV) or a new trial, Pettis appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 11, 2016, Pettis entered Central Sunbelt Credit Union in Hattiesburg, Mississippi, waved a gun in the air and announced that he was robbing the bank. Christopher Lee, a teller at the bank, testified that Pettis held the gun to his head, placed a bag in front of him, and demanded that he fill the bag with money. Lee testified that he was fearful because of Pettis's gun. Pettis then went to Tammy Jones-Glover, another teller, and demanded that she fill the bag with money. Like Lee, Jones-Glover later testified that she feared for her life because Pettis pointed the gun at her as she filled the bag with money. Shortly after this interaction with Jones-Glover, Pettis left the bank.

¶ 3. Lawanda Hall, another Central Sunbelt employee, called 911 and reported the robbery. Hall described the assailant as an African-American male wearing a burgundy shirt, a black fedora, and dark sunglasses. Another witness, Kristi Polk, described the fedora as a "Michael Jackson" hat because it was "sparkly." The shirt, hat, and sunglasses were found with Pettis shortly after he was apprehended.

¶ 4. Officer Eric Gannon of the Hattiesburg Police Department was en route to the bank when he overheard that the suspect was headed toward AAMCO Transmission. Officer Gannon was on his way to AAMCO when he spotted Forrest Martin fishing in a nearby creek. Officer Gannon then found Pettis hiding in the water. Pettis was trying to stuff a burgundy or maroon shirt in a bag. According to Officer Gannon, Pettis said, "you caught me."

¶ 5. When Detective Gareth Wood arrived at the creek, Pettis was already in custody. Detective Wood later testified that he asked Pettis to identify himself, and Pettis complied. Pettis then said that he was "having a bad day," he "just robbed a bank," and that he "parked his car too far away." After Pettis arrived at the police station, he waived his Miranda rights and gave a full confession.

¶ 6. Following a two-day trial, Pettis was found guilty of armed robbery and sentenced as a nonviolent habitual offender to twenty years in MDOC custody. His appellant counsel claims that the circuit court erred when it sentenced Pettis as a habitual offender. In a pro se supplemental brief, Pettis claims the indictment was fatally defective, his armed-robbery conviction is contrary to the overwhelming weight of the evidence, the State presented improper testimony, and he was denied the right to confront an adverse witness.

DISCUSSION

I. Whether the trial court erred by sentencing Pettis as a habitual offender.

¶ 7. Pettis asserts that the trial court erred in sentencing him as a nonviolent habitual offender. His reasoning is based on the fact that, incident to his 1997 conviction for escaping from prison, he was sentenced to three years in MDOC custody with two and one-half years suspended and six months to serve.

¶ 8. Pettis had two prior felony convictions for which he had been sentenced to separate terms of one year or more. The record reflects that in 1989 Pettis had five convictions stemming from one incident. The nonviolent habitual offender statute does not require that one serve a year for each prior felony conviction. Miss. Code Ann. § 99-19-81 (Rev. 2015). It is enough that he was sentenced to at least one year for at least two prior felonies arising from separate incidents. See id. Therefore, this issue is meritless.

II. Whether Pettis's indictment was defective.

¶ 9. Pettis maintains that the indictment was defective because it contained an inaccurate date of the offense and that he could not adequately prepare a defense because he was not adequately notified of the charges against him. "The question of whether an indictment is fatally defective is an issue of law and deserves a relatively broad standard of review by an appellate court." Davis v. State , 866 So.2d 1107, 1110 (¶ 11) (Miss. Ct. App. 2003). The Mississippi Supreme Court has held "that a variance in the date on an indictment will not be a cause for reversal where there is no prejudice by such variance." Id. "The ultimate test, when considering the validity of an indictment on appeal, is whether the defendant was prejudiced in the preparation of his defense." Warren v. State , 187 So.3d 616, 621-22 (¶ 10) (Miss. 2016). "An indictment must contain (1) the essential elements of the crime charged, (2) sufficient facts to fairly inform the defendant of the charge 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 621 (¶ 10). Moreover, " Rule 7.06 of the Uniform Rules of Circuit and County Court Practice[ ] states, in pertinent part, that the indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation." Id. (internal quotation mark omitted).

¶ 10. The indictment against Pettis charged in part:

[O]n or about July 11, 2014 , [Pettis] did willfully, unlawfully[,] and feloniously take, steal, and carry away from the person and/or the presence of, and against the will of Christopher Lee and Tammy Glover, approximately $18,500.00 in U.S. Currency, the property of the said Christopher Lee and Tammy Glover by virtue of their employment at Sunbelt Federal Credit Union as [b]ank [t]ellers, by putting ... Lee and ... Glover in fear of immediate injury to their persons, by the exhibition of a deadly weapon, to wit: a handgun, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.

(Emphasis added).

¶ 11. At Pettis's pretrial hearing, the State moved to amend the indictment, because of a scrivener's error. The State argued that Pettis was given proper notice and that there was a simple error with the year listed in the indictment. However, Pettis objected to the amendment.

¶ 12. Here, we find that Pettis's indictment properly notified him of the charges against him in plain and concise language.

The indictment also stated the essential facts regarding the armed robbery at Central Sunbelt Credit Union on July 11, 2016.

¶ 13. Pettis also argues that his indictment was insufficient, because he was not indicted for possession of a firearm by a felon under Mississippi Code Annotated section 97-37-5 (Rev. 2014). Pettis alleges that he instead was erroneously indicted and convicted of armed robbery under Mississippi Code Annotated section 97-3-79 (Rev. 2014). But, "the party responsible for determining the charges to present to the grand jury is the State." Hye v. State , 162 So.3d 750, 759 (¶ 27) (Miss. 2015). Therefore, we find this issue is meritless.

III. Whether the trial court erred by denying Pettis's motions for a directed verdict, JNOV, or a new trial.

¶ 14. Pettis challenged the sufficiency of the evidence in his motion for a directed verdict at the end of the State's case, and later in his post-trial JNOV motion. "On review of the sufficiency of the evidence, this Court considers the trial court's ruling at the last time the sufficiency of the evidence was challenged." Warren , 187 So.3d at 627 (¶ 29). Further, "[i]n reviewing the denial of a motion for JNOV, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at (¶ 30) (internal quotation mark omitted).

¶ 15. Pettis asserts that he did not use a deadly weapon, because the police only recovered a "toy pellet gun" and that no "real" gun was used. This Court and the Mississippi Supreme Court have "affirmed armed-robbery convictions where a BB gun was used during the commission of a robbery." Williams v. State , 134 So.3d 732, 735 (¶ 9) (Miss. 2014) (citing Saucier v. State , 562 So.2d 1238, 1246 (Miss. 1990) ("finding that a broken pellet gun weighing 'three or four pounds,' which could be used as a club to inflict serious bodily injury, met the definition of a deadly weapon under [s]ection 97-3-79"), overruled on other grounds by White v. State , 785 So.2d 1059 (Miss. 2001) ); Thomas v. State , 936 So.2d 964, 967 (¶ 11) (Miss. Ct. App. 2006) (affirming armed-robbery conviction where "[t]here was testimony that a pellet gun can inflict serious bodily injury").

¶ 16. Sergeant Neal Rockhold, detective with the Hattiesburg Police Department, testified that Pettis disguised a pellet pistol to look like it would discharge a higher caliber round of ammunition. Furthermore, Sergeant Rockhold explained that the semi-automatic pellet gun that Pettis used qualified as a gun that could cause death or permanent injury. Also, the pellet gun comes with a warning that it can cause death. Jones-Glover and Lee testified that Pettis brandished his pellet gun during the robbery and they both feared for their lives. Pettis also confessed to the armed robbery. Considering the evidence in the light most favorable to the verdict, the evidence was sufficient to enable a reasonable jury to find Pettis guilty of the indicted offense.

¶ 17. Pettis also attacked the weight of the evidence by filing a motion for a new trial. When reviewing a challenge to the weight of the evidence, the Court will not overturn a verdict unless it "is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Warren , 187 So.3d at 628 (¶ 32).

¶ 18. The State proved that Pettis took money from the tellers at Central Sunbelt using a pellet gun and put the tellers in fear for their lives. Accordingly, we find this issue is meritless, and we find no error in the trial court's denial of Pettis's JNOV motion and motion for a new trial.

IV. Whether the verdict was against the overwhelming weight of the evidence.

¶ 19. Pettis maintains that the verdict was against the overwhelming weight of the evidence, because the State never produced a "real" gun or firearm. "In determining whether a jury verdict is against the overwhelming weight of the evidence the court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial." Pearson v. State , 937 So.2d 996, 999 (¶ 8) (Miss. Ct. App. 2006). Moreover, "[t]he court will not order a new trial unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice." Id. Considering the evidence previously mentioned in this opinion, we find that the verdict is not contrary to the overwhelming weight of the evidence such that allowing the verdict to stand would sanction an unconscionable justice. Therefore, we find this issue is meritless.

V. Whether the trial court admitted inadmissible evidence.

¶ 20. Although slightly confusing, Pettis argues that the trial court erred in allowing unspecified witness testimony. Pettis does not identify this witness, but asserts that the questioning of this witness went beyond the scope of cross-examination.

¶ 21. It appears Pettis references portions of Deputy Gannon's redirect testimony:

Q. [Defense Counsel] asked you about Forrest Martin?
A. Yes, ma'am.
Q. And how you're able to exclude him as a suspect. Is Forrest basically a fisherman?
A. Yes, ma'am. He fishes in multiple lakes. If it's got a body of water and there's potential fish in it, he's going to fish it. Yes, ma'am.
Q. So your run-ins with Forrest [are] maybe sometimes when he's fishing where he shouldn't be?
DEFENSE COUNSEL: Objection, Your Honor. That's beyond the scope of my cross.
THE COURT: I'll overrule it. I won't let you go too far.
Q. What mode of transportation do you know Forrest Martin to have?
A. It's either walking, or he's on a bike.
Q. A bicycle?
A. Yes, ma'am.
Q. And that day did it appear that he had everything with him, like he normally does to fish.
A. Yes, ma'am, minus the bicycle.
THE STATE: No further questions.

¶ 22. We find that the trial court's admission of this testimony was not in error. During direct examination, Deputy Gannon was asked about Martin and his appearance right after the police arrived at the scene and found Pettis. Also, during Deputy Gannon's cross-examination, he was asked about his interaction with Martin and his decision to rule him out as a suspect. Deputy Gannon explained that he had previous interactions with Martin during cross-examination. The following is an excerpt of Deputy Gannon's cross-examination:

Q. Okay, now, you said that once you approached, you saw Mr. Martin?
A. Uh-huh.
Q. And in your interaction with Mr. Martin, how long did that take? Or how long did that last?
A. Maybe about a minute, sir.
Q. Maybe about a minute?
A. Yes, sir.
Q. Okay, and at that point, you ruled Mr. Martin out because?
A. Because of his body language and his-my previous interactions and the non-description that did not lead me to believe that Forrest was a suspect.

¶ 23. "The scope of redirect examination, while largely within the discretion of the trial court, is limited to matters brought out during cross-examination." Thompson v. State , 157 So.3d 844, 854 (¶ 33) (Miss. Ct. App. 2015). "However, we will not disturb a trial court's ruling on matters pertaining to redirect examination unless there has been a clear abuse of discretion." Id. (internal quotation mark omitted). Defense counsel questioned Deputy Gannon about his interaction with Martin during cross-examination. As a result, we find this issue is without merit.

VI. Whether the trial court committed a Confrontation Clause violation.

¶ 24. Pettis asserts that the trial court violated his Sixth Amendment right to confront Martin. "Under both the United States Constitution and the Mississippi Constitution, an accused has a right to confront and cross-examine the witnesses against him." Hingle v. State , 153 So.3d 659, 662 (¶ 7) (Miss. 2014). Pettis argues that Martin's statements to police were presented to the jury in error through the testimony of another witness and that he was not given the opportunity to cross-examine him. As a result, Pettis asserts that Martin's statements to the police were testimonial in nature. Once again, Pettis does not identify the witness. However, it appears that Pettis was referring to the testimony of Detective Gareth Wood of the Hattiesburg Police Department. During the cross-examination, defense counsel asked Detective Wood if Martin had completed a written statement. Detective Wood answered "yes, sir."

¶ 25. This Mississippi Supreme Court has stated that:

[S]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Smith v. State , 986 So.2d 290, 297 (¶ 21) (Miss. 2008) (quoting Davis v. Washington , 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) ).

¶ 26. However, neither Detective Wood nor any other witness testified as to the contents of Martin's written statement. Furthermore, Pettis did not object to any testimony referencing Martin's written statement. We have held that "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). Therefore, we find that this issue was not preserved for appeal.

CONCLUSION

¶ 27. Accordingly, we find no error in the trial court's denial of Pettis's JNOV motion and we affirm the conviction and sentence.

¶ 28. AFFIRMED.

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

      At the time of Pettis's trial, Gannon was employed as a deputy with the Forrest County Sheriff's Department.

      Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      Pettis was convicted of armed robbery, kidnaping, burglary of a residence with a firearm, aggravated assault, and grand larceny.

      Effective July 1, 2017, Rule 7.06 was replaced with Rule 14.1(a) of the Mississippi Rules of Criminal Procedure. But because the proceedings in this case preceded this change, the former rule applies here.


text:
    Robert WILLIAMS a/k/a Robert Kortez Williams, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00630-COA
    Court of Appeals of Mississippi.
    May 22, 2018
    ATTORNEY FOR APPELLANT: ROBERT WILLIAMS (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER
    BEFORE LEE, C.J., BARNES AND TINDELL, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. On February 28, 2011, Robert Williams pleaded guilty to possession of a controlled substance with intent to distribute (Cause No. B2401-2011-00123), receiving stolen property (Cause No. B2401-2010-00394), and malicious mischief (Cause No. B2402-2010-00612). The Harrison County Circuit Court, First Judicial District, sentenced Williams to twenty-five years-ten years for the charge of receiving stolen property, ten years for the possession charge, and five years for the malicious-mischief charge-with the sentences to run consecutively in the custody of the Mississippi Department of Corrections (MDOC). The court's sentencing order specified that if Williams completed the Regimented Inmate Discipline program and a long-term drug and alcohol program, he would be brought back before the court for reconsideration of his sentences. Williams completed the programs, and on February 13, 2012, the circuit court suspended the remainder of his sentences for a period of three years and placed him on supervised probation.

¶ 2. On January 31, 2013, MDOC field officer Troy Carpenter filed a petition for revocation, alleging Williams had violated several conditions of his probation. On March 26, 2013, the circuit court held a revocation hearing. MDOC field officer Michael Griffith testified that he and Carpenter had conducted a home visit on Williams and discovered marijuana plants, drug paraphernalia, and alcohol. Additionally, another person present at the home was a convicted felon, and Williams had failed to pay his court costs and fines. Williams acknowledged that he smoked marijuana while on probation and had three positive drug screens. Finding Williams in violation of the terms and conditions of his probation, the circuit court reinstated his sentences. The circuit court ordered Williams to participate in a Therapeutic Drug and Alcohol Rehabilitation Program (TDARP) and, upon completion of the program, to present himself before the court for a possible reconsideration of his sentences.

¶ 3. While in custody, the MDOC issued Williams a Rules Violation Report on February 11, 2014, alleging he was found to be in possession of contraband (a mobile phone, spice, and cigarettes). At a hearing held on March 24, 2014, the circuit court determined that Williams had failed to complete the TDARP and reinstated his sentences, with credit for time served.

¶ 4. On April 8, 2014, Williams filed a motion for reconsideration, noting that he was a first-time offender and that his failure to complete the TDARP was due to his transfer to different MDOC facilities and being forced to restart the program each time. Finding that a motion seeking to reconsider a sentence "must be filed within ten (10) days or before the end of the term of court," the circuit court denied Williams's motion for lack of jurisdiction as it was not filed within the required ten-day period.

¶ 5. Williams filed a motion for post-conviction relief (PCR) on July 6, 2015, citing the discovery of new evidence. He attached a second-step-response form from the MDOC's Administrative Remedy Program (ARP), dated April 3, 2014, denying Williams's request for credit for the drug and alcohol program at the Alcorn County Correctional Facility because he did not complete the program. The circuit court addressed his motion as both a motion for reconsideration and a PCR motion. With regard to the reconsideration of his sentence, the circuit court again denied the motion for lack of jurisdiction. Alternatively, the court determined none of the allegations presented in Williams's motion provided any exceptions to procedural bars "within the provisions of the post[-]conviction[-]collateral[-]relief statutes." See Miss. Code Ann. § 99-39-5(1) (Rev. 2015). Because Williams had attached the ARP form to his motion, the court also dismissed the motion as untimely "insofar as it [sought] judicial review of the ARP decision." See Miss. Code Ann. § 47-5-807 (Rev. 2015).

¶ 6. On October 24, 2016, Williams filed a second PCR motion. He claimed his probation was unlawfully revoked, his sentence was unlawful, and he was denied due process. On June 8, 2017, the circuit court found Williams's PCR motion was procedurally barred as a successive writ under Mississippi Code Annotated section 99-39-23(6) (Rev. 2015). The circuit court further found Williams's claims that his due-process rights were violated, and his probation was unlawfully revoked, were without merit and provided no exception to the procedural bar. The circuit judge also noted that Williams failed to raise these issues in his first PCR motion. Aggrieved, Williams appeals.

¶ 7. Finding no error, we affirm the circuit court's dismissal.

STANDARD OF REVIEW

¶ 8. Absent a finding that the circuit court's decision was "clearly erroneous,"

we will not reverse a court's dismissal of a PCR motion. Stokes v. State , 199 So.3d 745, 748 (¶ 7) (Miss. Ct. App. 2016) (citing Wilson v. State , 76 So.3d 733, 735 (¶ 9) (Miss. Ct. App. 2011) ). Issues of law, however, are reviewed de novo. Id. Mississippi Code Annotated section 99-39-11(2) (Rev. 2015) states: "If it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the petitioner to be notified."

DISCUSSION

¶ 9. The issue is whether the circuit court erred in dismissing Williams's PCR motion as a successive writ. Section 99-39-23(6) provides that when a prisoner has already filed a PCR motion, a second or a successive PCR motion is barred as a successive writ.

[E]xcepted from this prohibition are those cases in which the petitioner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the petitioner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.

Miss. Code Ann. § 99-39-23(6). Errors affecting fundamental constitutional rights provide another exception to a procedural bar under the post-conviction-relief statutes. Rowland v. State , 42 So.3d 503, 506 (¶ 9) (Miss. 2010). However, "merely asserting a constitutional-right violation is insufficient to overcome the procedural bars. There must at least appear to be some basis for the truth of the claim before the procedural bar will be waived." Fluker v. State , 170 So.3d 471, 475 (¶ 11) (Miss. 2015) (citations and internal quotation marks omitted). Williams contends that the trial court erred in revoking his probation, his due-process rights were violated, and he was subjected to an unlawful sentence. Upon review, we agree with the circuit court's finding that Williams failed to offer any meritorious reasons why the successive-writ bar should not apply.

¶ 10. Williams argues that his due-process rights were violated and the revocation of his probation was "unlawful" because Carpenter, the field officer who signed the revocation petition, was not present at the hearing. However, Griffith, the other field officer present at the home visit, testified at the hearing, as did field officer Malika Rushing, who had supervised Williams on probation. Rushing stated that Williams failed to report to her in November 2012, and a month later, Williams contacted her with his new address. She alerted Carpenter and Griffith, which resulted in the home visit. Williams had the opportunity to question both Griffith and Rushing at the revocation hearing-he declined. He also has not indicated what additional information Carpenter may have provided. Williams merely refers to some alleged "personal issues" between himself and Carpenter, but does not identify what those issues are or what prejudicial effect Carpenter's absence had on his revocation. Therefore, we find no error in the circuit court's finding that there was nothing "unlawful" about Carpenter's absence. Nor was there any due-process violation.

¶ 11. Williams also asserts that the circuit court failed to follow proper revocation procedures. The minimum due-process requirements for a revocation of parole or probation are as follows:

(1) written notice of the alleged parole violation; (2) disclosure of the evidence against the parolee; (3) an opportunity to be heard personally and to present evidence; (4) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (5) a hearing before a neutral and detached body, which are not required to be judicial officers or lawyers; and (6) a written statement by the factfinders describing the evidence reviewed and the reasons for revoking parole.

Edmond v. Miss. Dep't of Corr. , 783 So.2d 675, 679 (¶ 14) (Miss. 2001) (citing Morrissey v. Brewer , 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ). Williams claims there was no disclosure of the evidence against him, he was denied the right to confront and examine witnesses, there was no hearing before a "natural and detached body," and there was no written statement by the factfinder of the evidence relied on and the reason for the revocation.

¶ 12. In Edmond , the supreme court reversed the circuit court's denial of a petitioner's PCR motion without an evidentiary hearing, finding the record "completely devoid of any information" as to the terms and conditions of Edmond's parole and whether there was an actual violation. Id. at 679 (¶ 17). In the present case, however, the terms and conditions of Williams's probation were contained in the record, and the petition for revocation provided Williams with the specific probation violations he was alleged to have committed.

¶ 13. When the circuit judge asked Williams if he wanted to question the witnesses, he replied, "No ma'am." Therefore, Williams was not only given the opportunity to question the field officer who was present at the home visit, he had the opportunity to question Rushing, the field officer who had been supervising him in the previous months. Additionally, we find nothing to indicate that the hearing body was not neutral or detached.

¶ 14. With regard to his claim the circuit court failed to provide a written statement as to the evidence relied on and reasons for the revocation, "a court's failure to make written findings for revoking probation does not deny a probationer due process where the court's oral opinion is contained in the record and indicates the evidence relied upon, as well as the reasons for revocation." Grayson v. State , 648 So.2d 1129, 1134 (Miss. 1994). The transcript of the hearing indicates the circuit judge thoroughly considered the evidence presented, and Williams admitted to testing positive for marijuana use. Williams also admitted to the judge that he associated with a known, convicted felon. Because the circuit court's findings and reasons for revocation were memorialized in the hearing transcript, we find no merit to this claim.

¶ 15. Finally, as to Williams's assertion his sentence was unlawful, the supreme court has held that "[a] sentence is not illegal unless it exceeds the maximum statutory penalty for the crime." Foster v. State , 148 So.3d 1012, 1016 (¶ 12) (Miss. 2014) (quoting Grayer v. State , 120 So.3d 964, 969 (¶ 16) (Miss. 2013) ). Williams only argues that he should not have been given the maximum sentence for his crimes as he was a first-time offender. He does not claim his sentences exceed the maximum statutory penalty. As his sentences were each within the range permitted by the statutes, we find his claim without merit.

¶ 16. Accordingly, we find no error in the circuit court's findings, and we affirm the dismissal of Williams's PCR motion.

¶ 17. AFFIRMED.

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

      It was noted that Williams was not the lessee of the apartment, and he was not charged with possession.

      The court acknowledged that Williams mailed the motion on April 5, but still denied the motion because the ten-day deadline was April 3.

      The circuit court also found Williams's petition "improperly filed" because he failed to file separate petitions for each conviction and sentence. Shortly after the court's ruling, the Mississippi Supreme Court, in Ashwell v. State , 226 So.3d 69, 72 (¶ 9) (Miss. 2017), determined that this statutory requirement under Mississippi Code Annotated section 99-39-9(2) was unconstitutional. However, this basis for dismissal is not dispositive to determination of this matter on appeal.


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

text:
    Brent RYAN, Appellant v. LOWNDES COUNTY ADULT DETENTION CENTER, Sheriff Mike Arledge, Chief Deputy Mark Miley, Captain Rick Jones, Captain Ryan Rickert, Lt. Barry Stanford, Sgt. Eric Giranderson, Sgt. Suameka Cunningham, Officer Monica Tate, Officer David Tate, R-3 Candy Davis and R-2 Karen Stanford, any Unnamed Individuals or their Successors in Office in their Official Capacity, Appellees
    NO. 2016-CP-01539-COA
    Court of Appeals of Mississippi.
    May 22, 2018
    ATTORNEY FOR APPELLANT: BRENT RYAN (PRO SE)
    ATTORNEYS FOR APPELLEES: DANIEL JUDSON GRIFFITH, MARY McKAY LASKER, CHRISTOPHER NICKLAUS BAILEY
    BEFORE IRVING, P.J., BARNES AND WILSON, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. Brent Ryan appeals the dismissal, without prejudice, of his "Petition for Judicial Review on Administrative Remedies" by the Lowndes County Circuit Court for failure to execute service of process within 120 days. Finding no error, we affirm.

FACTS

¶ 2. On August 15, 2014, Ryan was arrested and indicted on one count of felony fleeing and one count of aggravated domestic assault. At trial, Ryan was convicted and sentenced as a habitual offender to serve twenty-five years in the custody of the Mississippi Department of Corrections. Apparently, Ryan was incarcerated in the Lowndes County Adult Detention Center (LCADC). On January 27, 2016, Ryan, acting pro se, filed his "Petition for Judicial Review on Administrative Remedies," in which he alleged that the LCADC "[did] not have an established procedure for collateral review of grievances in accordance with state statutes § 47-5-801 through § 47-5-807." Ryan maintains that his constitutional rights to due process, equal protection, and his right to counsel were violated while he was detained at the LCADC. On November 30, 2016, the Circuit Court of Lowndes County dismissed Ryan's petition without prejudice on the basis that he had failed to execute service of process within 120 days from the filing of his complaint. Ryan now appeals.

DISCUSSION

¶ 3. "Service of process is simply the physical means by which personal jurisdiction is asserted." Tucker v. Williams , 7 So.3d 961, 964 (¶ 9) (Miss. Ct. App. 2009). "Without proper service of process or the entry of an appearance, a trial court does not have jurisdiction over the person." Id.

¶ 4. Rule 4(h) of the Mississippi Rules of Civil Procedure provides:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion.

M.R.C.P. 4(h) (emphasis added). "The plaintiff bears the burden to demonstrate good cause for a failure to serve process in a timely manner." Copiah Cty. Sch. Dist. v. Buckner , 61 So.3d 162, 166 (¶ 14) (Miss. 2011)

. "To establish 'good cause' the plaintiff must demonstrate at least as much as would be required to show excusable neglect, 'as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice.' " Id.

¶ 5. "A trial court's finding of fact on the existence of good cause for the delay in service of process has been deemed a discretionary ruling and entitled to deferential review." Collins v. Westbrook , 184 So.3d 922, 929 (¶ 16) (Miss. 2016) (internal quotation mark omitted). "When reviewing fact-based findings, [an appellate court] examines whether the trial court abused its discretion and whether there was substantial evidence supporting the determination." Id. (internal quotation mark omitted).

¶ 6. First, we note that Ryan has failed to present any argument demonstrating why the trial court erred in dismissing his lawsuit for failing to effect service on the appellees. His only argument is that "he did indeed notify all interested parties of the petition, gave a true and correct copy of such, and wrote letters requesting an answer." However, such acts do not comply with Rule 4 of the Mississippi Rules of Civil Procedure. The docket does not reflect that Ryan ever properly served process, or that he even attempted to do so. Ryan attached as an exhibit to his appellate brief a letter from the attorneys representing the "Board of Supervisors," informing Ryan that the board was never served with process on any lawsuit filed by Ryan. Ryan did not show good cause in the trial court for his failure to serve process and has not presented any here. Thus, we affirm the dismissal of his petition without prejudice.

¶ 7. AFFIRMED.

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

      Ryan's "Intent to Appeal" was file-stamped as received on January 1, 2017. We deem it timely due to the holidays.