Decisions – COA – June 9, 2015

Timothy McCoy v. State time for appeal –  McCoy was convicted of sexual battery in  Newton County. The COA dismisses the case because it is not final.  The record does not show that the trial court entered an order on the Motion for New Trial.  A notice of appeal that is filed prior to a ruling on the motion for new trial is effective as of the date the motion for new trial is denied.  But it does not confer jurisdiction until then.

Anthony Windless v. StateLindsey brief – Windless was convicted of identity theft  for opening several  AT&T phone lines in the name of a another person.   His appellate counsel filed a Lindsey brief  claiming there were no arguable issues for appeal. The COA affirms.

Donald Williams v. State –  sex offender registration –  Williams was convicted of  failing to register as a sex offender and was sentenced to life as  habitual offender.   On appeal, Williams, representing himself, argues that his conviction violates his right against double jeopardy. Williams had been convicted of a sex offense in Minnesota in 1995.  When he moved to  Mississippi, Williams registered as a sex offender with the Forrest County Sheriff’s Department on March 15, 2011, giving his  address as Motel 6, 6508 Highway 49 #105, Hattiesburg, Mississippi. On July 2, 2012, Williams re-registered with DPS and gave his residence address as America’s Best Value Inn and Suites, 999 Cooper Road, Picayune, Mississippi, located in Pearl River County. “However, the facts show that Williams was living in Clinton, Mississippi, at the Clinton Inn Motel.”  Williams argues this was double jeopardy because he was previously charged with failing to register as a sex offender in 2009 in Marion County.

The offenses underlying the indictment and conviction herein occurred on July 2012 in a different county. The record reflects no double-jeopardy violation, since the offenses occurred on different dates, in different counties, and arose out of distinctly different facts. Additionally, the State explained that “[t]he 2009 allegation indictment was dismissed by nol[le] pros[equi] with the right to re-indict without prejudice.”

Patricia Vick v. Brandon, HMA – med mal SOL –  Vick underwent surgery on July 29, 2009.  On November 14, 2011, she sued the estate of the neurosurgeon and the hospital. The defendants moved to dismiss arguing the SOL “ran on September 29, 2011, which was two years and sixty days from the date of the surgery, or, at the latest, on October 12, 2011, which was two years and sixty days following Patricia’s release from St. Dominic’s” where she was diagnosed with paralysis of her right vocal cord. Vick argued  that the SOL did not begin to run until  November 26, 2009, which was the date her niece told her that a severe choking incident  Patricia  suffered was not a normal side effect of the surgery. Alternatively, Vick claims she was of unsound mind because she has a ninth grade education and took special ed. and she does not handle her own finances. The trial court granted the motion and the COA affirms.  “Although Patricia submits that she has been of unsound mind since early childhood, the evidence belies this argument, as she admits that since then, she has: (1) actively participated in church activities, (2) worked as a CNA, (3) been married, (4) made important healthcare decisions, and (5) actively and coherently participated in the subject litigation.”

Donald Caves v. State – sex offender registration – In 1990, Caves was convicted of touching of a child for lustful purposes and was required to register as a sex offender.  In May 2012, Caves; his live-in girlfriend,  and his children moved from the home Caves had lived in for twenty years to another home two blocks away after DHS told them their house was unsanitary due to mold.    That year, Caves was indicted for sexual battery and failure to register as a sex offender because he did not register his new address before moving.  He was tried first for the failure to register charge.  He was convicted and sentenced to life without parole as an habitual.  At trial, Caves wanted to introduce testimony of a friend that he can  not read or write and lacked the knowledge he had to register.   The court excluded it as irrelevant.  The COA finds no error in the exclusion.  Nor does the COA buy Caves’ claim that the verdict was against the weight of the evidence.

Timothy Mixon v. MDOT –  immunity of MDOT  for traffic accident –  Mixon collided with an MDOT vehicle that had been pulled over  on Miss. Highway 25.  Mixon claims that the MDOT truck was parked partly in the lane and that as he went around the vehicle, it pulled out and the two vehicles collided.    The trial court granted summary judgment for MDOT on the grounds that it was immune.  The COA reverses.

Notwithstanding the provisions of sections 63-3-303, the act giving rise to the injuries  here is not the placement or maintenance of a traffic-control device—but rather Robert’s alleged negligent operation of the pickup. And although Robert may have been performing a discretionary function on the day of the collision, Mississippi law does not authorize governmental employees to violate traffic regulations en route to and from the site at which a discretionary function is performed.

David Ruppert and Paul Franken v. MAV6Holdings, LLC – arbitration agreement –  Ruppert and Franken worked for defense contractor MAV6Holdings, LLC.   They eventually were given equity interests in the company.   In 2014, the company shut down.  It offered to buy the equity interests from its employees pursuant to the operating agreements. The buyout was accepted by all employees except Franken, Ruppert, and three other members.   Franken and Ruppert filed suit contesting the valuation of their interests in the company.  The court ruled that their claims were subject to an arbitration provision contained in the operating agreement. The COA affirms.

Eric Lackeye v. State –  voluntariness of plea based on erroneous information – After pleading guilty to  two counts of sale of marijuana and one count of possession of marijuana with intent to distribute,  Lackaye filed a motion for post-conviction relief, alleging that his guilty pleas were involuntarily entered, and that he received ineffective assistance of counsel. The Madison County Circuit Court dismissed it without a hearing.  The COA reverses and finds that Lackeye was entitled to a hearing on his claim that he pleaded guilty in reliance on his attorney’s advice that he would be eligible for parole after serving four to five years, or twenty-five percent, of his sentence when, in fact, he was not eligible for parole or good time.  “A defendant is entitled to an evidentiary hearing if he alleges that his plea is involuntary because he relied on his attorney’s erroneous advice regarding the possibility of parole, and his allegations are uncontradicted by the record.”

Preston Overton v. State –  Overton was found guilty of possession of cocaine and felon in possession of a firearm.  He consented to a search of his house after detectives knocked on the door to follow up on a tip that the house was the site of illegal drug activity.  On the eve of trial, Overton provided the state the names of two new witnesses.  The state objected on the grounds that they were not timely disclosed and the  court excluded them.  On appeal, Overton alleges this was error and that his trial counsel was ineffective in failing to timely disclose the names of the witnesses.  The COA affirms.  “The record does not affirmatively demonstrate that counsel was ineffective; therefore, we affirm without prejudice to Overton’s right to raise this issue in post-conviction-relief proceedings.”

MDES v. Jackson County, Mississippi  –   unemployment benefits – Patrick Arroyo was employed by Jackson County, Mississippi, as the drug-court coordinator for approximately eight months when he he resigned in August 2012.  When he filed for unemployment, he was denied benefits after an administrative judge  determined that Arroyo had committed misconduct.  On appeal to the  MDES Board of Review, the  Board found that sufficient evidence was not presented to prove that Arroyo committed disqualifying misconduct.  The Circuit Court reversed and the COA affirms. “It is clear that Jackson County’s policy prohibiting Arroyo, as the drugcourt coordinator, from using narcotics was aptly conveyed to Arroyo. Arroyo admits that he was aware of the policy both prior to and during his employment as the drug-court coordinator. Nonetheless, after being cautioned on two prior occasions regarding his drug usage, Arroyo continued to use a prescribed narcotic and even presented the narcotic to his employer.”

Kenneth Haulcy v. MDES –  unemployment benefits – Haulcy was employed by Fitzgerald’s Casino as a table-games dealer from 2008, until he was fired in  June  2012.  He was denied unemployment benefits based on misconduct.  He had been fired for having a bad attitude and giving poor customer service to the extent that customers complained.  The COA affirms.

Pro se PCR’s affirmed:

Henry Laneri, III v. State

Christopher Sellers v. State

James Ray Sanders v. State

William Avery v. State

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