Decisions – COA – June 14, 2016

 Jeff Johnson  v. State of Mississippi – sale of marijuana – Johnson wa convicted of possession of at least ten but less than thirty grams of marijuana with the intent to distribute and sentenced as a habitual offender and subsequent drug offender of six years. “Johnson argues that the State did not prove his intent to distribute, that there was an improper jury instruction, that the circuit court erred in not allowing him to ‘fully’ cross examine Nelson, that the amending of the indictment was improper, that his attorney provided ineffective assistance of counsel, and that plain error occurred. Johnson later filed an amended brief in which he asserts further ineffective-assistance-of-counsel claims for his counsel’s failure to object to testimony and not wanting to go to trial. He also claims that the trial judge should have recused himself, and that Johnson was wrongly denied postconviction bail.”  The COA affirms.

Linda Barnett v. State of Mississippi – pcr/petition for recommendation to parole board pursuant to 585 – In 2012  Linda pleaded guilty to two counts of sale of xanax. She  was sentenced to 20 years with 10 suspended. In 2014, the legislature amended the statute to change the maximum penalty for the sale of xanax in the amount for which Linda pleaded guilty to 8 years instead of 20.  In December 2014, she filed a motion for post conviction relief or motion for recommendation to the parole board for early release.  The circuit court denied the motion and she appealed.  The COA affirms finding that since the amendment took place after she was sentenced she was not entitled to retroactive application of the statute.

Insofar as the trial court’s refusal to recommend to the parole board that she be considered for parole,

The plain language of section 47-7-3 unambiguously provides that the circuit court judge had discretion to issue a positive or negative recommendation for parole eligibility. It uses the word “may” regarding recommending parole eligibility, not “shall.” “A basic tenet of statutory construction is that ‘shall’ is mandatory and ‘may’ is discretionary.” Khurana v. Miss. Dep’t of Revenue, 85 So. 3d 851, 854 (¶9) (Miss. 2012). Barnett-Phillips’s claim that the circuit court erred by issuing a negative recommendation for parole eligibility is without merit.

Furthermore, the Mississippi Supreme Court has ordered that the denial of a recommendation to the Parole Board for an early release and/or parole, pursuant to section 47-7-3, “fail[s] to implicate an appealable judgment.” Gamage v. State, No. 2015-CP-00593- SCT (Miss. Oct. 8, 2015) (en banc order).

Faith Abercrombie v. Jonathan Abercrombie – jurisdiction for divorce –   Faith and Jonathan were divorced in 2015.  Faith did not appear to contest the divorce.  She filed a pro se appeal arguing that Jonathan procured the divorce via fraud.  Jonathan filed for divorce in Lamar County in December of 2014.  Faith argues that Jonathan’s allegation in his complaint that he was a resident of Lamar County was fraudulent and attaches documents to support her claim.  The COA refuses to consider the proof because it was not brought to the attention of the trial court.  It affirms.


Travis Jerome Harvey v. State of Mississippi –  resisting arrest – Harvey was stopped in Brandon for a non-operating headlight.  After Harvey stopped his car, he ran into a nearby residence.  He was charged with  public drunkenness, public profanity and resisting arrest.  The city court dismissed the profanity charge and convicted him of the others. On appeal  to county court, the  court dismissed the public drunkenness county and convicted him of resisting arrest.  he was sentenced to  ten days in the Rankin County Jail, with all ten days suspended; to pay a $500 fine, with $200 suspended; and to serve six months of unsupervised probation.

The circuit court affirmed on appeal.  Not having spent all of his money yet, Harvey appealed to the COA.  “On appeal, Harvey argues that the arrest was unlawful because probable cause did not exist to arrest him, and that it was inconsistent to find him guilty of resisting arrest yet  dismiss the charges of public drunkenness and public profanity.”  The COA affirms.

    Herman C. Kidd v. Mississippi Department of Employment Securityunemployment benefits – Kidd had been employed by Marten Transport  as a truck driver about a year  when he was fired in  April 2014 for making  made racially inflammatory comments while making a delivery to the Walmart in Cleveland. Kidd admitted that he complained that all of the employees helping him unload to the Walmart in Greenville were black and he “felt offended by this” because he “was the only white person down there,” and he “felt like [he had] been discriminated against” by Walmart.   When Walmart complained, Kidd was fired.  He applied for unemployment benefits.   A claims examiner from MDES found that Kidd voluntarily quit and denied benefits on that ground. Kidd appealed, and an administrative law judge reversed  finding that Kidd did not voluntarily quit and that his comments did not constitute “misconduct.” Marten appealed and the Board of Review reversed the ALJ’s decision,  finding that Marten had met its burden of proving misconduct. Kidd appealed the Board’s decision to the circuit court. The circuit court affirmed.  Kidd filed a pro se appeal and the COA affirms.
    Adrian Crowell v. State of Mississippi – shooting into an occupied vehicle – Crowell was convicted of aiding and abetting a shooting into a vehicle and sentenced to  five years. He was acquitted of conspiracy. The charges arose  from an incident in which Crowell called the owner of a trucking company, Julious Graves, and complained that a bucket had fallen off one of his trucks and damaged Crowell’s car.   Crowell and Graves met at the Appleridge Shopping Center in Jackson to assess Crowell’s car.  Crowell insisted he be paid $1500.  When Graves balked, an unidentified man who had accompanied Crowell shot into Graves’ truck.   On appeal, Crowell argues that the evidence was insufficient.  The COA affirms.

    Jackson County, Mississippi v. Mississippi Department of Employment Security – unemployment benefits – Margaret Chapman was terminated after  eight years as a case manager for the Jackson County Drug Court. He was ostensibly fired  for insubordination but when she applied for unemployment, that ALJ found that she was fired for performance related issues that did not amount to misconduct.  The MDES Board of Review adopted the findings of the ALJ and affirmed.  The Jackson County Circuit Court affirmed the Board of Review. And the COA affirms.


    Craig Cleveland v. Deutche Bank National Trust Company, solely in its capacity as Trustee for GSAMP Mortgage Loan Trust 2002-HE2 – tax sale – Kerrie Lewis  owned a tract of land in  Prentiss County. Deutsche Bank held the mortgage.  on it. In 2009, Lewis  failed to pay her property taxes and it was sold for for $88  to Sinecure.  Deutsch Bank got notice of the sale but did not take any action to recover the property.  Because the tax deed matured and the redemption period expired, Sinecure recorded the tax deed on January 4, 2013.   Lewis, though, did not receive notice of the sale or of the  redemption period.

    Lewis conveyed her interest in the property to Craig Cleveland who  filed a petition to quiet and confirm.  The chancellor found that (1) Cleveland had standing to sue; (2) the tax sale was invalid as to Lewis; (3) Deutsche has a valid lien.    Cleveland appealed. Deutsche Bank cross appealed. The COA affirms.

    Amy Denise Towles  v. State of Mississippidenial of defense instruction – Amy Towles was convicted of aggravated assault on William Clay Wells. She was convicted and sentenced to twenty years, with five years to be served.  The COA reverses finding the circuit court erred in refusing to give the defendant’s proposed self-defense instruction.  “The State’s acknowledgment of improper “send-a-message” arguments to the jury further supports reversible error.”

    James D. Havard and Margaret Havard v. Tanelle Sumrallfinal judgment rule “In this medical-malpractice case, James D. Havard and Margaret Havard, who were the plaintiffs below, appeal the Lamar County Circuit Court’s grant of a motion to dismiss for failure to prosecute filed by Tanelle Sumrall, one of the two defendants in the case. As the circuit court’s judgment was not certified under Rule 54(b) of the Mississippi Rules of Civil Procedure, and the claim against the second named defendant, the Akeso Group LLC, remains pending before the circuit court, we dismiss this appeal for lack of jurisdiction.”


    Pro se PCR appeal affirmed

    Michael Morgan v. State of Mississippi 

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