Decisions – COA – 5/7/2019

Hand down list

Michael Henderson v. State of Mississippi contraband in prison –  Henderson was convicted of possession of contraband, a  homemade knife, while confined in a correctional facility. He was sentenced as a non-violent habitual offender to serve fifteen years.  Appointed counsel could identify no issues and filed a Lindsey brief  pursuant to Lindsey v. State, 939 So. 2d 743 (Miss. 2005). The COA affirms.

Shanna Blakley Hayes v. Jeremy Hayescustody – Jeremy Hayes and Shanna Blakley Hayes were divorced in 2015.  Shanna was originally awarded primary physical custody of their daughter K.H. but after a  series of hearings regarding modification of custody and contempt, the Court awarded Jeremy primary physical custody. The chancellor  also found Shanna in civil and constructive criminal contempt and sentenced her to incarceration in the Wayne County Jail and to pay fines; however, the court suspended
execution of the sentence on the condition that Shanna not violate its order.  Shanna appeals and the COA affirms.

Betty Lynn Huey v. Telapex, Inc. d/b/a C-Spirepremises liability – In March of  2015, Betty Huey traveled to C-Spire in Indianola to pay her cell phone bill. She parked her
vehicle in a handicapped parking space near the front of the store. Huey did not see any ice in the parking space. But when she stepped out of her vehicle, she immediately slipped and fell on ice. She filed a premises liability suit against C-Spire.   C-Spire
moved for summary judgment, claiming Huey’s injuries were caused by a natural condition in a remote area of the premises and that the danger was known and appreciated by Huey. The circuit court agreed and granted summary judgment.  On appeal, she argues that the handicapped space was not a remote area of the parking lot. the COA affirms.

Samuel Earl Easterling, II v. State of Mississippi sentence computation –   Easterling pled guilty and was sentenced on three counts of selling methamphetamine in 2017.  In 2018, he filed a motion for post-conviction relief alleging that MDOC failed to
credit him for 311 days served prior to his plea and sentencing and  failed to grant him thirty days credit for every thirty days served from September 1, 2016, to June 8, 2017. The circuit court dismissed Easterling’s PCR motion pursuant to M.C.A. Sect.  99-39-9(2)  which provides: “A motion shall be limited to the assertion of a claim for relief against one (1) judgment only. If a petitioner desires to attack the validity of other judgments under which he is in custody, he shall do so by separate motions.” The circuit court found that Easterling’s PCR motion  sought to attack three different sentences. Easterling appealed. On appeal, the COA finds that the trial court’s reasoning was error but he result was not.  “As this Court has held on a number of occasions, a PCR motion is not a proper vehicle for challenging MDOC’s denial of credit for time served.”  “If [an inmate] is aggrieved by the calculation of credit for time served, he should send a request to the proper authorities within [MDOC’s] administrative system. Id. If [he] is denied credit for time served, he may then seek redress from the courts. Id. This issue is not a proper subject for a motion for post-conviction relief.”  The COA affirms.

Odell Dorman, Jr. and Renodda A. Dorman v. Trustmark National Bank, Successor to Heritage Banking Group –  reformation of deed in circuit court – The Dormans owned several parcels of land in Leake County.  In April 1999, they obtained a loan for $80,462 from Carthage Bank  secured by a DOT for certain parcels of land  including the Dormans’ residence.  In March 2004, the Dormans consolidated the 1999 loan with other loans to lower their monthly payments. Although the bank’s loan application listed the “residence” under “Collateral Offered or Purchased,” the DOT securing the loan did not contain a legal description of the six acres on which the home was located. In April 2005, the Dormans executed another consolidated loan agreement for $164,720.66 with Heritage Banking Group (later Trustmark).  The DOT for the 2005 loan did not contain a legal description of the six acres on which the Dormans’ house was located. In 2013, the Dormans became delinquent on their loan payments.  Trustmark foreclosed.  When it was discovered that the deed of trust did not contain a legal description of the land, the Dormans moved back in.  Trustmark then filed suit in circuit court seeking a deficiency judgment of just under $71,000. The Dormans counterclaimed for wrongful foreclosure. Trustmark filed a motion for summary judgment, requesting reformation of the DOT
due to mutual mistake by the parties, which the circuit court granted.  It dismissed the counterclaims with prejudice.  The Dormans appealed.  The COA finds that the circuit court had jurisdiction to reform the deed because  Trustmark’s equitable claim was raised as a defense to the Dormans’ counterclaim.  However, summary judgment was inappropriate because the trial court did not take into account the Dormans’ depositions in which they claimed they did not intend to pledge their home as collateral.  The COA reverses and remands finding that reformation of the deed and the award of a deficiency judgment was not warranted via summary judgment.

In the Matter of the Adoption of a Minor Child named in the Complaint: Justin Daniel Harmon v. Krystal Kathleen Ingle and Shaun Mitchell Perry –  adoption/termination of parental rights – Justin Harmon and Krystal Ingle were married in 2006, had two children – Brian in 2006 and Jesse in 2012 – and were divorced in 2013.  Krystal was  awarded sole legal and physical custody of the children. Justin had a  history of drug and alcohol abuse. The court ordered that he had supervised visitation only after completing an in-house rehabilitation program.  Krystal was given the right to suspend visitation if she had information that Justin had resumed abusing drugs and/or alcohol.  During his first unsupervised visit, Justin was driving erratically,  had gone into a liquor store in
Meridian, gotten into a fight with his girlfriend at the movies, and had lost the car keys, etc.  Krystal suspended all visitation with Justin. In 2015, she married her boyfriend Shaun and filed to terminate Justin’s parental rights and to have the children adopted by Shaun. A drug test two years later showed that Justin was taking methamphetamines. By that time, Justin had had no contact with the children for three years.  The chancellor terminated Justin’s parental rights and approved the adoptions. Justin appeals. the COA affirms.

Roman Harvell v. State of Mississippidenial of a continuance – Roman Harvell had two different drug charges, one from 2014 and another from 2016. Both were set for trial on  May 30, 2017. At some point during jury selection on May 30, Harvell’s lawyer realized that he had misunderstood which case was about to go to trial and moved for a continuance which the trial court denied.  Harvell was found  guilty of drug trafficking.  On appeal, Harvell argues that the trial judge abused his discretion by denying a continuance.  The COA finds that this error was waived for failure to argue it in a motion for new trial. “Harvell failed to identify any witness or evidence that he needed more time to produce or any other trial preparation that necessitated a continuance. Such information was necessary to support Harvell’s allegation of error, and it should have been provided in his motion for a new trial.”   He also argues that he is entitled to a new trial because one of the  assistant district attorneys who tried the case previously represented a defense witness.  The COA finds that the defense witness was not disclosed until the first day of trial. “Harvell cannot complain about the State’s failure to disclose an alleged ‘potential conflict’ between Daniels and Duvall when Harvell himself failed to disclose that Duvall might be called to testify.”    He also  argues insufficient evidence.  The COA affirms.

Bryan Avants v. Shawn Hamiltoncustody – Bryan Avants and Shawn Hamilton had a daughter, Jessica, born in 2010.  Shawn also had a sixteen-year-old son from a previous relationship, Bobby.  In 2016, the couple got into a fight when Bobby refused t o stop playing video games on his cell phone as orderfed by Bryan.  Shawn moved out. A chancery court found that Bryan was the father and  awarded joint legal custody to both parties and primary physical custody to Shawn with Bryan getting visitation on alternating weekends and holidays. Bryan appeals. The COA affirms.

Angela A. Avery v. The University of Mississippi –  failure to post bond for an administrative appeal –  Avery was fired from her job at the University of Mississippi.   The University of Mississippi Personnel Action Review Board  upheld her employment dismissal and the Chancellor of the University subsequently affirmed it.  Avery filed a petition for writ of certiorari in the Lafayette County Circuit Court  which is the statutory method for seeking review of University employment decisions.  Her case was ultimately dismissed for failure to post a bond as per the statute despite the fact that all the circuit court judges recused themselves, there was no one to set a bond, and all of Avery’s attorney’s attempts to get a bond set were rebuffed.   The COA reverses because “under the particular facts of this case there were extenuating circumstances hindering Avery’s ability to post bond.”

Pro se PCR appeals affirmed:

Michael Herrin v. State of Mississippi

 

 

 

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