IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI No CA COA STATE OF MISSISSIPPI REPLY BRIEF OF APPELLANT (ORAL ARGUMENT REQUESTED)

Transcription

1 E-Filed Document Sep :57: CA COA Pages: 18 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI No CA COA KENNY WALTON APPELLANT VERSUS STATE OF MISSISSIPPI APPELLEE REPLY BRIEF OF APPELLANT (ORAL ARGUMENT REQUESTED) Tim C. Holleman, Esquire (Ms Bar#2526) Boyce Holleman & Associates rd Ave./Boyce Holleman Blvd. Gulfport, Ms Office: Fax:

2 TABLE OF CONTENTS TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii LEGAL ARGUMENTS: THE FINDINGS OF FACT AND CONCLUSION OF LAW REACHED BY JUDGE SMITH ARE CLEARLY ERRONEOUS, MANIFESTLY WRONG AND THE TRIAL COURT ABUSED JUDICIAL DISCRETION IN THE DENIAL OF POST CONVICTION RELIEF CONCLUSION CERTIFICATE ii

3 TABLE OF AUTHORITIES CASES Dockins v. Allred, 849 So. 2d 151, 155 (Miss. 2003)...5 Howell v. State, 163 So. 3d 240, 247 (Miss. 2014)..14 Matthews v. State, 192 So. 3d 378 (Miss. Ct. App. 2016).. 6 Reagan Equipment Co. v. Vaughn Gin Co., 425 So.2d 1045, 1047 (Miss. 1983)...3 Richardson v. Cornes (In re Estate of Richardson), 903 So. 2d 51, 56 (Miss. 2005) 6 Wakefield v. Puckett, 584 So.2d 1266, 1268 (Miss. 1991)...3 Walton v. State, 165 So.3d 516, 518 (P1) (Miss. Ct. App. 2015)...5, 7, 11 Yarborough v. State, 514 So. 2d 1215, 1220 (Miss. 1987).14 STATUTES Mississippi Code Annotated iii

4 THE FINDINGS OF FACT AND CONCLUSION OF LAW REACHED BY JUDGE SMITH ARE CLEARLY ERRONEOUS, MANIFESTLY WRONG AND THE TRIAL COURT ABUSED JUDICIAL DISCRETION IN THE DENIAL OF POST CONVICTION RELIEF The State is to be complimented, for its candor, at least, to this Honorable Court by admitting that the overall testimony is somewhat skewed (see Brief of Appellee at p. 2), however the State, as the Trial Court, simply ignores the overwhelming and unrefuted evidence of Walton s Court appointed attorney s (hereinafter Williams) ineffectiveness in his own actions, pleadings and words. All before being placed in the position of defending his actions or inactions and before becoming employed by same District Attorney office who is prosecuting Walton. Immediately after first 1 learning that Walton s Co-Defendants, McKnight and Matthews, were not only not going to testify for the State but would testify that Walton was not involved in the alleged crime, Williams immediately did the following: 1. Williams filed a Motion to Set Aside Defendant s Guilty Plea (R. E. 9-10); 2. After the above Motion was denied without hearing (See Vol 1/1: R. 30-Order Denying Motion to Withdraw Guilty Plea), Williams then filed a Renewed Motion to Withdraw Guilty Plea (See Vol 1/1: R 34-44; R.E ) 3. William then filed a Motion for Reconsideration of Sentence (See Vol 1/1: R 96-98); 4. At subsequent hearings Williams repeatedly represented, under his oath as an attorney, to the Trial Court that he was NOT aware that Walton s co-defendants would testify that Walton was not involved in the crimes for which he was indicted. (Vol 1/1: R. 56 lns to R. 57 lns 1-10; Vol 1/1: R. 56 lns to R. 57 lns 1-10; R. E ; Vol 1/1: R. 103, lns 9-17; R. E. 231; Vol 1/1: R. 108 lns to R. 109, lns 2-7; R. E. 231). 1 Williams claims at the August 31, 2015 PCR hearing to contradict his representations to the same Trial Court. 1

5 5. Williams then filed a Notice of Appeal of the denial of these Motions to this Court in 2009-TS COA. This appeal was dismissed because Williams improperly attempted to take a direct appeal from a guilty plea. See Mississippi Code Annotated Williams did not certify to this Honorable Court on appeal after scouring the record that there were no arguable issues supporting Walton s appeal filed by Williams himself. In other words, Williams actions after he learned for the first time 2 was to file not one (1) but three (3) separate Motions to set aside or withdraw Walton s plea or for reconsideration and then when was all three (3) Motions were unsuccessful he filed a direct appeal to this Honorable Court albeit improperly. In addition, Williams made repeated representations under his oath as member of the Bar to the same Trial Court on multiple occasions and in multiple pleadings before being accused of ineffective assistance of counsel. These representations simply cannot be reconciled with said attorney s belated attempts to defend his actions and inactions at the PCR hearing on August 31, 2015 when called by the State as witness in rebuttal and after becoming employed by the same District Attorney s office prosecuting Walton. The State asserts that appropriate findings of fact were made following an evidentiary hearing during which Walton's attorney, Rosharwin Williams, testified at great length. See Brief of Appellee at p. 9. First, the State should not have even been permitted to reopen the record to submit additional testimony/evidence. Second, Williams particularly should not have been permitted to testify and/or to contradict his 2 The notes that I received.was the first time that I received those prior to the trial of Michael McGee. And in these notes there were statements made by one of the codefendants that my client had no involvement in it..during the trial (Magee), the other codefendants as well exculpated my client from any participation in the incident. And on those bases (sic), since it was new evidence that had not ever been disclosed to me either through my client or any one else, I thought it necessary to at least file the motion to withdraw his guilty plea on those bases (sic) (Vol 1/1: R. 56 lns to R. 57 lns 1-10; R.E ). (Emphasis added), 2

6 previous representations in pleadings and hearings to the same Trial Court. Wakefield v. Puckett, 584 So.2d 1266, 1268 (Miss. 1991), quoting, Reagan Equipment Co. v. Vaughn Gin Co., 425 So.2d 1045, 1047 (Miss. 1983). The Trial Court even recognized such prior to permitting the State to call Williams to testify despite objection thereto: MR. HOLLEMAN: Judge, may I comment on my view of what the Court said; and I - - THE COURT: Sure. MR. HOLLEMAN: This may help; it may not. I mean, my view of what the Court of Appeals court said was they remanded it for the Court to make findings of fact and conclusions of law relative to the issue that was just stated about the ineffective assistance of counsel. In my view of the record in this case, it's not reconcilable in the sense that Mr. Williams has already, under his oath as an attorney twice before this Court, stated that he did not receive this information and did not act upon it; and that he would - - and, in fact, moved to set a side this guilty plea based upon that, not receiving that information to allow - - I mean, in my view, the Court should make findings of fact based on the record we have at this point in time, which was what the Court of Appeals was saying, that the Court never reached that issue because it found that it was a successful - - successive writ, excuse me. And, so, in my view, the record is already there and complete; that Mr. Williams - - THE COURT: And you may be right on that. I'm not sure that further testimony is going to deviate from that. MR. HOLLEMAN: He shouldn't be allowed to impeach his testimony before this same Court where he testified under oath as an attorney and made statements that would be - - and now directly impeach that information. It doesn't even make sense on - - under the circumstances. THE COURT: Yeah, I d be cautious about that too, Ms. Flint. MS. FLINT: Your Honor, I'd represent, though, to the Court that he s never been called in the capacity of having been challenged as ineffective assistance of counsel; and that is the difference. When he has made representations before the Court, he was not in the capacity of a witness. And, No. 2, he was still an advocate for his client. It was only at the last juncture that we have where William Martin had testified that he - - he 3

7 alleged that Mr. Williams was ineffective assistance of counsel. And that being the grounds, Your Honor, we do wish to proceed. THE COURT: Well, I'm not sure where you re going. It's my understanding that if I believe Mr. Williams - - MS. FLINT: Mr. Williams hasn t testified under oath, Your Honor. THE COURT: I thought he was in - - is there not anything on the record with Mr. Williams being under oath? MR. HOLLEMAN: Your Honor, he s under oath as an attorney and actually made numerous statements on the record to Your Honor regarding his lack of knowledge of this information. It's either one of two things. Either he got the information, and he didn t look at it; or he didn't get the information, one of those two. Both of those are ineffective assistance of counsel either way. And I want to - - you know, the record is complete in my view. We have a supplemental State's report of discovery which says one thing. We then have the report that the State said in this supplemental state - - discovery was going to be on filed within - - this was on the 14th of November. On the 17th of November, they filed a supplemental statement in which they included the so- called report of the Bolivar County Sheriff's Department, which contains none of the information that is stated in this " State Supplemental Report. " It has nothing in there about exculpating. It has nothing in there about other people that were involved in this incident. That report is totally devoid of any information that is represented in this first pleading. My point is that the Court of Appeals said that the Court should - - it was remanded for the Court to find findings of fact and conclusions of law. I don't know how you allow - - and Mr. Williams, for the record, now works for the District Attorney's Office, which is in this county, in Clarksdale. I'm not sure where he's stationed. Which presents another issue. But, either way, this record, in my view, is complete. His statements on the record, under his oath as an attorney to this Court, are irreconcilable with the remainder of this record. If the State's position is - - THE COURT: And they were, as I understand it, that he never received the information. MR. HOLLEMAN: Your Honor, based on his statements in the record to Your Honor, he never received the information. His client never received the information, by his own statements. THE COURT: That s right. (See R. E. pp Transcript of PCR Hearing 8/31/2015). 4

8 (Emphasis added). The State never made any showing consistent with Wakefield permitting them to reopen record for presentation of further rebuttal testimony by Williams. At the previous post conviction relief hearing on July 24, 2013, the State did not call Williams 3 as a witness or anyone else or put on any other evidence to rebut the evidence presented by Walton. At that time the record was complete. This Court remanded the case "...with instructions that the trial court make appropriate findings of fact regarding Walton's ineffective-assistance-of-counsel claim." Walton v. State, 165 So. 3d 516, 518 (P1) (Miss. Ct. App. 2015). The Court did not remand the case for further hearing or presentation of any other evidence for the record. The State made no Motion to Reopen the record or to put on other evidence. Despite objection the Court permitted such and such was improper. Additionally, the State should not have been permitted to call Williams to impeach or contradict his previous representations to the same Trial Court already in the record. The doctrine of judicial estoppel should have prevented Williams from contradicting his previous representation to the Trial Court on behalf of a party, Walton. "Judicial estoppel precludes a party from asserting a position, benefitting from that position, and then, when it becomes more convenient or profitable, retreating from that position later in the litigation." 4 Dockins v. Allred, 849 So. 2d 151, 155 (Miss. 2003). "Because of judicial estoppel, a party cannot assume a position at one stage of a 3 And there is no evidence supporting excusable neglect 4 Appellant recognizes that Williams at the time he made these representations was Walton s court appointed attorney, however now he works for the other party, i. e. State/DA, who is prosecuting him. He should not be permitted to attempt to change his position either way, Appellant submits the principle is the same. 5

9 proceeding and then take a contrary stand later in the same litigation." Id. As Judge Griffis clearly stated: Richardson and Turnage filed the pleadings that resulted in the case being decided based on the equitable doctrines of judicial estoppel, unclean hands and equitable estoppel, rather than on the statutory structure of Mississippi Code Annotated Section (3). Had Richardson and Turnage taken a different procedural route, i.e., shown candor and honesty with the chancellor, a different result may have been obtained. Instead, they chose not to do so. Richardson v. Cornes (In re Estate of Richardson), 903 So. 2d 51, 56 (Miss. 2005). Regardless Williams previous representations to the Trial Court (and by appeal to this Honorable Court in 2009-TS COA) cannot be reconciled with his testimony at the hearing on August 31, 2015 after being accused of ineffective assistance of counsel and going to work for the same District Office which was/is still prosecuting Walton. Nor can it be reconciled with his previous appeal to this Court, where Williams represented under his oath that the Trial Court was in error in denying the Motions he, himself, filed to set aside Walton s pleas. Otherwise as a member of the Mississippi Bar, William should have filed a Lindsey Brief. Matthews v. State, 192 So. 3d 378 (Miss. Ct. App. 2016). If his testimony at the PCR hearing on August 31, 2015 can now be given any credibility, he violated his oath as an attorney to this Court and Mississippi Bar also. While it pains the undersigned to say such about a fellow member of the Bar, his actions, inactions and diametrically opposed representations and belated testimony cannot be defended or even reconciled. WALTON MET HIS BURDEN OF PROOF Walton met his burden of proof by a preponderance of the evidence that Williams was guilty of ineffective assistance of counsel. Walton's evidence in support of his PCR 6

10 motion made out a prima facie case of ineffective assistance of counsel in connection with his guilty plea. Walton v. State, 165 So. 3d 516, 529 (Miss. Ct. App. 2015). What did Williams represent, under oath, to the Trial Court on multiple occasions and by appeal to this Honorable Court before being accused and becoming a prosecutor himself? In the Motion to Set Aside Defendant s Guilty Plea Williams represented to the Trial Court the following: Para. 8. That the Defendant has recently provided information that calls into question his former guilty plea which would therefore lend it to be set aside; Para. 9. That this information has not been shared with his counsel in the past and would now seriously impact and undermine the integrity of his former guilty plea. (See R. E. pp. 10 Transcript of PCR Hearing 8/31/2015). (Emphasis added). At a hearing on this Motion, Williams stated under his oath an attorney and member of the bar: MR. WILLIAMS: The notes that I received, your Honor, was the first time 5 that I received those prior to the trial of Michael McGee. I think it was two days prior to that trial. And in these notes there were statements made by one of the codefendants that my client had no involvement in it, that my client was virtually being pressured into the process of entering a guilty plea. During the trial, the other codefendants as well exculpated my client from any participation in the incident. And on those bases (sic), since it was new evidence that had not ever been disclosed to me either through my client or any one else 6, I thought it necessary to at least file the motion to withdraw his guilty plea on those bases (sic) 5 This conflicts with Williams testimony at the August 31, 2015 hearing wherein he testified he talked to Matthews attorney or Matthews before Walton s plea and learned Matthews would not inculpate Walton. 6 This conflicts with Williams testimony at the August 31, 2015 hearing wherein he testified he talked to Matthews attorney or Matthews before Walton s plea and learned Matthews would not inculpate Walton 7

11 (Vol 1/1: R. 56 lns to R. 57 lns 1-10; R. E. p. 190). (Emphasis added). On July 8, 2009, Walton s Court appointed counsel, Mr. Williams, filed a Renewed Motion to Withdraw Guilty Plea. (See Vol 1/1: R Renewed Motion to Withdraw Guilty Plea). This Renewed Motion to Withdraw Guilty Plea was signed by Walton s Court appointed counsel and represented to the Trial Court the following: Para. 8: That on or about May 20, 2009, Defendant shared his counsel information that differed from his previous guilty plea and would possibly absolve him from any criminal responsibility. Para. 11: That the Defendant has primitive learning ability and mental anxieties, often appears in a daze state all of which the defense believes may have impacted his ability to truly rationalize the totality of the criminal matters against the Defendant. Para. 13: That the Defendant was sworn and placed under oath and offered testimony that would substantiate a cognizable defense not previously shared 7 with his counsel. Para. 14: That there were additional witnesses offered by the State at the trial of Michael McGee which likewise offered sworn testimony that supported this Defendant's version of facts. (See Vol 1/1: R Renewed Motion to Withdraw Guilty Plea; R. E. p. 13). On August 5, 2009, the Court heard Walton s Motion for Reconsideration of Sentence and denied same. (See Vol 1/1: R Transcript of Hearing on Motion to Reconsider). During said hearing, Walton s Court appointed attorney, a licensed attorney, stated on his oath ( ) as a member of this Bar: And to even add to that the State in its response stated that all of these matters were related to Counsel. But the statements of Mr. Matthews that would exculpate Mr. Walton the statements of Mr. McKnight that would 7 Walton s first statement to detectives was consistent with his testimony at the trial of McGee so Walton s court appointed attorney was, in fact, aware of his defense. 8

12 exculpate Mr. Walton were never shared with Counsel 8. That s a great issue by itself. (Vol 1/1: R. 103, lns 9-17; R. E. p. 210). (Emphasis added). And again, there are some issues relating to Brady that are part and parcel of this matter. In particular, the State has not address the issue of the exculpatory statements that were made by their witnesses, Matthews and McKnight, as relates to Mr. Walton. All they stated was that Mr. Walton would be the sole witness at trial. There was no information shared with counsel 9 that those witnesses 10 that they pled and interviewed would exculpate this particular defendant at trial. And that raises the issue, again, as to Brady. (Vol 1/1: R. 108 lns to R. 109, lns 2-7). (Emphasis added). The State as much confessed such by calling Williams as its witness in attempt to rebut the overwhelming evidence of ineffectiveness from Williams own words and representations. His testimony did not do so by any stretch of the imagination. In fact, his previous pleadings and representations before the Trial Court and this Honorable Court simply not reconcilable with Trial Court findings that: "(2) Williams did learn through talking to Matthew's attorney and interviewing Matthews that the two co-defendants would testify that Walton did not participate in the crime" "(3) Williams discussed these statements with Walton along with Walton's own incriminating statements in conjunction with the evidence found on Walton" 11. (Brief of Appellee at p. 10). Contrary to the findings above, Williams also testified his previous representations were the truthful : 8 This conflicts with Williams testimony at the August 31, 2015 hearing wherein he testified he talked to Matthews attorney or Matthews before Walton s plea and learned Matthews would not inculpate Walton 9 This conflicts with Williams testimony at the August 31, 2015 hearing wherein he testified he talked to Matthews attorney or Matthews before Walton s plea and learned Matthews would not inculpate Walton 10 This conflicts with Williams testimony at the August 31, 2015 hearing wherein he testified he talked to Matthews attorney or Matthews before Walton s plea and learned Matthews would not inculpate Walton 11 If this is true, the Williams Motions and representations to the Trial Court were not candid by any means and border on falsehoods. 9

13 Q. Do you recall appearing before Judge Smith on July the 8th, 2009, and making the following statement - - and I'm going to read it for you - - " The notes that I received, Your Honor, was the first time that I received these prior to the trial of Michael McGee." I think it was about two days prior to the trial. And, in these notes, there were statements made by one of the co- defendants that my client had no involvement in it; that my client was virtually being pressured into the process of entering a guilty plea." Do you remember making that statement to the Court? A. I do. Q. And was it truthful when you made that statement? A. It was. Q. Now, do you remember this statement "During the trial, the other codefendants as well exculpated my client from any participation in the incident. And, on those bases [sic], since it was new evidence that had not ever been disclosed to me, either through my client or anyone else, I thought it necessary to at least file the motion to withdraw his guilty plea on those bases. "Do you recall making that statement to the Court? A. I did. Q. And was it truthful when you made it? A. It was. (Emphasis added). (See R. E. pp Transcript of PCR Hearing 8/31/2015). Before Walton s plea Williams never talked with either Mr. McKnight or his attorney about his expected testimony. He also was never aware the State itself had filed a "Supplemental State's Report of Discovery Disclosure" in the subject matter and claimed it had forwarded such to Williams which advised not only that Matthews and McKnight would not inculpate Kenny Walton but instead name other accomplices. As this Court noted in Walton s first appeal: P6. On November 14, 2008, the State filed a one-page document in Walton's and McGee's criminal cases entitled "Supplemental State's 10

14 Report of Discovery Disclosure." The notice was file-stamped on November 14, 2008, by the Bolivar County Circuit Clerk. The notice stated that Matthews and McKnight had been interviewed, but that written reports of their interviews were not expected until the following Monday, November 17, The document summarized what Matthews and McKnight had to say: "neither the co-defendant Matthews or McKnight inculpate Michael McGee or Kenny Walton but instead name other accomplices." The other accomplices claimed by Matthews and McKnight were Desmond Johnson and Nookie Alexander. Walton v. State, 165 So. 3d 516, 519 (Miss. Ct. App. 2015). Williams never asked Matthews or Matthew s attorney about the other accomplices or McKnight or his attorney. He also never discussed such with Walton because he was unaware of such. Q. All right. And, so, before Mr. Walton pled guilty, you had not been - - under your testimony and your oath, you had not been provided anything in discovery that Mr. Matthews - - listen to my question. In discovery from the State, you had not be provided anything that Mr. Matthews and/or Mr. McKnight were not only going to exculpate, or say Mr. Walton was not involved, but were actually going to name two other individuals that were involved? A. Now that I never knew about, two other individuals being named, no. And even Mr. Matthews never told me that. Q. And you don't even know that today? A. No, I don't. (See R. E. p. 255 Transcript of PCR Hearing 8/31/2015; see also Vol 1/1: R. 56 lns to R. 57 lns 1-10, R. 103, lns 9-17, and R. 108 lns to R. 109, lns 2-7). Even if the State were properly permitted to reopen the evidence, Williams testimony at the second PCR hearing on August 31, 2015 did no more than impeach his prior representations to the same Trial Court. When this Court considers how diametrically opposed his testimony at the second PCR hearing on August 31, 2015, at least in part, was compared to his previous pleadings. representations and even appeal 11

15 to this Court such did not overcome the overwhelming evidence in Williams own words of ineffective assistance of counsel. The Trial Court erred in denial of Walton request for Post Conviction Relief and the Trial Court s finding is clearly erroneous and it was an abuse of discretion not to grant the post-conviction relief to Walton. This Honorable Court should forthwith reverse the Court Order and Opinion of the Court denying post conviction relief to Walton, grant relief, set aside the Sentencing Judgment and remand this case to the Circuit Court for a trial on the merits. Finally, the State makes a desperate but equally ridiculous argument this Court should simply strike from the pleadings: The relief requested by Walton is a setting aside of his guilty pleas and the sentencing judgment and a remand for a full trial on the merits. If granted, this would take place nearly nine years after Walton confessed his guilt to his participation in the crimes by entering his pleas. (Brief of Appellant at 22) Clearly that would be an excruciatingly difficult task for the prosecution. Witnesses disappear and memories fade with the passage of time. See Brief of Appellee at p. 9. Williams as Walton s Attorney filed not one (1) but three (3) Motions to address the issue in this matter. All were denied by the Trial Court. Williams filed a direct appeal to this Honorable Court from the denial of these Motions. This Court correctly dismissed such as a direct appeal was not permissible but a Post-Conviction Relief proceeding was required. A Post Conviction Relief action was filed. The State opposed such. A hearing was held. The same Trial Court dismissed the PCR holding it was a successive writ despite this Court s reversal specifically because no PCR had been filed. Appeal was required again. This Court reversed as not being a successive writ 12

16 but direct the Court to make findings of fact on the ineffective assistance of counsel issues. Rather than make findings of fact on the record already before Trial Court, the Trial Court improperly permitted the State to reopen the record and call Williams to contradict his own words and representations to the Trial Court. With all due respect to the Trial Court, Walton was not surprised that for a fifth (5 th ) time, the Trial Court denied him a right to a trial by a jury of his peers. Under these circumstances, for the State to assert nearly nine years has elapsed therefore such creates excruciatingly difficult task in requesting a trial, is the epitome of hypocrisy. If the State had simply confessed the first Motion to Set Aside Guilty Plea this trial could have commenced in It is the State s opposition that creates the delay not Walton. Further, Walton has sat in prison since 2009 and was sentenced to a total of 51 years in prison at the age of 19 years old. CONCLUSION There simply is no issue in this matter that the post-conviction relief should have been granted, Walton s guilty pleas and his sentencing judgment should have been set aside, and this Court should promptly reverse the Trial Court and remand this matter for a full trial on the merits. Walton s Court appointed counsel, Williams 12, should not be permitted to impeach or contradict his own previous representations in Motions and on the record before the Trial Court. Such is unconscionable. At the very least such testimony at the August 31, 2015 hearing should be viewed with great skepticism as the credible evidence is what he represented to Trial Court before he was accused of ineffective assistance of counsel. Williams testimony at the August 31, 2015 hearing 12 Who at the time of the PCR hearing works for the same District Attorney s office who is prosecuting him. 13

17 should be treated the same as recanted testimony as "[e]xperience teaches all courts a healthy skepticism toward recanted testimony...." Yarborough v. State, 514 So. 2d 1215, 1220 (Miss. 1987); Howell v. State, 163 So. 3d 240, 247 (Miss. 2014). Respectfully submitted, this the 28 th day of September, KENNY WALTON, APPELLANT BY AND THROUGH HIS ATTORNEYS OF RECORD BOYCE HOLLEMAN, A PROFESSIONAL ASSOCIATION BY: /s/ Tim C. Holleman ATTORNEY FOR APPELLANT: TIM C. HOLLEMAN (MS BAR #2526) BOYCE HOLLEMAN, A PROFESSIONAL ASSOCIATION rd Ave./Boyce Holleman Blvd. GULFPORT, MISSISSIPPI FAX tim@boyceholleman.com 14

18 CERTIFICATE I, TIM C. HOLLEMAN, do hereby certify that I have on this date forwarded a true and correct copy of the above and foregoing Reply Brief of the Appellant to the following via United States Mail, postage prepaid: Albert B. Smith, III, Senior Judge Bolivar County Circuit Court Post Office Drawer 478 Cleveland, MS Brenda F. Mitchell, Esquire District Attorney Bolivar County Post Office Box 848 Cleveland, MS And by Electronic Service to: Attorney General Jim Hood c/o Assistant Attorney General Billy L. Gore MS Attorney General s Office Post Office Box 220 Jackson, MS Respectfully submitted, this the 28th day of September, A. D., ATTORNEY FOR APPELLANT: /s/ Tim C. Holleman TIM C. HOLLEMAN (MS BAR #2526) BOYCE HOLLEMAN, A PROFESSIONAL ASSOCIATION rd Ave./Boyce Holleman Blvd. GULFPORT, MISSISSIPPI FAX tim@boyceholleman.com 15