Opinion
No. 2005-CA-01120-COA.
September 26, 2006. Petition Rehearing filed October 11, 2006.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. KOSTA N. VLAHOS, DATE OF JUDGMENT: 5/10/2005
DISPOSITION: AFFIRMED
ATTORNEY FOR APPELLANT: THOMAS E. PAYNE
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSE BENJAMIN SIMO
BEFORE KING, C.J., GRIFFIS AND BARNES, JJ.
¶ 1. Ne-Cole Roma Austin appeals the Circuit Court of Harrison County's dismissal of her motion for post-conviction relief. Finding no error, we affirm.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
¶ 2. In August of 2003, Austin was charged with felony child abuse. She subsequently pleaded guilty and was sentenced to fifteen years in the custody of the Mississippi Department of Corrections. In March of 2005, Austin, acting pro se, filed a petition for post-conviction relief in which she asserted that her sentence was disproportionate to other sentences handed down for the same or similar crimes. In an order filed on May 10, 2005, the Circuit Court of Harrison County dismissed Austin's motion. Aggrieved, Austin perfected an appeal to this Court. On appeal, Austin has abandoned the claim that her sentence was disproportionate, and instead asserts that she received ineffective assistance of counsel because her defense counsel failed to have her undergo a psychological evaluation, which she claims would have shown that she suffered from borderline personality disorder and major depressive disorder. She also claims that the trial court erred when it did not consider her mental state as a mitigating factor in sentencing.
STANDARD OF REVIEW
¶ 3. Our standard of review on a denial of a motion for post-conviction relief is well-established. We will not reverse the trial court unless we find that the court's decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App. 2002).
ISSUES AND ANALYSIS
I. WHETHER AUSTIN WAS AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL.
II. WHETHER THE TRIAL COURT ERRED IN FAILING TO CONSIDER AUSTIN'S MENTAL CONDITION AS A MITIGATING FACTOR IN SENTENCING.
¶ 4. It is well-settled that issues not raised below may not be raised on appeal. "Questions will not be decided on appeal which were not presented to the trial court and that court given an opportunity to rule on them. In other words, the trial court cannot be put in error, unless it has had an opportunity of committing error." Stringer v. State, 279 So.2d 156, 158 (Miss. 1973); Jones v. State, 915 So.2d 511, 513 (¶ 7) (Miss.Ct.App. 2005). Austin raised neither of the issues she presents to this Court in her petition for post-conviction relief. As the trial court was not given an opportunity to rule on these issues, they are not properly before this Court on appeal. These issues are procedurally barred.
¶ 5. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY DISMISSING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, ISHEE AND ROBERTS, JJ., CONCUR.