IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2014-KM-01800-COA
CHARLES WEBBER A/K/A CHARLES M. WEBBER A/K/A CHARLES MARTIN WEBBER APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 11/20/2014 TRIAL JUDGE: HON. JOHN HUEY EMFINGER COURT FROM W HICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: KEVIN DALE CAMP JARED KEITH TOMLINSON ATTORNEY FOR APPELLEE: BOTY MCDONALD DISTRICT ATTORNEY: MICHAEL GUEST NATURE OF THE CASE: CRIMINAL - MISDEMEANOR TRIAL COURT DISPOSITION: CONVICTED OF DUI, FIRST OFFENSE, AND SENTENCED TO FORTY-EIGHT HOURS IN THE CUSTODY OF THE MADISON COUNTY SHERIFF’S DEPARTMENT, AND TO PAY A $1,000 FINE DISPOSITION: REVERSED AND RENDERED: 08/09/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. GRIFFIS, P.J., FOR THE COURT: ¶1. Dr. Charles W ebber was convicted of driving under the inf luence ( DUI), f

irst of f ense, in M adison County Court. W ebber appealed to the M adison C ounty C i rcuit Court, which af f irm ed the conviction. Aggrieved, W ebber now appeals to t his Court. W e f ind reason to reverse and render W ebber’s conviction.

FACTS AND PROCEDURAL HISTORY¶2. On August 26, 2012, Of f icer S tephen W ebb, a Ridgeland city p olice of f icer, cam e

across a crashed vehicle in a neighborhood a t a pproxim a tely six in t he m o rning. The vehicle apparentl y c o l l i d e d with a tree and a m ailbox. Of f icer W ebb did not see any one in the vehicle but noticed W ebber walking in the street. ¶3. W h en Of

f icer W ebb m ade contact with W ebber, he noticed that W ebber sm elled of alcohol and held an a lcoholic beverage. Of f icer W ebb a l s o o bserved that W ebber experienced depth-perception dif f iculties, was unsteady , and slurred his s p eech. O f f icer
W e bb arrested W ebber and p erf orm ed a breath intoxily

zer test at the p o l i ce station, which registered a .24% alcohol level. ¶4. W e bber entered a nolo contendere, or n o contest, plea in Ridgeland Municipal Court. The m unicipal court f

ound W ebber guilty

. W ebber then a ppealed t his v erdict to the Madison County C ounty C ourt, which h eld a de novo bench trial on J une 26, 2013. The county court f ound W ebber guilty , and the Madison County Circuit Court af f irm ed.
DISCUSSION ¶5. Recent l y , i n N

o l a n v. State , 182 So. 3d 484, 488 (¶6) (Miss. Ct. App. 2016), we considered an all-too-f

am iliar problem

with appeals that originated in the Municipal Court of the City of Ridgeland:
As is com m o n with appeals f rom the City of Ridgeland, C ity Prosecutor Boty McDonald has f

ailed to f ile an appellee’s brief

. “An appellee’s f

a ilure to f ile a b r ief on appeal i s tantam ount to conf ession of the errors alleged b y t h e appellant. However, auto ma t i c r e versal is not required if this C o urt can say with conf idence that t he case should be af f irm ed.” Clack v. City of

Ridgeland , 139 So. 3d 778, 781 (¶17) (Miss. Ct. App. 2014) . . . .
In f ootnote 1, w e cited the cases b ef ore this Court where the C ity of Ridgeland h ad f ailed to

2f

ile a brief : See Robinette v. State , 2 0 15 W L 7253246, at *5 (¶17) ( Miss. Ct. A pp. 2015); Cameron v. State , 1 7 5 S o . 3 d 574, 577 n.2 (Miss. Ct. App. 2015); W o ods v. State , 175 So. 3d 579, 580 (¶9) (Miss. Ct. App. 2015); C l ack v. City of Ridgeland , 139 So. 3 d 778, 778 (¶1) (Miss. Ct. App. 2014); Carlson v
. City of Ridgeland , 131 So. 3d 1 2 20, 1222 (¶8) (Miss. Ct. A pp. 2013); Lobo v. City of Ridgeland , 135 So. 3d 1 48, 152 (¶12) (Miss. Ct. App. 2013); Drabicki v. City of Ridgeland , 130 So. 3d 113, 118 (¶19) (Miss. Ct. App. 2013). Nolan , 182 So. 3d at 488 n.1. ¶6. The City ’s f

a ilure to f

ile a brief was also consid e r e d by the M ississippi Suprem e Court. In Norman v
. State , 2014-KM-01789-SCT (Jan. 21, 2 0 1 6 ) , the suprem e court considered an appeal f

r om the Municipal Court of the City of Ridgeland. There, like here, the Cit y f ailed to f i le a b rief i n a tim ely m anner. On October 1 , 2 015, the suprem e court entered the f

ollowing order:
A Notice of Appeal was f iled in this case on Decem ber 19, 2014. On March 6, 2015, the C lerk of t h i s Court issued a B rief ing Schedule notif

y i ng the parties that, pursuant to Rule 31 o f the Mississippi Rules of A ppellate Procedure, Appellant' s brief and r ecord e xcerpts were due within f o rty day s of the date of [ t he] clerk’s l etter, and Appellee’s brief was due w i thin thirty d ay s af ter service of Appellant’s brief

. Per Appellant’s r e quest f or extension of tim e, t h i s C o u rt granted Appellant until May 15, 2015, t o f ile Appellant’s brief , and a letter f

rom t he Clerk of this Court was issued notif y ing all counsel. Appellant’s brief

was f iled on May

15, 2015.
On J u n e 2 3 , 2015, t he C lerk of this Court issued a Show Cause Notice to Ridgeland City Prosecutor, Mr. Boty McDonald, notif y ing Mr. McDonald t hat

. . . Appellee’s brief was delinquent, and directed Mr. McDonald to show cause within f

ourteen day s f

rom the date of

the notice why

this Court should not im pose sanctions in accordance with Rule 2(b) of the M ississippi Rules of Appellate Procedure. Mr. McDonald did not f ile a response.
Af ter due consideration, we f in d t h a t the said Mr. McDonald shall appear bef ore this panel on Novem

ber 9, 2015, at 1:30 p.m . , then and there to show cause, if any he can, why he should not be sanctioned f or h is f ailure tim e ly to

3f

ile . . . Appellee’ s brief

in this case. ¶7. On Novem

ber 9, 2015, a p anel of the suprem e court held a hearing consistent with this order. A t the hearing, the justices inquired as to the r eason(s) f or the f ailure to f ile a tim ely brief

. Counsel f

or t he C ity gave s everal reasons, none of which were reasonable grounds to justif y the City ’s f

ailure to f ile a tim ely

brief

. ¶8. On Novem

ber 12, 2015, the suprem e court entered the f ollowing order:
On Novem

ber 9, 2 015, B oty McDonald (McDonald), prosecutor f or the City of Ridgeland[ ,] . . . appeared bef ore the panel of

Dickinson, P.J., Pierce and King, JJ., f

or a show-cause hearing that w as ordered by the panel o f Randolph, P.J., Pierce and King, JJ.[ ,] on October 1, 2015. The panel ordered McDonald to a ppear and show cause, if any , why he should not be sanctioned f

or f ailing to tim ely f

ile his Appellee’s brief

. The panel also ordered t h e A t t orney General’s Of f ice to a ppear and to discuss that Of f ice’s role and responsibility in this m a tter u n d e r A rticle 6, Section 1 69, of the Mississippi C onstitution and section 21-13-19 o f t he Mississippi Code Annotated. The p anel f

u rther invited Norm an’s counse l t o appear a nd of f er proof o f prejudice, i f a n y , Norm an m ay have suf f ered as a r esult of

. . . Appellee’s f

ailure to f ile a brief

. D uring the show-cause hearing, M cDonald conf essed p rejudicial error i n t he trial c o urt as to Norm an’s c o nviction, and f urther stated that the judgm ent of conviction should be reversed.
Af ter due consideration, the panel f inds that M cDonald should f ile a brief with this C ourt, stating the City of Ridgeland’s position. W e f u rther f ind that o ur decision on possible sanctions should b e held in abey a nce until t he brief h as been f iled, and that t he Of

f ice of the At torney General has no f urther m andatory responsibilities in this m a t ter. ¶9. On Novem

ber 22, 2015, McDonald f i led a docum ent entitled “ Appellee’s Conf ession of Appellant’s Brief

” on behalf of

the City of Ridgeland. ¶10. By order dated January 20, 2016, the Mississippi S uprem e Court entered an order that held the “ j udgm ent of the Circuit Court of Madison County is reversed, the judgm ent of the

4County Court of Madison County is reversed, and the judgm ent of the Ridgeland M unicipal

Court is reversed and rendered.” The court assessed all costs to the City

. ¶11. Based on the suprem e court’s procedure in handling the C ity ’s f ailure to f ile a brief
in N orman , on February 4 , 2 0 1 6 , t h i s Court entered t he f o llowing sua s p onte order in this

case: The p ar t i e s a r e d irected to f ile a brief within twenty day s of the entry of this order addressing the f

o llowing issue:
W hether M cDonald’s adm ission during the show-cause hearing in Norman that he is responsible f or f iling a r esponsive brief on behalf of the City o f Ridgeland, and the Mi s sissippi S uprem e C o u r t ' s e xpress instruction to f ile a brief in that case[ , ] retroactively

im p acts the standard of

review in this appeal. Theref ore, on t he Court’s own m o tion, the parties shall f i l e supplem ental b rief

s as directed in this order. The brief s a r e to be sim

ultaneously f

iled within twenty (20) day s of

the entry of

this order. Contrary to the s pecif

ic directio n of this Order, t he City of R idgeland did not f ile a supplem ental brief or any response. ¶12. Nevertheless, we recognize that we m us t r e v i e w this case based on the f ollowing principle: “An appellee’s f ailure t o f ile a brief on appeal i s tantam ount to conf ession of the

errors alleged by the appellant. However, autom a t ic reversal is not required if this Court can
say with conf

idence that the case should be af f irm ed.” Clack , 139 So. 3d at 781 (¶17). ¶13. However, i n light of t he consistent f ailure o f the City of Ridgeland to participate in the proper j udicial process, we have d e t e r mined that t he City of R idgeland or its legal counsel has determ ined that it has no responsibility to prosecute cases bef ore the appellate

courts of Mississippi. W e recognize the principle this Court m ay n ot autom atically reverse

5the judgm ent sim ply based on the City ’s neglectf ul and disrespectf

ul f ailure to f ile a brief

. However, as the S uprem e Court considered this circum stance in Nor m a n and this Court provided the Ci t y of Ridgeland and its counsel with sim ilar notice in the February 4, 2016 order, we have d eterm ined that the City of R idgeland’s f ailure to f ile a brief o n appeal is an intentional and m eaningf

ul a ct that is indeed tantam ount to conf ession o f t he errors alleged by the appellant. W e theref ore reverse and render the judgm ent entered against W ebber. ¶14. W e agree with m

uch of the analy sis by the dissent. Indeed, except f or the f act of the City of Ridgeland’s recent history in its apparently intentional ref usal t o participate in the appellate process, we would agree with the dissent’s argum ent t o af f irm We b b e r ’s conviction. However, we also exam ine this case in light of Norman and, m ore im portantly , the City of Ridgeland’s f

ailure to respond to this Court’s o rder dated February 4 , 2016, where we asked the City

to advise us as to:
W h ether McDonald’s adm ission during the show-cause hearing i n Norman that he is responsible f

or f i ling a responsive brief on behalf o f the City of Ridgeland, and t he Mississippi Suprem e Court’s express instruction t o f ile a brief in that c ase[ ,] r etroactively im pacts the standard of review in t his appeal.
W i thout the input requested b y the City of Ridgeland, we f ind that the Mississippi Suprem e Court’s express instruction t o f ile a brief in Norman retroactively im pacts the standard of review in this appeal and requires that we reverse and render the judgm ent against W ebber. ¶15. THE JU D GMENT OF THE MADISON C OUNTY CIRCUIT COURT IS REVERSED AND RENDERED. ALL COSTS OF T HIS APPEAL ARE ASSESSED TO THE CITY OF RIDGELAND.
L E E, C.J., ISHEE, FAIR, JAMES AND GREE N L E E , J J . , C O N C U R . W I L S O N , J., DISSENTS WITH SEPARATE W RITTEN OPINION, J OINED BY IRVING, P.J., BARNES AND CARLTON, JJ.; FAIR, J., JOINS IN PART.

6WILSON, J., DISSENTING:

¶16. W h en, as in this case, the appellee f ails to f ile a brief , this Court has two options. First, we m a y t ake the appellee’s f ailure to f ile a brief as a c onf

ession of error and rev e r s e . T h i s option is f avored when the record is com

p licated or of large v o l u m e and t he case has been thoroughly brief ed by the appellant with apt and applicable c itation of authority so that the b r i e f ma k e s out an a

pparent c ase o f error. However, if the record can b e conveniently exam ined a nd s u c h e xam ination reveals a sound and unm istakable basis o r g round upon which the j u d gm e nt m ay be saf ely af f irm e d, we m ay

disregard the appellee’s error and af f irm

. 1
In t his case, “the record can be conveniently exam ined,” as it consists prim arily of about f orty
pages of testim ony , a video o f W ebber’s arrest, and a f ew pictures. The record also “reveals

a sound and unm istak a b l e basis” f or af f irm ing, nam ely , that there i s suf f icient e v idence to support the conviction. Theref ore, I would af

f irm

. ¶17. W e bbe r testif

i ed t hat he woke up “right around 5 a.m . ” and decided t o drive to the

store f or cigarettes. W hile driving through his neighborhood, only a block-and-a-half f rom his house, W ebber drove w ell of f the street into a n eighbor’s f ro n t y a r d, where his SUV collided w ith a sizable Bradf ord pear tree with enough f orce to knock d own the tree and do signif icant dam age to the f

ront o f the SUV. W ebber testif ied that his SUV “apparently ” then “bounced back” approxim ately seventy f eet bef ore com ing to rest atop the m ailbox of the

1 A rch ie v. C ity o

f C a n to n , 9 2 S o . 3 d 1 2 7 9 , 1 2 8 2 ( ¶ 1 0 ) (M iss. C t. A p p . 2 0 1 2 ) (q u o tin g T

h o rn to n v. H

o llo w a y , 4 9 S o . 3 d 1 2 5 , 1 2 8 -2 9 (¶1 0 ) (M iss. C t. A p p . 2 0 1 0 )) (alteratio n o m i tted ); see C h a tm a n v. S ta t e , 7 6 1 S o . 2 d 8 5 1 , 8 5 4 (¶9 ) (M iss. 2 0 0 0 ) (h o ld i n g th at t h e S t ate’s f

ailu re to f ile a b rief d o es n o t req u ire “au to m atic rev ersal

. . . if t h is C o u rt can say w ith c o n f

id e n ce th at t h e [ c o n v ictio n ] sh o u ld b e af f irm ed ”); M

cC o llu m v. S ta te , 1 8 6 S o . 3 d 9 4 8 , 9 5 3 (¶1 9 ) (M iss. C t. A p p . 2 0 1 6 ) (h o l d in g th at ev en if th e S tate co n f esses e rro r, “w e h av e a n o b lig atio n t o ex a m in e th e reco rd to d eterm in e w h eth er th e co n v ictio n sh o u ld stan d o r b e rev ersed ”). 7house next do o r . A c c o rding to W ebber, he crashed as he was try ing to put a Stevie Ray

Vaughan CD into his CD play er. ¶18. W e bber’s neighbor, C hris Berry m an, cam e upon the scene on h is way h o me f r o m work and gave W ebber a ride back to h is house. At f irst, Berry m an t hought that W ebber was intoxicated, but later he decide d t h a t W ebber was only “ disoriented” f rom the crash. 2
W e bber testif

i ed that he “was pretty shaken up,” so a f t er he returned to h is house, he “poured [ him ]self a g lass of wine

. . . with ice i n it,” c a l led a tow truck, and “then gave [ him ]self about ten m inutes or so bef ore walking [ back] up the s treet.” W ebber s tated that he had only
“a f ew s i ps” of his wine as he walked u p the s treet, and Of

f icer W ebb was already on the

scene of t he crash when he returned. W e bber c laim e d that he did not drink any alcohol prior to the crash. ¶19. Of f icer W ebb arrived on t he scene at 6 :02 a.m . Of f i cer W ebb testif

ied that soon af

ter he arrived, he n o ticed W e bber walking away f rom him about f

if ty to one hundred f

eet down the street. We bber appeared intoxicated—he was unsteady o n his f e et, his speech was slurred, and he sm elled strongly of alcohol. W ebber told Of f icer W ebb that he had “f

—ed up.” Of f icer W ebb arrested W ebber f or driving under the i nf

luence and transported him to the police station. Of

f icer W ebb testif

i ed that f ield s obriety tests were n ot n ecessary given
W e bber’s im

paired condition, and “it w ouldn’t h ave b een s af e f or [ W ebber] to do a ny walkand-turn or one-leg stand the way he was walking out there.”

2 B erry m an testif ied th at h e f

o u n d Web b er o n h is w ay h o m e f ro m w o rk aro u n d 4 a.m ., b u t th a t w as co n trad i cted b y Web b er’s o w n testim o n y th at h e d id n o t leav e h is h o u se u n til aro u n d 5 a.m . It w as also co n trad icted b y O f f icer Web b ’s t estim o n y th at th e crash h ad n o t o ccu rred w h en h e d ro v e b y th e sam e lo catio n b etw een 4 :4 0 an d 5 a.m . 8¶20. Video of W ebber en route to the station w as adm itted into e v i d e n c e . In the video,

W e bber m akes a num

ber of com m ents such as that h e had “screwed up” and was a “bad-ass crim inal.” At no point did W ebber attem pt to tell Of

f icer W ebb that he b egan drinking only af ter t he crash. The trial judge f ound t hat the video was “ very com pelling as to [ W ebber’s]
im p airm ent.” The judge f

ound that W ebber was “very im paired” and that “what is seen in the v ideo is not c onsistent” with W ebber’s t estim ony that he consum e d only a sm all am ount of wine af

ter t he c rash. At 7 a.m ., W ebber subm i t t ed to an i ntoxily z er test, w hich showed a blood-alcohol concentration of .24%, i.e., three tim es the legal lim it. ¶21. On appeal, W e bber argues that the evidence w a s i nsuf f icient to sustain his conviction because, i n his v iew, “it was uncontroverted that [ he] did not consum e any alcohol prior to

o p erating his vehicle and was not intoxicated.” W hile that is W e bber’s story , i t i s n o t consistent with other evi d e n c e presented. The t rial judge f ound that the s m all am ount of wine that W ebber claim ed that h e consum ed in the f e w m inutes prior to h is encounter with Of f i c e r Webb did not explain W ebber’s obviously im paired state in the video of his arrest

or the results of his i ntoxily zer test, which showed a b lood-alcohol concentration three tim es the legal lim it at 7 a.m . At best, W ebber’s and Berry m an’s testim ony created a n issue of f act f or the trial judge to decide. B ut “viewing the evidence in th e l i g h t m ost f avorable to the prosecution,” a “rational trier of f act” c ertainly could have f ound W ebber guilty

“bey ond a reasonable doubt.” Bush v. S tate , 895 So. 2 d 836, 843 (¶16) ( Miss. 2005) (quoting Jackson v. Virginia , 443 U.S. 307, 315 ( 1979)). W ebber’s evidence was hardly of such “f orce that reasonable m en could not h ave f ound bey ond a reasonable doubt that [ W ebber] was guilty .”

9Id. (quoting Edwards v. State , 469 So. 2d 68, 70 (Miss. 1 985)). Accordingly , his conviction

should be af

f irm e d. Id. ¶22. W e bber prim arily con t e n d s t hat Hedrick v. State , 637 So. 2d 834 ( Miss. 1994), requires reversal, but the f acts of Hedrick are readily distinguishable. Hedrick w as arrested

two and a half hours a f

ter his car struck and killed a pedestrian. He t estif ied that although he did not drink any alcohol prior to the f atal accident, he downed a half p int of g in between the accident and his arrest. The statem ents of another witness also tended to corroborate that
H e drick drank the g in af ter the accident. Af

ter Hedrick was arrested, his intoxily zer test showed a blood-alcohol concentration of .13%. See id. at 835-36. The State presented no evidence at trial that Hedrick consum ed alcohol p rior to or was intoxicated at the tim e of the
f atal accident. See id. a t 838. The Suprem e Court concluded that [ t]he lack of testim ony or o ther evi dence contradicting [ Hedrick’s] assertion that he w as n ot intoxicated at t he tim e o f the accident, as well as the statem ents m ade by [ another w itness] which tended to corroborate [ Hedrick’s] testim o ny , lead to the conclusion that i n s u f f icient evidence was presented at t rial upon which t he jury c ould have f ound the e x is t ence of the t hreshold elem ent of intoxication at the tim e of the accident. Id. at 839. ¶23. Thus, t h e evidence was insuf f icient to convict Hedrick b ecause his post-accident

consum ption of half a pint of g in f ully explained his .13% blood-alcohol concentration, and there was no o t

her e v i d e n c e to c ontradict his version of e vents or to show that he was intoxicated at the time of the accident

. The sam e cannot b e s aid in this ca s e . W ebber’s testim o ny that he c onsum ed a sm all am ount o f w ine in t he f ew m inutes b ef

ore his encounter with O f f icer W e bb did not e xplain h is e v i d e n t im pairm ent in his a r

rest video or his .24%

1 0blood-alcohol concentration at 7 a.m . A t the very least, the video and test results perm it an

inf erence that W ebber was drinking bef ore the crash, was intoxicated at the tim e o f t he accident, a nd had a blood-alcohol concentration i n excess of the legal l im it. A “rational trier of f act” certainly could have f ound, as the trial j udge did, that W ebb e r m u s t have been intoxicated and over the legal lim it bef o re he consum ed a sm all am ount o f wine post-crash. Bush , 8 9 6 S o . 2d at 843 (¶16). 3 S tated dif f erently , the t rial judge was not com pelled, a s a

m atter of law, to acquit W e bber sim ply because W ebber sipped som e wine af t er the f act. ¶24. For essentially the sam e reasons, W ebber’s claim t hat his intoxily zer test results were inadm issible is without m erit. The intoxily zer test in Hedrick had lim ited probative value,
i f a n y , because the def

endant consum ed a half pint of gin in the t hree hours between th e accident and the test. Here, in contrast, W ebber h im self testif ied that he drank o nly a sm all

am ount of wine af

ter the crash, w hich did not explain h is blood-alcohol c o n c e n t r a tion of three t im e s the legal lim it. E v idence of post-accident a l cohol consum ption m ay be adm issible, see, e.g. , S

tate v. Bashaw , 531 N.W

. 2 d 203, 207 (Minn. Ct. App. 1995), as it was in this case, b u t W ebber c ites no authorit y suggesting t hat any post-accident alcohol

consum ption autom atically requires exclusion of the results of an intoxily zer test. Indeed, such a rule would encourage p ost-accident c onsum ption as a way to t hwart p rosecution. In this case, W ebber’s test results were properly adm i tted.

3 Web b er w as c o n v icted u n d er b o th su b sectio n ( a) (o r “co m m o n l aw D U I”) an d su b sectio n ( c) (o r “p er se D U I”) o f M ississip p i C o d e A n n o tated sectio n 6 3 -1 1 -3 0 (1 ) (R ev . 2 0 1 3 ). T h e trial j u d g e sp ecif ica l l y f o u n d t h at “ev e n if [ h e ] w ere to rej e ct a ll ev id en ce reg ard in g th e ch arg e o f [ a] su b s ectio n C v io latio n , . . . t h e S tate h a[ d ] m o re th a n p ro v en its case b e y o n d a r e a so n ab le d o u b t u n d er su b s ectio n A .” T h e circu i t co u rt also af f irm ed th e co n v ictio n u n d er b o th su b sectio n s. 1 1¶25. As the m ajority discusses, the City of Ridgeland repeatedly h as f ailed to f ile brief s in
DUI c ases in this Court and the Suprem e Court, including in response to a specif ic order in this case. Yet, in alm ost all prior cases, we have still af f irm ed the conviction because it could be af f irm ed with conf

idence despite the C i ty ’s f ailure. See, e.g. , Nolan v. State , 182 So. 3d 484, 488 (¶6) & n.1 (Miss. Ct. App. 2016); W oods v. State , 175 So. 3d 579, 580-81 (¶9) &
n.2 (Miss. Ct. A pp. 2015); Drabicki v. City o f Ridgeland , 130 So. 3d 113, 118 (¶19) (Miss.
Ct. A pp. 2013). W hen we have reversed, we did s o because we could n ot “conf idently af f irm the def endant’s conviction” on the m erits. Clack v. C ity of R idgeland , 139 So. 3 d 778, 782 (¶22) (Miss. Ct. App. 2014). I am not aware of a prior such c a se in which we have reversed

t h e conviction without r egard to the m erits, a s the m a j ority does now. Instead, we hav e

r easoned that the public interest in “[ e]nsuring that m otorists

. . . ref rain f rom operatin g

m otor vehicles while under the inf luence of alcohol

. . . w arrant[ s] o ur review, even in the absence o f the [ City ’s] brief .” Lobo v. City o

f Ridgeland , 135 So. 3d 148, 152 (¶12) (Miss.
Ct. App. 2013); cf. Y

oung v. United States , 315 U.S. 25 7 , 2 5 8-59 (1942) (“[ O]ur judicial obligations com

pel us to exam ine independently the errors conf essed” because “[ t]he public interest that a r esult be reached which prom otes a w ell-ordered society is f orem ost in every crim inal proceeding.”). ¶26. I do n ot believe that the Suprem e Court’s recent order i n Norman v. State , N o. 2014- KM-01789-SCT, gives any indication that we should change our approach to the m erits of such c ases. In Norman , Boty McDonald f inally appeared on b ehalf of the City (by order of the Suprem e Court and o n threat o f s a n ctions), h e conf essed p rejudicial error i n the trial

1 2court, and the City specif i cally requested that the def endant’s conviction be reversed. Here, in c ontrast, M c D o n ald ignored this Court’s order, and the City has again f ailed to f ile any brief

. That l ikely justif

ies sanctions against the City a n d/or M cDonald, but I do not believe that it i s a basis f

or setting aside a valid D UI conviction that i s s u p p o r t e d by suf f icient evidence. It is also arbitrary f or W ebber to receive a windf all—where a series of sim ilarly situated def

e ndants/appellants have not—sim ply because his a ppeal happens to be the one i n w h i ch the C ourt has f i nally h ad enough of the City ’s neglect of its obligations and disrespect f

or t h i s C o u rt. I would af f irm W e b ber’s convictions and address t he issue of possible sanctions separately . Accordingly , I respectf ully dissent. IRVING, P.J., BARNES AND CARLTON, JJ., J OIN THIS OPINION; FAIR, J., JOINS THIS OPINION IN PART.

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