IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2013-CP-01088-COA

IN THE MATTER OF THE REMOVAL OF

AZALEAN ROGERS A/K/A AZALEAN JONES

FROM THE BOARD OF ALDERMEN OF THE

CITY OF BOYLE, MISSISSIPPI: AZALEAN

ROGERS

APPELLANT

v.

STATE OF MISSISSIPPI, OFFICE OF THE

ATTORNEY GENERAL, HON. JIM HOOD

APPELLEE

DATE OF JUDGMENT: 05/31/2013

TRIAL JUDGE: HON. CHARLES E. WEBSTER

COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: AZALEAN ROGERS (PRO SE)

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: ALISON ELIZABETH O’NEAL 

 HAROLD EDWARD PIZZETTA III

NATURE OF THE CASE: CIVIL - OTHER

TRIAL COURT DISPOSITION: ROGERS ADJUDICATED A CONVICTED

FELON AND PROHIBITED FROM

RUNNING FOR OFFICE

DISPOSITION: AFFIRMED: 11/18/2014

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

CONSOLIDATED WITH

NO. 2013-CP-01184-COA

AZALEAN ROGERS A/K/A AZALEAN JONES APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 06/06/2013

TRIAL JUDGE: HON. JOHNNIE E. WALLS JR.
 The State argues that the refusal to remove Rogers from office was erroneous. It 1

requests that this Court reverse that aspect of the judgment on appeal, but that issue is not

before us because only Rogers has appealed; no cross-appeal was filed by the State.

Morever, the issue is moot because Rogers is no longer in office.

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COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: AZALEAN ROGERS (PRO SE)

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: ALISON ELIZABETH O’NEAL 

 HAROLD EDWARD PIZZETTA III

NATURE OF THE CASE: CIVIL - OTHER

TRIAL COURT DISPOSITION: DENIED MOTION FOR EXPUNGEMENT

DISPOSITION: AFFIRMED: 11/18/2014

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE IRVING, P.J., FAIR AND JAMES, JJ.

FAIR, J., FOR THE COURT:

¶1. The Attorney General filed a petition to remove Azalean Rogers from the Board of

Aldermen of the City of Boyle, Mississippi, alleging that she had pled guilty to two felony

counts of forgery in 1979. The trial court adjudicated Rogers to be a convicted felon, but it

denied the petition to remove her from office and instead entered an order finding that Rogers

was not a qualified elector and could not have her name placed on the ballot in future

elections. Rogers appeals, pro se, from that judgment. She also appeals the denial of her 1

own motion to expunge the convictions, which was a separate cause heard by a different

judge in the same circuit. We affirm both judgments because Rogers has not shown

reversible error in either case.

DISCUSSION

¶2. Mississippi Code Annotated section 25-5-1 (Rev. 2010) states:
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If any public officer, state, district, county or municipal, shall be convicted or

enter a plea of guilty or nolo contendere in any court of this state or any other

state or in any federal court of any felony other than manslaughter or any

violation of the United States Internal Revenue Code, of corruption in office

or peculation therein, or of gambling or dealing in futures with money coming

to his hands by virtue of his office, any court of this state, in addition to such

other punishment as may be prescribed, shall adjudge the defendant removed

from office; and the office of the defendant shall thereby become vacant. If

any such officer be found by inquest to be of unsound mind during the term for

which he was elected or appointed, or shall be removed from office by the

judgment of a court of competent jurisdiction or otherwise lawfully, his office

shall thereby be vacated; and in any such case the vacancy shall be filled as

provided by law.

When any such officer is found guilty of a crime which is a felony under the

laws of this state or which is punishable by imprisonment for one (1) year or

more, other than manslaughter or any violation of the United States Internal

Revenue Code, in a federal court or a court of competent jurisdiction of any

other state, the Attorney General of the State of Mississippi shall promptly

enter a motion for removal from office in the circuit court of Hinds County in

the case of a state officer, and in the circuit court of the county of residence in

the case of a district, county or municipal officer. The court, or the judge in

vacation, shall, upon notice and a proper hearing, issue an order removing such

person from office and the vacancy shall be filled as provided by law.

Similarly, Article 12, Section 241 of the Mississippi Constitution states:

Every inhabitant of this state, except idiots and insane persons, who is a citizen

of the United States of America, eighteen (18) years old and upward, who has

been a resident of this state for one (1) year, and for one (1) year in the county

in which he offers to vote, and for six (6) months in the election precinct or in

the incorporated city or town in which he offers to vote, and who is duly

registered as provided in this article, and who has never been convicted of

murder, rape, bribery, theft, arson, obtaining money or goods under false

pretense, perjury, forgery, embezzlement or bigamy, is declared to be a

qualified elector, except that he shall be qualified to vote for President and

Vice President of the United States if he meets the requirements established by

Congress therefor and is otherwise a qualified elector.

In order to have one’s name placed on the ballot, she must be a qualified elector, and she

cannot be a convicted felon. See Miss. Code Ann. § 23-15-299(7) (Supp. 2014).
 Its recitation of the judgment adds that the sentence in number 5582 shall be served 2

concurrently to the one in number 5581. Also, the docket sheet for number 5582 does not

indicate that a transcript was filed, and it has what appears to be a scrivener’s error – ditto

marks for the year of Rogers’s discharge, indicating 1979. Rogers, the probation officer, and

the other docket sheet all stated it was in 1981. 

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¶3. There was a factual dispute about whether Rogers is a convicted felon because the

files and minute book pages from both of her convictions are missing. The Bolivar County

Circuit Clerk cannot explain why.

¶4. Only the docket sheets remain. In relevant part the docket sheet for cause number

5581 states that on November 14, 1979, Azalean Jones (Rogers’s maiden name) was indicted

for forgery. It shows that six days later, she was arraigned and appointed an attorney. On

December 18 of the same year, a docket entry states (reproduced as it appears in the

handwritten original):

Judgment & sentence filed on plea of guilty sentenced to serve three (3) years

in an institution under the supervision & control of MS Dept of Corrections.

Sentence suspended for three (3) years & placed on probation, pay all court

costs, make full restitution to victim, pay $10 per month supervision fee to MS

Dept of Corrections, report to Probation Officer immediately upon release

from custody.

The docket notes that a transcript was filed on Jan 7, 1980. The final entries are for

December 22, 1981, when a petition for termination of probation and a discharge order were

entered. The docket sheet for cause number 5581 is substantially the same.2

¶5. Rogers does not deny that she pled guilty to two counts of forgery. According to her,

the charges stemmed from a family dispute that occurred when she was eighteen years of age.

The victim, her half-brother, no longer wished to pursue the charges after the dispute was

settled. Rogers claims there was an agreement or understanding, brokered by a prominent
 The probation officer testified in person at the hearing on Rogers’s motion to 3

expunge her convictions. His affidavit was considered by the trial court in the removal

action.

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local politician and attorney, that the charges would be “dismissed” if she completed three

years of probation. Rogers admits she pled guilty but denies she ever even appeared in court;

she claims to have manifested her agreement only by signing some papers. Rogers’s

probation officer testified in support of her claim that her charges had been ordered

“nonadjudicated,” “dismissed,” or “expunged” in 1981.3

¶6. But as the State points out, the statutory schemes for nonadjudication and

expungement did not exist in 1979 or 1981. See Miss. Code Ann. § 99-15-26 (Supp. 2014)

(enacted 1983); Miss. Code Ann. § 99-19-71 (Supp. 2014) (enacted 1986). The docket

sheets indicate that Rogers pled guilty and that a judgment was entered, which is inconsistent

with nonadjudication, and they do not indicate that any orders of dismissal or expungement

were entered. After the judgment and sentence, the only relevant docket entries are “Petition

for termination of probation” and “Discharge order filed.” In the petition to remove her from

office, the trial court found Rogers’s testimony and the probation officer’s affidavit, as well

as his testimony, to be “rank hearsay.” He concluded that Rogers’s convictions had never

been dismissed or expunged. The court in the expungement action reached a similar result

and found that there had been no dismissals, nonadjudications, or expungements. That court

also concluded that Rogers was not currently eligible for expungement because it is limited

to certain felony offenses. Forgery (when committed by one over the age of seventeen) is

not one of them. See Miss. Code Ann. § 99-19-71(2)(a)-(b). Rogers was also not eligible
 A mittimus is “a court order or warrant directing a jailer to detain a person until 4

ordered otherwise” or “a certified transcript of a prisoner’s conviction or sentencing

proceedings.” Black’s Law Dictionary 1093 (9th ed. 2009).

 It was suggested that the MDOC records may have been destroyed because of their 5

age.

6

for expungement under the nonadjudication statute because retroactivity is limited to those

who had pled guilty within six months of its effective date in 1983. See Miss. Code Ann. §

99-15-57.

¶7. Rogers’s two cases have been consolidated on appeal. Rogers appears pro se and her

arguments are somewhat difficult to discern. We are mindful that pro se litigatants should

not have meritorious arguments rejected because of inartful drafting, but they must still “be

held to the same rules of procedure and substantive law as represented parties.” Dethlefs v.

Beau Maison Dev. Corp., 511 So. 2d 112, 118 (Miss. 1987).

1. Proof of Convictions / Mittimus

¶8. Rogers’s first issues focus on the proof of her prior convictions. At various times

during the litigation in these two cases, Rogers had admitted she had been convicted of the

two forgery counts (with the caveat that the convictions had been somehow “dismissed” or

expunged). But during the proceedings in the removal action, it was conceded by the

Attorney General that there was no mittimus in Rogers’s “pen pack” maintained by the 4

Mississippi Department of Corrections. Rogers argues on appeal that her admission that she 5

was convicted could not be accepted as proof of her convictions without corroboration from

the mittimus, though we understand her argument to refer to documentary corroboration in

general. As we noted above, the files and minute book entries from Rogers’s original
7

criminal cases are missing and no copies of her judgments of conviction could be found.

¶9. Rogers bases her argument on the rule that assertions of counsel are not evidence.

See, e.g., Hawkins v. State, 90 So. 3d 116, 121 (¶15) (Miss. Ct. App. 2012). Her statement

of the rule is correct, but it is usually cited regarding assertions of opposing counsel. There

are many ways for one’s attorney, or one acting as her own attorney, to concede facts at

various stages in litigation. Moreover, Rogers made the same admissions in her testimony

at the hearing in the removal action, in her capacity as a witness, and in that instance they

were not statements of counsel at all.

¶10. We are aware of no authority holding that admissions of a party in her testimony must

be corroborated by documentary evidence. Certainly, certified copies of judgments are the

best evidence of a prior conviction, but when those are unavailable, convictions may be

proven by other evidence. See, e.g., Smith v. State, 729 So. 2d 1191, 1222 (¶153) (Miss.

1998) (“The best evidence of a previous conviction is the judg[]ment of conviction.

However, substitutes for the judgment of conviction have been allowed.”) (citations omitted).

In fact, it is common for a defendant to stipulate to his prior convictions in some criminal

prosecutions, where the State bears a higher burden and the defendant is afforded more

safeguards than in civil actions like those before us today. See, e.g., Old Chief v. United

States, 519 U.S. 172, 175-78 (1997). 

¶11. After reviewing the record, we conclude that it supports the trial court findings that

Rogers is a convicted felon.

2. Sufficiency of the Guilty Plea

¶12. Rogers next contends that her guilty plea was unlawful because she allegedly did not
 Rogers has also not met the threshold showing that she had a right to effective 6

assistance of counsel in the first place. The Sixth Amendment to the United States

Constitution secures the right to assistance of counsel “[i]n all criminal prosecutions.” It

generally does not apply to civil cases, though there are a few exceptions. See, e.g.,

MacCuish v. United States, 844 F.2d 733, 735 (10th Cir. 1988).

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personally appear before a court when she pled guilty in 1979. However, this claim was not

raised by Rogers in either case before the circuit court, and so it is procedurally barred on

appeal. Tate v. State, 912 So. 2d 919, 928 (¶27) (Miss. 2005). Moreover, it appears that

relief could be awarded, if at all, only under the Mississippi Post-Conviction Collateral Relief

Act. See Miss. Code Ann. § 99-39-3 (Rev. 2007). This issue is procedurally barred.

3. Ineffective Assistance of Counsel

¶13. In her remaining issue, Rogers contends she received constitutionally ineffective

assistance of counsel because her attorney allegedly failed to uncover her right to postconviction relief based on her arguments regarding the sufficiency of her 1979 guilty pleas.

Rogers faults her attorney for, instead, seeking expungement.

¶14. There are numerous problems with this claim, but the most obvious defect is that 6

Rogers filed the expungement action herself, pro se. The attorney appeared and filed an

amended motion, but after the first hearing, Rogers fired her and again represented herself.

A party “who represents [her]self cannot claim ineffective assistance of counsel.” McClenty

v. State, 102 So. 3d 1238, 1240-41 (¶11) (Miss. Ct. App. 2012). Moreover, Rogers could

have presented the claim of ineffective assistance of counsel to the trial court, and her failure

to do so procedurally bars the issue on appeal. See Tate, 912 So. 2d at 928 (¶27).

¶15. THE JUDGMENTS OF THE CIRCUIT COURT OF BOLIVAR COUNTY ARE

AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
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APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON AND

MAXWELL, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT

SEPARATE WRITTEN OPINION. BARNES, J., NOT PARTICIPATING.