             IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED.'
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
 BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
 BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
 DECISION IN THE FILED DOCUMENT AND A COPY OF THE
 ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
 DOCUMENT TO THE COURT AND ALL PARTIES TO THE
 ACTION.
                                                    RENDERED: APRIL 2, 2015
                                                      NOT TO BE PUBLISHED

              $uprritir (Court of                    riffIR
                             2014-SC-000273-WC
                                                              uk_
TERRY ASHLEY
                                                     DAT Ell-2         "   5"

                                                                      APPELLANT

                   ON APPEAL FROM COURT OF APPEALS
V.                    CASE NO. 2013-CA-001768-WC
                  WORKERS' COMPENSATION NO. 06-00294

MICHAEL MERCER; OVA CARMEN;
UNINSURED EMPLOYERS' FUND;
HONORABLE MARCEL SMITH,
ADMINISTRATIVE LAW JUDGE;
HONORABLE OTTO D. WOLFF, IV,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD                                           APPELLEES

                  MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING

      Appellant, Terry Ashley, has filed this appeal to contest several parts of a

workers' compensation award entered in favor of Appellee, Michael Mercer.

Ashley argues: 1) that the Administrative Law Judge ("AI X) erred by finding

that Mercer was his employee; 2) that Mercer was instead an independent

contractor or an employee of Appellee, Ova Carmen, who was the owner of the

house under construction where Mercer was injured; 3) that the Workers'

Compensation Board ("Board") misinterpreted the effect of a settlement

between Mercer and the Uninsured Employers' Fund ("UEF"); and 4) that the
ALJ erred by refusing to order vocational rehabilitation benefits for Mercer. For

the below stated reasons, we affirm the Court of Appeals.

         After being laid off from a factory, Ashley entered the home construction

business. In Spring 2005, Ashley was hired by Carmen to oversee the

construction of a house. Mercer was hired to help build the house. Prior to

Carmen's house project, Mercer assisted Ashley with the construction of seven

or eight houses. Mercer testified that he first performed construction work for

Ashley in September 2004, and worked with him until the work-related injury

occurred. Mercer only has a ninth grade education and has no specialized

vocational training, except for the carpentry skills he learned while building

various structures.

         At the Carmen jobsite, Ashley instructed Mercer what tasks to perforni

and arranged Mercer's hourly wage. Carmen testified that he never met Mercer

before construction began, and that he did not hire Mercer as an employee or

independent contractor. Carmen stated that he did not supervise Mercer, did

not provide any tools to Mercer, and did not believe he had the authority to

direct, hire, or fire Mercer. However, Carmen directly paid Mercer for his work,

purportedly at Ashley's request.'

          Construction of Carmen's house progressed smoothly until Mercer

suffered a severe fall at the work site on November 7, 2005. The fall caused

 1   While he was working in home construction, Ashley received unemployment benefits.
      Ashley admitted through his testimony that any money which he was owed by
      Carmen was given to his wife to conceal the fact he was working from the
      unemployment compensation system.

                                             2
injuries to Mercer's left leg and arm, lower back, chest, abdomen, and right foot

and ankle. The injuries required surgical repair. Ashley allegedly promised to

pay Mercer's medical bills, but did not maintain workers' compensation

insurance. Carmen also did not have workers' compensation insurance.

Mercer filed a Form 101 alleging work-related injuries.

      Mercer's claim was assigned to ALJ Marcel Smith. The claim was

bifurcated to first determine whether an employer-employee relationship

existed between Ashley, Carmen, and Mercer. In an opinion, award, and order

entered on October 17, 2007, she found that Mercer was Ashley's employee at

the time of the accident, that Mercer was not an employee or independent

contractor of Carmen, and that Mercer was entitled to temporary total

disability benefits. Specifically, ALJ Smith stated:

      [t]he first issue for consideration is whether or not there was
      employee-employer relationship between [Mercer] and either Terry
      Ashley or Ova Carmen. The test set out in Ratliff v. Redmon, 396
      S.W.2d 320, 325-326 (Ky. 1965) and specifically the four tests from
      Uninsured Employers' Fund v. Garland, 805 S.W.2d 116, 118 119  -

      (Ky. 1991) will be applied. First looking at the four tests that
      appear in both cases, and applying the facts herein:
      1. The nature of the work as related to the business generally
      carried on by the alleged employer, indicates to me that [Mercer]
      was an employee of Terry Ashley but not an employee of Ova
      Carmen. [Mercer] did carpentry and construction work for Terry
      Ashley in the process of building homes. Mr. Ashley was in the
      business of building homes. Mr. Carmen was not in the business
      of building homes.
      2. The next test is the extent of control exercised by the alleged
      employer. Terry Ashley made bids on all jobs, made all the
      contacts and contracts with home owners, made all the decisions
      regarding what houses to build, did all the pricing, made all the
      deals and then directed [Mercer] and the other workers with regard
      to which project to work on, what days to work, and what to do.
      He directed [Mercer] what work needed to be accomplished with
      regard to building homes for. Mr. Ashley. I'm not persuaded by any

                                          3
     evidence that Mr. Carmen exerted any control over [Mercer]. I'm
     persuaded by his testimony that he did not consider himself
     authorized to direct [Mercer] or any of the other workers.
     3. One next considers the professional skills of the alleged
     employee. [Mercer] has a ninth grade education with no GED. He
     has learned carpentry work on the job. He has no professional or
     formal training; he has no license or certificate to be a carpenter;
     he is not an engineer; he is not a certified home builder.
     4. The intent of the parties is the next consideration. [Mercer] has
     testified that he considered himself an employee of Terry Ashley.
     Although Terry Ashley denied that [Mercer] was his employee, he
     did state that [Mercer] came to work for him in September 2004. I
     am not persuaded by Terry Ashley's testimony that [Mercer] was
     not his employee. I am persuaded by Ova Carmen's testimony that
     [Mercer] was not his employee. Ratliff v. Redmon has three other
     tests.
     5. The fact that the alleged employer provides tools and a place to
     work indicates an employer/ employee relationship. The place to
     work was provided by Mr. Ashley who bid out the jobs and sent
     [Mercer] to work on those jobs. Although [Mercer] provided his
     own belt and hammer, Terry Ashley provided all the other tools
     including saws, drills, ladders, cords, air guns, air compressors,
     scaffolding, and ladders. Terry Ashley had originally gotten a bid
     for the materials, then Mr. Carmen received a bid which was lower.
     Mr. Carmen paid the bill for the materials and the materials were
     delivered.
     6. The next test that appears only in Ratliff v. Redmon is the lack
     of a fixed termination date for employment. There was no fixed
     termination date according to the testimony.
      7. The next test would be payment by the hour. [Mercer] was paid
     by the hour for this work. Although it was paid directly by Mr.
      Carmen, the evidence persuades me that this arrangement was at
      the request of Terry Ashley.
      Considering all of these factors and applying the evidence to them,
      I am persuaded that [Mercer] was an employee of Terry Ashley at
      the time of [Mercer's] injury. I am persuaded that [Mercer] was not
      an employee of Ova Carmen at the time of this injury.

     Carmen was dismissed as a party and the UEF was directed to pay

medical benefits. The claim was placed in abeyance until Mercer reached

maximum medical improvement. Ashley filed a petition for reconsideration,

which was denied, and he appealed to the Board. The Board dismissed the

                                       4
appeal because ALJ's Smith's opinion, order, and award was not final and

appealable.

      Mercer entered into a settlement with the UEF. As part of the

settlement, Mercer agreed to accept from the UEF $255.04 per week for 425

weeks beginning on July 21, 2009. This amount represented a 17.5% whole

body impairment. Ashley was not a party to the settlement other than as a

signatory to a statement that he retained the right to appeal. He appealed from

the settlement and ALJ Smith's prior orders. However, the Board again

dismissed the appeal finding that the prior orders were interlocutory. The

Board remanded the matter to ALJ Otto Wolff to determine whether he would

adopt ALJ Smith's findings regarding the employer-employee relationship

between Ashley and Mercer.

      After a hearing, AU Wolff rendered an opinion adopting ALJ Smith's

evidentiary findings and conclusions of law. He found that Mercer was

Ashley's employee, that Carmen was properly dismissed as a party, that Mercer

suffered a work-related injury, that Mercer had a 17% impairment rating, and

that Mercer was entitled to permanent total disability benefits at the rate of

$463.23 per week. Mercer's request for vocational rehabilitation benefits was

denied because ALJ Wolff found he was permanently totally occupationally

disabled. Petitions for reconsideration were filed by Ashley, Mercer, and the

UEF resulting in an order stating that Ashley would take credit for all

payments the UEF has made, and continues to make, pursuant to its
settlement with Mercer. The Board and Court of Appeals affirmed, and this

appeal followed.

      The ALJ, as fact finder, has "the sole discretion to determine the quality,

character, and substance of evidence and to draw reasonable inferences from

the evidence." Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000). A finding

that favors the party who had the burden of proof must be affirmed if

supported by substantial evidence. Special Fund v. Francis, 708 S.W.2d 641

643 (Ky. 1986). In other words, the finding must be reasonable under the

evidence presented. Id. When the burden of proof is not satisfied by a party, it

must show that the unfavorable finding was clearly erroneous, and that

overwhelming favorable evidence compelled a different result, before that
                                                        ,

finding may be reversed. Id.

      In reviewing Ashley's arguments, the Court of Appeals only needed to

correct the Board "if it overlooked or misconstrued controlling statutes or

precedent, or committed an error in assessing the evidence so flagrant as to

cause gross injustice. The function of review in our Court is to address new or

novel questions of statutory construction, or to reconsider precedent when

such appears necessary, or to review a question of constitutional magnitude."

Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-688 (Ky. 1992).

       I. THE FINDING THAT MERCER WAS ASHLEY'S EMPLOYEE IS
                 SUPPORTED BY SUBSTANTIAL EVIDENCE

      Ashley's first argument is that Mercer was not his employee because

there was no contract for hire. He analogizes this matter to Smith Concrete,

                                         6
Inc. v. Mountain Enterprises, Inc., 833 S.W.2d 808, 812 (Ky. 1992), which held

that before an employer-employee relationship can be found, there must be a

contract of hire, express or implied. Ashley argues that if there was a contract

of hire it was between Carmen and Mercer. He notes that Mercer was paid

directly by Carmen and alleges that Carmen controlled Mercer's work at the

project to argue a contract for hire existed not between himself and Mercer, but

between Carmen and Mercer. We disagree.

      Ratliff 396 S.W.2d at 324-325, provides nine factors to apply when

determining whether a worker is an employee:

      (a) the extent of control which, by the agreement, the master may
      exercise over the details of the work;

      (b) whether or not the one employed is engaged in a distinct
      occupation or business;

      (c) the kind of occupation, with reference to whether, in the
      locality, the work is usually done under the direction of the
      employer or 'by a specialist without supervision;

      (d) the skill required in the particular occupation;

      (e) whether the employer or the workman supplies the
      instrumentalities, tools, and the place of work for the person doing
      the work;

       (f) the length of time for which the person is employed;

       (g) the method of payment, whether by the time or by the job;

       (h) whether or not the work is a part of the regular business of the
       employer; and

       (i) whether or not the parties believe they are creating the
       relationship of master and servant.

                                          7
Of these factors, Chambers v. Wooten's IGA Foodliner, 436 S.W.2d 265 (Ky.

1969) stated that, "[w]hile many tests are appropriately considered, we think

the predominant ones encompass the nature of the work as related to the

business generally carried on by the alleged employer, the extent of control

exercised by the alleged employer, the professional skill of the alleged

employee, and the true intentions of the parties."

      ALJ Smith found that Ashley hired Mercer to help build Carmen's house.

She found that Ashley told Mercer how to perform his job, what jobs he needed

to complete, and provided the majority of tools Mercer used. Ashley also

negotiated with Carmen for Mercer's hourly wage. These facts indicate that

Ashley was Mercer's employer. While it is true that Mercer was paid directly by

Carmen, this was done at Ashley's request. Further, there is no evidence that

Carmen intended to hire Mercer or directed his work in any manner. While

there is not a written "contract of hire" between Ashley and Mercer, such a

contract may be "express or implied." Ratliff, 396 S.W.2d at 324. There is

sufficient evidence to support ALJ Smith's conclusion that an implied contract

of hire existed between Mercer and Ashley, and ALJ Wolff did not abuse his

discretion in adopting her findings.

       Despite Ashley's argument to the contrary, the facts in this matter are

distinguishable from those found in Smith Concrete, Inc., 833 S.W.2d at 812.

In that case, the claimant was assigned to work for Mountain Enterprises by

his usual employer, Smith Concrete, via a leasing scheme. The Court noted in
finding that Mountain Enterprises was the claimant's employer: "[t]he contract

on which the work was being done was held by Mountain Enterprises; the

actual work being done was that which Mountain Enterprises had contracted

to do; the general superintendent of Mountain Enterprises was on the job and

had control over the entire project; [claimant] had signed employment

documents for Mountain Enterprises; and [claimant] was being paid by

Mountain Enterprises." Id.

      While Mercer was paid directly by Carmen like the claimant in Smith

Concrete was paid by Mountain Enterprises, outside of that one similarity, the

facts between the two matters differ. Carmen did not serve as superintendent

of the construction job or direct Mercer to perform certain jobs. Those tasks

were performed by Ashley and Mercer was helping Ashley at his direction.

Carmen did not take a role in the construction of his house like Mountain

Enterprises did in the construction of its project. ALJ Wolff's findings are

supported by substantial evidence, and the finding that Mercer was Ashley's

employee may not be reversed on appeal.

      Ashley alternatively argues that Mercer was an independent contractor of

Carmen. However, ALJ Wolff found that Carmen did not hire Mercer or have

control over him at the job site. The vast amount of evidence supports the

conclusion that Carmen hired Ashley to oversee the construction of the house

and that Ashley subsequently hired Mercer to assist. Ashley then directed

Mercer to complete certain tasks and provided the tools to complete those

                                         9
tasks. The record does not support Ashley's allegation that Mercer was an

independent contractor of Carmen. See Ratliff; 396 S.W.2d at 325-326.

II. THE WORKERS' COMPENSATION BOARD DID NOT MISINTERPRET THE
     EFFECT OF THE SETTLEMENT BETWEEN MERCER AND THE UEF

      Ashley next argues that the Board misinterpreted the effect of a

settlement entered into between Mercer and the UEF by not giving him the

benefit of the agreement made between the parties. Ashley contends that he

was a party to the settlement agreement because the UEF took on the liability

to pay Mercer's benefits since he did not maintain workers' compensation

insurance. Therefore, Ashley argues if he is Mercer's employer and he is liable

to the UEF for the payments made to Mercer, his liability should be limited to

the weekly settlement amount. We disagree.

      Ashley was not a party to the settlement agreement even though the UEF

has taken on the liability to pay Mercer's benefits. In fact, the settlement

specifically states that Ashley was not a party to the agreement. Ashley's only

participation in the settlement was to indicate he retained the right to appeal.

Thus, we conclude that the settlement was not misinterpreted to Ashley's

detriment.

III. THE AIAJ WAS WITHIN HIS DISCRETION TO NOT ORDER VOCATIONAL
                     REHABILITATION BENEFITS

      Ashley's last argument is that the ALJ erred by refusing to refer Mercer

for vocational rehabilitation benefits. ALj Wolff did not order vocational

rehabilitation benefits because he found Mercer to be permanently and totally

                                         10
occupationally disabled. Ashley contends that this was an abuse of discretion

because ALJ Wolff did not inquire whether vocational rehabilitation benefits

were voluntarily offered. However, KRS 342.710(3) provides an ALJ discretion

to refer a claimant for vocational rehabilitation. ALJ Wolff, finding that Mercer

was permanently and totally disabled, did not believe that ordering Mercer to

receive rehabilitation assessment was necessary. He was within his discretion

to so order.

      For the above stated reasons, the decision of the Court of Appeals is

affirmed.

      All sitting. All concur.

COUNSEL FOR APPELLANT,
TERRY ASHLEY:

Norman E. Harned
Ashley Dawn Gerughty

COUNSEL FOR APPELLEE,
MICHAEL MERCER:

Elizabeth Anne Schott
Jessica Jarboe Logsdon
Jessica Meyer Marcum

COUNSEL FOR APPELLEE,
OVA CARMEN:

Calvin Ray Fulkerson

COUNSEL FOR APPELLEE,
UNINSURED EMPLOYERS' FUND:

James Robert Carpenter
Jack Conway, Attorney General

                                         11


891 So.2d 1260 (2005)
STATE of Louisiana
v.
Deonta GRAY and Jonta Gray.
No. 2004-KK-1197.
Supreme Court of Louisiana.
January 19, 2005.
*1261 Charles C. Foti, Jr., Attorney General, Eddie J. Jordan, Jr., District Attorney, Battle Bell, IV, Assistant District Attorney, for applicant.
Jeffrey Louis Smith, New Orleans, Dwight Michael Doskey, for respondent.
VICTORY, J.
We granted this writ application to determine whether the trial court erred in denying defendant's motion to suppress a statement made to a clergyman under Louisiana's clergyman privilege. After reviewing the record and the applicable law, we reverse the judgement of the court of appeal and hold that the trial court correctly ruled that the statement was not privileged under the clergyman privilege.

FACTS AND PROCEDURAL HISTORY
Deonta and Jonta Gray are cousins charged by Bill of Information with the attempted second-degree murder of Kayon Brumfield, a taxi cab driver, in violation of La. R.S. 14:27, 14:30.1. Before they were arrested and charged, Keyanta Gray, who is Deonta's aunt and Jonta's mother,[1] arranged for them to meet with her minister, Reverend Jeffrey Woolridge, at a motel room at the Colonial Inn in Amite, Louisiana. Reverend Woolridge was the director of the Men's Discipleship Program at the All Nations Ministry in Amite. Keyanta asked Woolridge to meet with Deonta and Jonta "to talk to her boys about a matter and lead them to Christ." At the meeting, in which both Keyanta and Jonta were present, Keyanta told the cousins to tell "Brother Jeff" what happened and Deonta related to him that "they were getting high, called a cab driver to rob him, he came, he reached for a gun, and he shot him." Woolridge requested no details and none were provided. Instead, he spoke to them "about the life that they were living and the game and the lifestyle that they were living, what it had finally brought them to and to get them to recognize that this way of life, this is what the outcome was."
*1262 After being told of the shooting, Woolridge, in the presence of Deonta and Jonta, and Keyanta, called his superior at the church, Pastor Eldolinus Sniff, for advice on what to do in response to hearing this information. Pastor Sniff then spoke to Keyanta, who became very emotional upon hearing what he had to say, and then instructed Woolridge to notify the authorities after leaving the Grays. Neither Deonta nor Jonta spoke to Woolridge's superior. Before leaving, Woolridge prayed with the Grays and he later testified that Deonta seemed to be seriously interested in changing his life. Several days after calling the police as instructed, Woolridge was contacted by a New Orleans Police Department detective to whom he voluntarily gave a statement, relating what Deonta had told him.
Deonta filed a motion to suppress the statement, arguing that his statements to Woolridge were privileged under La.Code Evid. art. 511. At the motion to suppress, Woolridge testified he had been a full-time minister for one and one-half years, that he took care of day-to-day matters at the church, set the agenda for each day and taught classes in the morning and at night. He testified that he became a minister through bible training and answering the call of God. He had never met Deonta or Jonta before this meeting, but Keyanta was a member of his church involved in women's programs. When he was called by Keyanta, he had no idea what the conversation would entail and he did not recall any mention of confidentiality. He testified that although he had counseled people numerous times, he had never been told something of this magnitude, and he conceded that he did not know what to do in this situation. He further testified that during the phone conversation, Pastor Sniff told him that he had told Keyanta to turn the boys in and that after the phone conversation, he also advised Keyanta to turn the boys in because she wanted them to be saved. However, he did not tell any of them that he intended to call the police. Finally, he testified that he was in the motel room about thirty minutes and that during that time no one else entered or called the room. He testified that he had gone to the hotel as a spiritual advisor and conceded that Keyanta never gave him any indication that she intended to leave the motel room and turn over the defendants.
After the hearing, the trial judge granted the defendant's motion to suppress Woolridge's statement to police, finding that, although there were two other persons present when Deonta confessed to Woolridge, the court was "not convinced that the presence of either the mother or the brother in any way diminished the sanctity or the applicability of the privilege within the facts of this particular case." The court of appeal reversed the trial court and remanded the case. State v. Gray, 03-0779 (La.App. 4 Cir. 6/5/03).
On remand, Deonta testified at the reopened hearing on the motion to suppress and stated that he went with his Aunt Keyanta and Jonta "to speak with a priest and for spiritual guidance." He testified that he had never spoken to a priest or minister before that day, that he did not attend that, or any other, church, and that he did not personally know Woolridge. He testified that he had never heard of the clergyman privilege, but that he did not expect the minister to tell the police and thought his conversation would be kept confidential. He admitted that Woolridge made a phone call from the motel room, but claimed that he did not know who was on the other end of the phone, that he did not listen to the conversation, and that he did not inquire as to whom the minister was calling. When asked if he asked the minister if he was going to speak to someone else about what was said there, Deonta answered: "No, sir. I though I shouldn't have to."
*1263 After considering Deonta's testimony, the trial court denied the motion to suppress, ruling as follows:
The Court heard the testimony that there were two other people present in the room during the time these activities were taking place; that at least one phone call was made to an unidentified person dealing with an unspecified matter. The witness testified that he was not aware of the nature of the conversation that was going on. The Court did not hear any testimony as to the defendant's familiarity with this particular minister. His testimony was he didn't attend church; there was no previous contact with clergy on matters of confidence. And the Court heard no testimony that would re-enforce the notion that the defendant had any expectations of privacy or, if you will, privilege, when he approached this particular minister.
The defendants then sought supervisory writs. The court of appeal denied the application finding that the trial court did not abuse its vast discretion. State v. Gray, 03-1240 (La.App. 4 Cir. 8/14/03), unpub. On review, this Court remanded the matter to the court of appeal for briefing, argument, and opinion. State v. Gray, 03-2604 (La.1/9/04), 864 So.2d 128. On remand, the Fourth Circuit reversed the trial court's judgment, finding that the trial court's original suppression of the statement was not manifestly erroneous, and that, in the absence of a finding by the trial court after the second hearing that it did not find Deonta credible in his testimony that he intended the statement to be confidential, or that he did not make the statement for spiritual or penitential considerations, the court of appeal found that it was required to uphold the plain, precise language contained in art. 511 and suppressed the statement. State v. Gray, 03-1240 (La.App. 4 Cir. 4/28/04), 874 So.2d 893. We granted the State's writ application. State v. Gray, 04-1197 (La.10/1/04), 883 So.2d 1003.

DISCUSSION
For only the third time in 80 years,[2] this Court has the opportunity to discuss Louisiana's clergyman privilege, presently incorporated in La. C.E. art. 511 but dating back in the criminal law to 1928 La. Acts 2, § 1, art. 477.[3] La. C.E. art. 511 provides as follows:

*1264 Art. 511. Communications to clergymen
A. Definitions. As used in this Article:
(1) A "clergyman" is a minister, priest, rabbi, Christian Science practitioner or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.
(2) A communication is "confidential" if it is made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.
B. General rule of privilege. A person has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual adviser.
C. Who may claim the privilege. The privilege may be claimed by the person or by his legal representative. The clergyman is presumed to have authority to claim the privilege on behalf of the person or deceased person.
Thus, there are three legal prerequisites to finding that the clergyman privilege applies. First, it must be determined that the person to whom the communication was received is a "clergyman." Second, it must be determined that the purpose of the communication was to seek spiritual advice or consolation. See State v. Berry, supra; State v. Tart, supra. Third, it must be determined that the communication was made privately and was not intended for further disclosure except to other persons present in furtherance of the purpose of the communication. However, even if those explicit requirements of the article are met, it must also be determined whether or not the communicant waived the application of the privilege. See La. C.E. art. 502(A) ("A person upon whom the law confers a privilege against disclosure waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter.")
Whether the prerequisites to the recognition of the privilege are present is a determination to be made by the trial judge under La. C.E. art. 104(A).[4] In making this determination, the trial court considers whether the totality of the circumstances presented indicate that the statements made by the defendant are within the communications protected by the privilege. See State v. Tart, 93-0772 (La.2/9/96), 672 So.2d 116; State v. Berry, 324 So.2d 822 (La.1975), cert. denied, 425 U.S. 954, 96 S.Ct. 1731, 48 L.Ed.2d 198 (1976). A trial court's ruling on a motion to suppress is subject to an abuse of discretion standard. See State v. Hobley, 98-2460 (La.12/15/99), 752 So.2d 771, 790.
The testimony was uncontroverted that Reverend Woolridge was a full-time minister, licensed by his church, and working at the church of All Nations Ministry in Amite. Based on the evidence in the record, *1265 undoubtedly Reverend Woolridge was a "clergyman" within the meaning of the statute.
The second issue is whether the purpose of Deonta's visit to Reverend Woolridge was to seek spiritual advice or consolation. Unlike the factual situations presented in Berry and Tart, in this case the testimony was uncontroverted that Deonta visited Reverend Woolridge at his aunt's suggestion or insistence and that the purpose of his visit was "[t]o speak with a priest and for spiritual guidance." Further, once there, Reverend Woolridge prayed with him and Woolridge testified that Deonta appeared genuinely interested in changing his life. Woolridge further testified that he was there as a spiritual advisor and to "lead them to Christ." While Deonta testified that he did not know Woolridge prior to this visit, that he did not attend church, and that he was unaware of any sort of proceeding like confession in the Catholic Church, these factors do not necessarily preclude the privilege from attaching, but are only factors in considering the totality of the circumstances. As the court of appeal found, "the communicant may be a first time communicant if he or she reasonably believes, based upon the communicant's knowledge, that the communication will be held confidential and is motivated by penitential considerations." 874 So.2d at 904. While the trial court noted in denying the motion to suppress that the defendant was unfamiliar with the minister, and that he did not attend church and that he was a first time penitent, these factual considerations do not appear to have been directed at a finding that defendant did not speak to the minister for spiritual purposes, but rather toward a general finding that the privilege did not apply based upon the totality of the circumstances. Thus, the evidence supports Deonta's claim that the purpose of his visit was spiritual.
The next issue is whether the communication was made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication. There is no doubt that this communication was not made privately as two other persons were present, Jonta and Keyanta. However, as Deonta's aunt and a person with a spiritual connection to the minister, we find that Keyanta's presence was "in furtherance of the purpose of the communication." On the other hand, it is unclear why Jonta was there. He did not say a word and did not seek spiritual guidance. Furthermore, the fact that he was an alleged participant in the act confessed by Deonta does not cause this communication to be considered private. Jonta's presence was not in furtherance of the purpose of Deonta's communication.
The last issues, which are somewhat interrelated, are whether Deonta intended the communication to be confidential and/or whether he waived the privilege. "One indicia of the absence of intent to make a confidential communication is ... where the contents of the communication are shown to have been intended to be transmitted to a third party." Wright and Miller, Federal Practice and Procedure, § 561 (1992); La. C.E. art. 502(A) (the privilege is waived if the penitent voluntarily discloses or consents to disclosure of any significant part of the privileged matter); see also Perry v. State, 280 Ark. 36, 655, 655 S.W.2d 380 So. W.2d 380, 381 (1983) ("We agree with the trial court that Perry told about everyone he could about killing his wife and, therefore, waived any privilege he might claim [with respect to statements made to his minister]."); State v. Andrews, 187 Kan. 458, 357 P.2d 739, 744 (1960) ("Where the one making the privileged conversation tells the facts to other third parties, the privilege is waived and the minister, physician or lawyer may *1266 be allowed to testify as to the communication made to him."). In this case, there are at least two instances which indicate that either Deonta waived the privilege or did not have any expectation of privacy in his statement to Woolridge.
First, when Reverend Woolridge got on his cellular telephone to Pastor Sniff for advice on what he should do about the information imparted by Deonta, Deonta effectively waived any expectation in the confidentiality of Deonta's disclosure by remaining silent during the call and thereby consenting to disclosure of the information. Although Deonta testified at the reopened hearing that he did not know who was on the other end of the phone and did not know what was discussed because he "wasn't listening to them on the phone," Woolridge clearly told Pastor Sniff on the phone in Deonta's presence that Deonta had told him that he and Jonta had committed this crime. In addition, after Keyanta got on the phone with the pastor for a brief conversation of her own, she became emotional in front of all of them, because, according to Woolridge, she had received advice from Pastor Sniff to surrender the defendants to the police. Finally, after ending the call to the Pastor, Woolridge testified that he "instructed [Keyanta] on what [Sniff] had told me to do that she was to do, to turn them in, you know, tell her she should turn them in." That Deonta remained oblivious to the content of all these conversations and all these events is incredible. That fact that all this occurred in his presence clearly establishes that he either waived the privilege or had no expectation of privacy in the first place.
Secondly, the State argues that the privilege was waived because either Deonta or Jonta told Keyanta that they had shot the cab driver, thereby leading Keyanta to take them to see Reverend Woolridge. We agree that it is reasonable to conclude from Reverend Woolridge's testimony at the hearing that the cousins had previously informed Jonta's mother about the incidents, as she instructed the boys to "tell Brother Jeff what happened" once Woolridge arrived at the motel room.[5]
Accordingly, the State argues that by disclosing information about the attempted robbery/murder to third parties, and then by implicitly consenting to disclosure of the same information by Woolridge to his superior at his church, Deonta waived any privilege that he may otherwise have enjoyed. Thus, whatever the technical distinctions between the existence or applicability of the privilege and waiver of that *1267 privilege, the state contends that the end result remains the same; the cousins do not have the benefit of the privilege and may not invoke it at trial to preclude admission of Deonta's statements to Woolridge.
Although the trial court on original hearing granted the motion to suppress, finding that the presence of Jonta and Keyanta did not "diminish[ ] the sanctity or the applicability of the privilege within the facts of this particular case," the trial court found otherwise after the second hearing at which Deonta testified as to his intent in speaking with Woolridge. In that ruling, which is the ruling now under review, the trial court denied the motion to suppress, apparently relying in part on the fact that two other people were present in the room, at least one phone call was made to an unidentified person revealing the contents of the confession, and Deonta testified he was unaware of the nature of the phone conversation. However, while the trial court did not expressly say so, it clearly found Deonta's testimony as to his intent to be incredible, by concluding that it had "heard no testimony that would re-enforce the notion that the defendant had any expectations of privacy or, if you will, privilege, when he approached this particular minister."

CONCLUSION
Whether the clergyman privilege of La. C.E. art. 511 applies is determined under a totality of the circumstances test, in which all of the following requirements must be shown to exist: (1) it must be determined that the person to whom the communication was received is a "clergyman;" (2) it must be determined that the purpose of the communication was to seek spiritual advice or consolation; (3) it must be determined that the communication was made privately and was not intended for further disclosure except to other persons present in furtherance of the purpose of the communication; and (4) even if those explicit requirements of the article are met, it must also be determined whether or not the communicant waived the application of the privilege. In this case, although it is clear from the record that Reverend Woolridge was a clergyman under the article, and that Deonta consulted him and confessed to him for spiritual purposes, the requirements of confidentiality and lack of waiver were not shown. The trial judge was in the best position to judge the credibility of the witnesses and explicitly found that the testimony did not show that Deonta "had any expectations of privacy when he approached that particular minister." We agree, and find that, after a review of the record in its entirety, and considering the totality of the circumstances as described above, the clergyman privilege does not apply in this case and the trial court did not abuse its discretion in denying the motion to suppress.

DECREE
For the reasons stated herein, the judgment of the court of appeal is reversed and the trial court judgment denying the defendant's motion to suppress is reinstated. The matter is remanded to the trial court for further proceedings.
REVERSED AND REMANDED.
CALOGERO, C.J., concurs and assigns reasons.
KIMBALL, J., concurs in the result and assigns reasons.
JOHNSON, J., dissents.
CALOGERO, Chief Justice, concurring.
I agree with the court of appeal that this case is a close one. However, I disagree with the appellate court's conclusion that the district court on remand did not *1268 make a finding with regard to the defendant's credibility. While the appellate court was correct that the district court did not make an explicit statement as to the defendant's credibility, the district court unquestionably discounted the defendant's testimony when it stated that it had "heard no testimony that would re-enforce the notion that the defendant had any expectations of privacy or, if you will, privilege, when he approached this particular minister." Given that the defendant testified he had expected his statement to remain confidential, implicit within the district court's factual finding is the determination that the defendant's testimony on this issue was not credible.
Accordingly, I concur in the majority's conclusion that the district court did not abuse its discretion in denying the motion to suppress the evidence. On the record before this court, I find no error in the district court's factual appreciation that the defendant, who is invoking the clergy-communicant privilege, failed to establish that his communication to Reverend Woolridge was "not intended for further disclosure ...," and thus was "confidential" as defined in La.Code Evid. art. 511(A)(2).
KIMBALL, Justice, concurring in result.
I agree with the result reached by the majority in this case; however, in my view, Deonta Gray did not waive the privilege or indicate that he did not have any expectation of privacy in his statement to Reverend Woolridge when he remained silent during Reverend Woolridge's telephone call to Pastor Sniff, his superior at the church. In my opinion, a clergyman's disclosure of confidential information to his superior solely for advice on what he should do in regards to this imparted information should not be considered a disclosure to a third-party which would defeat the privilege for confidential communications to a clergyman. This situation is analogous to that when an associate attorney seeks the advice of his supervising partner or attorney regarding a client communication, and would never be considered a waiver of the attorney-client privilege. See La. C.E. art. 506. Likewise, Reverend Woolridge's disclosure of Denota's statement to his superior, Pastor Sniff, for the purpose of determining his next course of action in this sensitive matter should not be considered a waiver of the clergyman's privilege.
NOTES
[1]  The record is confusing and unclear as to whether Keyanta Gray is Deonta's aunt and Jonta's mother, or Deonta's mother and Jonta's aunt. As did the court of appeal, we will refer to Keyanta as Deonta's aunt and Jonta's mother, and note that under either factual scenario, the analysis of this case and the outcome of this decision would be the same.
[2]  On both prior occasions, the Court found that the privilege did not apply because the communications at issue had purposes other than penitential revelation. In State v. Berry, 324 So.2d 822, 828-29 (La.1975), the defendant tried to pawn a watch to the sister of a minister, and, after she refused, asked to see the minister. The defendant confessed to killing a girl and taking her watch and essentially extorted money from the minister by informing him that he might hurt someone else. The court found that under these circumstances, the defendant's communication "was not made within the requisite nature of a confidential disclosure for religious purposes of a penitent to a clergyman seeking religious consolation." In State v. Tart, 93-0772 (La.2/9/96), 672 So.2d 116, 143, a Reverend Posey, who also headed the local chapter of the N.A.A.C.P., responded to community concerns about the defendant's treatment in jail and possible civil rights violations by paying Tart a visit. The defendant informed him that he had committed the murders for which he had been charged and that he had confessed to the police voluntarily. Although the defendant also prayed with Posey, the record persuaded this Court that the main purpose for Posey's visit to the prison "was to question him as to whether his civil rights were violated," and that Posey was therefore acting in his capacity as the president of the local N.A.A.C.P. chapter and not as a clergyman.
[3]  The privilege in La. C.E. art. 511 supplants not only former La. R.S. 15:477 pertaining to criminal matters but also La. R.S. 13:3734.1, which provided for an unqualified clergyman privilege in civil cases but which also provided explicitly that "[n]othing herein shall forbid any clergyman, duly ordained minister of the gospel, ordained priest, penitent, or person giving any communication from testifying concerning any matter, whether or not privileged, on a voluntary basis." La. R.S. 13:3734.1(D). The legislature repealed the statute (and La. R.S. 15:477) in 1992 when it adopted the new Code of Evidence. 1992 La. Acts 376.
[4]  La. C.E. art. 104A provides:

Questions of admissibility generally. Preliminary questions concerning the competency or qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of Paragraph B. In making its determination, it is not bound by the rules of evidence except those with respect to privileges.
[5]  The State also argues that Deonta and Jonta waived the privilege because right after the shooting occurred, they admitted to another individual that they had robbed and shot the cab driver. According to the transcript of the preliminary hearing on September 11, 2002, at which Detective Armando Asaro described the circumstances which led him to arrest the defendants, Detective Asaro testified that they developed Jonta and Deonta as suspects because a witness gave them a taped statement which established that just after the shooting occurred, Jonta and Deonta came to the witness's residence and Jonta told him that they had just shot a cab driver.

In making this argument, the State relies on and attaches as exhibits to its writ application a copy of the supplemental police report and copies of statements made to the police by Tory Borden, who is the third party witness referred to in the preliminary hearing transcript. Although these reports and statements were not introduced as evidence at the motion to suppress or ever filed into the record at anytime, and therefore cannot be considered by this court, the transcript of the preliminary hearing clearly is part of the record and was available for the trial court's consideration, as the court reporter's transcription certificate bears the date of September 26, 2002, well before the motion to suppress was heard. However, as the trial court evidently did not consider the transcript of the preliminary hearing in ruling on the motion to suppress, we do not rely on this statement in affirming the trial court's ruling.


                            THIRD DIVISION
                             MILLER, P. J.,
                       MCFADDEN and MCMILLIAN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules

                                                                       April 5, 2016

In the Court of Appeals of Georgia
 A16A0758. HILL-BLOUNT v. THE STATE.

MCFADDEN, Judge.

      A jury found Corey Hill-Blount guilty of armed robbery and possession of a

firearm during the commission of a crime, and the trial court entered his judgment of

conviction on July 28, 2008. Thirty-seven days later, on September 3, 2008,

Hill-Blount filed a motion for a new trial, which the trial court denied on February 3,

2015. Hill-Blount filed a notice of appeal on February 6, 2015. Because the motion

for new trial was untimely, we lack jurisdiction and, accordingly, must dismiss the

appeal.

      1. Years-long delay in transmission of the record.

      As an initial matter, we note that Hill-Blount’s motion for a new trial was

denied six years and five months after it was filed. The record contains no
explanation for this delay. As discussed in Division 2, infra, Hill-Blount may be

entitled to pursue an out-of-time appeal. Resolution of that issue will delay any

possible consideration of the merits of this case by this court for approximately

another year. We therefore again remind the bench and bar that

      this type of post-conviction, pre-appeal delay puts at risk the rights of
      defendants and crime victims and the validity of convictions obtained
      after a full trial. It is the duty of all those involved in the criminal justice
      system, including trial courts and prosecutors as well as defense counsel
      and defendants, to ensure that the appropriate post-conviction motions
      are filed, litigated, and decided without unnecessary delay. That duty
      unfortunately was not fulfilled in this case.

Robinson v. State, 334 Ga. App. 646, 647 (1) (780 SE2d 86) (2015) (punctuation

omitted); see also Shank v. State, 290 Ga. 844, 849 (5) (c) (725 SE2d 246) (2012);

Morgan v. State, 290 Ga. 788, 788-789, nn. 1 & 2 (725 SE2d 255) (2012); Hill v.

State, 290 Ga. 493, 493, n. * (722 SE2d 708) (2012); Murphy v. State, 290 Ga. 459,

459, nn. 1 & 2 (722 SE2d 51) (2012); Waye v. State, 326 Ga. App. 202, 202-203 (1)

(756 SE2d 287) (2014).

      2. Appellate jurisdiction.

      The proper and timely filing of the notice of appeal is an absolute requirement

to confer appellate jurisdiction upon this court. Rowland v. State, 264 Ga. 872, 872

                                             2
(1) (452 SE2d 756) (1995). A notice of appeal must be filed within 30 days of the

entry of an appealable judgment. OCGA § 5-6-38 (a). Although the filing of a motion

for a new trial generally extends the deadline for filing a notice of appeal, see OCGA

§ 5-6-38 (a), an untimely motion for a new trial is void and does not extend the time

for filing an appeal, Wicks v. State, 277 Ga. 121, 121-122 (587 SE2d 21) (2003). To

be timely, a motion for a new trial must be made “within 30 days of the entry of the

judgment on the verdict.” OCGA § 5-5-40 (a). A defendant may obtain permission

from the trial court to file an out-of-time motion for a new trial, the denial of which

may be appealed directly. See Washington v. State, 276 Ga. 655, 656 (1) (581 SE2d

518) (2003). Here, however, the record does not show that Hill-Blount sought

permission to file an out-of-time motion.

      Because Hill-Blount’s motion for a new trial was filed 37 days after entry of

his judgment of conviction, was untimely and did not extend the time for filing the

notice of appeal. See Wicks, supra at 121-122. Under these circumstances,

Hill-Blount’s appeal is untimely and therefore must be dismissed for lack of

jurisdiction. See Peters v. State, 237 Ga. App. 625, 625 (516 SE2d 331) (1999).

      3. Notice to appellant of his right to petition for leave to file an out-of time

appeal.

                                            3
       Because Hill-Blount is represented by counsel, he is informed of the following

in accordance with Rowland v. State, supra at 875-876: This appeal has been

dismissed because you failed to file a timely notice of appeal from your judgment of

conviction. If you still wish to appeal, you may petition the trial court for leave to file

an out-of-time appeal. If the trial court grants your request, you will have 30 days

from the entry of that order to file a notice of appeal referencing your conviction. If

the trial court denies your request, you will have 30 days from the entry of that order

to file a notice of appeal referencing the denial of your request for an out-of-time

appeal.

       The Clerk of Court is directed to send a copy of this order to Hill-Blount and

to his attorney, and the latter also is directed to send a copy to Hill-Blount.

       Appeal dismissed. Miller, P. J., and McMillian, J., concur.

                                            4


                                                                                01/03/2017

                                          DA 16-0192
                                                                                Case Number: DA 16-0192

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 2N

PAT CAHILL, RONNIE D. CURTIS and CRAIG
M. CURTIS, RANDIE CURTIS, DONNA M.
SARGENT, MARK G. GOLDHAHN, MONICA
R. GOLDHAHN, LONNY R. ANDREASEN,
TERRY JENDRO and SHANNON JENDRO,

              Plaintiffs and Appellees,

         v.

PAPA’S CABIN, LLC

APPEAL FROM:            District Court of the Third Judicial District,
                        In and For the County of Powell, Cause No. DV 14-22
                        Honorable Ray Dayton, Presiding Judge

COUNSEL OF RECORD:

                For Appellant:

                        R.J. “Jim” Sewell, Jr., Craig D. Charlton, Scott H. Clement, Smith Law
                        Firm, P.C., Helena, Montana

                For Appellee:

                        Marcel A. Quinn, Hammer, Quinn & Shaw, PLLC, Kalispell, Montana

                                                    Submitted on Briefs: November 10, 2016

                                                               Decided: January 3, 2017

Filed:

                        __________________________________________
                                          Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Papa’s Cabin, LLC, appeals the Third Judicial District Court’s order granting

summary judgment on Appellees’ claim that they possessed a prescriptive easement on a

road crossing Papa’s Cabin’s property.1 We affirm.

¶3     The Evanses—parents of one of the Claimants, Pat Cahill—owned land that now

constitutes all of Claimants’ respective properties. In order to access their property, the

Evanses constructed a roadway in 1954 across the property of their neighbors, the

Parkers—the property now owned by Papa’s Cabin.            The Evanses did not ask the

Parkers’ permission before they built the road.

¶4     The Evanses lived and operated a sawmill business on their property from 1954 to

the 1970s. Their family, friends, and customers used the road almost daily during that

time. The road sat in close proximity to the Parkers’ cabin. The first time the Evanses

met the Parkers was after they built and had started using the road; they later agreed to

the Parkers’ request to move the road farther from the cabin.

1
   Appellees are Pat Cahill, Ronnie Curtis, Craig Curtis, Randie Curtis, Donna Sargent, Mark
Goldhahn, Monica Goldhahn, Lonny Andreasen, Terry Jendro, and Shannon Jendro. We refer to
them collectively as “Claimants.”

                                             2
¶5     In August 2013, Papa’s Cabin locked a gate on its property to prevent Claimants

from using the road. Cahill then filed a petition for a permanent prescriptive easement.

Cahill’s claim was consolidated with claims of the remaining Appellees over Papa’s

Cabin’s objection.

¶6     The District Court granted summary judgment to Claimants. It concluded that no

genuine issue of fact existed as to whether Claimants’ use of the road was open,

notorious, exclusive, continuous, or uninterrupted and that Papa’s Cabin had failed to

present facts showing that Claimants’ use of the road was permissive. Finally, the court

found that the original scope of the prescriptive easement encompassed both residential

and commercial use and that the easement’s current residential use did not exceed its

original scope.

¶7     On appeal, Papa’s Cabin contends that Claimants bore the burden of

demonstrating that their use of the road was adverse and that they failed to satisfy that

burden.    Alternatively, Papa’s Cabin argues that even if it bore the burden of

demonstrating that Claimants’ use of the road was permissive, it presented sufficient

evidence to raise a genuine issue of material fact on this question. Lastly, Papa’s Cabin

asserts that the District Court erred by expanding the scope of the original easement and

by permitting joinder of the parties and consolidation of their actions for trial.

¶8     We review de novo a district court’s ruling on summary judgment, applying the

criteria of M. R. Civ. P. 56(c)(3). Citizens for a Better Flathead v. Bd. of Cnty. Comm’rs,

2016 MT 256, ¶ 10, 385 Mont. 156, 381 P.3d 555. Summary judgment is proper only

when no genuine issues of material fact exist and the moving party is entitled to judgment

                                              3
as a matter of law. Harrington v. Crystal Bar, Inc., 2013 MT 209, ¶ 9, 371 Mont. 165,

306 P.3d 342. Once the moving party meets its initial evidentiary burden demonstrating

facts to support its entitlement to judgment as a matter of law, the burden shifts to the

non-moving party to present substantial evidence, as opposed to mere denial, speculation,

or conclusory statements, raising a genuine issue of material fact. Ternes v. State Farm

Fire & Cas. Co., 2011 MT 156, ¶ 27, 361 Mont. 129, 257 P.3d 352. We review a district

court’s determination of judgment as a matter of law for correctness. Roe v. City of

Missoula, 2009 MT 417, ¶ 14, 354 Mont. 1, 221 P.3d 1200.

¶9    A party seeking to establish a prescriptive easement must show “open, notorious,

exclusive, adverse, continuous[,] and uninterrupted use of the claimed easement” for a

period of five years. Lemont Land Corp. v. Rogers, 269 Mont. 180, 183, 887 P.2d 724,

726 (1994). It is well established that a presumption of adverse use arises once the

claimant establishes the other five elements; the burden then shifts to the landowner

opposing the prescriptive easement to prove that the use was permissive rather than

adverse. Lemont, 269 Mont. at 185, 887 P.2d at 727-28; Brown & Brown of MT, Inc. v.

Raty, 2012 MT 264, ¶ 19, 367 Mont. 67, 289 P.3d 156; Albert v. Hastetter, 2002 MT

123, ¶ 20, 310 Mont. 82, 48 P.3d 749; Larsen v. Richardson, 2011 MT 195, ¶ 57, 361

Mont. 344, 260 P.3d 103; Glantz v. Gabel, 66 Mont. 134, 141, 212 P. 858, 860 (1923).

“[I]f the owner of the servient estate shows that use was permissive,” the claimant cannot

acquire a prescriptive easement. Leisz v. Avista Corp., 2007 MT 347, ¶ 17, 340 Mont.

294, 174 P.3d 481.

                                            4
¶10   The District Court reviewed undisputed evidence that the Parkers were aware of

the Evanses’ use of the road, that the Evanses’ use of the road did not depend on anyone

else’s use of the road, and that the Evanses and their successors used the road

continuously and without interruption from 1954 until 2013. Based on these undisputed

facts, the court concluded correctly that Claimants demonstrated open, notorious,

continuous, uninterrupted, and exclusive use of the road for well over five years. See

Lemont, 269 Mont. at 183, 887 P.2d at 726. The court then properly shifted the burden to

Papa’s Cabin to show that a genuine issue of material fact existed as to whether

Claimants used the road with permission. See Lemont, 269 Mont. at 185, 887 P.2d at

727-28. Papa’s Cabin failed to meet its burden because it did not present evidence that

the Evanses’ use of the road was permissive between 1954 and 1959—the five-year

period in which the District Court determined that the prescriptive easement was

established. See Lemont, 269 Mont. at 183, 887 P.2d at 726.

¶11   The only evidence that Papa’s Cabin presented that did not clearly pertain to the

1960s or later—deposition testimony from Pat Cahill that her parents, the Evanses, asked

the Parkers for a written easement at one time after the road was built—is inadmissible

hearsay. The conversation that Cahill described constitutes an out-of-court statement

offered “to prove the truth of the matter asserted”—that the Evanses sought a written

easement.   M. R. Evid. 801(c).    Claimants moved to exclude this statement from

consideration on summary judgment. The District Court was not required to consider the

testimony in its summary judgment ruling. See N. Cheyenne Tribe v. Roman Catholic

Church, 2013 MT 24, ¶ 21, 368 Mont. 330, 296 P.3d 450 (“District courts need consider

                                           5
only admissible evidence when determining whether to grant a motion for summary

judgment.”).

¶12    We are unpersuaded by Papa’s Cabin’s argument that Cahill’s testimony was not

hearsay because it qualifies as an admission by a party-opponent under M. R. Evid.

801(d)(2)(A). That testimony was not an admission by a party-opponent, because the

Evanses are not a party to this action.

¶13    The admissible evidence before the District Court undisputedly established that

the Evanses acquired a prescriptive easement by 1959. In reviewing this evidence, the

court correctly determined that Claimants satisfied their burden and that Papa’s Cabin did

not satisfy its burden. See Roe, ¶ 14; Ternes, ¶ 27.

¶14    Finally, the District Court rightly found that Claimants’ use of the road did not

exceed the easement’s original scope. We have held, in the context of a prescriptive

easement, that the “right of the owner of the dominant estate is governed by the character

and extent of the use during the period requisite to acquire it.” Brown & Brown of MT,

Inc. v. Raty, 2013 MT 338, ¶ 13, 372 Mont. 463, 313 P.3d 179 (Brown II). When the

Evanses acquired the prescriptive easement in the 1950s, the “character and extent of the

use” included both residential and commercial use. Brown II, ¶ 13. Claimants presented

evidence that they now use the road primarily for residential purposes and not for

commercial purposes. They satisfied their burden of establishing that their use of the

easement did not exceed the easement’s original scope. See Ternes, ¶ 27. Papa’s Cabin

failed to meet its burden of presenting evidence that Claimants exceeded the residential

                                             6
and commercial scope of the easement. See Ternes, ¶ 27. As such, the court’s ruling on

summary judgment was proper. See Harrington, ¶ 9.

¶15    Because we affirm the District Court’s award of summary judgment to Claimants,

we do not address Papa’s Cabin’s assertion that the court erred in permitting joinder of

the Appellees and consolidation of their actions for trial.

¶16    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for noncitable memorandum opinions. This

appeal presents no constitutional issues, no issues of first impression, and does not

establish new precedent or modify existing precedent.         The District Court’s order

granting summary judgment to Claimants is affirmed.

                                                  /S/ BETH BAKER

We Concur:

/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE

                                              7


J-S67008-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ELLIOT MADERA,                             :
                                               :
                       Appellant               :   No. 3598 EDA 2017

            Appeal from the Judgment of Sentence February 16, 2016
                 In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0004301-2014,
                             CP-15-CR-0004332-2014

BEFORE:      OTT, J., NICHOLS, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.:                                FILED JANUARY 11, 2019

        Elliot Madera appeals, nunc pro tunc, from the judgment of sentence

imposed February 16, 2016, in the Chester County Court of Common Pleas.

The trial court sentenced Madera to an aggregate term of 30 to 60 years’

imprisonment following his jury conviction of four counts of rape of a child and

involuntary deviate sexual intercourse (“IDSI”), and two counts of aggravated

indecent assault, corruption of minors, and endangering the welfare of a child1

for the ongoing sexual abuse of his minor stepdaughter when she was under

the age of 13.        The court also determined Madera met the criteria for
____________________________________________

   Retired Senior Judge assigned to the Superior Court.

1 See 18 Pa.C.S. §§ 3121(c), 3123(b), 3125(A)(1) and (b), 6301, and 4304,
respectively.
J-S67008-18

classification as a sexually violent predator (“SVP”) pursuant to Pennsylvania’s

Sexual Offender Registration and Notification Act (“SORNA”).2        On appeal,

Madera challenges the legality of his sentence with respect to his classification

as an SVP and special conditions imposed on his sentence by the trial court,

two evidentiary rulings, and the trial court’s denial of a motion for a mistrial.

Because we agree that both Madera’s classification as an SVP and certain

sentencing conditions imposed by the trial court were illegal, we are

constrained to vacate the judgment of sentence, in part, and remand to the

trial court for further proceedings. In all other respects, however, we affirm

the judgment of sentence.

        In its 153-page supplemental opinion, the trial court provided a detailed

recitation of the testimony presented during Madera’s trial. See Supplemental

Trial Court Opinion, 3/9/2018, at 13-125. Accordingly, we need not reiterate

the facts underlying Madera’s conviction herein.       In summary, the victim,

Madera’s stepdaughter, testified he sexually abused her numerous times at

their home over a period of years while she was under the age of 13. Madera

was subsequently arrested and charged with numerous sex crimes including

rape of a child.     Prior to trial, the court denied a motion in limine filed by

Madera, seeking to introduce evidence at trial of the victim’s prior sexual

conduct, and granted a motion in limine filed by him to exclude any reference

to his pretrial incarceration. See Order, 11/13/2015; Order, 11/18/2015. The
____________________________________________

2   See 42 Pa.C.S. §§ 9799.10-9799.41.

                                           -2-
J-S67008-18

case proceeded to a five-day jury trial. On November 20, 2015, the jury found

Madera guilty of the above-stated crimes. Prior to sentencing, the trial court

directed the Sexual Offender Assessment Board (“SOAB”) to perform an

assessment of Madera to determine if he met the criteria for classification as

an SVP. See 42 Pa.C.S. § 9799.24.

      On February 16, 2016, the trial court conducted a combined SVP and

sentencing hearing.    Based on the SOAB’s findings, the court determined

Madera met the criteria for classification as an SVP, and sentenced him to an

aggregate term of 30 to 60 years’ imprisonment. In addition to a term of

imprisonment, the court ordered Madera to have no contact with the victim or

her mother. With respect to the minor son Madera shared with the victim’s

mother, the court permitted Madera to send one letter per month to the child,

and when the child reached the age of 12, to engage in four telephone calls

per year if the child agreed. The court also ordered the child could visit Madera

when he reached the age of 16. See Sentencing Sheet, 2/16/2016.         Further,

the court prohibited Madera from having contact with any children except at

family gatherings in the presence of other adults. See id. Madera filed a

timely post-sentence motion, which the trial court denied on May 24, 2016.

Madera then filed a timely appeal.

      Madera’s appeal was dismissed by this Court on January 5, 2017, when

he failed to file a brief. After requesting and being granted post conviction

relief, Madera filed a second, timely notice of appeal nunc pro tunc on

                                      -3-
J-S67008-18

November 3, 2017.3 The trial court did not order Madera to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

presumably because prior counsel had filed a concise statement following the

original appeal. Nonetheless, on January 18, 2018, Madera filed an application

for remand, seeking leave to file a concise statement in the trial court. This

Court granted Madera’s application on February 5, 2018, Madera filed a new

concise statement on February 26, 2018, and the trial court filed a

supplemental opinion on March 9, 2018.

       In his first issue on appeal, Madera argues his designation as an SVP is

illegal. Both the Commonwealth and the trial court concede that, under the

current state of the law, we must vacate the SVP designation and remand this

case so that the trial court can provide Madera with his proper registration

notification under 42 Pa.C.S. § 9799.23. See Commonwealth’s Brief at 11-

14; Supplemental Trial Court Opinion, 3/9/2018, at 4-5. We agree.

____________________________________________

3 We note Madera was charged and tried under two docket numbers, and his
notice of appeal lists both dockets. In June of 2018, the Pennsylvania
Supreme Court in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), held
that “when a single order resolves issues arising on more than one lower court
docket, separate notices of appeal must be filed. The failure to do so will
result in quashal of the appeal.” Id. at 977 (footnote omitted). Nevertheless,
we note the Walker Court specifically announced its decision would be applied
prospectively only. See Walker, supra, 185 A.3d at 97. Therefore, because
the notice of appeal in the present case was filed before Walker, we need not
quash this appeal.

                                           -4-
J-S67008-18

       Our ruling is based upon two recent appellate court decisions.4 First, on

July 17, 2017, the Pennsylvania Supreme Court held in Commonwealth v.

Muniz, 164 A.3d 1189 (Pa. 2017), that SORNA’s registration provisions

constitute punishment, and, therefore, the retroactive application of those

provisions violates the ex post facto clauses of the federal and Pennsylvania

constitutions.    Thereafter, on October 31, 2017, a panel of this Court, in

Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), appeal

granted, 190 A.3d 581 (Pa. 2018),5 recognized that “Muniz was a sea change

in the longstanding law of this Commonwealth as it determined that the

registration requirements under SORNA are not civil in nature but a criminal

punishment.”      Id. at 1215.       As such, the panel concluded the statutory

mechanism for designating a defendant as an SVP set forth in 42 Pa.C.S. §

9799.24(e)(3), which permits a trial court to make the determination based
____________________________________________

4 Although this issue was not raised before the trial court, a challenge to the
legality of sentencing may be raised for the first time on appeal, or by an
appellate court sua sponte. See Commonwealth v. Batts, 163 A.3d 410,
434 (Pa. 2017).
5  The Pennsylvania Supreme Court granted allowance of appeal on the
following claim:

       Whether the Superior Court of Pennsylvania erred in vacating the
       trial court’s Order finding [Respondent] to be [a Sexually Violent
       Predator      (“SVP”)]    by   extrapolating  the   decision    in
       [Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189
       (2017),]     to   declare    SVP    hearings  and    designations
       unconstitutional under 42 Pa.C.S. § 9799.24(e)(3).

Commonwealth v. Butler, 190 A.3d 581, 582 (Pa. 2018).              At this time,
however, the Butler decision is controlling.

                                           -5-
J-S67008-18

upon clear and convincing evidence, was “constitutionally flawed” pursuant to

the United States Supreme Court’s decisions in Alleyne v. United States,

570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000).

Accordingly, the Butler panel held: “[T]rial courts cannot designate convicted

defendants SVPs (nor may they hold SVP hearings) until our General Assembly

enacts a constitutional designation mechanism.” Butler, supra, 173 A.3d at

1218. Therefore, the panel vacated the order designating the defendant as

an SVP, and remanded the case to the trial court to determine his proper

registration period pursuant to 42 Pa.C.S. §§ 9799.14 and 9799.15. See id.

      The decision in Butler compels the same result here. Accordingly, we

vacate the judgment of sentence with respect to Madera’s designation as an

SVP and his concomitant lifetime registration requirement under SORNA.

Furthermore, we remand this case to the trial court to determine Madera’s

proper registration period, and provide notice to Madera thereof as required

by 42 Pa.C.S. § 9799.23.

      In his second issue on appeal, Madera asserts the trial court had no

authority to impose restrictions on his contact with his biological son both

while he is incarcerated and when he is eventually paroled. “The issue of

whether the trial court possessed the authority to impose a particular sentence

implicates the legality of the sentence.” Commonwealth v. Mears, 972 A.2d

1210, 1211 n.1 (Pa. Super. 2009).

      Again, we are constrained to agree with Madera.       To the extent the

conditions were intended to apply upon Madera’s release on parole, we note

                                     -6-
J-S67008-18

that, because he was sentenced to a maximum term in excess of five years’

imprisonment, his “parole would be under the exclusive supervision of the

Pennsylvania Board of Probation and Parole (“PBPP”) and not the Court of

Common Pleas.” Mears, supra, 972 A.2d at 1212. See also 61 Pa.C.S. §

6132(a) and 6134(b)(1), (2). Accordingly, the Parole Board will have the sole

authority to determine the conditions of Madera’s parole, and “any condition

the sentencing court purported to impose … is advisory only.”          Id.   In

Commonwealth v. Coulverson, 34 A.3d 135 (Pa. Super. 2011), a panel of

this Court concluded the trial court’s imposition of a “no contact” restriction

with the victims of the defendant’s crimes following his release on parole

exceeded “the bounds of the court’s authority, and [were] subject to

vacatur[.]” Id. at 142-143. The same is true here.6

        In the present case, however, the trial court also imposed certain

conditions to Madera’s contact with his biological children during his period of

incarceration.    While we have no doubt the trial court’s intentions were to

protect Madera’s children,7 we find no statutory authority permitting the court

to impose special conditions concerning a defendant’s contact with his

____________________________________________

6 We note the Commonwealth argues we may simply view the court’s
conditions as “advisory only,” and affirm the sentence. Commonwealth’s Brief
at 16. This position, however, is contrary to the decisions in Mears and
Coulverson, both of which vacated the offending portion of the defendant’s
sentence. See Mears, supra, 972 A.2d at 1212; Coulverson, supra, 34
A.3d at 142.

7   See Supplemental Trial Court Opinion, 3/9/2018, at 136-141.

                                           -7-
J-S67008-18

biological children during his term of imprisonment absent any allegations of

sexual contact with those children. Accordingly, we also vacate that part of

the sentence which imposed special conditions upon Madera, both while he

was incarcerated and after his parole.

      Madera’s final three issues on appeal are as follows:

      III. Did the trial court err in denying “[Madera’s] Motion to
      Introduce Evidence of Complaining Witness’[s] Prior Sexual
      Conduct Pursuant to 18 Pa.C.S. § 3104(b)” disallowing [Madera]
      from showing the complaining witness’s motive to fabricate the
      allegations?

      IV.    Did the trial court err in barring the presentation of evidence
      regarding [Madera’s] willingness to submit to a polygraph
      examination to rebut evidence of [Madera’s] consciousness of
      guilt?

      V.  Did the trial court err in failing to grant a mistrial after the
      Commonwealth’s reference to “prison” letters?

Madera’s Brief at 5.

      It is well settled that “[a] trial court has broad discretion to determine

whether evidence is admissible, and [its] ruling regarding the admission of

evidence will not be disturbed on appeal unless that ruling reflects manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support to be clearly erroneous.”      Commonwealth v. Rosser, 135 A.3d

1077, 1087 (2016) (en banc) (citation and some punctuation omitted), appeal

denied, 168 A.3d 1237 (Pa. 2017).             See also Commonwealth v.

Largaespada, 184 A.3d 1002, 1006 (Pa. Super. 2018) (“[A] trial court’s

ruling on the admissibility of a sexual abuse victim’s prior sexual conduct will

be reversed only where there has been a clear abuse of discretion.”).

                                      -8-
J-S67008-18

Similarly, “[i]t is within the discretion of the trial court to determine whether

a defendant has been prejudiced by misconduct or impropriety to the extent

that a mistrial is warranted.” Commonwealth v. Johnson, 668 A.2d 97,

103 (Pa. 1995). “[A] mistrial is only warranted where the incident upon which

the motion is based is of such a nature as to deny the defendant a fair trial.”

Id. (citation omitted).

      After an independent review of the record, the parties’ briefs, and the

relevant statutory and case law, we find the trial court thoroughly addressed

and properly disposed of Madera’s remaining claims in its March 9, 2018,

supplemental opinion. See Supplemental Trial Court Opinion, 3/9/2018, at

6-12 (concluding: (1) Madera’s proposed evidence regarding the victim’s prior

sexual conduct was not competent to pierce the Rape Shield Law, because (a)

the evidence “would not have exonerated” Madera, (b) the victim did not come

forward with the allegations, but rather was reluctant to reveal the abuse, and

(c) evidence of prior sexual encounters is not admissible to explain a victim’s

knowledge of sexual terms; and (2) the probative value of the evidence was

“severely outweighed by its prejudicial effect.”); 127-129 (concluding Madera

was not entitled to introduce evidence he offered to take a polygraph

examination since the results would have been inadmissible, and his

“professed willingness … to submit to such a test … is merely a self-serving

act … which obviously could be made without any possible risk.”); 130-134

(concluding Madera was not entitled to a mistrial based upon the prosecutor’s

unintentional, “single passing reference to prison letters” since “[a]ny

                                      -9-
J-S67008-18

prejudice … was so very slight and did not deny him a fair trial, and,

nonetheless, any the error was harmless since the evidence of Madera’s guilty

was overwhelming”). Accordingly, with respect to these issues, we rest upon

the court’s well-reasoned bases.

     Judgment of sentence affirmed in part, and vacated in part.      Special

conditions of sentence and designation of Madera as an SVP are vacated. Case

remanded for notification to Madera of proper registration requirements under

SORNA. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/11/19

                                    - 10 -


861 So.2d 368 (2003)
Craig ROBY, Appellant,
v.
STATE of Mississippi, Appellee.
No. 2003-CP-00469-COA.
Court of Appeals of Mississippi.
December 16, 2003.
*369 Craig Roby, Appellant, pro se.
Office of the Attorney General by Jean Smith Vaughan, attorney for appellant.
Before SOUTHWICK, P.J., THOMAS and GRIFFIS, JJ.
THOMAS, J., for the court.
¶ 1. Craig Roby, pro se, appeals an order of the Circuit Court of Attala County, Mississippi denying his petition for post-conviction relief. Aggrieved, Roby asserts the following issues on appeal:
I. THE GUILTY PLEA WAS MADE INVOLUNTARILY AS DEFENDANT WAS COMPELLED AND THREATENED INTO ENTERING THE PLEA.
II. THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
III. THE WARRANT AND GENERAL AFFIDAVIT WERE NOT SIGNED AND WERE THEREFORE INVALID AND THE INDICTMENT UNDER WHICH THE DEFENDANT WAS CHARGED DID NOT HAVE A CERTIFIED CAUSE NUMBER.
Finding no error, we affirm.
PROCEDURAL HISTORY AND FACTS
¶ 2. Craig Roby pled guilty to felony sale of cocaine in violation of Mississippi Code Annotated § 41-29-139(a)(1)(b)(1)(Rev.2001). The trial court sentenced Roby to twelve years with four years suspended and five years of probation after release. The trial court also ordered Roby to pay a fine of $5,000 with $4,000 suspended for a period of five years with $1,000 to pay along with a lab fee in the amount of $125. Roby filed a motion for post-conviction relief which the trial court summarily denied. Roby then perfected an appeal to this Court.

I. WAS THE GUILTY PLEA MADE INVOLUNTARILY AND WAS DEFENDANT COMPELLED AND THREATENED INTO ENTERING THE PLEA?
¶ 3. Roby asserts that the trial court erred in accepting his guilty plea because it was not voluntarily made. According to Roby, his counsel, Rosalind Jordan, intimidated him and coerced him into pleading guilty, stating that if he did not follow her directions the court would sentence him to the maximum of thirty years.
¶ 4. The standard of review pertaining to voluntariness of guilty pleas is well settled: "this Court will not set aside findings of a trial court sitting without a jury unless such findings are clearly erroneous." Weatherspoon v. State, 736 So.2d 419, 421(¶ 5) (Miss.Ct.App.1999). The burden of proving that a guilty plea was involuntary is on the defendant and must be proven by a preponderance of the evidence. Id. at 422(¶ 8) (superceded by Miss.Code Ann. § 99-39-23 (Rev.2000)); Terry v. State, 839 So.2d 543, 545(¶ 7) (Miss.Ct.App.2002). A plea is considered *370 "voluntary and intelligent" if the defendant is advised about the nature of the charge against him and the consequences of the entry of the plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992).
¶ 5. The trial court questioned Roby thoroughly regarding his understanding of the charges against him, his constitutional rights, those that he was waiving by pleading guilty, and the effects of pleading guilty to the charges. Roby also signed a petition to plead guilty. Roby now asserts that his counsel intimidated and coerced him into pleading guilty, although he provides no evidence to support these assertions besides his own statements. The trial judge asked Roby specifically if he had been coerced or threatened into pleading guilty, and Roby responded in the negative. "Great weight is given to statements made under oath and in open court during sentencing." Gable v. State, 748 So.2d 703, 706(¶ 11) (Miss.1999) (quoting Young v. State, 731 So.2d 1120, 1123(¶ 12) (Miss.1994)).
¶ 6. The trial court found that Roby had knowledge of the charges against him and the consequences and that he pled guilty knowingly and voluntarily. Roby has failed to show by the preponderance of the evidence the trial court's decision was clearly erroneous. This issue is without merit.

II. DID THE DEFENDANT RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL?
¶ 7. Roby asserts that he received ineffective assistance of counsel because his counsel, Rosalind Jordan, made intimidating comments and threatened him with receiving the maximum thirty year sentence if he did not plead guilty. Roby asserts that Jordan's remarks placed him under duress. There is no indication in the record other than the allegations made by Roby in his brief that Jordan's performance was ineffective. The trial judge asked Roby specifically if he had been coerced or threatened into pleading guilty, and Roby answered in the negative.
¶ 8. In order to be successful in a claim of ineffective assistance of counsel, the defendant is required to make both a showing of deficient performance and that, but for the deficient performance, a different result would likely have resulted. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Donnelly v. State, 841 So.2d 207, 211(¶ 8) (Miss. Ct.App.2003). In order for Roby to prove the ineffective assistance of counsel claim, under Mississippi Code Annotated Section 99-39-11(2) (Rev.2000), the allegation must be alleged with specificity. "[H]e must specifically allege facts showing that effective assistance of counsel was not in fact rendered, and he must allege with specificity the fact that but for such purported actions by ineffective counsel, the results of the trial court decision would have been different." Smith v. State, 434 So.2d 212, 219 (Miss.1983). See also Miss.Code Ann. § 99-39-9(1)(c) (Rev.2000); Terry v. State, 839 So.2d 543, 546(¶ 14) (Miss.Ct.App. 2002). "On review, we look with deference upon counsel's performance, considering the totality of the circumstances to determine whether it was both deficient and prejudicial." Conner v. State, 684 So.2d 608, 610 (Miss.1996).
¶ 9. We hold that Roby has failed to meet his statutory burden of proof required to establish a prima facie showing. Roby is required to show that counsel's performance was deficient and that the defendant was prejudiced by counsel's mistakes. Strickland, 466 U.S. at 686-87, 104 S.Ct. 2052. His own sworn testimony shows otherwise. Having failed to show deficient performance, this issue is without merit.

III. WERE THE WARRANT, GENERAL AFFIDAVIT, AND INDICTMENT INVALID FOR LACK OF *371 SIGNATURES AND CAUSE NUMBER?
¶ 10. Roby asserts that he was apprehended under a spurious warrant and general affidavit because they lacked signatures of a judge or magistrate and that the indictment under which he was charged did not have a proper cause number. Roby asserts that this information is newly discovered evidence and that he should be granted a new trial.
¶ 11. "A valid guilty plea ... admits all elements of a formal criminal charge and operates as a waiver of all non-jurisdictional defects contained in an indictment against a defendant." Brooks v. State, 573 So.2d 1350, 1352 (Miss.1990). The question of a petitioner's guilt will not be litigated on appeal. Taylor v. State, 682 So.2d 359, 362 (Miss.1996). As in Brooks, the deficiencies asserted by Roby are non-jurisdictional defects at best. Brooks, 573 So.2d at 1353. They must be timely asserted or they are waived. "Clearly they may not be raised for the very first time in an application for post conviction relief or, for that matter, on direct appeal, absent ...' a showing of cause and actual prejudice.'"Id. (quoting Miss.Code Ann. § 99-39-21(1) (Supp. 1990)). Roby has failed to show either.
¶ 12. This issue is without merit.
¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF ATTALA COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ATTALA COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.