IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO CP COA STATE OF MISSISSIPPI BRIEF FOR THE APPELLEE

Transcription

1 E-Filed Document Apr :53: CP COA Pages: 30 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI ERNIE WHITE APPELLANT VS. NO CP COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE THE STATE DOES NOT REQUEST ORAL ARGUMENT. JIM HOOD, ATTORNEY GENERAL BY: LAURA HOGAN TEDDER SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

2 TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF THE ISSUES iii STATEMENT OF THE CASE AND PERTINENT FACTS SUMMARY OF THE ARGUMENT STANDARD OF REVIEW ARGUMENT CONCLUSION CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES Federal Cases Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)... 15, 22 State Cases Adams v. State, 117 So.3d 674( 10) (Miss.Ct.App.2013) Adams v. State, 772 So.2d 1010 ( 52) (Miss.2000)... 11, 19 Boyd v. State, 113 So.3d 1252 ( 6) (Miss. 2011) , 19 Burrell v. State, 726 So.2d 160 ( 4) (Miss.1998).... 5, 11, 19 Burrough v. State, 9 So.3d 368( 22) (Miss.2009) Chaney v. State, 121 So.3d 306( 8) (Miss.Ct.App.2013) Cummings v. State, 465 So.2d 993 (Miss.1985)... 8, 22 Doby v. State, 532 So.2d 584 (Miss.1988) , 15 Dunaway v. State, 398 So.2d 658 (Miss.1981) Edwards v. State, 75 So.3d 73 ( 7) (Miss.Ct.App.2011)... 8, 21 Gowdy v. State, 56 So.3d 540 ( 16) (Miss.2010).... Passim Heidelburg v. State, 45 So.3d 730 (Miss.Ct.App.2010).... 8, 22 Hudson v. State, 891 So.2d 260 ( 6) (Miss.Ct.App.2004)... 7, 8, 21 Keyes v. State, 549 So.2d 949 (Miss.1989)... 8, 21 Loden v. State, 58 So.3d 27 ( 8) (Miss.Ct.App.2011) Newberry v. State, 85 So.3d 884 ( 11) (Miss.Ct.App.2011).... Passim Reed v. State, 506 So.2d 277 (Miss.1987) Ross v State, 119 So.3d 1119 (Miss.Ct.App. 2013)... 5, 10 Sims v. State, 775 So.2d 1291 ( 16) (Miss.Ct.App.2000).... 8, 22 Small v. State, 141 So.3d 61 (Miss.Ct.App. 2014) Sturgis v. State, 379 So.2d 534 (Miss.1980) Wilkins v. State, 57 So.3d 19 ( 23) (Miss.Ct.App.2010) Williams v. State, 872 So.2d 711 ( 2) (Miss.Ct.App.2004)... 5, 10 Wilson v. State, 935 So.2d 945 ( 10) (Miss.2006)... Passim Federal Statutes U.S. Const. amends. VI, XIV... Passim State Statutes Miss. Const. art. 3, 14, Passim Miss.Code Ann , 18 Mississippi Code Annotated section Mississippi Code Annotated Mississippi Code Annotated , 3, 13 Mississippi Code Annotated Passim ii

4 STATEMENT OF THE ISSUES I. It was not error for the prosecution to move to amend the indictment to show that White was a habitual offender even though the grand jury had not indicted him as a habitual offender. Non substantive amendments such as habitual offender and other penalty enhancements are permitted under MRCCC II. III. IV. White was given sufficient notice that he was being charged as a habitual offender. The prosecutor properly moved for amendment of the indictment to reflect that White was charged as a habitual offender. The trial court gave White sufficient notice that he was being sentenced as a habitual offender. V. The trial court had jurisdiction to sentence White as a habitual offender. VI. VII. VIII. The record reflects that the prosecutor and the trial court followed proper procedure for amending the indictment to reflect White s status as a habitual offender. The trial court conducted a separate hearing to determine that White met the requirements to be sentenced as a habitual offender. The prosecution did not err in its offer of proof to the trial court establishing that White met the requirements to be sentenced as a habitual offender. iii

5 STATEMENT OF THE CASE AND PERTINENT FACTS On October 27, 2011, a Lowndes County Grand Jury indicted Earnest D. White on one count of Manufacture of Methamphetamine, a controlled substance, in violation of Mississippi Code Annotated (1972, as amended). C.P. 5. On August 20, 2012 the Stated filed two motions. The first motion was to amend the Petitioner s name on the indictment and the second was to amend the Petitioner indictment to reflect his status as a habitual offender and as a subsequent drug offender. White s trial began in the Circuit Court of Lowndes County, Mississippi, on August 28, A jury was selected and a trial began. However, prior to the completion of the State s case, White expressed his desire to enter a plea of guilty. C.P. 90. According to White s sworn Plea Petition, White pled guilty to the lesser charge of Possession of Methamphetamine in an amount of greater than.1 grams but less than 2.0 grams as a habitual offender pursuant to Mississippi Code Annotated (1972, as amended). C.P. 72, 90, 94. Prior to accepting White s guilty plea, the Court asked White if he was pleading guilty as a habitual offender and questioned White about his prior convictions. C.P , 123. During that colloquy, the Petitioner admitted that he had two prior felony convictions, one being for Burglary of a Commercial Building and the other being for Sale of Cocaine. C.P , 123. White testified that he understood that on a plea of guilty to the charge of possession of methamphetamine in the amount of greater than.1 grams but less than 2.0 grams as a habitual offender that the only sentence the trial court could impose was the maximum sentence authorized by law which was eight years in the custody of the Mississippi Department of Corrections and a $50, fine. C.P The State offered into evidence certified copies of the sentencing orders where White pled guilty to the charge of Grand Larceny during the August 1

6 1994 term of court and to the charge of sale of cocain in the February 2005 term of court. C.P The trial court accepted White s plea and determined that White was a habitual offender pursuant to Mississippi Code Annotated (1972, as amended) and sentenced him to Eight (8) years to serve in the custody of the Mississippi Department of Corrections and assessed costs of court and a $50, fine. C.P On October 7, 2014, White filed a Petition for Post-Conviction Collateral Relief in the trial court. C.P The trial judge scheduled a hearing on White s Motion for Post Conviction Collateral Relief, limited to the issue of whether or not White was properly sentenced as a habitual offender. The hearing was held on February 20, Tr. 1. Katie Moulds, the prosecutor who handled White s criminal case testified at the hearing. She testified that she was an ADA and was assigned to prosecute the case against White. Moulds testified that when she got White s discovery file, she looked through his prior record and discovered that he had at least two prior Convictions in Lowndes County. At the time White was tried, the rule allowed prosecutors to file a motion to amend the indictment to prosecute someone as a habitual offender any time before the day of trial. Tr. 7. After learning of White s prior convictions Ms. Moulds drafted a motion to amend the indictment to reflect White s status as a habitual offender pursuant to Mississippi Code Annotated (1972, as amended) and to charge White as an enhanced offender pursuant to Mississippi Code Annotated (1972, as amended). That motion was filed August 20, 2012, one week prior to trial. C.P. 72. Moulds testified that an Order would have automatically printed out with the motion for the judge to sign after the hearing. Tr. 8. Moulds testified that although the Order was printed out, it did not make it into the court file. The Order would have reflected the court s 2

7 ruling amending White s indictment to reflect his status as an habitual offender and an enhanced offender. Tr. 9. Because of the motion filed by the State a week in advance of trial, White was aware of the State s intention to have him sentenced as a habitual offender prior to the start of his trial. Tr. 9. Moulds testified that all conversations with White s attorney regarding a possible plea agreement were always based on the knowledge that White was a habitual offender. Tr. 9. The trial went forward on August 28, The State had put on testimony as well as physical evidence. Tr. 9. Once the physical evidence came in, White indicated through his counsel that he wished to plead guilty. The jury was sent back to the jury room. Moulds and defense counsel negotiated a more lenient sentence than White would have gotten if he had been convicted by the jury. White was on trial for the manufacture of methamphetamine, but pled guilty to the lesser included charge of possession.1 to 2.0 grams of methamphetamine as a habitual offender. Also, as part of the plea bargain, Moulds requested that the trial court withdraw the portion of the prosecution s amendment taking away the enhancement under Mississippi Code Annotated (1972, as amended). Tr For his plea bargain, White would receive a substantially lesser sentence. White could have been sentenced to 60 years had he been found guilty at trial, and he took an offer of eight years mandatory for a lesser included offense as a habitual offender under Mississippi Code Annotated Tr. 10. During the guilty plea hearing, the trial court advised White of all the rights he would waive by pleading guilty and White waived all those rights on the record in his guilty plea hearing. He further filed his Plea Petition in which he gave a sworn statement that he knew the constitutional rights that he would waive in making a guilty plea. Ms. Moulds testified that during the guilty plea hearing she introduced copies of White s two prior conviction showing that 3

8 he was in fact a habitual offender. Tr. 11; C.P White acknowledged in his sworn Plea Petition that he understood that he was pleading guilty as a habitual offender. He further acknowledged his two prior convictions on the record in the plea hearing. C.P At the sentencing hearing the trial judge found that White was a habitual offender pursuant to The trial court noted in its Order denying White s Petition for Post-Conviction Collateral Relief that White was received a more lenient sentence as a result of his plea agreement. At the conclusion of White s hearing, the trial court found that White s indictment should be amended to reflect his two prior convictions and no objection was made to the amendment at that time. The trial court than found that the Petitioner was a habitual offender under Mississippi Code Annotated and sentenced him to eight (8) years to serve in the custody of the Mississippi Department of Correction. Due to an unknown error, no order was entered to reflect the trial court s finding on the amendment to White s indictment. A sentencing order was entered indicating that the trial court had held an appropriate hearing and that following the hearing the trial court found that White was a habitual offender pursuant to Mississippi Code Annotated , and sentenced him to him to Eight (8) years to serve in the custody of the Mississippi Department of Corrections and assessed costs of court and a $50, fine. C.P

9 SUMMARY OF THE ARGUMENT When reviewing a trial court's decision to dismiss a PCR motion, this Court will not disturb the trial court's factual findings unless found to be clearly erroneous. Ross v State, 119 So.3d 1119 (Miss.Ct.App. 2013) (citing Williams v. State, 872 So.2d 711, 712 ( 2) (Miss.Ct.App.2004)). This Court employs a de novo review when reviewing questions of law. Id. It was not error for the prosecution to move to amend the indictment to show that White was a habitual offender even though the grand jury had not indicted him as a habitual offender and the trial court did not err in allowing the prosecution to amend White s indictment to charge him as a habitual offender. See Newberry v. State, 85 So.3d 884, 888 ( 11) (Miss.Ct.App.2011). The amendment did not affect White s defense to the underlying charge of manufacture of methamphetamine. Burrell v. State, 726 So.2d 160, 162 ( 4) (Miss.1998). Nonsubstantive amendments such as habitual offender and other penalty enhancements are permitted under MRCCC Therefore, an indictment may be amended to charge [habitual-offender status] if the offender is given a fair opportunity to present a defense and is not unfairly surprised. Wilson v. State, 935 So.2d 945, 949 ( 10) (Miss.2006). While Rule 7.09 does not speak to the timing of the amendment, it instructs that the defendant must be afforded a fair opportunity to present a defense and not be unfairly surprised. Gowdy v. State, 56 So.3d 540, 545 ( 16) (Miss.2010) (quoting URCCC 7.09). This means that the defendant must be afforded due process of law and be given fair notice of the nature and cause of the accusation. Id. (citing U.S. Const. amends. VI, XIV; Miss. Const. art. 3, 14, 26). White was given sufficient notice that he was being charged as a habitual offender. An 5

10 indictment may be amended to charge [habitual-offender status] if the offender is given a fair opportunity to present a defense and is not unfairly surprised. Wilson v. State, 935 So.2d 945, 949 ( 10) (Miss.2006). While Rule 7.09 does not speak to the timing of the amendment, it instructs that the defendant must be afforded a fair opportunity to present a defense and not be unfairly surprised. Gowdy v. State, 56 So.3d 540, 545 ( 16) (Miss.2010) (quoting URCCC 7.09). This means that the defendant must be afforded due process of law and be given fair notice of the nature and cause of the accusation. Id. (citing U.S. Const. amends. VI, XIV; Miss. Const. art. 3, 14, 26). Sufficient formal notice of the State's intent to seek habitual-offender status is the controlling aspect, not the timing of the court's ruling on the requested amendment. Newberry v. State, 85 So.3d 884 (Miss.Ct.App. 2011). The prosecution filed the motion to amend White s indictment to reflect his habitual offender status on October 20, 2012, a week before the trial began. During trial, White decided to enter a guilty plea. At that time, his attorney consulted with him about possible sentences and explained the effect of being indicted as a habitual offender. In his sworn plea petition, White indicated that he was aware that pursuant to the plea bargain he would be sentenced as a habitual offender pursuant to Mississippi Code Annotated , but that he would not be sentenced as a subsequent drug offender.... The trial court had jurisdiction to sentence White as a habitual offender. Section 27 of the Mississippi Constitution initially requires an indictment that charges the essential elements of the criminal offense. See Rule 2.05, Miss.Unif.Crim. R.Cir.Ct.Prac. Once the indictment has been served on the defendant, a court having subject matter jurisdiction is empowered to proceed. A subsequent event such as a guilty plea to a lesser related offense does not deprive the 6

11 court of personal jurisdiction. This interpretation is consistent with the purposes which an indictment serves - the reasons it has been accorded the status of a constitutional right - (1) to furnish the accused such a description of the charge against him as will enable him to make his defense and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause, (2) to inform the court of the facts alleged so that it may decide whether they are sufficient in law to support a conviction if one should be obtained and (3) to guard against malicious, groundless prosecution. Indictments and Informations, 41 Am.Jur.2d 3 (1968). The record reflects that the prosecutor and the trial court followed proper procedure for amending the indictment to reflect White s status as a habitual offender. Under these circumstances, McCain received fair notice, was not unfairly surprised by the habitual-offender addition, and was afforded a fair opportunity to present a defense. URCCC As Rule 7.09's requirements were satisfied, this Court concludes that McCain's sentence as a habitual offender was lawful. White's argues that the trial court erred when it failed to hold a bifurcated hearing. He alleges that after he entered his guilty plea, the trial court erred by closing his case without holding a bifurcated trial to provide him a chance to object, present evidence [,] and subpoena witnesses in support of his defense. Under Rule of the Uniform Rules of Circuit and County Court, [i]f the defendant... enters a plea of guilty on the principal charge, a hearing before the court without a jury will then be conducted on the previous convictions. This hearing must occur before the defendant can be adjudged a habitual offender. Hudson v. State, 891 So.2d 260, 262 ( 6) (Miss.Ct.App.2004). However, a petitioner's status as [a] habitual offender can be 7

12 established at the entry of a guilty plea, making it unnecessary to have a separate bifurcated hearing [.] Id. (emphasis added) (citing Keyes v. State, 549 So.2d 949, 951 (Miss.1989)). Rule 11.03(3) provides: If the defendant... enters a plea of guilty on the principal charge, a hearing before the court without a jury will then be conducted on the previous convictions. Small claims that his constitutional rights were violated because he was not given a separate bifurcated hearing to establish his status as a habitual offender. The Legislature, in enacting section , determined that enhanced punishment is appropriate for repeat offenders. The purpose of Rule is to ensure that a jury, before deciding a defendant's guilt or innocence, is not informed of the defendant's prior criminal record so as not to be improperly influenced in its verdict. See Edwards v. State, 75 So.3d 73, 76 ( 7) (Miss.Ct.App.2011). Only after guilt is established does the prior criminal record become relevant. The purpose of Rule 11.03(3) is to give the defendant an opportunity to challenge the fact of his prior convictions in a setting separate from the guilt-determination phase. Where a defendant freely admits those prior convictions, the purpose of Rule has been met. The prosecution did not err in its offer of proof to the trial court establishing that White met the requirements to be sentenced as a habitual offender. White failed to object, during sentencing, to the manner in which the State proved his habitual-offender status. Mississippi Appellate Courts have previously made clear that: When an accused fails to object to the habitual offender issue during the sentencing phase, he is procedurally barred to do so the first time on appeal. Sims v. State, 775 So.2d 1291, 1294 ( 16) (Miss.Ct.App.2000) (citing Cummings v. State, 465 So.2d 993, 995 (Miss.1985)). Thus, White's sentence is barred from appellate review. See Heidelburg v. State, 45 So.3d 730 (Miss.Ct.App.2010). 8

13 The assignments of error presented by White in his Petition for Post Conviction Collateral Relief are without merit and the trial court correctly denied White s Petition. 9

14 STANDARD OF REVIEW When reviewing a trial court's decision to dismiss a PCR motion, this Court will not disturb the trial court's factual findings unless found to be clearly erroneous. Ross v State, 119 So.3d 1119 (Miss.Ct.App. 2013) (citing Williams v. State, 872 So.2d 711, 712 ( 2) (Miss.Ct.App.2004)). This Court employs a de novo review when reviewing questions of law. Id. ARGUMENT I. It was not error for the prosecution to move to amend the indictment to show that White was a habitual offender even though the grand jury had not indicted him as a habitual offender. Non substantive amendments such as habitual offender and other penalty enhancements are permitted under MRCCC Despite White s contention that he was not properly indicted as a habitual offender by a grand jury, the record reflects that the prosecution filed a proper Motion to Amend the indictment a full seven days prior to trial. White was certainly on notice that he was being tried as a habitual offender. Uniform Rule of Circuit and County Court 11.03(1) provides that an indictment: must include both the principal charge and a charge of previous convictions. The indictment must allege with particularity the nature or description of the offense constituting the previous convictions, the state or federal jurisdiction of any previous conviction, and the date of judgment instructs: Regarding the amendment of indictments, Uniform Rule of Circuit and County Court All indictments may be amended as to form but not as to the substance of the offense charged. Indictments may also be amended to charge the defendant as [a ] habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the 10

15 amendment is to assert prior offenses justifying such enhancement (e.g., driving under the influence, Miss.Code Ann ). Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised. Therefore, an indictment may be amended to charge [habitual-offender status] if the offender is given a fair opportunity to present a defense and is not unfairly surprised. Wilson v. State, 935 So.2d 945, 949 ( 10) (Miss.2006). While Rule 7.09 does not speak to the timing of the amendment, it instructs that the defendant must be afforded a fair opportunity to present a defense and not be unfairly surprised. Boyd v. State, 113 So.3d 1252, 1255 ( 6) (Miss. 2011) (citing, Gowdy v. State, 56 So.3d 540, 545 ( 16) (Miss.2010) (quoting URCCC 7.09). This means that the defendant must be afforded due process of law and be given fair notice of the nature and cause of the accusation. Gowdy at 545 ( 16) (citing U.S. Const. amends. VI, XIV; Miss. Const. art. 3, 14, 26). The trial court did not err in allowing the prosecution to amend White s indictment to charge him as a habitual offender. See Newberry v. State, 85 So.3d 884, 888 ( 11) (Miss.Ct.App.2011). The amendment did not affect his defense to the underlying charge of manufacture of methamphetamine. Burrell v. State, 726 So.2d 160, 162 ( 4) (Miss.1998). The Mississippi Supreme Court has held that amending an indictment to charge habitual-offender status only affects sentencing and does not affect the substance of the offense charged.. Id. [P]rior offenses used to charge the defendant as [a] habitual offender are not substantive elements of the offense charged. and are therefore allowed pursuant to URCCC Adams v. State, 772 So.2d 1010, 1021 ( 52) (Miss.2000). Further, White did not offer any evidence during the sentencing hearing contesting the 11

16 habitual-offender charge, he makes no argument now that any evidence exists contradicting the State's proof. Further, there was no unfair surprise. The State filed its motion to amend the indictment a week before trial and detailed the offenses qualifying White for habitual-offender status. White was aware of the sentence the trial court was required to impose based on White s plea to the lesser charge of possession of methamphetamine in an amount greater than.1 gram and less than 2.0 grams as a habitual offender pursuant to Mississippi Code Annotated (1972, as amended). White s plea petition reflected that he understood that he was being charged as a habitual offender and understood that he was pleading guilty as a habitual offender. His plea petition further reflected that he was informed of the sentence required under the habitual offender statute. This issue is without merit and trial court s denial of White s Motion for Post Conviction Collateral Relief should be affirmed. II. The prosecution filed its motion to amend the indictment one week prior to trial, and White was given sufficient notice that he was being charged as a habitual offender. White was indicted on October 27, 2011 for manufacture of methamphetamine. On August 20, 2013, the State filed two motions. The first was a motion to amend the defendant s name and the second was to amended the indictment to reflect the defendants status as a habitual offender and as a subsequent drug offender. White s trial began on August 28, 2012, and after the State put on it s physical evidence, White indicated that he wished to plead guilty. According to White s sworn plea petition, White agreed to enter a plea of guilty to the lesser included offense of possession of methamphetamine in an amount greater than.1 but less than two (2) grams, and the State agreed to recommend a sentence of eight (8) years to serve as a habitual 12

17 offender pursuant to Mississippi Code Annotated (1972, as amended). Despite White s contention that he did not receive sufficient notice of the prosecution s intent to amend the indictment to charge him as a habitual offender, the record reflects that White had ample notice and ample time to object. The prosecution filed its Motion to Amend seven days prior to the start of trial. The trial court questioned White about the prior convictions during the plea hearing and White admitted them. He further admitted his prior convictions in his sworn plea petition. Sufficient formal notice of the State's intent to seek habitual-offender status is the controlling aspect, not the timing of the court's ruling on the requested amendment. Newberry v. State, 85 So.3d 884 (Miss.Ct.App. 2011). Further, despite White s contention that there was no hearing on the previous convictions and no evidence of the previous convictions put before the trial court, the record clearly shows that the Court heard arguments on White s habitual offender status and that the State introduced pen packs for each conviction. Prior to accepting White s guilty plea, the trial judge questioned White about his prior convictions. During that questioning, White admitted that he had two prior felony convictions, one for the Burglary of a Commercial Building (reduced to Grand Larceny through plea bargain) and the other for Sale of Cocaine. During the sentencing phase of White s plea hearing, the State offered two certified copies of White s prior Convictions, one for Grand Larceny (Lowndes County Criminal Cause No CR1) and one for Sale of Cocaine (Lowndes County Criminal Cause Number CR1). The State made an ore tenus motion to withdraw its request to amend the indictment to reflect that White was a subsequent drug offender pursuant to Mississippi Code Annotated (1972, as amended). Tr At the conclusion of White s hearing, the trial court found that White s indictment should be 13

18 amended to reflect his two prior convictions. No objection was made at that time. Although the order of the court for amendment of the indictment, record[,] or proceedings provided in section was not entered on the minutes of the court. The record clearly shows that White was informed of and understood the precise amendment. The testimony of the prosecutor during the hearing on White s Motion for Post Conviction Collateral Relief established that the prosecution did request and offer and Order to be signed by the Court and recorded in the minutes of the Court. Due to an oversight, the Order was not included in the record. The trial court stated on the record that the State's motion to amend the indictment was granted. No order was ever entered on the record. Accordingly, the trial court did not conform to the requirement of Mississippi Code Annotated section , and the indictment was not properly amended. However, although the indictment was not properly amended, the issue must have also been preserved for appeal. The State is required to make sure that... an order [amending the indictment] appears in the record[,] and the defense is required to object to the absence of such [an] order if it wishes to preserve this point for appeal. Reed v. State, 506 So.2d 277, 279 (Miss.1987) (citing Sturgis v. State, 379 So.2d 534 (Miss.1980)). In Doby v. State, 532 So.2d 584, 587 (Miss.1988), the trial court granted the State's motion to amend the indictment but failed to enter an order on the minutes. The Mississippi Supreme Court, quoting Dunaway v. State, 398 So.2d 658, 659 (Miss.1981), stated: [A] defendant must specifically bring the absence of an order on the minutes of the court allowing the amendment to the attention of the trial court, or the error will be waived and... may not be raised for the first time on appeal. Doby, 532 So.2d at

19 Because the defendant failed to object to the absence of an order on the minutes either during plea hearing or in the sentencing hearing or a post trial motion, the defendant has waived the issue. Id. at 588. Here the State sought to have an Order entered, but due to a clerical mistake, it was omitted. Although the issue is procedurally barred, White argues that his defense counsel was ineffective for failing to object to the amendment and the resulting failure to preserve the issue for appeal. To establish an ineffective-assistance-of-counsel claim, the defendant must show (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct Had White s counsel objected, the Order prepared by the prosecution would have simply been entered into the record and there would be no difference in the outcome of the case. Therefore, White cannot show prejudide and cannot satisfy the second prong of Strickland. III. The prosecutor properly moved for amendment of the indictment to reflect that White was charged as a habitual offender. Despite White s argument that he only had 10 minutes to consider his plea bargain as a habitual offender, the record indicates that the prosecution filed its Motion to Amend seven days before trial. The motion set out and detailed the charges supporting the habitual offender enhancement. During the plea hearing, the prosecution introduced pen packs establishing the two convictions. Further, White offered no objection to the validity of the two prior convictions and admitted them under oath in his plea petition and during his plea hearing. 15

20 While the Uniform Rules of Circuit and County Court Practice do not address the timing of a post-conviction amendment of an indictment to include habitual-offender status, they do require that the defendant be afforded a fair opportunity to present a defense and not be unfairly surprised. Id. at 545 (quoting URCCC 7.09). White indicated in his sworn plea petition and in his testimony during his plea hearing that he knew that he was being charged as a habitual offender and that he had been advised as to the minimum and maximum sentences under the habitual offender enhancement. This issue is without merit and the jury s verdict and the rulings of the trial court should be affirmed. IV. The trial court gave White sufficient notice that he was being sentenced as a habitual offender. An indictment may be amended to charge [habitual-offender status] if the offender is given a fair opportunity to present a defense and is not unfairly surprised. Wilson v. State, 935 So.2d 945, 949 ( 10) (Miss.2006). While Rule 7.09 does not speak to the timing of the amendment, it instructs that the defendant must be afforded a fair opportunity to present a defense and not be unfairly surprised. Gowdy v. State, 56 So.3d 540, 545 ( 16) (Miss.2010) (quoting URCCC 7.09). This means that the defendant must be afforded due process of law and be given fair notice of the nature and cause of the accusation. Id. (citing U.S. Const. amends. VI, XIV; Miss. Const. art. 3, 14, 26). Sufficient formal notice of the State's intent to seek habitual-offender status is the controlling aspect, not the timing of the court's ruling on the requested amendment. Newberry v. State, 85 So.3d 884 (Miss.Ct.App. 2011). The prosecution filed the motion to amend White s 16

21 indictment to reflect his habitual offender status on October 20, 2012, a week before the trial began. During the hearing on White s Motion for Post-Conviction Collateral Relief, the prosecutor testified that all of the plea negotiations during the week prior to trial White s designation as a habitual offender was recognized by all parties. White declined to plead guilty before trial. However, during trial, after the State had put on its physical evidence, White decided to enter a guilty plea. His attorney consulted with him about possible sentences and explained the effect of being indicted as a habitual offender. In his sworn plea petition, White indicated that he was aware that pursuant to the plea bargain he would be sentenced as a habitual offender pursuant to Mississippi Code Annotated , but that he would not be sentenced as a subsequent drug offender. This issue is without merit and the trial court s dismissal of White s Motion for Post Conviction Collateral Relief should be affirmed. V. The trial court had jurisdiction to sentence White as a habitual offender. Section 27 of the Mississippi Constitution initially requires an indictment that charges the essential elements of the criminal offense. See Rule 2.05, Miss.Unif.Crim. R.Cir.Ct.Prac. Once the indictment has been served on the defendant, a court having subject matter jurisdiction is empowered to proceed. A subsequent event such as a guilty plea to a lesser related offense does not deprive the court of personal jurisdiction. This interpretation is consistent with the purposes which an indictment serves - the reasons it has been accorded the status of a constitutional right - (1) to furnish the accused such a description of the charge against him as will enable him to make his defense and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause, (2) to inform the court of the facts alleged so that it may decide 17

22 whether they are sufficient in law to support a conviction if one should be obtained and (3) to guard against malicious, groundless prosecution. Indictments and Informations, 41 Am.Jur.2d 3 (1968). VI. The record reflects that the prosecutor and the trial court followed proper procedure for amending the indictment to reflect White s status as a habitual offender. Despite White s contention that he was not properly indicted as a habitual offender by a grand jury, the record reflects that the prosecution filed a proper Motion to Amend the indictment a full seven days prior to trial. White was certainly on notice that he was being tried as a habitual offender. Uniform Rule of Circuit and County Court 11.03(1) provides that an indictment: must include both the principal charge and a charge of previous convictions. The indictment must allege with particularity the nature or description of the offense constituting the previous convictions, the state or federal jurisdiction of any previous conviction, and the date of judgment instructs: Regarding the amendment of indictments, Uniform Rule of Circuit and County Court All indictments may be amended as to form but not as to the substance of the offense charged. Indictments may also be amended to charge the defendant as [a ] habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement (e.g., driving under the influence, Miss.Code Ann ). Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised. Therefore, an indictment may be amended to charge [habitual-offender status] if the offender is given a fair opportunity to present a defense and is not unfairly surprised. Wilson v. State,

23 So.2d 945, 949 ( 10) (Miss.2006). While Rule 7.09 does not speak to the timing of the amendment, it instructs that the defendant must be afforded a fair opportunity to present a defense and not be unfairly surprised. Boyd v. State, 113 So.3d 1252, 1255 ( 6) (Miss. 2011) (citing, Gowdy v. State, 56 So.3d 540, 545 ( 16) (Miss.2010) (quoting URCCC 7.09). This means that the defendant must be afforded due process of law and be given fair notice of the nature and cause of the accusation. Gowdy at 545 ( 16) (citing U.S. Const. amends. VI, XIV; Miss. Const. art. 3, 14, 26). The trial court did not err in allowing the prosecution to amend White s indictment to charge him as a habitual offender. See Newberry v. State, 85 So.3d 884, 888 ( 11) (Miss.Ct.App.2011). The amendment did not affect his defense to the underlying charge of manufacture of methamphetamine. Burrell v. State, 726 So.2d 160, 162 ( 4) (Miss.1998). The Mississippi Supreme Court has held that amending an indictment to charge habitual-offender status only affects sentencing and does not affect the substance of the offense charged.. Id. [P]rior offenses used to charge the defendant as [a] habitual offender are not substantive elements of the offense charged. and are therefore allowed pursuant to URCCC Adams v. State, 772 So.2d 1010, 1021 ( 52) (Miss.2000). Further, White did not offer any evidence during the sentencing hearing contesting the habitual-offender charge, he makes no argument now that any evidence exists contradicting the State's proof. Further, there was no unfair surprise. The State filed its motion to amend the indictment a week before trial and detailed the offenses qualifying White for habitual-offender status. White was aware of the sentence the trial court was required to impose based on White s plea to the lesser charge of possession of methamphetamine in an amount greater than.1 gram 19

24 and less than 2.0 grams as a habitual offender pursuant to Mississippi Code Annotated (1972, as amended). White s plea petition reflected that he understood that he was being charged as a habitual offender and understood that he was pleading guilty as a habitual offender. His plea petition further reflected that he was informed of the sentence required under the habitual offender statute. This issue is without merit and trial court s denial of White s Motion for Post Conviction Collateral Relief should be affirmed. VII. Because White pled guilty, the trial court was not required to conduct a separate hearing to determine that White met the requirements to be sentenced as a habitual offender. White was indicted on October 27, 2011 for manufacture of methamphetamine. On August 20, 2013, the State filed two motions. The first was a motion to amend the defendant s name and the second was to amended the indictment to reflect the defendants status as a habitual offender and as a subsequent drug offender. White s trial began on August 28, 2012, and after the State put on it s physical evidence, White indicated that he wished to plead guilty. According to White s sworn plea petition, White agreed to enter a plea of guilty to the lesser included offense of possession of methamphetamine in an amount greater than.1 but less than two (2) grams, and the State agreed to recommend a sentence of eight (8) years to serve as a habitual offender pursuant to Mississippi Code Annotated (1972, as amended). Rule of the Uniform Rules of Circuit and County Court provides that [i]f the defendant... enters a plea of guilty on the principal charge, a hearing before the court without a jury will then be conducted on the previous convictions. This hearing must occur before the 20

25 defendant can be adjudged a habitual offender. Hudson v. State, 891 So.2d 260, 262 ( 6) (Miss.Ct.App.2004). However, a petitioner's status as [a] habitual offender can be established at the entry of a guilty plea, making it unnecessary to have a separate bifurcated hearing [.] Id. (emphasis added) (citing Keyes v. State, 549 So.2d 949, 951 (Miss.1989)). Only after guilt is established does the prior criminal record become relevant. The purpose of Rule 11.03(3) is to give the defendant an opportunity to challenge the fact of his prior convictions in a setting separate from the guilt-determination phase. See Edwards v. State, 75 So.3d 73, 76 ( 7) (Miss.Ct.App.2011). Where a defendant freely admits those prior convictions, the purpose of Rule has been met. Small v. State, 141 So.3d 61, (Miss.Ct.App. 2014) Generally, to sentence a defendant as a habitual offender, the State must prove the prior offenses by competent evidence, and the defendant must be given a reasonable opportunity to challenge the prosecution's proof. However, where the defendant enters a plea of guilty and admits those facts which establish his habitual status, the State has met its burden of proof. Wilkins v. State, 57 So.3d 19, 26 ( 23) (Miss.Ct.App.2010) (emphasis added and internal citations omitted). [A] petitioner's status as a habitual offender can be established at the entry of a guilty plea, making it unnecessary to have a separate bifurcated hearing. Loden v. State, 58 So.3d 27, 29 ( 8) (Miss.Ct.App.2011) (citing Keyes v. State, 549 So.2d 949, 951 (Miss.1989)). Consequently, a separate hearing on White's habitual-offender status was not required. Even if a separate hearing were considered mandatory, both the guilty-plea hearing and the sentencing hearing gave White an ample opportunity to object to the fact of his prior convictions. He did not object, but rather acknowledged his convictions, and the argument is waived. This issue is without merit and the trial court s denial of White s Motion for Post Conviction 21

26 Collateral Relief should be affirmed. The trial court informed White of his previous convictions during his plea hearing. The State provided the trial court with evidence of White's previous convictions. The trial court informed Ross that he was being adjudged and sentenced as a habitual criminal. The trial court also asked White if he understood that the only sentence he could receive as a habitual offender was the maximum White replied in the affirmative. White failed to object to his sentence as a habitual offender after being given ample notice and ample opportunity to object. VIII. The prosecution did not err in its offer of proof to the trial court establishing that White met the requirements to be sentenced as a habitual offender. White failed to object, during sentencing, to the manner in which the State proved his habitual-offender status. Mississippi Appellate Courts have previously made clear that: When an accused fails to object to the habitual offender issue during the sentencing phase, he is procedurally barred to do so the first time on appeal. Sims v. State, 775 So.2d 1291, 1294 ( 16) (Miss.Ct.App.2000) (citing Cummings v. State, 465 So.2d 993, 995 (Miss.1985)). Thus, White's sentence is barred from appellate review. See Heidelburg v. State, 45 So.3d 730 (Miss.Ct.App.2010). White also argues that he was denied the right to effective counsel. Appellant s Brief, p. 10. To show his counsel was ineffective, White must prove (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced his defense. Chaney v. State, 121 So.3d 306, 309( 8) (Miss.Ct.App.2013) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). But because he pleaded guilty, all of his ineffective-assistance-of-counsel claims are waived, unless the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea. 22

27 Adams v. State, 117 So.3d 674, 677( 10) (Miss.Ct.App.2013). Thus, to prevail, White must show that, were it not for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Burrough v. State, 9 So.3d 368, 375( 22) (Miss.2009). White has not shown this to be true. The trial court s denial of White s Motion for Post Conviction Collateral Relief should be affirmed. IX. White was not denied due process pursuant to the Sixth Amendment. Despite White s multiple assertions to the contrary, White did testify under oath at his plea hearing and he did testify that he was a habitual offender and admitted both of the previous convictions. He further admitted both of the previous convictions in his sworn plea petition. 23

28 24

29 CONCLUSION The assignments of error presented by the Appellant are without merit and the trial court s denial of post-conviction collateral relief should be affirmed. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL Office of the Attorney General Post Office Box 220 Jackson, Mississippi Telephone: (601) BY: s/ Laura H. Tedder Laura H. Tedder Special Assistant Attorney General Mississippi Bar No

30 CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: Ernie White, #56097 Unit-28, Zone B, Bed-91 Parchman, Mississippi This the 20 th day of April, OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MISSISSIPPI TELEPHONE: (601) s/ Laura H. Tedder LAURA H. TEDDER SPECIAL ASSISTANT ATTORNEY GENERAL 26