Cardarius Foster Hughes a/k/a Cardarius Hughes v. State of Mississippi ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2018-KA-00980-COA
CARDARIUS FOSTER HUGHES A/K/A APPELLANT
CARDARIUS HUGHES
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 06/20/2018
TRIAL JUDGE: HON. CHRISTOPHER A. COLLINS
COURT FROM WHICH APPEALED: SCOTT COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES
HUNTER NOLAN AIKENS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LAURA HOGAN TEDDER
DISTRICT ATTORNEY: STEVEN SIMEON KILGORE
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED IN PART, VACATED IN PART
AND REMANDED FOR RE-SENTENCING
ON COUNT I; REVERSED AND
RENDERED ON COUNT II - 02/11/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
WESTBROOKS, J., FOR THE COURT:
¶1. Cardarius Foster Hughes appeals from his conviction and sentence in the Scott County
Circuit Court for one count of burglary of a dwelling pursuant to Mississippi Code Annotated
section 97-17-23 (Rev. 2014) and one count of burglary of a shed pursuant to Mississippi
Code Annotated section 97-17-33(1) (Rev. 2014).1 Hughes asserts that the trial court erred
1
Hughes does not dispute his conviction on Count I.
in denying his motion for judgment notwithstanding the verdict or, alternatively, a new trial.
The record does not contain a ruling from the trial court; however, the motion was deemed
denied under Rule 25.3 of the Mississippi Rules of Criminal Procedure. Hughes filed his
notice of appeal, and after a review of the record, we affirm Hughes’s conviction under
Count I, the burglary of a dwelling. We reverse and render his conviction and sentence under
Count II, the burglary of a shed. We also vacate the sentence for Count I and remand for re-
sentencing for Count I in accordance with the findings of this opinion.
FACTS AND PROCEDURAL HISTORY
¶2. Winnie Lovell Smith and Bobby Gene Smith were born and raised in Scott County,
Mississippi. They got married and lived in a house on Measels Road in the county. Family,
on both sides, lived near their property. Their son, Steven Smith, lived in LaPlace, Louisiana,
and after Bobby passed on, Winnie went to live in LaPlace near Steven. They kept the family
home on Measels Road and would stay there periodically. Steven described the house as a
two-bedroom trailer; an addition added to the back made it a three-bedroom dwelling.
Personal property belonging to the Smiths remained in the home. Steven testified that a roof
was placed over the entire house and a carport. The property had several structures on it,
including a shed in the back of the house where they kept a couple of tractors, four-wheelers,
lawnmowers, and a smokehouse that housed antiques. The larger shed had a padlock on the
front door for security. The three other doors on the shed could not be opened from the
outside. Steven’s cousin Bridget Nicholson had access to the home and would go by there
at times to check on some personal property she had at the house.
2
¶3. On September 25, 2016, the Smiths were away, and no one was at the house. Hughes
and his girlfriend, Stacee Raelynn Holmes, were riding down Measels Road and saw what
they believed to be a vacant house. They pulled into the driveway, and Stacee got out of the
car. She tried to force her way into the home but could not get in. Hughes got out and went
to the front door of the house and then to the back door. He kicked the door in, and they both
went inside the house. According to Stacee, they did not see anything that they wanted except
a little television. Stacee got the television, took it outside, and put it in the backseat of the
car. Stacee then heard a big fight down the road and decided to get in the car and leave
because she knew the people and did not want them to see her at the house. She left Hughes
on the property, rummaging through the house.
¶4. Stacee testified that she knew about the shed behind the house; and before she left,
she saw Hughes trying to get inside the shed, but it had a padlock on it. She stated that
Hughes was using bolt cutters that were in their car. Stacee was gone for about fifteen
minutes and did not see the shed broken into or Hughes go inside it. Stacee came back to pick
up Hughes, who had a duffel bag with deer cameras in it. Hughes and Stacee did not know
the owners of the house and picked it to burglarize because it looked empty.
¶5. Later that same day, Bridget went to the house to water the plants and to check on
things. According to Steven, he learned that the house had been burglarized when Bridget
called him right away. Steven went to the house the next day to assess the situation. He found
that a big-screen television, three game-trail cameras, tools, an antique BB gun, a pistol, and
several other antique items, including knickknacks from around the house, were missing.
3
Steven testified that the burglar had entered the house through the house-addition’s back door
by kicking in the door and frame. The padlock on the large shed had been cut and placed
back intact to make it look like it was still closed. Steven testified that they did not find
anything noticeable missing from the shed.
¶6. Stacee admitted that the television and the deer cameras stolen from the house were
sold by Hughes and Stacee. Steven testified that he did not know Hughes or Stacee. Stacee
confirmed the same during her testimony. Steven also testified that neither he nor any other
family member gave Hughes or Stacee permission to enter the house or the shed. None of the
stolen items were recovered.
¶7. The Scott County Sheriff’s Department arrested Hughes and Stacee on January 5,
2017. Captain Willie Anderson assisted Investigator Billy Patrick with the investigation into
the burglary of the Smith home. Anderson and Patrick interviewed Stacee on two occasions.
During the first interview on January 6, 2017, Stacee denied Hughes had any involvement
because she did not want to implicate him. However, Stacee recanted her statement on
January 11, 2017, and admitted to Hughes’s involvement in the burglary. Two days later,
Anderson brought Hughes into the interview room to question him. He gave Hughes his
Miranda2 warning orally as Hughes read the form that acknowledged his right to remain
silent. Anderson stated that he also advised Hughes to state his response verbally to each
question asked on the form. At the end of the form, Hughes was asked, “Do you wish to talk
to us now?” to which Hughes wrote his initials on the “yes” line. Hughes signed the form.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
4
According to Anderson, Hughes would not write his statement but would orally tell him what
happened. During the interview, Hughes told Anderson that he and Stacee were together and
went to a particular home on Measels Road. Hughes stated that he kicked down the door and
took a television out. He also stated that he took some bolt cutters and cut the lock off the
shed. He mentioned that some trail cameras were also taken. Hughes told Anderson that a
vehicle came down the road and that Stacee got scared. He told her to leave and that he
would meet her down the road. Anderson acknowledged that he brought Stacee into the
interview room with Hughes to confront him. However, Stacee testified that Hughes did not
admit to any involvement while she was in the room. Anderson testified that the interview
was short, lasting thirty minutes at the most.
¶8. On August 1, 2017, a Scott County grand jury indicted Hughes for one count of
burglary of a dwelling pursuant to Mississippi Code Annotated section 97-17-23 and one
count of burglary of a shed pursuant to Mississippi Code Annotated section 97-17-33(1). On
June 13, 2018, after a jury trial, Hughes was convicted of both counts. He was sentenced as
a habitual offender to serve twenty-five years for Count I and to serve seven years for Count
II. The sentences were set to run consecutively for a total of thirty-two years in the custody
of the Mississippi Department of Corrections without eligibility for parole. Hughes filed a
motion for judgment notwithstanding the verdict or, alternatively, a new trial. After thirty
days with no ruling from the trial court, the motion was deemed denied. Aggrieved by his
conviction and sentence, Hughes filed the instant appeal.
STANDARD OF REVIEW
5
¶9. Our state’s Supreme Court has determined our distinct standards for reviewing the
denial of a motion for judgment notwithstanding the verdict or, alternatively, a new trial:
[w]hen reviewing a challenge for sufficiency of the evidence, this Court must
determine whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. [T]he prosecution must be
given the benefit of all favorable inferences that may be reasonably drawn
from the evidence.
Naylor v. State, 248 So. 3d 793, 796 (¶8) (Miss. 2018) (citations and quotation marks
omitted).
A motion for new trial carries a lower standard of review than that for a
challenge to the sufficiency of the evidence. A motion for a new trial simply
challenges the weight of the evidence. This Court reviews the lower court’s
denial of a motion for new trial only if the trial court abused its discretion.
Thus, this Court will not order a new trial unless convinced that the verdict is
so contrary to the overwhelming weight of the evidence that, to allow it to
stand, would be to sanction an unconscionable injustice. Moreover, factual
disputes are the province of the jury.
Cowart v. State, 178 So. 3d 651, 668 (¶48) (Miss. 2015) (citations and quotation marks
omitted).
DISCUSSION
I. The Sufficiency of the Evidence to Support the Verdict on Count
II
¶10. Count II of the indictment charged Hughes with burglary of the Smiths’ shed under
Mississippi Code Annotated section 97-17-33(1), which states:
Every person who shall be convicted of breaking and entering, in the day or
night, any shop, store, booth, tent, warehouse, or other building or private
room or office therein, water vessel, commercial or pleasure craft, ship,
steamboat, flatboat, railroad car, automobile, truck or trailer in which any
goods, merchandise, equipment or valuable thing shall be kept for use, sale,
6
deposit, or transportation, with intent to steal therein, or to commit any felony,
or who shall be convicted of breaking and entering in the day or night time,
any building within the curtilage of a dwelling house, not joined to,
immediately connected with or forming a part thereof, shall be guilty of
burglary, and imprisoned in the penitentiary not more than seven (7) years.
“The crime of burglary has two essential elements, the unlawful breaking and entering and
the intent to commit some crime once entry has been gained.” Murphy v. State, 566 So. 2d.
1201, 1204 (Miss. 1990) (citing Ashley v. State, 538 So. 2d 1181, 1183 (Miss. 1989)).
¶11. The essential element of breaking and entering is missing from the record in this case.
While the evidence demonstrated the padlock on the front door of the shed had been broken,
there is no evidence that Hughes ever opened the door and entered the shed. Stacee testified
that she saw Hughes with bolt cutters attempting to get inside the shed, but she drove away
before she could witness him go inside. Steven also testified that there were no items missing
from inside the shed. Moreover, both Steven and Stacee testified that the property stolen was
taken from the house. Lastly, Captain Anderson’s testimony based upon Hughes’s oral
statement did not suggest that Hughes went inside the shed. There is no evidence that Hughes
entered the shed.
¶12. Considering the evidence in the light most favorable to the State, we are unable to
identify evidence of Hughes entering the shed. “Courts cannot permit a conviction to stand
based merely upon suspicion.” Shepherd v. State, 403 So. 2d 1287, 1288 (Miss. 1981).
Therefore, we find that no rational juror could have found Hughes guilty of the crime of
burglary of the shed. It was error for the trial court to deny Hughes’s motion for a judgment
notwithstanding the verdict on this charge. Accordingly, we reverse and render the burglary-
7
of-a-shed conviction and sentence. See Hill v. State, 929 So. 2d 338, 341 (¶9) (Miss. Ct. App.
2005).
II. Hughes’s Sentencing as a Habitual Offender
¶13. After voir dire but before opening statements, the State brought forth a motion to
amend the indictment to enhance Hughes’s status to that of a habitual offender under
Mississippi Code Annotated section 99-19-81 (Rev. 2015), which stated:
Every person convicted in this state of a felony who shall have been convicted
twice previously of any felony or federal crime upon charges separately
brought and arising out of separate incidents at different times and who shall
have been sentenced to separate terms of one (1) year or more in any state
and/or federal penal institution, whether in this state or elsewhere, shall be
sentenced to the maximum term of imprisonment prescribed for such felony,
and such sentence shall not be reduced or suspended nor shall such person be
eligible for parole or probation.
“In order to sentence a defendant as a habitual offender, the accused must be properly
indicted as a habitual offender, the prosecution must ‘prove the prior offenses by competent
evidence,’ and the defendant must ‘be given a reasonable opportunity to challenge the
prosecutor’s proof.’” Hull v. State, 174 So. 3d 887, 900-01 (¶43) (Miss. Ct. App. 2015)
(emphasis added) (quoting Grayer v. State, 120 So. 3d 964, 969 (¶18) (Miss. 2013)).
¶14. Prior to July 1, 2017, Uniform Rule of Circuit and County Court Practice 7.09 did “not
speak to the timing of the amendment” and only required that the defendant be “afforded a
fair opportunity to present a defense” and “not [be] unfairly surprised.” Newberry v. State,
85 So. 3d 884, 889 (¶10) (Miss. Ct. App. 2011). In Newberry, the trial court ruled on the
State’s motion to amend the indictment after Newberry’s trial and conviction. Id. at 886-88(¶¶4-5). This Court held that the amendment did not result in unfair surprise where the
8
motion was filed six days prior to trial. Id. at 889 (¶11). The facts in Newberry demonstrated
that the defendant received adequate notice where his trial counsel and the court informed
Newberry of the State’s intention to amend the indictment to sentence him as a habitual
offender, and, if convicted, the trial court’s only option was to sentence Newberry to life in
prison without eligibility for parole. See id. Contrast Newberry with Gowdy v. State, 56 So.
3d 540, 544-45 (¶¶15, 16) (Miss. 2010). In Gowdy, the Mississippi Supreme Court vacated
Gowdy’s sentence under Mississippi Code Annotated section 99-19-83 (Rev. 2007). Id. at
546 (¶22). In that case the State informed the court of its intention to amend the indictment
after Gowdy’s trial and conviction. Id. at 544-45 (¶15). The State was not aware of Gowdy’s
prior convictions in Iowa. Id. at 544 (¶15). The State waited until Gowdy’s sentencing
hearing two months later to file the motion to amend. Id. Our Supreme Court held that to
amend the indictment under these circumstances subjected Gowdy to unfair surprise and
deprived him of due process of law and fair notice. Id. at 545-46 (¶¶16, 19-21). The court
went on to opine that “[t]here is no incentive for the State to be diligent in obtaining a
prospective indictee’s criminal record in advance of presenting a new charge to a grand jury
and timely complying . . . if it may simply amend the indictment at any time before
sentencing.” Id. at 546 (¶20).
¶15. However, on July 1, 2017, the Mississippi Rules of Criminal Procedure went into
effect and changed the procedure under which the State may amend the indictment to
enhance the defendant’s status to that of a habitual offender. Mississippi Rule of Criminal
Procedure 14.1(b) states:
9
When an indictee may be eligible for enhanced punishment because of one (1)
or more prior convictions, the State shall either:
(1) specify such prior conviction(s) in the indictment, identifying each
such prior conviction by [t]he name of the crime, the name of the court in
which each such conviction occurred and the cause number(s), the date(s) of
conviction, and, if relevant, the length of time the accused was incarcerated for
each such conviction; or
(2) after indictment, and at least thirty (30) days before trial or entry
of a plea of guilty, file with the court formal notice of such prior
conviction(s). The notice shall be served upon the defendant or the
defendant’s attorney and shall contain the same information specified in
subsection (1) of this rule. An untimely-filed formal notice is permitted only
when the thirty (30) day requirement is expressly waived, in writing, by the
defendant. Clerical mistakes in such formal notice may, with leave of the
court, be amended prior to the pronouncement of sentence.
(Emphasis added).
¶16. The State sought to file the amended indictment on June 13, 2018, the day of trial. The
State informed the trial court that on January 31, 2018, the defense was told, as part of plea
negotiations, that it intended to amend Hughes’s indictment to charge him as a habitual
offender. Defense counsel did not dispute the State’s assertion that it intended to amend
Hughes’s indictment. The parties agree that defense counsel went back and spoke to Hughes
again, but no plea deal was reached. On January 31, 2018, the State had presented the judge
with a motion to amend, and the judge signed and dated the order amending the indictment.
Neither the motion nor the order was filed with the court. In fact, the prosecutor admitted
that he still had the unfiled motion and the order in his possession on the day of trial.
Although defense counsel did not dispute the above facts, he objected to the untimely filing
of the State’s motion to amend the indictment. The trial court overruled the objection and
10
allowed the amendment to be filed.
¶17. “Whether the trial court erred by allowing the indictment to be amended on the day
of trial is an issue of law that is reviewed de novo.” Ferguson v. State, 136 So. 3d 421, 423
(¶8) (Miss. 2014).
¶18. Under the old rule and precedent, the ruling allowing the amendment would be
affirmed. However, the new procedural rule guarantees fairness and alleviates the arbitrary
exercise of the State’s power. The Mississippi Constitution requires procedural safeguards
when one’s liberty interest is subject to be lost.3 The substantive right protected by Rule
14.1(a)-(b) is the notice to a defendant of the liberty he stands to lose. “Notice of the charge
includes notice of the applicable minimum and maximum penalties.” Gowdy, 56 So. 3d at
546 (¶21). Rule 14.1(b)(2) is clear and leaves no discretion with the State or ambiguity for
the defendant. The rule expressly states that when the defendant is eligible and the State
intends to have the indictee sentenced as a habitual offender, the State “shall . . . after
indictment, and at least thirty days before trial . . . file with the court formal notice of such
prior conviction(s).”4 MRCrP 14.1(b)(2) (emphasis added). The rule goes on to say that
3
The Order adopting the Mississippi Rules of Criminal Procedure begins with “The
Mississippi Constitution mandates certain procedural requirements in the criminal law of this
State. And the Mississippi Legislature and this Court, acting on the respective authority
vested in them by the Mississippi Constitution . . . [i]n order to promote justice, uniformity,
and efficiency in our courts . . .” MRCrP Adopting Order.
4
Hughes also points to Mississippi Rule of Criminal Procedure 1.7(c)(1), which
provides that “the filing of pleadings and other papers with the court as required by these
Rules shall be made by filing them with the clerk of the court, except that the judge may
permit the papers to be filed with the judge, in which event the judge shall note thereon the
filing date and forthwith transmit them to the office of the clerk.” (Emphasis added).
11
“[a]n untimely-filed formal notice is permitted only when . . . expressly waived, in writing,
by the defendant.” Id. (emphasis added). The rule leaves little for interpretation, and it is not
reflected in the record that its directives were followed.
¶19. The State did not initially indict Hughes as a habitual offender, and the State did not
file its motion or formal notice of enhanced sentencing with the circuit court clerk at least
thirty days before trial post-indictment. Moreover, the prosecutor had no explanation for the
reason he did not file the motion or the order by the end of the court’s term or for another
five months. Plus, the defendant did not expressly waive the thirty-day requirement in
writing. Verbal notice by the prosecutor and a verbal acknowledgment by defense counsel
does not meet the requirement of Rule 14.1(b). The State informed Hughes’s attorney of its
intention to amend the indictment, which may have created an expectation on Hughes’s part
that he would be indicted as a habitual offender. Likewise, once the thirty-day deadline
passed, the mandates of the rule created the expectation that he would not be indicted as a
habitual offender. The facts of this case are not unique but present an old quandary that the
rule is design to resolve. Hughes was not sentenced according to new rules of criminal
procedure, and therefore his sentence must be vacated and remanded for a new sentence in
accordance with Mississippi Code Annotated section 97-17-23(1).
CONCLUSION
¶20. Every prosecution and sentence must be in compliance with statutory authority, case
precedent, and the procedural rules of court. The evidence is insufficient to support a
conviction for burglary of a shed, and we must reverse and render on Count II of the
12
indictment. Because the State failed to timely amend the indictment to reflect Hughes’s
habitual status, we are compelled to vacate the sentence and remand this case for re-
sentencing on Count I.
¶21. AFFIRMED IN PART, VACATED IN PART AND REMANDED FOR RE-
SENTENCING ON COUNT I; REVERSED AND RENDERED ON COUNT II.
BARNES, C.J., GREENLEE AND McDONALD, JJ., CONCUR. C. WILSON,
J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN
OPINION. J. WILSON, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE
WRITTEN OPINION. McCARTY, J., CONCURS IN PART AND DISSENTS IN
PART WITHOUT SEPARATE WRITTEN OPINION. LAWRENCE, J., CONCURS
IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION,
JOINED BY CARLTON, P.J., TINDELL, AND McCARTY, JJ.
LAWRENCE, J., CONCURRING IN PART AND DISSENTING IN PART:
¶22. I agree with the majority that the evidence used to convict Hughes under Count II was
insufficient. I disagree that Hughes’s classification as a habitual offender should be vacated.
Hughes and his attorney were both aware of the motion to amend on January 31,
2018—months before trial began on June 13, 2018. The order allowing the indictment to be
amended was actually signed by Judge Collins on January 31, 2018. The motion and order
were not filed as a result of plea negotiations and at the request of defense counsel.
Therefore, I would hold that the trial court did not err by granting the State’s motion to
amend the indictment and allowing the signed order to be filed the day before trial. For this
reason, I respectfully dissent from part II of the majority’s opinion.
¶23. On January 31, 2018, the State intended to file a motion to amend Hughes’s
indictment to include a sentencing enhancement as a habitual offender. On that same day,
the State had Judge Collins sign an order granting the motion to amend. The defense knew
13
of the motion and the signed order on that date. During that time, the State was in plea
negotiations with the defense. Defense counsel requested that the State not file the motion
to amend or the signed order on that day so that he could speak with his client, Hughes, about
accepting a plea deal. The State agreed to the request of defense counsel. Therefore, the
motion to amend and the signed order were not filed on January 31. The motion to amend
and the signed order to amend the indictment, which was signed by Judge Collins on January
31, 2018, were both stamped “filed” on June 12, 2018. Both the motion and the order were
entered onto the docket on June 13, 2018. The case was set for trial to begin on June 13,
2018. After the jury was selected on June 13, 2018, but before witnesses were called, the
State addressed the motion to amend the indictment on the record. The district attorney
explained to the trial judge why the motion and order, although the motion was delivered to
the defense on January 31, 2018 and the proposed order was signed on January 31, 2018, had
not been filed earlier. The following exchange occurred:
MR. KILGORE: [During plea negotiations] we had not reached a plea
agreement, and so I got the Court, more specifically,
Judge Collins, to sign [the order sustaining the motion to
amend the indictment] on January 31, 2018. As I was
about to file it, [defense counsel] said, “Hang on just a
second. Let me talk to [Hughes] one more time.” And
I said no problem. And he went back and spoke to his
client, who still didn’t want to take a plea bargain. . . .
MR. SUMRALL: Your Honor, which we would say that the facts that
he stated are basically true. That’s exactly what
happened. We were in negotiations and I asked him to
hold on so I could talk to [Hughes] one time. And he,
once again, refused the offer. I’m not going to dispute
the facts at all. . . .
14
THE COURT: January 31st you were aware of the prosecutor’s
intention –
MR. SUMRALL: Yeah, and so was –
THE COURT: — and certainly aware that your client had these prior
convictions?
MR. SUMRALL: Yes, sir.
(Emphasis added). After the defense admitted it knew of the proposed amendment on
January 31 and that it had not been filed at their request, the trial judge “allow[ed]” the
amendment, and the parties immediately proceeded to trial.
¶24. Rule 14.1(b)(2) of the Mississippi Rules of Criminal Procedure states that sentencing
enhancements may be appropriate when
[the State,] after indictment, and at least thirty (30) days before trial or entry
of a plea of guilty, file with the court formal notice of such prior
conviction(s). The notice shall be served upon the defendant or the
defendant’s attorney and shall contain the same information as specified in
subsection (1) of this rule. An untimely-filed formal notice is permitted only
when the thirty (30) day requirement is expressly waived, in writing, by the
defendant. Clerical mistakes in such formal notice may, with leave of the
court, be amended prior to the pronouncement of sentence.
(Emphasis added). As discussed above, the State’s motion to amend and the signed order
granting the same were originally dated January 31, 2018. Because plea negotiations were
ongoing, the defense requested that the State not file the motion to amend or the signed order
granting the motion. The defense admitted to the trial judge that they were aware of the
State’s motion to amend and the order on January 31, 2018. The defense now claims unfair
surprise and a technical violation of Rule 14.1. The majority is correct that Rule 14.1 is clear
in requiring a thirty-day, before-trial filing of a formal notice of the defendant’s prior
15
convictions. To hold otherwise would put form over substance, by contradicting the notions
of fundamental fairness that the laws of this State and the Mississippi Rules of Criminal
Procedure are built upon. The Rule protects a defendant’s rights to present an adequate
defense and not be unfairly surprised by an untimely amendment to his indictment. Here,
however, it was clear that the defendant was not unfairly surprised. The defense admitted
it knew about the motion to amend. The defense admitted it knew that the order allowing the
amendment had been signed. The defense admitted that the order was not filed by the State
because the defense asked the State not to file it until plea negotiations were exhausted.
Under the unique facts of this case, a strict interpretation of this rule would reward Hughes.
Yet it was Hughes who specifically asked for the delay in the filing of the required
documents. It is hard to imagine how a defendant can be surprised by his own criminal
record, or how his sentence as a habitual offender should be set aside, when he was the
reason the State did not file the necessary documents under Rule 14.1. The underlying
purpose of Rule 14.1 is to provide notice to the defendant. It is without doubt that the
defendant in this case had notice of the sentencing enhancement six months before trial.
¶25. The majority opinion cites Gowdy v. State, 56 So. 3d 540 (Miss. 2010), and Newberry
v. State, 85 So. 3d 884 (Miss. Ct. App. 2011), to support its finding that Hughes’s habitual-
offender sentence should be vacated. The facts of Gowdy and Newberry are drastically
different from the facts surrounding the instant case. The supreme court in Gowdy held that
the State was unable to amend the indictment after the defendant was convicted. Gowdy, 56
So. 3d at 545 (¶19). As the Mississippi Supreme Court noted, “it logically follows that if the
16
State may not amend the indictment to charge the ‘big’ enhancement after conviction when
the original indictment charged only the ‘little’ enhancement, then the State may not amend
the indictment to add an enhanced penalty after conviction.” Id. (second emphasis added).
In his separate opinion, Justice Pierce noted that “it is well-established that ‘prior offenses
used to charge the defendant as a habitual offender are not substantive elements of the
offenses charged.’” Id. at 548 (¶32) (Pierce, J., concurring in part and dissenting in part)
(quoting Adams v. State, 772 So. 2d 1010, 1021 (¶52) (Miss. 2000); Swington v. State, 742
So. 2d 1106, 1118 (¶44) (Miss. 1999)). The fact that Hughes met the standards for a habitual
offender did not change the elements set forth in the indictment he had to defend at trial.
Again, this does not amount to unfair surprise, and amending the indictment to include the
sentencing enhancement did not restrict Hughes’s ability to present his defense to the jury.
¶26. In Newberry, this Court found that the defendant “had sufficient pretrial notice of the
habitual-offender charge” that “allow[ed] him time to prepare a defense against the habitual-
offender charge . . . .” Newberry, 85 So. 3d at 891 (¶17). There the State filed a motion to
amend the indictment six days before trial. Id. at 886 (¶4). This Court held that “there [was]
no unfair surprise” to the defendant. Id. at 889 (¶11).
¶27. More in line with the facts of this case is this Court’s decision in Jackson v. State, 943
So. 2d 746, 749-50 (¶¶13-16) (Miss. Ct. App. 2006). Jackson was originally indicted in
February 2004. Id. at 748 (¶5). The day before his trial in October 2004, the State filed a
motion to amend the indictment. Id. Even though Jackson’s attorney claimed the motion
was untimely, the trial court found that because the State had made the defense aware of the
17
motion in June 2004, the amendment was proper. Id. at 748-49 (¶¶6-7). On appeal, we held
that it was not error for the trial court to permit the amendment to Jackson’s indictment
because “Jackson’s counsel admitted that he was aware that the district attorney was
considering amending the indictment to name Jackson as a habitual offender in June 2004.”
Id. at 750 (¶16).5
¶28. In this case, we face the same scenario as in Jackson. In an effort to accommodate
Hughes’s request and to continue ongoing plea negations, the State held off on filing the
order amending the indictment that Judge Collins signed on January 31, 2018. The defense
was aware of the motion and the signed order granting the motion, as well as the intent of the
State on January 31, 2018—almost six months before trial. Hughes cannot now claim
surprise on appeal when he was well aware of the State’s intentions months before trial. As
the record clearly shows, the motion or order was not filed on January 31, 2018, at the behest
of the defendant. I would hold that the trial judge did not abuse his discretion under these
unique facts and affirm Hughes’s sentence as a habitual offender. Therefore, I respectfully
dissent from part II of the majority’s opinion.
CARLTON, P.J., TINDELL AND McCARTY, JJ., JOIN THIS OPINION.
5
Notably, at the time Jackson was indicted, the court was still bound by the Uniform
Rules of Circuit and County Court Practice instead of the Mississippi Rules of Criminal
Procedure. The former rules declared that an amendment was allowable “only if the
defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.”
URCCC 7.09. The same fundamental principles of fairness and notice apply under Rule 14.1
of the Mississippi Rules of Criminal Procedure.
18