Quintoris Bowdry v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-CP-01628-COA
QUINTORIS BOWDRY APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 09/11/2013
TRIAL JUDGE: HON. PAUL S. FUNDERBURK
COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: QUINTORIS BOWDRY (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: STEPHANIE BRELAND WOOD
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: MOTION FOR POST-CONVICTION RELIEF
DENIED
DISPOSITION: AFFIRMED - 09/23/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., ISHEE AND JAMES, JJ.
JAMES, J., FOR THE COURT:
¶1. Quintoris Bowdry was charged by criminal information on September 14, 2011, with
possessing more than two grams of cocaine, as a habitual offender pursuant to Mississippi
Code Annotated section 99-19-81 (Rev. 2007). Bowdry entered a guilty plea and was
sentenced to sixteen years in the custody of the Mississippi Department of Corrections.
Bowdry filed a motion for post-conviction collateral relief (PCR), which the trial court
denied. Bowdry appeals raising the following issue: whether it was plain error for the trial
court to allow the criminal information to be amended after the guilty plea was entered.
FACTS
¶2. On September 14, 2011, after waving an indictment, Bowdry was charged by criminal
information with possessing more than two grams of cocaine as a habitual offender. Bowdry
pled guilty and was sentenced the same day to sixteen years in the custody of the Mississippi
Department of Corrections. However, during the plea hearing, a clerical error was
discovered, and the State made an ore tenus motion to amend the criminal information to
reflect the correct date of the crime. The information was amended to change the date of the
crime from May 11, 2011, to August 11, 2011. The trial court granted the motion, and the
indictment was amended accordingly.
¶3. Bowdry filed a PCR motion on July 22, 2013. In the motion, Bowdry alleged that the
indictment was amended to charge him as a habitual offender. The trial court denied the
motion, finding that the criminal information originally charged Bowdry as a habitual
offender and that the amendment was used only to correct a date and clerical errors. Bowdry
now appeals.
STANDARD OF REVIEW
¶4. “We review the dismissal or denial of a PCR motion for abuse of discretion. We will
only reverse if the trial court’s decision is clearly erroneous.” Hughes v. State, 106 So. 3d
836, 838 (¶4) (Miss. Ct. App. 2012). Questions of law are reviewed de novo. Id.DISCUSSION
I. Whether it was plain error for the trial court to allow the criminal
information to be amended after the guilty plea was entered.
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¶5. Bowdry argues that the criminal information did not contain a reference to the
habitual-criminal status. According to Bowdry, the criminal information was amended after
his guilty plea was entered. In his brief, Bowdry also asserts that “the motion to amend and
order granting the motion was not timely filed [sic].” Bowdry further claims that the trial
court did not have jurisdiction to amend the information. Finally, Bowdry contends that he
is entitled to relief under Gowdy v. State, 56 So. 3d 540 (Miss. 2011), which held that the
trial court erred when it allowed the State to amend the indictment after the conviction to
include the habitual-offender status.
¶6. To constitute plain error, a party must “prove that an error occurred which ‘resulted
in a manifest miscarriage of justice.’ This doctrine is only available when a defendant’s
substantive or fundamental rights have been violated.” Starr v. State, 997 So. 2d 262, 266
(¶11) (Miss. Ct. App. 2008) (citation omitted). The plain-error doctrine must be applied only
when certain conditions are met, such as when a violation “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id. at (¶12). Additionally, “[p]lain-
error review is properly utilized for ‘correcting obvious instances of injustice or misapplied
law.’” Smith v. State, 986 So. 2d 290, 295 (¶10) (Miss. 2008).
¶7. Here, the Court must determine whether or not the plain-error doctrine is applicable.
Id. “To determine if plain error has occurred, we must determine ‘if the trial court has
deviated from a legal rule, whether that error is plain, clear or obvious, and whether the error
has prejudiced the outcome of the trial.’” Hurt v. State, 34 So. 3d 1191, 1197 (¶17) (Miss.
Ct. App. 2009).
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¶8. Here, a criminal information was used as the charging instrument. A defendant may
be charged by criminal information if he is represented by counsel and has waived indictment
by a sworn statement. Berry v. State, 19 So. 3d 137, 139 (¶7) (Miss. Ct. App. 2009).
¶9. Bowdry relies heavily upon Gowdy to contend that the State should not have been
permitted to amend the information. In Gowdy, the defendant went to trial, and after his
conviction, the State sought to amend the indictment to include the defendant’s habitual-
offender status, after becoming aware of prior convictions in Iowa. Gowdy, 56 So. 3d at 544
(¶¶14-15). On the original day scheduled for sentencing, the State filed a motion to amend
the indictment, adding the habitual-offender status. Id. Gowdy objected to the amendment,
and the sentencing hearing was rescheduled. Id. The trial court overruled his objection and
granted the amendment at the second scheduled hearing, and Gowdy received a life sentence.
Id. The supreme court held that the State should not have been allowed to amend the
indictment after Gowdy’s conviction, and remanded the case for resentencing. Id. at 546
(¶22). Here, in the information the habitual-offender statute, Mississippi Code Annotated
section 99-19-81, was cited. Further, in the plea colloquy, the following discourse took
place:
Court: Mr. Bowdry, you have indicated through your attorney, Mr.
Willie Allen, that you intend to enter a plea of guilty to the
charge of possession of a quantity of cocaine . . . greater than 2
grams as a habitual offender in CR11-475. Do you intend to
enter a plea of guilty to that charge?
Bowdry: Yes, sir.
....
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Court: Have you and your attorney received a copy of the criminal
information filed against you today by the district attorney’s
office charging you with this new crime of having in your
possession a quantity of cocaine greater than two grams?
Bowdry: Yes, sir.
Court: As an habitual offender?
Bowdry: Yes, sir.
Court: Have you read this criminal information? Have you read this
charge or had it read to you and discussed with you by your
attorney?
Bowdry: Yes, sir.
¶10. Bowdry was informed of the habitual-offender status in the criminal information. Not
only was Bowdry informed, he indicated that he read the information and understood the
consequences of entering a guilty plea several times. Bowdry’s attorney also indicated that
he explained to Bowdry the charges and answered any questions he had about the process.
It was after the trial court elicited these statements from Bowdry and his attorney that the
court accepted Bowdry’s guilty plea.
¶11. It is well settled that the trial court may amend the indictment to correct defects of
form, not substance. Jones v. State, 912 So. 2d 973, 976 (¶9) (Miss. 2005). “An amendment
is one of form if the amendment is immaterial to the merits of the case and the defense will
not be prejudiced by the amendment.” Id. To determine whether the amendment is
prejudicial to the defense, the test applied is whether the “defense as it originally stood would
be equally available after the amendment is made.” Pool v. State, 764 So. 2d 440, 443 (¶10)
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(Miss. 2000). The trial court allowed the State to amend the information to change the date
of the crime from May 11, 2011, to August 11, 2011, to correct typographical errors, and to
correct the previous sentencing dates. The changes did not interfere with the defense.
CONCLUSION
¶12. Bowdry had notice of the habitual-offender status in the information. He was also
represented in the trial court by an attorney, and when asked if he understood the
implications of his guilty plea, he answered in the affirmative. We find that the trial court
did not err in denying Bowdry’s PCR motion, and the plain-error doctrine is not applicable
in this case. The judgment of the trial court is affirmed.
¶13. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY DENYING
THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS,
CARLTON AND FAIR, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND
IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.
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