203 So. 3d 653
Miss. Ct. App.2016Background
- In April 2012 a Lowndes County grand jury indicted Cardios Barker for possession of less than 0.1 gram of cocaine under Miss. Code Ann. § 41-29-139.
- The State moved to amend the indictment to charge Barker as a habitual offender under Miss. Code Ann. § 99-19-81; the motion was presented before trial and agreed to have been submitted the day before trial.
- Barker pleaded guilty; his plea petition and counsel confirmed an agreement that the State would seek to amend the indictment to habitual-offender status but would not seek an enhanced penalty beyond a four-year maximum.
- The court accepted the plea, delayed sentencing to allow Barker to contest habitual-offender status, then granted the amendment, found two prior qualifying felony convictions, and sentenced Barker to four years and a $10,000 fine.
- Barker filed a postconviction-relief (PCR) motion arguing (1) his sentence was illegal because he was not indicted as a habitual offender, and (2) counsel was ineffective for not objecting to sentencing as a habitual offender without a grand-jury indictment; the circuit court denied PCR without a hearing and Barker appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Barker received an illegal sentence by being sentenced as a habitual offender without an original indictment charging that status | Barker: Sentence illegal because indictment did not originally charge habitual-offender status | State: Indictment was properly amended; Barker was given opportunity to defend; sentencing conformed to statutory maximum | Court: Not illegal; amendment authorized and Barker afforded fair opportunity to defend; four-year sentence lawful |
| Whether counsel was ineffective for failing to object to habitual-offender sentencing absent an original grand-jury indictment | Barker: Counsel should have objected; failure prejudiced outcome | State: Counsel’s conduct reasonable; indictment was amended and no prejudice shown | Court: Ineffective-assistance claim denied; no deficient performance or resulting prejudice |
| Whether Barker may raise new issues on appeal that were not raised in the PCR motion | Barker raised additional claims in reply brief | State: Issues not preserved for appeal | Court: New issues not considered; appellant cannot raise on appeal issues not raised below |
Key Cases Cited
- Pickle v. State, 115 So. 3d 896 (Miss. Ct. App. 2013) (standard of review for dismissal of PCR motions and when an evidentiary hearing is unnecessary)
- Marshall v. State, 136 So. 3d 443 (Miss. Ct. App. 2013) (appellate courts will not consider issues first raised on appeal that were not presented in PCR below)
- Fluker v. State, 17 So. 3d 181 (Miss. Ct. App. 2009) (preservation rule barring first-time appellate claims)
- Shies v. State, 185 So. 3d 1081 (Miss. Ct. App. 2016) (definition of an illegal sentence as one not conforming to the applicable penalty statute)
- Kyles v. State, 185 So. 3d 408 (Miss. Ct. App. 2016) (ineffective-assistance-of-counsel standard requiring deficient performance and prejudice)