376 So.3d 1209
Miss.2023Background
- In Nov. 2015 Hathorne was arrested and later indicted (Dec. 2016) for possession of 30+ grams of “Ethylone,” charged as a Schedule I controlled substance under Miss. Code § 41-29-139.
- Hathorne was tried in May 2017, convicted, and sentenced to 30 years (20 to serve, 10 suspended).
- On direct appeal the Court of Appeals affirmed; Hathorne later filed a timely post-conviction relief (PCR) petition arguing the indictment failed to charge a crime because ethylone was not tied to a statutory schedule entry.
- The Court of Appeals agreed the indictment was defective but held Hathorne’s claim was procedurally barred under the UPCCRA because he could have raised it earlier.
- The Mississippi Supreme Court granted certiorari, held the indictment did not charge a crime, found the claim was not procedurally barred, reversed the conviction and sentence, and rendered judgment dismissing the indictment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the indictment charged a crime (sufficiency re: ethylone) | Hathorne: indictment named “Ethylone” but State failed to show ethylone is a Schedule I substance or tie it to an enumerated statutory substance | State: trial evidence and post-trial analyst affidavit supported that ethylone was the controlled substance | Court: indictment was substantively defective — failed to charge a crime; conviction is void and indictment must be dismissed |
| Whether the UPCCRA procedural bar precludes relief (post-Howell) | Hathorne: challenge to substantive sufficiency of an indictment cannot be waived; not barred by UPCCRA; UPCCRA is procedural | State: issue was capable of determination at trial/direct appeal and is waived under § 99-39-21; Forkner supports denial | Court: claim not procedurally barred — substantive defect in indictment cannot be waived; granted PCR and dismissed indictment; did not decide whether actual-innocence exception survives Howell |
Key Cases Cited
- Copeland v. State, 423 So. 2d 1333 (Miss. 1982) (substantive defect in indictment cannot be cured by extrinsic proof and is not waivable)
- Payne v. State, 282 So. 3d 432 (Miss. Ct. App. 2019) (indictment naming “ethylone” failed to connect the substance to statutory schedule; indictment void)
- Howell v. State, 358 So. 3d 613 (Miss. 2023) (fundamental-rights exception cannot be applied to substantive, legislatively enacted UPCCRA bars)
- Forkner v. State, 277 So. 3d 946 (Miss. 2019) (PCR waiver analysis; distinguishable where indictment merely lacked detail and case involved successive/tardy filings)
- Carson v. State, 212 So. 3d 22 (Miss. 2016) (challenge to indictment that fails to charge essential elements affects a fundamental right and may not be waived)
- Buford v. State, 111 So. 850 (Miss. 1927) (historical principle: accused must be informed of the nature and cause of the accusation; indictment nullity may be raised anytime)