Mark Atkinson v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2016-CP-00024-COA

MARK ATKINSON APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 11/17/2015
TRIAL JUDGE: HON. LEE J. HOWARD
COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: MARK ATKINSON (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF
TRIAL COURT DISPOSITION: DISMISSED PETITION FOR
POSTCONVICTION RELIEF
DISPOSITION: AFFIRMED - 04/11/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ.

CARLTON, J., FOR THE COURT:

¶1. Mark Atkinson appeals the Lowndes County Circuit Court’s dismissal of his petition

for postconviction relief (PCR). On appeal, Atkinson asserts the following issues: (1)

whether he was improperly sentenced as a habitual offender; (2) whether his indictment

failed to give him sufficient notice; and (3) whether he received ineffective assistance of

counsel. Finding no error, we affirm the circuit court’s dismissal of Atkinson’s PCR petition.

FACTS

¶2. A Lowndes County grand jury indicted Atkinson for the following charges: Count
I, possession of methamphetamine in an amount greater than 0.1 grams but less than 2 grams;

Count II, possession of the controlled substance hydrocodone; and Count III, possession of

methamphetamine precursors. See Miss. Code Ann. § 41-29-139 (Rev. 2013); Miss. Code

Ann. § 41-29-313 (Rev. 2013). On May 15, 2013, the State filed a motion to amend

Atkinson’s indictment to reflect his status as a habitual offender under Mississippi Code

Annotated section 99-19-81 (Rev. 2015).

¶3. At the start of Atkinson’s plea hearing, also on May 15, 2013, the State introduced

evidence of his two prior felony convictions. The State first offered into evidence a certified

sentencing order from Lowndes County in cause number 94-444-CR1 to show that Atkinson

had previously been convicted of the sale of less than one ounce of marijuana and sentenced

to three years in the custody of the Mississippi Department of Corrections (MDOC). The

State next offered into evidence a certified pen pack from the Marion County Circuit Court

in Alabama in cause number 1998000070.7101 to show that Atkinson had previously been

convicted of possession of a controlled substance and sentenced to ten years in the custody

of the Alabama Department of Corrections. After Atkinson raised no objection to the State’s

motion, the circuit court granted the motion and amended the indictment to reflect Atkinson’s

habitual-offender status.

¶4. Pursuant to a plea-bargain agreement, Atkinson pled guilty to Count I, possession of

methamphetamine, and the State moved to retire the remaining two counts charged in his

indictment. After conducting a plea colloquy, the circuit court found that Atkinson entered

his guilty plea to Count I knowingly, voluntarily, and intelligently. The circuit court

2
therefore accepted Atkinson’s guilty plea to Count I and retired the two remaining counts.

The circuit court entered its May 15, 2013 order sentencing Atkinson as a habitual offender

to serve eight years in MDOC’s custody, without the possibility of probation or parole, and

to pay a fine of $50,000.

¶5. On July 28, 2015, Atkinson filed a PCR petition asserting that the circuit court

erroneously sentenced him as a habitual offender. Aggrieved by the circuit court’s dismissal

of his PCR petition, Atkinson appeals.1

STANDARD OF REVIEW

¶6. “When reviewing a circuit court’s denial or dismissal of a PCR [petition], we will

reverse the judgment of the circuit court only if its factual findings are ‘clearly erroneous’;

however, we review the circuit court’s legal conclusions under a de novo standard of

review.” Boyd v. State, 65 So. 3d 358, 360 (¶10) (Miss. Ct. App. 2011).

DISCUSSION

I. Whether Atkinson was improperly sentenced as a habitual
offender.

¶7. Atkinson contends that one of the underlying convictions used to establish his

habitual-offender status identified the defendant in that cause number as “Marty Atkins.”

Atkinson argues that “Marty Atkins” is an entirely different person who possesses “a

different name, birth date, and [S]ocial [S]ecurity number[.]” As a result, Atkinson asserts

that the circuit court improperly sentenced him as a habitual offender. He therefore asks this

1
In an April 12, 2016 order, this Court recognized that Atkinson untimely filed his
appeal from the dismissal of his PCR petition. We nevertheless granted him leave to
proceed with his appeal after finding that his show-cause response was well taken.

3
Court to set aside his sentence as a habitual offender, credit him for time served, and order

his immediate release from MDOC’s custody.

¶8. “To be sentenced as a habitual offender, ‘all that is required is that the accused be

properly indicted as a[] habitual offender, that the prosecution prove the prior offenses by

competent evidence, and that the defendant be given a reasonable opportunity to challenge

the prosecution’s proof.’” Madden v. State, 991 So. 2d 1231, 1236 (¶20) (Miss. Ct. App.

2008) (quoting Keyes v. State, 549 So. 2d 949, 951 (Miss. 1989)). “[T]he requirement that

the State prove the existence of the prior convictions beyond a reasonable doubt [i]s negated

by [the defendant’s] decision to enter a guilty plea.” Easley v. State, 60 So. 3d 812, 816

(¶15) (Miss. Ct. App. 2011). Mississippi caselaw provides that “[a] guilty plea operates to

waive the defendant’s right that the prosecution prove each element of the offense beyond

a reasonable doubt.” Id. (citation omitted).

¶9. The record before us reflects that the circuit court properly sentenced Atkinson as a

habitual offender under section 99-19-81. The State introduced evidence during the plea

hearing to establish that Atkinson had “been convicted twice previously of [a] felony or

federal crime[, with the] charges separately brought and arising out of separate incidents at

different times” and that for each of his prior felonies he had “been sentenced to separate

terms of one (1) year or more in [a] state and/or federal penal institution[.]” Miss. Code Ann.

§ 99-19-81.

¶10. After the State presented its evidence of Atkinson’s prior felony convictions, the

circuit court asked whether Atkinson objected to the motion to amend his indictment. In

4
response, Atkinson’s attorney raised no objection and stated that Atkinson had confirmed his

previous convictions for the two felonies introduced into evidence. During the plea colloquy,

the circuit court specifically questioned Atkinson about his two prior felony convictions. In

response to the circuit court’s questions, Atkinson admitted under oath in open court that he

had previously been convicted of the following: (1) the sale of less than one ounce of

marijuana in cause number 94-444-CR1 in Lowndes County, Mississippi; and (2) the

possession of a controlled substance in cause number 1998000070.7101 in Marion County,

Alabama.

¶11. As this Court has previously held, “[a]dmissions to prior criminal convictions are

sufficient to permit a finding of habitual status.” Sanders v. State, 786 So. 2d 1078, 1082

(¶14) (Miss. Ct. App. 2001) (citation omitted). Furthermore, our caselaw establishes that

“[s]olemn declarations in open court carry a strong presumption of verity.” Pierce v. State,

115 So. 3d 869, 873 (¶12) (Miss. Ct. App. 2013) (citation omitted). Because Atkinson

admitted his prior felony convictions as set forth in his amended indictment, we find no

support for his assertion on appeal that the circuit court improperly sentenced him as a

habitual offender. As a result, we find that this argument lacks merit.

II. Whether Atkinson’s indictment failed to give him sufficient notice.

¶12. Atkinson also asserts that his indictment failed to give him sufficient notice of the

State’s intention to charge him as a habitual offender. Rule 7.09 of the Uniform Rules of

Circuit and County Court provides for the amendment of an indictment to charge a defendant

as a habitual offender. The Mississippi Supreme Court has recognized that “Rule 7.09 does

5
not speak to the timing of the amendment.” Williams v. State, 131 So. 3d 1174, 1177 (¶7)

(Miss. 2014) (citation and internal quotation marks omitted). However, “the rule implicitly

recognizes a right to fair notice by prohibiting amendments to indictments where the

defendant is not ‘afforded a fair opportunity to present a defense’ or is ‘unfairly surprised.’”

Id. (quoting URCCC 7.09). As the Williams court explained:

[A]dequate notice is achieved through formal pleadings[,] which include the
specific amendment to be offered and which are filed sufficiently in advance
of trial to ensure that a defendant will have a fair opportunity to present a
defense and will not be unfairly surprised. Whether notice of a possible
enhanced sentence was given sufficiently in advance of trial should be
considered on a case-by-case basis.

Id. (internal citations and quotation marks omitted).

¶13. In Forkner v. State, 902 So. 2d 615, 624 (¶28) (Miss. Ct. App. 2004), this Court

acknowledged the supreme court’s prior holding “that it is permissible to amend the

indictment on the date of trial and to charge the defendant as a habitual criminal . . . when

defense counsel is aware of the State’s intentions and the defendant is fully aware of the

State’s intentions during plea negotiations” (citation omitted). Upon review of the record in

the present case, we find that these requirements were met.

¶14. The record in this case reflects that the State filed its motion to amend Atkinson’s

indictment on May 15, 2013. In his signed plea petition, also filed on May 15, 2013,

Atkinson indicated that he understood the State planned to charge him as a habitual offender,

what the maximum sentence would be if he pled guilty as a habitual offender, and that his

attorney had sufficiently discussed with him the consequences of his guilty plea. The record

further reflects that, at the start of Atkinson’s plea hearing, the circuit court afforded

6
Atkinson an opportunity to respond to the State’s motion to amend his indictment. However,

after the State offered its evidence of Atkinson’s prior felony convictions, Atkinson asserted

no objections to the motion. Instead, Atkinson’s attorney stated that her client had confirmed

the existence of his prior convictions. As a result, the circuit court granted the State’s motion

and then proceeded with Atkinson’s plea colloquy.

¶15. Based on the record before us, we find that Atkinson received sufficient notice of the

State’s intention to amend his indictment as well as a fair opportunity to present a defense

to the amendment. As a result, we find no error in the circuit court’s grant of the State’s

motion. Accordingly, Atkinson’s assignment of error lacks merit.

III. Whether Atkinson received ineffective assistance of counsel.

¶16. Atkinson next argues that he received ineffective assistance of counsel because his

attorney allowed him to be sentenced as a habitual offender. To prove ineffective assistance,

Atkinson must demonstrate that his attorney’s performance was deficient and that this

deficiency prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

With regard to this issue, this Court has previously stated:

In the context of guilty pleas, this means the defendant must show that, were
it not for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial. When a defendant pleads guilty, he must show
unprofessional errors of substantial gravity. The defendant must show his
counsel’s conduct proximately resulted in his guilty plea, and that but for
counsel’s errors, he would not have entered the plea.

Jackson v. State, 195 So. 3d 204, 206-07 (¶6) (Miss. Ct. App. 2015) (citations and quotation

marks omitted).

¶17. Our caselaw establishes that “a defendant must plead claims of ineffective assistance

7
of counsel with specificity, and the claim must be supported by affidavits other than his

own.” McBride v. State, 108 So. 3d 977, 980 (¶11) (Miss. Ct. App. 2012) (citation omitted).

In the present case, however, Atkinson relies solely on the allegations made in his appellate

brief to support his ineffective-assistance claim. In so doing, he fails to demonstrate either

that his attorney’s performance fell below an objective standard of reasonableness or that,

but for his attorney’s alleged errors, he would not have pled guilty. See Avery v. State, 179

So. 3d 1182, 1190 (¶16) (Miss. Ct. App. 2015). Furthermore, as previously discussed, we

find that the circuit court properly sentenced Atkinson as a habitual offender. We therefore

find no merit to Atkinson’s claim that his attorney rendered ineffective assistance of counsel

by allowing him to be sentenced as a habitual offender.

¶18. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT
DISMISSING THE PETITION FOR POSTCONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, WILSON,
GREENLEE AND WESTBROOKS, JJ., CONCUR.

8