Cardarius Foster Hughes a/k/a Cardarius Hughes v. State of Mississippi

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

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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.

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¶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.

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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).

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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

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¶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,

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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-

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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

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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:

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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

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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).

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“[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

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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

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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. . . .

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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

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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.

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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.

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