        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2015-CA-01650-COA

DERRICK DORTCH                                                              APPELLANT

v.

STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                          10/14/2015
TRIAL JUDGE:                               HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED:                 MADISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    CYNTHIA ANN STEWART
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: KAYLYN HAVRILLA MCCLINTON
NATURE OF THE CASE:                        CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                   PETITION FOR POST-CONVICTION
                                           RELIEF DENIED
DISPOSITION:                               AFFIRMED – 04/18/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., FAIR AND WILSON, JJ.

       IRVING, P.J., FOR THE COURT:

¶1.    Derrick Dortch was convicted by the Madison County Circuit Court after pleading

guilty to shooting into an occupied dwelling and to aggravated assault. Pursuant to the

firearm-enhancement statute, the circuit court enhanced Dortch’s sentences. Dortch later

filed a petition for post-conviction relief (PCR), alleging that the circuit court erred in

enhancing his sentences. After the circuit court denied Dortch’s PCR petition, he filed this

appeal. We affirm.

                                 PROCEDURAL FACTS

¶2.    After Dortch’s guilty pleas, the circuit court sentenced him to two ten-year concurrent
terms of imprisonment in the custody of the Mississippi Department of Corrections (MDOC),

with five years suspended from each sentence, five years of supervised probation for each

sentence, and an additional five-year enhancement term to run consecutively to each ten-year

term, for a total to ten years to serve.

¶3.        As stated, Dortch filed a PCR petition, arguing that the circuit court erred in

enhancing his sentences pursuant to Mississippi Code Annotated section 97-37-37 (Rev.

2014). His argument before the circuit court, as it is here, was that the circuit court erred

because he “was not given notice that the court was seeking the enhancement.” Specifically,

Dortch contends that the court erred when it enhanced his sentence despite the fact that the

State had failed to include the enhancements in his two indictments, and never mentioned the

enhancements during plea negotiations or in its plea offer. Further, Dortch maintains that he

did not receive “any notice of the enhancement[s] until the original plea date of November

1[7], 2014,1 and only then, by the trial judge.” Additional facts, as necessary, will be related

during our discussion of this matter.

                                           DISCUSSION

¶4.    “Whether a defendant received fair notice of a sentence enhancement is a question of

law that [appellate courts] review de novo.” Sallie v. State, 155 So. 3d 760, 762 (¶7) (Miss.


       1
         Both parties argue, and the front page of the transcript indicates, that the initial plea
hearing took place on November 11, 2014. However, the rest of the record—including the
actual transcript of the hearing—indicates that the hearing actually took place on November
17, 2014. This inconsistency is most likely the result of a scrivener’s error; for clarity, we
will use November 17, 2014, as the hearing date.

                                                2
2015).

¶5.      Dortch’s initial plea hearing took place on November 17, 2014, during which Dortch

stated that he wished to plead guilty to both offenses for which he was charged. The

November 17, 2014 plea-hearing transcript is void of any on-the-record mention of the two

sentence enhancements.2 However, the court did not accept his guilty plea at that time.

¶6.      Dortch’s plea hearing was continued until December 8, 2014, during which the first

on-the-record mention of the two sentence enhancements took place:

         [BY THE COURT]: Do you also understand that both of these cases involve
         the use of a firearm in the commission of the crime, and under 97-37-37, I’m
         mandated to impose a separate sentence in each case of five years. That would
         be in addition to any sentence imposed for each of those offenses. Do you
         understand that?

         [BY DORTCH]: Yes, sir.

                                            ****

         [BY THE COURT]: And knowing that, do you still wish to go forward with
         your plea?

         [BY DORTCH]: Yes, sir.



         2
         Of note, however, is that both parties contend in their briefs that Dortch first
received notice of the sentence enhancements on the date of his initial plea
hearing—November 17, 2014. Further, on December 8, 2014, when the trial judge first
addressed the sentence enhancements, counsel for Dortch acknowledged that he had learned
of these enhancements “at the beginning of the plea, but originally, [they were] not part of
the recommendation by the State. [They were] not in the original recommendation, and my
client was not indicted under the enhancement portion.” Thus, while Dortch may have
received notice of the enhancements on November 17, 2014, such notice must have taken
place off the record.

                                              3
                                           ****

       [BY THE COURT]: Do you understand that I’m not bound by any
       recommendation the State may make as to sentence and, instead, I could
       impose the maximum sentence authorized by law for each of these offenses
       and order that [they] run consecutively to each other?

       [BY DORTCH]: Yes, sir.

       [BY THE COURT]: And on top of that, I could tack on the additional five-
       year mandatory punishment for each of these offenses - -

       [BY DORTCH]: Yes, sir.

       [BY THE COURT]: - - because of the use of a firearm?

       [BY DORTCH]: Yes, sir.

       [BY THE COURT]: And knowing that, do you still wish to go forward with
       your plea?

       [BY DORTCH]: Yes, sir.

After this conversation, the trial court asked the State for the factual basis and received the

State’s sentencing recommendation, which included the two sentence enhancements. After

the State gave its recommendation, the court asked Dortch if that was the recommendation

he expected to hear, to which Dortch answered, “yes, sir.” The court then asked Dortch’s

counsel if that was the recommendation that he had received from the State and

communicated to his client prior to the beginning of the plea. Counsel answered as follows:

       Your Honor, at the beginning of the plea, but originally, it was not part of the
       recommendation by the State. It was not in the original recommendation, and
       my client was not indicted under the enhancement portion and at the
       sentencing phase I would like to be heard in argument that the enhancement
       does not apply.

                                              4
The court requested counsel to approach the bench and held an off-the-record conference.

When the proceedings resumed, the court, without addressing the sentence enhancements,

stated:

          All right. Mr. Dortch, the bottom line, it’s not too late at this point to stop this
          hearing and proceed to trial, but it will be after I accept your pleas of guilty.
          So before I do that, I need to make sure this is what you want to do. Do you
          want to plead guilty?

Dortch responded, “Yes, sir.” Thereafter, he pleaded guilty to both charges.

¶7.       Immediately after Dortch’s guilty pleas were accepted, Dortch’s counsel renewed

Dortch’s argument regarding the sentence enhancements. The court found that although

Dortch’s indictments did not include section 97-37-37, Dortch had been aware of the

enhancements “for some while because [the parties had] gone over [them] a couple of times

in open court.”3

¶8.       In support of his argument in his PCR petition and again on appeal, Dortch cites

Sallie, 155 So. 3d at 763 (¶¶9-10), in which our supreme court found that the defendant,

Sallie, “received no proper notice regarding the fact that he was facing a firearm

enhancement that would increase his sentence by ten years,” where he was not notified that

he might be sentenced under the enhancement until after he was convicted by a jury and only

then by the trial court, sua sponte. Sallie was indicted for aggravated assault and possession

of a firearm as a felon. Id. at 761-62 (¶3). “Sallie’s indictment did not indicate that the State


          3
        Our perusal of the record does not indicate any times that the enhancements were
discussed other than at the December 8, 2014 plea hearing.

                                                   5
would seek any sentence enhancement. Furthermore, the State in no way indicated pretrial

that it would seek the firearm enhancement.” Id. at 763 (¶9). After Sallie was convicted of

the two charges, the trial judge,4 without provocation by the State, invoked the firearm-

enhancement provision set forth in Mississippi Code Annotated section 97-37-37(2) and

sentenced Sallie thereunder. Id. at 762 (¶3).

¶9.    Sallie appealed his sentence on the basis that “he did not receive fair, pretrial notice

that he might be sentenced under the firearm enhancement statute,” thereby resulting in

“unfair surprise” and a violation of his due-process rights. Id. at (¶5). This Court affirmed

Sallie’s convictions and sentence on the basis that, “given the elements of the crimes as listed

in the jury instructions, the jury in this case found the elements of the firearm enhancement

beyond a reasonable doubt.” Id. at 763 (¶8). The Mississippi Supreme Court agreed with

our analysis as to this point. Id. However, the supreme court reversed our decision on the

basis that our analysis “fail[ed] to address the crux of Sallie’s argument, that he has a right

to fair notice that the sentence enhancement is being sought.” Id. Further, the supreme court

concluded that “Sallie did not receive timely or sufficient notice that the State[5] intended to

enhance his sentence using the firearm enhancement,” which “violated his right to due

process, as he was not given a fair opportunity to present a defense and he was unfairly

       4
           We note that the trial judge in Sallie and the trial judge here are the same.
       5
         The supreme court recognized in a footnote that the State “did not actually seek the
firearm enhancement, but that the trial court raised it sua sponte. However, after the trial
court raised the issue, the [State] argued in support of applying the firearm enhancement to
Sallie’s sentence.”

                                                6
surprised by the post-conviction notice that the firearm enhancement would be considered.”

Id. at 764 (¶¶13-14).

¶10.   The circuit court, in its order denying Dortch’s PCR petition, found that Sallie was

inapplicable to Dortch’s case because Dortch was given adequate notice of the possible

sentence enhancements:

       It is clear from a review of the transcript of the proceedings on November 11th
       [sic] and December 8, 2014, prior to the entry of his plea of guilty, Dortch was
       advised of the applicability of [section] 97-37-37(1) and the effect it would
       have upon his sentence. He was advised of the mandatory five (5) year
       additional term for each count and that it would run consecutively to the
       sentence for each underlying offense. Dortch acknowledged that he
       understood and wished to go forward with his pleas of guilty.

We agree. Dortch is distinct from Sallie in the critical aspect that Dortch was notified of the

potential sentence enhancements prior to the court accepting his guilty pleas, whereas Sallie

was not notified until after a jury convicted him. Although a mere matter of minutes

separates Dortch’s and Sallie’s circumstances—here, Dortch was notified, at least on the

record, of the enhancement minutes prior to entering his guilty plea, whereas Sallie was

notified minutes after his conviction—the results are substantial. Had Sallie been notified

of the firearm enhancements prior to his conviction, he might have chosen to alter his defense

strategy in accordance with those enhancements. In contrast, Dortch had the ability to

proceed to trial after learning that his sentences would be enhanced. The trial court notified

him that his sentence would be enhanced prior to his entering his guilty plea, and specifically

asked him before the court accepted his guilty plea and adjudicated him guilty if he


                                              7
understood that the court was required to impose the mandatory firearm enhancement on both

of his convictions.6 As such, we find that Dortch’s case is distinguishable from Sallie, and

that Dortch, unlike Sallie, was not unfairly surprised or prejudiced with respect to the firearm

enhancements.

¶11.   No case law requires that an indictment include an actual reference to the sentence

enhancement; rather, federal and Mississippi jurisprudence only require that an indictment

include the facts involved in such an applicable sentence enhancement, such that those facts

are required to be proven beyond a reasonable doubt.7

¶12.   In this case, Dortch was indicted for aggravated assault and shooting into an occupied

dwelling. The facts required for application of the firearm enhancement were contained in

both of Dortch’s indictments. Shooting into an occupied dwelling necessarily requires proof

that a firearm was used. The same is true for the commission of the crime of aggravated

assault in this case because the aggravated-assault charge is that Dortch shot at his victim

with a handgun. As such, it cannot be reasonably argued that Dortch was not put on notice

that he might be sentenced under the firearm-enhancement statute. Dortch, along with the

       6
         However, we note that Dortch’s defense strategy likely would not have changed
significantly whether he considered the firearm enhancements or not, as the facts required
for proving the enhancements are heavily intertwined with the facts of the two crimes with
which Dortch was charged.
       7
         The Apprendi requirement that such a fact be submitted to a jury is waived here,
due to the fact that Dortch entered a plea of guilty with respect to both charges; as Dortch
waived his right to a jury trial by pleading guilty, he also waived the requirement that the
jury serve as fact-finder with respect to the sentence enhancements. Apprendi v. New Jersey,
530 U.S. 466, 490 (2000).

                                               8
rest of the general public, received notice of the statute’s existence on the day it was passed

by the Mississippi Legislature. Upon receiving his indictment, Dortch knew or should have

known that the firearm enhancement was a possibility with respect to the particular crime for

which he was charged.

¶13.   Dortch was clearly notified by the court prior to entering his guilty pleas that the court

would enhance his sentences. According to his attorney’s statement, they were not aware at

the beginning of the plea hearing on November 17, 2014, that the State intended to seek the

sentence enhancement. However, Dortch did not plead guilty until December 8, 2014, and

the record indicates that at some point during the November 17, 2014 plea proceedings, he

became aware that the State would recommend that his sentences be enhanced. Therefore,

we find no merit to his contention that he was unfairly surprised by the fact that the State

sought the sentence enhancements.

¶14. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY
DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

    LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, FAIR, WILSON AND
GREENLEE, JJ., CONCUR.          WESTBROOKS, J., DISSENTS WITHOUT
SEPARATE WRITTEN OPINION




                                               9
