        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2014-CP-00806-COA

ROSA WALLACE                                                             APPELLANT

v.

STATE OF MISSISSIPPI                                                       APPELLEE


DATE OF JUDGMENT:                        05/20/2014
TRIAL JUDGE:                             HON. ROBERT P. CHAMBERLIN
COURT FROM WHICH APPEALED:               DESOTO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  ROSA WALLACE (PRO SE)
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: BARBARA WAKELAND BYRD
NATURE OF THE CASE:                      CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                 MOTION FOR POST-CONVICTION RELIEF
                                         DENIED
DISPOSITION:                             AFFIRMED - 02/23/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE IRVING, P.J., BARNES AND ISHEE, JJ.

      BARNES, J., FOR THE COURT:

¶1.   Rosa Wallace was indicted on January 19, 2006, for possession of cocaine, more than

thirty grams, in violation of Mississippi Code Annotated section 41-29-139 (Rev. 2005). On

June 10, 2008, the State moved to amend Wallace’s indictment to charge her as a habitual

offender under Mississippi Code Annotated section 99-19-81 (Rev. 2007) and a drug

recidivist under Mississippi Code Annotated section 41-29-147 (Rev. 2005). After a hearing

on August 18, 2008, the trial court entered an order amending the indictment.

¶2.   On September 8, 2008, Wallace pleaded guilty to the charge and was sentenced as a
habitual offender to thirty years, with twenty years to be served in the custody of the

Mississippi Department of Corrections (MDOC) without the possibility for parole or

probation, followed by ten years of supervised post-release supervision with five years of

nonreporting supervision. She was also ordered to pay a $5,000 fine, along with other fees

and court costs.

¶3.    On May 2, 2014, Wallace filed a motion for post-conviction relief (PCR) with the

DeSoto County Circuit Court, alleging: (1) that she was denied her constitutional right to

confront witnesses, as the person who certified the records of her prior convictions did not

testify at the hearing; (2) that her indictment was defective because it failed to specify the

dates of judgment for her prior convictions; and (3) that her sentence was illegal and

subjected her to double jeopardy. While the trial court noted that her motion was time-barred

under Mississippi Code Annotated section 99-39-5(2) (Supp. 2014), it nevertheless addressed

the merits of Wallace’s claims and denied the motion on May 20, 2014.1

¶4.    On appeal, we find no error and affirm the trial court’s denial of Wallace’s PCR

motion.

                               STANDARD OF REVIEW



       1
         Section 99-39-5(2) provides that in the case of guilty plea, a motion for relief must
be made within three years after the entry of the judgment of conviction. However, “cases
in which the defendant can demonstrate new evidence not available at trial, an intervening
higher-court decision, or that the defendant is being detained on an expired sentence” are
exempted from the statute’s time-bar. Mason v. State, 176 So. 3d 130, 132 (¶5) (Miss. Ct.
App. 2015) (quoting Blount v. State, 126 So. 3d 927, 931 (¶13) (Miss. Ct. App. 2013)). “In
addition, the Mississippi Supreme Court has . . . held that the time-bar does not apply to
‘errors affecting fundamental constitutional rights.’” Id. (quoting Rowland v. State, 42 So.
3d 503, 507 (¶12) (Miss. 2010)).

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¶5.    A trial court’s dismissal or denial of a PCR motion is reviewed for abuse of discretion

and will only be reversed if the decision is “clearly erroneous.” Hughes v. State, 106 So. 3d

836, 838 (¶4) (Miss. Ct. App. 2012) (citing Crosby v. State, 16 So. 3d 74, 77 (¶5) (Miss. Ct.

App. 2009)). “When reviewing questions of law, our standard is de novo.” Id. (citing

Williams v. State, 872 So. 2d 711, 712 (¶2) (Miss. Ct. App. 2004)).

                                       DISCUSSION

       I.     Whether Wallace’s constitutional right to confront witnesses was
              violated by the introduction of certified copies of her prior
              convictions.

¶6.    In her PCR motion, Wallace argued that the State’s failure to introduce testimony at

the hearing from the witness who certified the documents used to prove her prior convictions

for habitual-offender status had deprived her of her right to confront witnesses and, thus,

invalidated the habitual portion of her sentence. She cited Bullcoming v. New Mexico, 131

S. Ct. 2705 (2011), an “intervening decision,” to support her argument that the certified

documents presented were testimonial in nature. However, the trial court denied her claim,

finding that the certified records of her prior judgments were not testimonial and, therefore,

did not violate the Confrontation Clause.

¶7.    We agree with the trial court’s conclusion. First, Bullcoming does not address records

of prior convictions; it concerns forensic laboratory reports. See Bullcoming, 131 S. Ct. at

2712. Second, as this Court has observed, “certified copies of the indictments and sentencing

orders . . . are not documents created solely for an evidentiary purpose[, but rather are]

created for the administrative purpose of tracking criminal proceedings[.]” Small v. State,



                                              3
141 So. 3d 61, 68 (¶24) (Miss. Ct. App. 2014). Thus, “self-authenticating records of a

defendant’s prior convictions are not testimonial evidence, and do not trigger a defendant’s

constitutional right to confront witnesses.” Vanwey v. State, 147 So. 3d 367, 370 (¶10)

(Miss. Ct. App. 2014) (citing Frazier v. State, 907 So. 2d 985, 996 (¶36) (Miss. Ct. App.

2005)). The Mississippi Supreme Court had not addressed this issue until recently when, in

Burrell v. State, 2014-KA-00670-SCT, 2015 WL 6388746, at *6 (¶19) (Miss. Oct. 22, 2015),

it “adopt[ed] the Court of Appeals’ rationale on this issue.” Consequently, we find this

argument without merit.

       II.    Whether Wallace’s amended indictment was defective.

¶8.    As noted, the trial court approved the State’s motion to amend Wallace’s indictment

to charge her as a habitual offender under section 99-19-81. The amended language was as

follows:

       [A]nd the said Rosa Wallace having been previously convicted of possession
       of cocaine greater than .1 grams in Case No. CR-02-169(PF)L in the First
       Judicial District Court of Lee County, Mississippi, and sentenced on August
       22, 2002, to serve a term of eight (8) years in the [c]ustody of the [MDOC];

       and the said Rosa Wallace having been previously convicted of possession of
       cocaine less than .1 grams in Case No. CR-02-605-(PF)L in the First Judicial
       District Court of Lee County, Mississippi, and sentenced on August 22, 2002,
       to serve a term of four (4) years in the [c]ustody of the [MDOC];

       and the said Rosa Wallace having been previously convicted of possession of
       cocaine greater than .1 grams in Case No. CR-02-169(PF)L in the First
       Judicial District Court of Lee County, Mississippi, and sentenced on August
       22, 2002, to serve a term of eight (8) years in the [c]ustody of the [MDOC] and
       the said Rosa Wallace thereby coming under Section 41-29-147, Mississippi
       Code 1972 Annotated, as amended, a MISSISSIPPI SECOND OFFENDER
       STATUTE[;]



                                             4
       and the said Rosa Wallace thus having been convicted twice previously of
       felonies upon charges separately brought and arising out of separate incidents
       at different times and having been sentenced to separate terms of one (1) years
       or more in a state and/or federal penal institution, and the said Rosa Wallace
       thereby coming under Section 99-19-81, Mississippi Code 1972 Annotated, as
       amended, a MISSISSIPPI HABITUAL OFFENDER STATUTE[,] contrary to
       the form of the statute in such cases provided, and against the peace and
       dignity of the State of Mississippi.

Wallace contends that because the amended habitual-offender language to the indictment

failed to include dates of the previous judgments, she was not properly charged under Rule

11.03(1) of the Uniform Rules of Circuit and County Court, which provides in pertinent part:

“The indictment must allege with particularity the nature or description of the offense

constituting the previous convictions, the state or federal jurisdiction of any previous

conviction, and the date of judgment.”

¶9.    We find no merit to Wallace’s argument. In Small, our court addressed this identical

issue raised by the defendant under similar circumstances, holding:

       As to the proof of his prior convictions, the State’s motion to amend the
       indictment clearly stated the offenses, cause numbers, dates that sentences
       were imposed, and the terms of the sentences imposed for [Frederick] Small’s
       prior convictions. Certified copies of the indictments and sentencing orders
       were submitted into the record at the hearing to amend the indictment and
       incorporated into the sentencing-hearing record. Further, Small negotiated for
       a guilty plea as a habitual offender and a recommended sentence with a cap
       of eighteen years. He did not object to the introduction of the certified copies
       of the documents relating to the prior convictions at the hearing on amending
       the indictment or at his sentencing hearing.

       This was sufficient to provide notice to Small of the prior crimes used to
       charge him as a habitual offender and an opportunity to challenge them. In
       Benson v. State, 551 So. 2d 188 (Miss. 1989), the Mississippi Supreme Court
       held that the failure of an indictment to list the date of conviction was not fatal.
       The court noted:



                                                5
              While it is correct that the date of the judgment is not
              specifically stated in the indictment, all of the information that
              is contained, and specifically the cause number, afforded the
              defendant access to the date of the judgment. This Court holds
              that information pertaining to the date of the judgment was
              substantially set forth in the indictment and that sufficient
              information was afforded the defendant to inform him of the
              specific prior convictions upon which the State relied for
              enhanced punishment to comply with due process. The purpose
              of the above rule is fulfilled.

       Id. at 196[.]

Small, 141 So. 3d at 67-68 (¶¶20-21).

¶10.   In the present case, the amendment to the indictment set forth the dates of the prior

convictions, the cause numbers, and the terms of the sentences imposed. Copies of the

certified sentencing orders were submitted into evidence without objection. Thus, we find

no defect in Wallace’s indictment, as she was given sufficient notice of the prior convictions

used to enhance her sentence.

       III.   Whether the trial court’s imposition of ten years of post-release
              supervision subjected Wallace to an illegal sentence and double
              jeopardy.

¶11.   Wallace argues she was subjected to an illegal sentence because she received ten years

of post-release supervision, in addition to the term of imprisonment (twenty years). She

claims that this constitutes double jeopardy, as she was sentenced for the same offense twice

and, therefore, the habitual-offender portion of her sentence should be vacated.

¶12.   Having been convicted of two prior felonies, Wallace was sentenced as a habitual

offender in accordance with sections 41-29-147 and 99-19-81. Consequently, the maximum

sentencing term for the charged offense was sixty years, which Wallace acknowledged at the


                                              6
plea hearing. However, the trial court noted and accepted the State’s recommendation that,

based on the appropriate proportionality analysis, “something less than the maximum

sentence of [sixty] years” was the appropriate sentence. Therefore, the trial judge sentenced

Wallace to only thirty years, “to be served [twenty] years incarceration [and] ten years post-

release supervision, five of that reporting.”

¶13.   “[A] trial court may sentence a [defendant] to a term of incarceration plus a term of

post-release supervision for any felony crime, provided the term of incarceration plus the

term of post-release supervision do not exceed the statutory maximum sentence for the crime

committed.” Kern v. State, 828 So. 2d 871, 872 (¶7) (Miss. Ct. App. 2002). Accordingly,

as Wallace’s thirty-year sentence does not exceed the maximum allowed by law, and she was

not sentenced to two separate terms for the same offense, this issue is without merit.

¶14.   Accordingly, we affirm the trial court’s denial of Wallace’s PCR motion.

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

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, JAMES
AND WILSON, JJ., CONCUR. GREENLEE, J., NOT PARTICIPATING.




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