          IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                 NO. 2015-CP-00893-COA

EARNIE WHITE A/K/A EARNEST WHITE                                           APPELLANT
A/K/A ERNIE WHITE A/K/A EARNEST DOYLE
WHITE A/K/A EARNEST D. WHITE

v.

STATE OF MISSISSIPPI                                                         APPELLEE

DATE OF JUDGMENT:                          05/14/2015
TRIAL JUDGE:                               HON. LEE J. HOWARD
COURT FROM WHICH APPEALED:                 LOWNDES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    EARNIE WHITE (PRO SE)
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: LAURA HOGAN TEDDER
NATURE OF THE CASE:                        CIVIL - POSTCONVICTION RELIEF
TRIAL COURT DISPOSITION:                   DISMISSED MOTION FOR
                                           POSTCONVICTION RELIEF
DISPOSITION:                               AFFIRMED - 11/15/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

         BEFORE LEE, C.J., JAMES AND GREENLEE, JJ.

         LEE, C.J., FOR THE COURT:

¶1.      In this appeal, we must decide whether the Circuit Court of Lowndes County erred

in dismissing Earnest White’s motion for postconviction relief (PCR).

                        FACTS AND PROCEDURAL HISTORY

¶2.      In October 2011, a grand jury indicted White on one count of manufacture of

methamphetamine in violation of Mississippi Code Annotated section 41-29-139 (Supp.

2016).

¶3.      On August 20, 2012, the State filed a motion to amend White’s indictment to include
an alias. The State also filed a motion to amend White’s indictment to charge him as a

habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015), and as

a second or subsequent offender under Mississippi Code Annotated section 41-29-147 (Rev.

2013). Subsequently, the circuit court entered an order amending the indictment to reflect

White’s alias.

¶4.    On August 28, 2012, White’s trial began. At some point during the proceedings,

White indicated that he wished to plead guilty, and an agreed plea was reached with the State.

According to the guilty-plea petition, White agreed to plead guilty to the lesser-included

offense of possession of methamphetamine in an amount greater than .1 but less than 2

grams, and the State agreed to recommend a sentence of eight years as a habitual offender.

¶5.    Prior to accepting White’s plea, the circuit court questioned White about his prior

convictions. White admitted that he had two prior felony convictions: burglary of a

commercial building1 and sale of cocaine. And White stated that he wished to plead guilty

as a habitual offender.

¶6.    During the sentencing phase of the hearing, the State introduced evidence of White’s

prior convictions. The circuit court found that the indictment should have been amended to

reflect White’s habitual-offender status, and no objection was made. According to the circuit

court, “due to an unknown error, no order was entered to reflect the [c]ourt’s finding on the

amendment to [White’s] indictment.” However, the circuit court entered a sentencing order,

which stated: “Whereupon, a hearing was held . . . to determine the status of [White] as [a]

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        Although White stated that he had been convicted of burglary of a commercial
building, he had actually pleaded guilty to a reduced charge of grand larceny.

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habitual offender; and the [c]ourt having considered same finds that [White] is [a] habitual

offender within the meaning of [s]ection 99-19-81 . . . .”

¶7.       White was sentenced, as a habitual offender, to eight years in the custody of the

Mississippi Department of Corrections (MDOC), without eligibility for parole or probation.

White was also ordered to pay a fine of $50,000.

¶8.       White filed a PCR motion challenging, among other things, whether he was properly

sentenced as a habitual offender and whether he received effective assistance of counsel.

After a hearing, the circuit court dismissed White’s motion. White appeals.

                                  STANDARD OF REVIEW

¶9.       When reviewing a dismissal of a PCR motion, this Court will not disturb a circuit

court’s factual findings unless such findings were clearly erroneous. Brown v. State, 731 So.

2d 595, 598 (¶6) (Miss. 1999). However, we review questions of law de novo. Id.

                                          DISCUSSION

          I.     Habitual-Offender Status

¶10.      White claims: (1) he was not indicted as a habitual offender, and therefore, the circuit

court lacked jurisdiction; (2) the State did not seek to amend the indictment to charge him

as a habitual offender; (3) he did not receive adequate notice that he was being charged as

a habitual offender; (4) the State did not offer evidence that he was a habitual offender; and

(5) the circuit court erred by failing to conduct a hearing to establish his habitual-offender

status.

¶11.      Uniform Rule of Circuit and County Court 7.09 provides:



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       All indictments may be amended as to form but not as to the substance of the
       offense charged. Indictments may also be amended to charge the
       defendant as [a] habitual offender or to elevate the level of the offense
       where the offense is one which is subject to enhanced punishment for
       subsequent offenses and the amendment is to assert prior offenses justifying
       such enhancement . . . . Amendment shall be allowed only if the defendant
       is afforded a fair opportunity to present a defense and is not unfairly
       surprised.

(Emphasis added).

¶12.   White’s initial indictment did not charge him as a habitual offender. However, one

week prior to trial, the State filed a motion to amend the indictment “so as to charge [White]

as a [h]abitual [o]ffender as defined by [s]ection 99-19-81 . . . .” Accordingly, White’s first

three claims are without merit.

¶13.   We pause to note that an order reflecting the amendment to the indictment was not

entered into the record as required by Mississippi Code Annotated section 99-17-15 (Rev.

2015). However, White failed to object to the absence of an order. Our supreme court has

stated: “The State is required to make sure that such an order appears in the record and the

defense is required to object to the absence of such order if it wishes to preserve this point

for appeal.” Reed v. State, 506 So. 2d 277, 279 (Miss. 1987).

¶14.   White’s claim that the State did not offer evidence that he was a habitual offender is

also without merit. White admitted, and the State further established, that White had been

twice previously convicted of separate felonies and sentenced to separate terms of one year

or more.

       COURT:        You have a prior 1994 conviction for burglary of a commercial
                     building?



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       WHITE:         Yes, sir.

       ....

       COURT:         You also have a prior felony conviction for sale of cocaine in
                      2003 . . . ?

       WHITE:         Yes, sir.

       ....

       STATE:         In addition to [White’s] own admission before this [c]ourt that
                      he is twice prior convicted, the State would offer into evidence
                      two certified copies of sentencing orders from this court; one
                      from the August 1994 term where [White] pled guilty to the
                      charge of grand larceny and was sentenced to a term of years in
                      the custody of the [MDOC]. And one from the February 2005
                      term of this court where this defendant indicted as [White] pled
                      guilty to the charge of sale of cocaine and was sentenced to
                      serve a term of years in the custody of the [MDOC].

¶15.   Finally, White’s claim that the circuit court erred by failing to conduct a hearing to

establish his habitual-offender status is without merit. This Court has stated that “a

petitioner’s status as a habitual offender can be established at the entry of a guilty plea[.]”

Ross v. State, 119 So. 3d 1119, 1124 (¶17) (Miss. Ct. App. 2013).

       II.    Ineffective Assistance

¶16.   White claims his trial counsel was ineffective for failing to object to the amendment

of his indictment. To prevail on a claim of ineffective assistance of counsel, White must

show: (1) that his “counsel’s representation fell below an objective standard of

reasonableness”; and (2) that but for counsel’s errors, there is a “reasonable probability” that

the outcome of the proceeding would have been different. Kyles v. State, 185 So. 3d 408,

411 (¶4) (Miss. Ct. App. 2016) (citation omitted).


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¶17.   Even if White’s trial counsel had objected to the amendment of the indictment, White

does not show how the outcome of his case would have been different. Therefore, White’s

claim that he received ineffective assistance of counsel is without merit.

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

    IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, JAMES,
WILSON AND GREENLEE, JJ., CONCUR.




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