                IN THE SUPREME COURT OF MISSISSIPPI

                        NO. 2011-CT-00944-SCT

J.C. WILLIAMS

v.

STATE OF MISSISSIPPI

                       ON WRIT OF CERTIORARI

DATE OF JUDGMENT:               10/12/2009
TRIAL JUDGE:                    HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED:      JONES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:         PRO SE
ATTORNEY FOR APPELLEE:          OFFICE OF THE ATTORNEY GENERAL
                                BY: LISA L. BLOUNT
DISTRICT ATTORNEY:              ANTHONY J. BUCKLEY
NATURE OF THE CASE:             CRIMINAL - FELONY
DISPOSITION:                    THE JUDGMENTS OF THE COURT OF
                                APPEALS AND THE CIRCUIT COURT OF
                                JONES COUNTY ARE AFFIRMED IN PART
                                AND REVERSED IN PART. THE JUDGMENT
                                OF CONVICTION OF SALE OF COCAINE IS
                                AFFIRMED, THE SENTENCE IS VACATED
                                AND THE CASE IS REMANDED TO THE
                                CIRCUIT COURT OF THE SECOND
                                JUDICIAL DISTRICT OF JONES COUNTY
                                FOR RESENTENCING - 02/13/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


     EN BANC.

     RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:
¶1.    J. C. Williams was convicted of the sale of cocaine in the Circuit Court of Jones

County, Mississippi. Williams was adjudicated a habitual offender1 and a subsequent drug

offender.2 Upon application of those recidivist statutes, his sentence was enhanced to forty

years in the custody of the Mississippi Department of Corrections (MDOC), with thirty years

to serve and ten years suspended. On appeal, Williams argued that the circuit court “erred

in amending the indictment to charge him as a habitual offender.” Williams v. State, __ So.

3d __, 2012 WL 6013820, at *1 (Miss. Ct. App. Dec. 4, 2012). The Court of Appeals

rejected that argument and unanimously affirmed Williams’s conviction and sentence. Id.

Following the Court of Appeals’ denial of Williams’s motion for rehearing, he filed this pro

se petition for writ of certiorari, which this Court granted. Williams, 119 So. 3d 328 (Miss.

Aug. 22, 2013).

                         FACTS AND PROCEDURAL HISTORY

¶2.    Williams was indicted by a grand jury of “willfully, unlawfully, feloniously and

knowingly sell[ing] or transfer[ing] [c]ocaine (less than .1 gram) . . . .” See Miss. Code Ann.

§ 41-29-139 (Rev. 2013). His indictment made no mention of habitual-offender status. Three

days before trial, the State filed a motion to amend the indictment to charge Williams as a

recidivist pursuant to Mississippi Code Section 99-19-81.3 The motion was served on defense



       1
           See Miss. Code Ann. § 99-19-81 (Rev. 2007).
       2
           See Miss. Code Ann. § 41-29-147 (Rev. 2013).
       3
       In 1998, Williams pleaded guilty to robbery in the Circuit Court of Jones County
(Cause No. 10,407). He was sentenced to ten years in the custody of the MDOC, with six

                                              2
counsel the same day. The circuit court granted the State’s motion to amend the indictment

following jury selection.4 Subsequently, Williams was found guilty of the sale of cocaine and

sentenced on the same day, as a recidivist, to forty years in the custody of the MDOC, with

thirty years to serve and ten years suspended.5

¶3.    Williams appealed his sentence as a habitual offender, arguing that the circuit court

“erred in amending the indictment to charge him as a habitual offender.” Williams, 2012 WL

60113820, at *1. In unanimously affirming Williams’s conviction and sentence, the Court

of Appeals held:

       Williams has offered no evidence to show he was “unfairly surprised” by the
       amendment or that he was unable to present a defense. Furthermore, since an
       amendment charging a defendant as a habitual offender does not affect the
       substance of the crime charged, but only the sentencing, Williams’s defense
       to the sale-of-cocaine charge was unaffected by the amendment.

Id. (citing Adams v. State, 772 So. 2d 1010, 1020-21 (Miss. 2000)).

¶4.    Williams’s motion for rehearing was denied by the Court of Appeals, and he filed his

pro se petition for writ of certiorari, which we granted.



years to serve, four years suspended, and four years of probation.
       In 2007, Williams pleaded guilty to sale of cocaine in the Circuit Court of Jones
County (Cause No. 2005-143-KR2). He was sentenced to ten years in the custody of the
MDOC, suspended except for time served, upon completion of three years post-release
supervision and community service.
       4
        Williams’s counsel objected to the amendment on the ground that the State sought
to amend the indictment to include habitual-offender status for the purpose of “punish[ing]
the defendant in exercising his constitutional right for a trial.”
       5
        Absent his recidivist history, Williams faced a sentence of “not more than thirty (30)
years[.]” See Miss. Code Ann. § 41-29-139(b)(1) (Rev. 2013).

                                              3
                                           ISSUE

¶5.    On writ of certiorari, we will address the following issue:

       Whether the circuit court erred in granting the State’s motion to amend the
       indictment to charge Williams as a recidivist.

                                        ANALYSIS

¶6.    “The circuit court’s decision to allow an indictment to be amended is a question of

law.” Powell v. State, 80 So. 3d 849, 852 (Miss. Ct. App. 2012) (citing Jackson v. State, 943

So. 2d 746, 749 (Miss. Ct. App. 2006)). “Questions of law receive a de novo review.” Id.

(citing Jones v. State, 912 So. 2d 973, 975 (Miss. 2005)).

¶7.    Presently, Uniform Rule of Circuit and County Court 7.09 provides, in pertinent part,

that “[i]ndictments may . . . be amended to charge the defendant as an habitual offender . .

. .” URCCC 7.09. “Rule 7.09 ‘does not speak to the timing of the amendment[.]’” McCain

v. State, 81 So. 3d 1055, 1061 (Miss. 2012) (quoting Gowdy v. State, 56 So. 3d 540, 545

(Miss. 2011)). But 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[.]” URCCC 7.09. This Court recently has held that

“adequate 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.’” Boyd




                                              4
v. State, 113 So. 3d 1252, 1256 (Miss. 2013) (quoting URCCC 7.09).6 Whether notice of a

possible enhanced sentence was given sufficiently in advance of trial “should be considered

on a case-by-case basis.” McCain, 81 So. 3d at 1061.7

¶8.    Williams never argued before the trial court that he was not prepared to defend or was

surprised by the State seeking enhanced punishment under the recidivist statutes. See supra

n.4. As noted by the Court of Appeals, “[o]n appeal, Williams . . . offered no evidence” that

he was not provided adequate notice. Williams, 2012 WL 6013820, at *1. Likewise, in his

petition for certiorari to this Court, Williams has argued that the Court of Appeals erred in

finding that he was not “unfairly surprised[,]” but again has failed to argue why his notice

was inadequate.




       6
       In Boyd, this Court found inadequate notice where the State informed the defendant
“during pretrial proceedings on the morning of trial that, if a conviction was obtained, the
State would seek to sentence him as a subsequent offender.” Boyd, 113 So. 3d at 1256.
       7
         The dissent opines that the amendment elevated the level of the offense charged in
the indictment; thus infringing on the power of the grand jury. While we share in the
dissent’s ardent respect for the sole authority of the grand jury to issue an indictment, our
disagreement stems from what is constitutionally mandated to be included within that
indictment. The United States Supreme Court has held that “[a]n indictment must set forth
each element of the of the crime that it charges . . . . But it need not set forth factors relevant
only to the sentencing of an offender found guilty of the charged crime.” Almendarez-Torrez
v. United States, 523 U.S. 224, 228, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998). Our Court
consistently has held that recidivist statutes “are not criminal offenses and only affect
sentencing.” Osborne v. State, 404 So. 2d 545, 548 (Miss. 1981). As such, prior convictions
which are utilized only to enhance the sentence of a recidivist, i.e., those prior convictions
which do not constitute elements of the underlying offense, are not constitutionally mandated
to be included within the indictment. It is only a rule of this Court which necessitates such
inclusion – and another rule of this Court which allows that inclusion to be accomplished by
amending the indictment. See URCCC 11.03, 7.09.

                                                5
¶9.    Notwithstanding Williams’s failure to present this argument, we will address the

existence of adequate notice, vel non, in the record before us. Through formal pleadings filed

three days in advance of trial, the State informed Williams of its intent to seek enhanced

punishment under one of Mississippi’s recidivist statutes, Section 99-19-81. The State’s

motion specifically provided the details of the prior convictions which would be presented

to the trial judge for sentence enhancement (subject to a conviction for the crime charged in

the indictment), including the cause numbers, dates, and courts in which they were obtained.

Absent an argument as to why Williams’s notice was inadequate, we cannot say, based on

the record, that the State failed to provide adequate notice of its intent to seek enhanced

punishment for Williams as a recidivist under Section 99-19-81.

¶10.   However, we cannot reach the same conclusion as to Williams’s enhanced sentence

as a subsequent drug offender under Section 41-29-147. The State’s motion placed Williams

on notice that it intended to utilize his prior drug conviction, but only for sentence

enhancement under Section 99-19-81. The State did not offer the “specific amendment” to

charge Williams as a subsequent drug offender. Boyd, 113 So. 3d at 1256. Williams was first

apprised of that enhancement at his sentencing hearing when the State informed the trial

court that he faced a “maximum sentence . . . of 60 years” – double what he faced if

sentenced only as a habitual offender under Section 99-19-81. Because Williams was not

given proper notice in advance of trial of the State’s intent to seek enhanced punishment as

a subsequent drug offender under Section 41-29-147, we are compelled to reverse that

portion of his sentence.

                                              6
                                     CONCLUSION

¶11.   Williams was provided adequate notice in advance of trial that, upon conviction, the

State intended to seek enhanced punishment under Section 99-19-81. However, the State

failed to provide adequate notice of its intent to seek enhanced punishment under Section 41-

29-147. Thus, we affirm in part and reverse in part the judgments of the Court of Appeals and

the Circuit Court of Jones County and remand this case to the Circuit Court of Jones County

for a new sentencing hearing, where Williams is to be resentenced as a habitual offender

under Section 99-19-81 only.

¶12. THE JUDGMENTS OF THE COURT OF APPEALS AND THE CIRCUIT
COURT OF JONES COUNTY ARE AFFIRMED IN PART AND REVERSED IN
PART. THE JUDGMENT OF CONVICTION OF SALE OF COCAINE IS
AFFIRMED, THE SENTENCE IS VACATED AND THE CASE IS REMANDED TO
THE CIRCUIT COURT OF THE SECOND JUDICIAL DISTRICT OF JONES
COUNTY FOR RESENTENCING.

      WALLER, C.J., LAMAR, CHANDLER, PIERCE AND COLEMAN, JJ.,
CONCUR. DICKINSON, P.J., CONCURS IN RESULT ONLY WITHOUT
SEPARATE WRITTEN OPINION. KITCHENS, J., CONCURS IN PART AND
DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KING,
J.; WALLER, C.J., JOINS IN PART.

    KITCHENS, JUSTICE, CONCURRING IN PART AND DISSENTING IN
PART:

¶13.   The majority rightly concludes that Williams was not provided timely notice that the

State would seek enhancement of his sentence as a subsequent drug offender and that, for

want of proper pretrial notice of the State’s intention in that regard, this portion of his

sentence should be reversed. Accordingly, I concur with this aspect of the majority opinion.



                                             7
Moreover, I would affirm Williams’s conviction of the unlawful sale of cocaine, but not as

an habitual offender.

¶14.   I do not agree with the majority’s approval of the trial court’s amendment of the

grand jury’s indictment, which was requested in a motion filed by the prosecution some time

during the Friday before the trial was to begin on the following Monday morning.

¶15.   In the present case, Williams was charged with the sale of cocaine, a felony, by the

grand jury of the Second Judicial District of Jones County. Although he previously had been

convicted in that same jurisdiction and sentenced to serve significant penitentiary terms for

two separate and distinct felonies, the grand jury indictment that was returned on March 3,

2009, did not charge Williams as an habitual criminal. It was not until more than seven

months later, on Friday, October 9, 2009, that the prosecution filed a motion asking the trial

court to elevate the charge by amending the indictment to charge Williams as an habitual

offender pursuant to Mississippi Code Section 99-19-81, which exposed Williams to a

mandatory thirty-year sentence without possibility of reduction, suspension, or eligibility for

parole or probation. The record suggests that the prosecutor had contemplated such a motion

at least ten days before it actually was filed and copied to defense counsel; the circuit clerk’s

certifications of the two prior sentencing orders–one for robbery in 1998 and the other for

cocaine sale in 2007–were dated September 29, 2009. Thus, after having failed to obtain the

grand jury’s approval of proceeding against Williams as an habitual offender, then having

waited from very early in March until very late in September to secure the necessary

documentation of Williams’s eligibility for habitual-offender status, the prosecutor bided his

                                               8
time for another ten days and sprang his ambush on the accused and his attorney when, at

most, some seventy-two hours remained before the scheduled commencement of trial, during

most of which the courthouse would be closed for the weekend.

¶16.   Throughout nearly two centuries of jurisprudence in Mississippi, the grand jury–not

the prosecutor and not the circuit judge–has been the only legal entity authorized to bring

felony charges into circuit court and this by means of indictments duly considered and

approved by at least twelve members of the grand jury at times when at least fifteen of the

grand jurors are present and participating.8 Miss. Const. art. 3, § 27 (“No person shall, for

any indictable offense, be proceeded against criminally by information, except . . . where a

defendant represented by counsel by sworn statement waives indictment . . .”). This Court

has recognized that the singular power of indictment possessed by the grand jury is rooted

in the bedrock constitutional framework of both our national and state constitutions. See

State v. Berryhill, 703 So. 2d 250, 258 (Miss. 1997) (“The rule that absent waiver only a

grand jury can charge a person with a crime such as burglary is found explicitly in the Fifth

Amendment of the United States Constitution in cases of infamous crimes, and in Article 3,

§ 27 of the Mississippi Constitution.”) (citing State v. Sansome, 97 So. 753, 754 (Miss.

1923) (holding that Article 3, § 27, requires indictments for all felonies)).




       8
         Miss. Code Ann. § 99-7-9 (Rev. 2007) (“All indictments . . . must be . . .
accompanied by [the grand jury foreman’s] affidavit that all indictments were concurred in
by twelve (12) or more members of the jury and that at least fifteen (15) were present during
all deliberations . . .”).

                                              9
¶17.   Though some may contend that an allegation of a criminal defendant’s status as an

habitual offender under Sections 99-19-81 or 99-19-83 does not constitute a charge, or part

of a charge, it is, nevertheless, an unproven accusation in the selfsame way as every other

aspect of an indictment’s charging language. Indeed, in this case, the prosecutor’s eleventh-

hour motion asked the trial judge to amend the indictment “to charge the defendant as a

habitual offender” and the trial court’s order granting that motion authorizes “amending the

Indictment in the above styled and numbered cause charging the defendant with Sale of

Cocaine as a habitual offender, as the defendant has two prior felony offenses justifying such

an enhancement under Mississippi Code Section 99-19-81.” (Emphasis added.) Clearly, the

enhancement of a charge becomes part and parcel of the charge.

¶18.   Although this Court, in recent years, seems to have opened the door for the liberal and

late-in-the-game amendment of indictments without the knowledge or consent of the grand

jury,9 the applicable rule itself–Uniform Circuit and County Court Rule 7.09–seems self-

contradictory by saying in the first instance that indictments may be amended as to form but

not as to the substance of the offense charged, then authorizing the charging of the defendant

as an habitual offender or by elevating the level of the offense by placing the accused in

jeopardy of a substantially greater penalty, and this in the absence of any finite limitation

upon the time that such charging can be done. See URCCC 7.09 (“All indictments may be

amended as to form but not as to the substance of the offense charge. . . . [However,]



       9
           See McCain v. State, 81 So. 3d 1055 (Miss. 2012).

                                             10
[a]mendment shall be allowed only if the defendant is afforded a fair opportunity to present

a defense and is not unfairly surprised.”). Rule 7.09, though undoubtedly well-intentioned,

was ill-conceived. Judges and lawyers can engage in endless academic quibbling about what

is substantive and what is not; but it is hard to imagine anything more substantive than a

prison sentence, or the length of it.

¶19.   During most of our state’s history, some minor amendment of grand jury indictments

was permitted, on a very limited basis, by statute:

       [w]henever, on the trial of an indictment for any offense, there shall appear
       to be any variance between the statement in the indictment and the
       evidence offered in proof thereof, . . . it shall and may be lawful for the
       court before which the trial shall be had, if it shall consider such variance
       not material to the merits of the case, and that the defendant cannot be
       prejudiced thereby in his defense on the merits, to order such indictment
       and the record and proceedings in the court to be amended according to the
       proof . . . .

Miss. Code Ann. § 99-17-13 (Rev. 2007); Miss. 1942 Code Ann. § 2532 (Rev. 1956). But

the judicial elevation of a charge laid in an indictment, whereby an indicted defendant could

become exposed to a greater sentence than that provided for the offense with which the grand

jury had charged him, was unknown. For example, a murder charge could be reduced to

manslaughter; but a manslaughter charge could not be increased to murder. That is true

today; and, moreover, a person who has been indicted for murder cannot have that charge

amended or upgraded to a charge of capital murder, unless, of course, the grand jury does

it. While this dissenting opinion may be criticized for “comparing apples to oranges”–and,

admittedly, these illustrations do not precisely fit the case at hand–nevertheless, experienced


                                              11
criminal law practitioners will readily understand that, conceptually, the comparison is an apt

one.

¶20.      It is of far greater significance that this move by the prosecution to amend Williams’s

indictment would generate the need for a drastically different defense strategy, including a

studied and fervent effort to reach a palatable compromise with the State and thus avoid the

possibility of a mandatory, day-for-day sentence of thirty years. However, when this

bombshell of a motion was delivered, it likely was too late for that.10 Indeed, the district

attorney’s office did not have to request, then await the arrival, of documentation of

Williams’s conviction records from some distant state, or from a federal court.                The

documents were right there, among the public records in the Jones County circuit clerk’s

office.

¶21.      Further, it is not inconceivable that the district attorney’s office itself had maintained

files from its earlier prosecutions of Williams, and those files surely would have pointed the

prosecution team to the relevant permanent records in the local circuit clerk’s office. Thus,

it would not have been at all difficult for the district attorney to ask the grand jury to charge

Williams as an habitual offender on the front end of the case, rather than cobbling the


          10
         As noted above, the State obtained certified copies of the sentencing orders from
Williams’s prior offenses on September 29, 2009, ten days before the State’s motion to
amend the indictment was filed on October 9, 2009. Whatever the State’s reason for delaying
the filing of the motion to amend and waiting until the Friday before trial was to begin on
Monday, October 12, 2009, the State’s procrastination should not be countenanced by this
Court. By obtaining this material from the circuit clerk, the State had begun the process of
seeking a game-changing amendment of the charge against Williams. But Williams and his
attorney had no clue of the State’s intention until ten days later.

                                                 12
habitual-offender allegations onto the indictment at the tail end of things, on the very eve of

trial. Since the grand jury, not the prosecutor and not the judge, is the proper entity for

bringing felony charges, this would have placed the horse before the cart and would have

avoided the awkward mess which this case presents.

¶22.   The overarching problem in this case is one of fundamental unfairness. If the grand

jury had charged Williams with the sale of cocaine as an habitual offender, listing his prior

felony convictions and the statutorily required data about them, the accused and his counsel

would have known in early March what they were facing and could have prepared

accordingly. Instead, they did not know until some time on the last business day before trial

that, if convicted, Williams would receive a mandatory thirty-year sentence which he would

be required to serve day for day.      Less than two years earlier, on November 9, 2007,

Williams had been sentenced, in the same court, to serve ten years for sale of cocaine, the

same offense for which he had been indicted in the instant case. Somehow, Williams was

out of prison, charged with selling cocaine again, on October 18, 2008 (this offense, for

which he was indicted the following March).

¶23.   It was not until the last business day before his trial that he had any reason to believe

that he did not at least stand a chance of being that lucky again. Had Williams and his lawyer

known in March, when he was served with his indictment, rather than seven months later and

mere hours away from trial, that he was to be prosecuted as an habitual offender, it is

reasonable to assume that they would have approached the charge with a greatly heightened




                                              13
level of concern, which surely would have included a more intense effort in the realm of plea

bargaining.11

¶24.   This Court has approved local rules for the Eighteenth Circuit Court District, which

is comprised of the Circuit Courts of the First and Second Judicial Districts of Jones County,

Mississippi. This trial occurred in the Second District of the county. Rule 4(j) of that court’s

rules provides: “Attorneys should file and notice motions to be heard well in advance of trial,

if possible.” Loc. R. 18th Cir. Ct. Dist. 4(j). The record is devoid of any indication that it was

not possible for the State to have filed its motion to amend the indictment “well in advance

of trial,” which it surely did not do. While the majority references the opinion of the Court

of Appeals, which notes, “‘[o]n appeal, Williams . . . offered no evidence’ that he was not

provided adequate notice,” and that he does not put forth an argument to this effect in his

certiorari petition to this Court, it seems self-evident that a game-changing motion such as

this, dropped on a defendant when his trial was only a weekend away, constituted an unfair

surprise by definition. See Williams v. State, __ So. 3d __, 2012 WL 6013820, at *1 (Miss.

Ct. App. Dec. 4, 2012).




       11
         Indeed, Rule 8.04(B) of the Uniform Circuit and County Court Rules states that
“[t]he prosecuting attorney is encouraged to discuss and agree on pleas which may be
entered by the defendant.” URCCC 8.04(B) (emphasis added). As the indictment can always
be amended to reduce a charge, the better practice of prosecuting attorneys would be to
charge the defendant as an habitual offender in the indictment and use that as a bargaining
tool, as opposed to “punish[ing] the defendant in exercising his constitutional right for a
trial,” which Williams’s counsel argued happened in the court below.

                                               14
¶25.   Williams’s trial counsel did little to oppose the State’s motion, saying only, and

without elaboration, “We would object that this is brought on the part of the prosecution to

punish the defendant in exercising his constitutional right for a trial.” Furthermore, in his

post-trial motion for new trial or for judgment notwithstanding the verdict, defense counsel

does not mention the untimely amendment of the indictment and, indeed, the motion appears

to be a crude adaptation of a motion from some other case.12 While the quality of

representation received by Williams is questionable, this Court does not have sufficient

information to assess the effectiveness of his counsel. Such issues are best presented in post-

conviction proceedings, should Williams choose to undertake such.

¶26.   After a careful review of the record now before us it is not difficult to discern that

Williams was denied due process of law under the Fifth and the Fourteenth Amendments to

the United States Constitution and Article 3, Section 14, of the Constitution of the State of

Mississippi in light of the unfair surprise visited upon him by the extreme untimeliness of the

State’s motion to amend the indictment and the trial court’s granting of it. Accordingly, I

would vacate his sentence and remand the case for resentencing for the unlawful sale of

cocaine, without the Section 99-19-81 enhancement.

¶27.   I therefore concur in part and dissent in part.



       12
         In the style of the case at the beginning of the motion, an entirely different
defendant’s name is struck by pen and ink with J. C. Williams’s name handwritten in its
place. Similarly, the typed cause number is struck through and replaced by the cause number
for Williams’s case. At two places in the body of the motion, Williams’s name is inserted
in ink in the place of the name of another defendant with an altogether dissimilar name.

                                              15
    KING, J., JOINS THIS OPINION. WALLER, C.J., JOINS THIS OPINION IN
PART.




                                 16
