           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                  NO. 2015-CP-00917-COA

CARDIOS BARKER A/K/A CARDIOS M.                                             APPELLANT
BARKER

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                           03/02/2015
TRIAL JUDGE:                                HON. JAMES T. KITCHENS JR.
COURT FROM WHICH APPEALED:                  LOWNDES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     CARDIOS BARKER (PRO SE)
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: BARBARA WAKELAND BYRD
NATURE OF THE CASE:                         CIVIL - POSTCONVICTION RELIEF
TRIAL COURT DISPOSITION:                    DENIED MOTION FOR POSTCONVICTION
                                            RELIEF
DISPOSITION:                                AFFIRMED - 10/25/2016
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

denying Cardios Barker’s motion for postconviction relief (PCR). Finding no error, we

affirm.

                         FACTS AND PROCEDURAL HISTORY

¶2.       In April 2012, a Lowndes County grand jury indicted Barker for possessing less than

0.1 gram of cocaine in violation of Mississippi Code Annotated section 41-29-139 (Supp.

2011). Before trial, the State submitted a motion to amend the indictment to charge Barker
as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015).1

¶3.    After his trial began, Barker decided to plead guilty. Barker’s guilty-plea petition

provided in relevant part:

       [A]nd the District Attorney shall make no recommendations to the Court
       concerning my sentence except as follows:

       . . . [A]sk for judicial review on habitual offender status [and] sentence
       accordingly. District Attorney agrees not to seek an enhanced penalty under
       the habitual offender status but asks for the 4 year max sentence be habitual,
       fines [and] costs by court.

¶4.    The circuit court accepted Barker’s plea on August 30, 2012. However, the court

withheld its ruling on the State’s motion to amend the indictment and delayed sentencing

until October 23, 2012, to provide Barker time to defend the claim that he was a habitual

offender.

¶5.    At the sentencing hearing, the State presented evidence to show that Barker was a

habitual offender.2 The State informed the circuit court:

       Pursuant to the agreement between counsel for the defendant and counsel for
       the State, the State is just seeking to amend the indictment to make him a[]
       habitual offender, not seeking to make him enhanced as [a] habitual offender.
       In other words, the maximum sentence would be four years as [a] habitual
       offender as opposed to eight years . . . .

And counsel for Barker responded: “That’s my understanding, also, Your Honor . . . . [T]he

agreement was for him to serve [a] habitual term, not an enhanced term.” The circuit court


       1
        Although the motion was not stamped as filed until the day of the trial, both parties
agreed that the motion had been submitted the day before.
       2
        In cause number 1999-0191-CR1, Barker was convicted of the sale of cocaine and
sentenced to serve five years. In cause number 1999-345-CR1, Barker was convicted of
possession of .1 gram of cocaine and sentenced to serve three years.

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granted the State’s motion to amend the indictment, sentenced Barker to four years, and

ordered Barker to pay a fine of $10,000.

¶6.    After he was convicted and sentenced, Barker filed a PCR motion, where he claimed:

(1) his sentence amounted to an illegal sentence because he was not indicted as a habitual

offender, and (2) his attorney was ineffective for “fail[ing] to object to the [circuit court]

sentencing [him] as a habitual offender absent a grand jury indictment.” The circuit court

denied Barker’s motion without a hearing. Barker appeals.

                                STANDARD OF REVIEW

¶7.    “When reviewing a circuit court’s dismissal of a PCR motion, this Court will only

reverse a circuit court’s factual findings if the findings are determined to be clearly

erroneous.” Pickle v. State, 115 So. 3d 896, 898 (¶10) (Miss. Ct. App. 2013) (citation

omitted). Issues of law are reviewed de novo. Id.

¶8.    This Court has recognized that a “circuit court may dismiss a [PCR motion] without

an evidentiary hearing where it plainly appears from the face of the motion, any annexed

exhibits and the prior proceedings in the case that the movant is not entitled to any relief.”

Id. at 899 (¶12) (internal quotations and citation omitted).

                                       DISCUSSION

¶9.    In his reply brief, Barker raises claims that were not raised in his PCR motion before

the circuit court. “A defendant who fails to raise an issue in [his PCR motion] before the trial

court may not raise that issue for the first time on appeal.” Marshall v. State, 136 So. 3d 443,

445 (¶3) (Miss. Ct. App. 2013) (quoting Fluker v. State, 17 So. 3d 181, 183 (¶5) (Miss. Ct.



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App. 2009)). Therefore, we limit our review to those issues raised in the circuit court.

       I.     Illegal Sentence

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

       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.

¶11.   Barker claims his sentence amounted to an illegal sentence because he was not

indicted as a habitual offender. However, Barker’s indictment was amended to charge him

as such. The record reflects that the circuit court delayed sentencing to afford Barker a fair

opportunity to present a defense. Thus, Barker was not unfairly surprised.

¶12.   Furthermore, this Court has held that an illegal sentence is “one that does not conform

to the applicable penalty statute.” Shies v. State, 185 So. 3d 1081, 1085 (¶13) (Miss. Ct. App.

2016) (citation omitted). Section 99-19-81 provides:

       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.

¶13.   The State established that Barker had previously been convicted of two separate

felonies, and that he had been sentenced to separate terms of one year or more. Barker was

sentenced for the subject offense to four years, which was the maximum term of


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imprisonment under section 41-29-139. Thus, Barker’s claim that he received an illegal

sentence is without merit.

       II.    Ineffective Assistance

¶14.   In order to prevail on a claim of ineffective assistance of counsel, Barker 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).

¶15.   Barker claims his attorney was ineffective for “fail[ing] to object to the [circuit court]

sentencing [him] as a habitual offender absent a grand jury indictment.” However, Barker

was indicted. And, after the State presented evidence of Barker’s habitual-offender status,

his indictment was amended to charge him as a habitual offender. Furthermore, Barker fails

to show how the outcome would have been different without his counsel’s alleged errors.

Thus, Barker’s claim that his counsel was ineffective is without merit.

¶16. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY
DENYING 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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