        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2013-KA-01068-COA

CHRISTOPHER MCNULTY A/K/A “BIG HURT”                                     APPELLANT
A/K/A CHRISTOPHER L. MCNULTY

v.

STATE OF MISSISSIPPI                                                       APPELLEE


DATE OF JUDGMENT:                        06/11/2012
TRIAL JUDGE:                             HON. DAVID H. STRONG JR.
COURT FROM WHICH APPEALED:               LINCOLN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  JOSEPH A. FERNALD JR.
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                       DEE BATES
NATURE OF THE CASE:                      CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                 CONVICTED OF THE UNLAWFUL SALE
                                         OF AT LEAST ONE-TENTH BUT LESS
                                         THAN TWO GRAMS OF COCAINE AND
                                         SENTENCED AS A HABITUAL OFFENDER
                                         TO THIRTY YEARS IN THE CUSTODY OF
                                         THE MISSISSIPPI DEPARTMENT OF
                                         CORRECTIONS AND TO PAY A $25,000
                                         FINE
DISPOSITION:                             AFFIRMED - 11/04/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

      ISHEE, J., FOR THE COURT:

¶1.   On June 11, 2012, Christopher McNulty was convicted by a jury in the Lincoln

County Circuit Court of the unlawful sale of at least one-tenth but less than two grams of

cocaine. He was sentenced, as a habitual offender, to thirty years in the custody of the
Mississippi Department of Corrections (MDOC). McNulty filed a motion for a judgment

notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The motion was

denied. McNulty appeals. Finding no error, we affirm the circuit court’s judgment.

            STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2.    On February 9, 2009, McNulty was indicted for the sale of at least one-tenth but less

than two grams of cocaine. The indictment followed a controlled buy set up by law

enforcement officials where a confidential informant met with McNulty and received the

substance from him. The interaction was videotaped. McNulty ultimately reached an

agreement with the State, which offered to amend the indictment to the lesser-included

offense of unlawful possession of more than one-tenth but less than two grams of cocaine.

¶3.    The State filed a motion to amend the indictment to include the lesser-included

offense of possession on April 16, 2012. The circuit court granted the motion. A plea

hearing was held on the same day. During the plea colloquy, the circuit court discovered that

McNulty was currently serving probation for automobile burglary. Subsequently, the circuit

court was not willing to follow the State’s recommendation. The State had not been aware

of McNulty’s prior felony conviction and stated that, had it been aware, the recommendation

would not have been made.

¶4.    As such, the circuit court allowed McNulty to withdraw his guilty plea and the State

to withdraw the motion to amend the indictment. The case was then continued. On May 24,

2012, the State filed a motion to amend the indictment to reflect McNulty’s habitual-offender

status. The motion was granted. A jury trial was held from June 4 through June 6, 2012,

pursuant to the original indictment charging McNulty with the unlawful sale of cocaine. At


                                             2
the conclusion of the State’s case-in-chief, McNulty moved to dismiss, arguing that the State

had failed to establish a prima facie case. The motion was denied, and the defense rested.

The jury returned a verdict finding McNulty guilty of the unlawful sale of at least one-tenth

but less than two grams of cocaine.

¶5.    Following the jury’s verdict, the State moved to amend the indictment. The defense

argued that the amended indictment charging McNulty with possession of cocaine was still

in effect and the circuit court could not sentence him outside of the maximum penalty for

possession. The circuit court concluded that, following the plea hearing, the original

indictment was reinstated when McNulty was allowed to withdraw his guilty plea. In

reaching this conclusion, the circuit court stated:

       I gave [McNulty] the option of . . . sentencing him on that date, blind, or
       withdrawing his guilty plea, and he chose to withdraw his guilty plea. When
       he did, he went forward on the original charges for which he was indicted. If
       there was an order that was not entered, that was simply an oversight. But
       there is no question. The [r]ecord should be clear that he was allowed to
       withdraw his guilty plea without any consequence, without it ever being
       brought up, with a clean state. And he did so at his own peril.

¶6.    McNulty was then sentenced, as a habitual offender, to thirty years in the custody of

the MDOC. On July 11, 2012, McNulty, pro se, filed a motion for a JNOV or, in the

alternative, a new trial. A second motion for a JNOV or, in the alternative, a new trial was

filed by counsel on behalf of McNulty on July 13, 2012. McNulty asserted that: (1) the

verdict was against the overwhelming weight of the evidence; (2) the sentence as a habitual

offender was excessive; and (3) the State failed to secure an order setting aside the

amendment to a lesser-included offense and reinstating the original indictment. The motion

was denied. Aggrieved, McNulty now appeals.


                                              3
                                       DISCUSSION

¶7.    On appeal, McNulty argues that the charge for which he was convicted is not

supported by the indictment in this case. He asserts that there was no substantive motion or

order to amend relating back to the original indictment. Therefore, he contends that the State

tried him on the wrong indictment. He maintains that his sentence is excessive because of

this error. He also argues that the habitual-offender portion of the indictment is void for

failure to include the words “against the peace and dignity of the State of Mississippi.”

¶8.    McNulty was originally indicted on the charge of unlawful sale of at least one-tenth

but less than two grams of cocaine pursuant to Mississippi Code Annotated section 41-29-

139 (Rev. 2013). Following an agreement with the State, the indictment was amended to

reflect the lesser-included offense of unlawful possession of at least one-tenth but less than

two grams of cocaine pursuant to Mississippi Code Annotated section 41-29-139. The latter

amendment was withdrawn when the circuit court and the State learned at the plea hearing

that McNulty had several prior convictions. The original indictment was reinstated, and the

State was ultimately granted an amendment to reflect McNulty’s habitual-offender status

based on his prior convictions. As such, after a jury found him guilty at trial, McNulty was

convicted of the unlawful sale of cocaine and sentenced to thirty years pursuant to

Mississippi Code Annotated section 41-29-139 and the habitual-offender statute, Mississippi

Code Annotated section 99-19-81 (Rev. 2007).

¶9.    In support of his argument that he was tried pursuant to the wrong indictment,

McNulty cites to this Court’s decision in Jamison v. State, 73 So. 3d 567 (Miss. Ct. App.

2011). In Jamison, the defendant, Jamison, was originally charged with possessing one-tenth


                                              4
of a gram or less of cocaine. Id. at 569 (¶3). During trial, Jamison admitted that, in actuality,

he had possessed two to three grams of cocaine. Id. at (¶6). Subsequently, at the close of the

evidence, the State moved to amend the indictment to increase the charge based on Jamison

admitting to possessing a greater quantity of cocaine. Id. at (¶7). The circuit court allowed

the amendment, and the jury found Jamison guilty of the increased charge. Id. Jamison was

sentenced according to the jury’s conviction and above the statutory maximum of the original

charge. Id.

¶10.   On appeal, this Court vacated Jamison’s sentence because “the court-authorized

amendment to the indictment increased the charged drug quantity thereby exposing Jamison

to a more severe sentence than authorized by the statutory maximum in the original

indictment.” Id. at 572 (¶18). In reaching this decision, the Court pointed to Jamison’s right

to “be afforded due process of law and be given fair notice of the ‘the nature and cause of the

accusation.’” Id. at 570 (¶9).

¶11.   The facts in Jamison are distinguishable from the facts in the instant case. McNulty

was originally charged with the unlawful sale of cocaine. The amendment to the original

indictment was conditioned on the acceptance of McNulty’s guilty plea. Unlike in Jamison,

McNulty was not exposed to a sudden increase in the charges or potential sentence available

under the original indictment. At all times, McNulty was aware of the original indictment

and the consequences thereof. Both the State and the circuit court acknowledged that, once

McNulty’s prior felony convictions were realized, they could not move forward with the

amended indictment. As such, McNulty was not afforded the deal offered by the State

because he chose to withdraw his guilty plea.


                                               5
       According to the Mississippi Supreme Court, if the amendment either (1)
       “materially alters facts which are the essence of the offense on the face of the
       indictment as it originally stood or” (2) “materially alters a defense to the
       indictment as it originally stood so as to prejudice the defendant's case,” then
       the amendment is substantive, and approval by the grand jury is required.

Id. at 571 (¶11) (quoting Spears v. State, 942 So. 2d 772, 774 (¶6) (Miss. 2006)). The circuit

court’s decision to withdraw the amended indictment did not materially alter the facts or the

defense of McNulty’s case as it stood with the original indictment. As such, we find that

McNulty’s conviction was proper. Further, it is clear from the record that McNulty was

afforded due process of law and given fair notice of the nature and cause of the accusation.

McNulty’s issues with both the jury’s verdict and his sentence are without merit.

¶12.   Finally, McNulty argues that the habitual-offender portion of his indictment should

be stricken because the indictment did not include the words “against the peace and dignity

of the State of Mississippi.” McNulty raises this issue for the first time on appeal. “Issues

raised for the first time on appeal are procedurally barred from review as they have not been

addressed by the trial court.” Jackson v. State, 856 So. 2d 412, 415 (¶12) (Miss. Ct. App.

2003). This Court “cannot find that a trial judge committed reversible error on a matter not

brought before him to consider.” Id. As such, we are barred from reviewing this issue. The

circuit court’s judgment is affirmed.

¶13. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT OF
CONVICTION OF THE UNLAWFUL SALE OF AT LEAST ONE-TENTH BUT
LESS THAN TWO GRAMS OF COCAINE AND SENTENCE AS A HABITUAL
OFFENDER OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AND TO PAY A $25,000 FINE, IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

       LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, CARLTON,

                                              6
MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART AND
DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.




                              7
