                   IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2012-CT-00417-SCT

CHARLES FERGUSON a/k/a CHARLES
FURGUSON a/k/a CHARLES FERGUSON, JR.
a/k/a C J

v.

STATE OF MISSISSIPPI

                            ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                       02/21/2012
TRIAL JUDGE:                            HON. LEE SORRELS COLEMAN
TRIAL COURT ATTORNEYS:                  STEVEN CARL WALLACE
                                        RHONDA HAYES-ELLIS
                                        KATIE MOULDS
COURT FROM WHICH APPEALED:              LOWNDES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                OFFICE OF STATE PUBLIC DEFENDER
                                        BY: GEORGE T. HOLMES
                                        MARK ANDREW CLIETT
ATTORNEYS FOR APPELLEE:                 OFFICE OF THE ATTORNEY GENERAL
                                        BY: ELLIOTT GEORGE FLAGGS
                                            JOHN R. HENRY, JR.
DISTRICT ATTORNEY:                      FORREST ALLGOOD
NATURE OF THE CASE:                     CRIMINAL - FELONY
DISPOSITION:                            REVERSED IN PART; VACATED IN PART
                                        AND REMANDED - 04/17/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      PIERCE, JUSTICE, FOR THE COURT:

¶1.   Charles Ferguson rode as a back-seat passenger from Starkville, Mississippi, to West

Point, Mississippi, with Lazeric Yarbrough and Oratio Robinson, unaware of Yarbrough’s

and Robinson’s intent to purchase marijuana once in West Point. On their return to
Starkville, the men approached a Mississippi Highway Patrol checkpoint in Lowndes County,

Mississippi. Ferguson testified at trial that, as they approached the checkpoint, Yarbrough,

a front-seat passenger in the vehicle, opened the door and threw the bag of marijuana from

the vehicle. The officers at the checkpoint watched as the bag was thrown from the vehicle

and subsequently arrested all three men. Ferguson was indicted in 2010 for possession of

marijuana in an amount greater than 250 grams but less than 500 grams, with the intent to

distribute pursuant to Mississippi Code Section 41-29-139. Miss. Code Ann. § 41-29-139

(Rev. 2013).

¶2.    Trial on the matter commenced February 16, 2012, in the Circuit Court of Lowndes

County, Mississippi. After the jury was empaneled, the trial court recessed for lunch. Once

the trial court reconvened, the State presented that it had learned during the break that

Ferguson was a habitual offender, and it had just then filed its motion to amend the

indictment to reflect his habitual-offender status under Mississippi Code Section 99-19-81.

Miss. Code Ann. § 99-19-81 (Rev. 2007).1 The trial court moved forward with a hearing on

the State’s motion to amend the indictment pursuant to Uniform Rule of Circuit and County


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           Mississippi Code Section 99-19-81 states:
       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.

Miss. Code Ann. § 99-19-81 (Rev. 2007).


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Court 7.09. URCCC 7.09.2 Defense counsel argued that, because of the timing of the

motion, an amendment would unfairly prejudice Ferguson. The trial court recessed to give

defense counsel an opportunity to speak with Ferguson concerning the implications of

habitual-offender status.   During the recess, the State communicated its plea offer to

Ferguson for his consideration.

¶3.    Thereafter, the trial court ruled that it would allow the amendment, and it stated that

defense counsel had conferred with Ferguson for “approximately 40 minutes since the

motion was made.” Ferguson, an indigent defendant, addressed the trial court, seeking

permission to hire his own attorney. The trial court ruled that Ferguson had two years prior

to trial to hire an attorney, and further, he did not show that he was now able to afford an

attorney. An additional “brief recess” was taken to give Ferguson and defense counsel one

last chance to confer. Ferguson chose to reject the State’s plea offer.

¶4.    Once Ferguson rejected the State’s offer, the State moved forward with presenting its

case-in-chief. Ferguson presented his defense the following day, and trial concluded with

closing arguments by both parties. That same day, Ferguson was convicted of the lesser-

included offense of possession of marijuana in an amount of 250 grams but less than 500

grams, pursuant to Mississippi Code Section 41-29-139(c)(2)(D). Miss. Code Ann. § 41-29-




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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 an 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.” URCCC Rule
7.09.

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139(c)(2)(D) (Rev. 2013). Immediately thereafter, Ferguson was sentenced to serve eight

years as a habitual offender.

¶5.    Ferguson appealed his conviction to the Mississippi Supreme Court, and his case was

assigned to the Mississippi Court of Appeals. On appeal, he argued that: (1) the verdict was

against the sufficiency of the evidence; (2) the trial court erred in allowing the indictment to

be amended after jury selection had been completed; (3) the trial court erred in denying his

motion for a continuance; and (4) his counsel was ineffective. Finding no error, the Court

of Appeals affirmed Ferguson’s conviction.

¶6.    This Court granted Ferguson’s petition for writ of certiorari, which raised the

following issues:

       I.      Whether the court erred in allowing the indictment to be amended to
               reflect habitual-offender status after jury selection had been completed.

       II.     If the amendment to the indictment to reflect habitual-offender status
               was proper, whether the court erred in denying Ferguson’s ore tenus
               motion for a continuance to hire an attorney.

¶7.    On appeal to this Court, Ferguson raised only the preceding two issues and did not

appeal his conviction. Finding that the amendment to the indictment was untimely, we will

discuss only the first issue.

                                STANDARD OF REVIEW

¶8.    Whether the trial court erred by allowing the indictment to be amended on the day of

trial is an issue of law that is reviewed de novo. Jackson v. State, 943 So. 2d 746, 749 (Miss.

Ct. App. 2006) (citing Peterson v. State, 671 So. 2d 647, 652 (Miss. 1996) (overruled on

other grounds)).



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                                        ANALYSIS

       Whether the court erred in allowing the indictment to be amended to
       reflect habitual-offender status after jury selection had been completed.

¶9.    Ferguson argues that amending the indictment was impermissible because the State

failed to give pretrial notice. Ferguson cites this Court’s holding in Gowdy v. State to

support his argument. Gowdy v. State, 56 So. 3d 540, 544-46 (Miss. 2010). In the instant

case, the State sought to amend the indictment during trial, after the jury was empaneled.

This Court’s opinion in Boyd v. State provides the controlling law for the case before us.

Boyd v. State, 113 So. 3d 1252 (Miss. 2013).

¶10.   Uniform Rule of Circuit and County Court 7.09 allows indictments to be amended to

charge a defendant as a habitual offender. URCCC 7.09. Even though Rule 7.09 is silent

regarding the timing of an amendment, it stipulates that the defendant must be “afforded a

fair opportunity to present a defense and not [be] unfairly surprised.” Gowdy, 56 So. 3d at

545 (quoting URCCC 7.09).

¶11.   Boyd addressed what constitutes adequate notice, such that the defendant will have

a “fair opportunity to present a defense” and will not be “unfairly surprised.” Boyd, 113 So.

3d at 1255 (citing URCCC 7.09). This Court clarified 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. . . .” Boyd, 113 So. 3d at 1256.

¶12.   As in this case, the State first announced its intent to seek enhanced sentencing on the

day of Boyd’s trial. Boyd, 113 So. 3d at 1253. The State did not file its motion to amend

Boyd’s indictment until the sentencing hearing. Boyd, 113 So. 3d at 1254. This Court held



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that Boyd had not been afforded sufficient notice of the State’s intent to amend the

indictment. As previously stated, the State filed its motion to amend the indictment during

the afternoon recess. Ferguson sought a continuance in order to hire an attorney rather than

continue with his appointed counsel, but he was denied any type of continuance. Ferguson

and his counsel were given a short period of time to consider the change in the indictment

and the plea offer by the State. Opening arguments began immediately after the hearing on

the motion to amend the indictment, and Ferguson was convicted and sentenced by the end

of the following day.

¶13.   McCain v. State provided that a case-by-case determination should be used when

adhering to the specifications of Rule 7.09. McCain v. State, 81 So. 3d 1055, 1061 (Miss.

2012). Accordingly, we find that Ferguson was unfairly surprised by the timing of the

motion, and he was not given adequate notice consistent with the requirements of Rule 7.09

or this Court’s holding in Boyd v. State. URCCC 7.09; Boyd, 113 So. 3d at 1256.

                                     CONCLUSION

¶14.   The trial court erred in allowing the amendment to the indictment, because Ferguson

did not receive proper notice and was unfairly surprised. Accordingly, we reverse in part the

judgments of the Court of Appeals and trial court. We vacate only the portion of Ferguson’s

sentence that is based on his status as an habitual offender pursuant to Mississippi Code

Section 99-19-81. Miss. Code Ann. § 99-19-81 (Rev. 2013). We remand the case to the

Lowndes County Circuit Court for resentencing consistent with Mississippi Code Section 41-

29-139(c)(2)(D), which provides that Ferguson shall be sentenced to “. . . not less than two

(2) years nor more than eight (8) years and by a fine of not more than Fifty Thousand Dollars

                                             6
($50,000.00).” Miss. Code Ann. § 41-29-139(c)(2)(D) (Rev. 2013).

¶15.   REVERSED IN PART; VACATED IN PART AND REMANDED.

     WALLER, C.J., RANDOLPH, P.J., LAMAR, KITCHENS, CHANDLER, KING
AND COLEMAN, JJ., CONCUR. DICKINSON, P.J., CONCURS IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION.




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