        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2014-CP-00346-COA



CHRISTOPHER B. SELLERS A/K/A CHRIS                                          APPELLANT
SELLERS A/K/A CHRISTOPHER SELLERS
A/K/A CHRISTOPHER BRIAN SELLERS

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                          03/05/2014
TRIAL JUDGE:                               HON. LEE J. HOWARD
COURT FROM WHICH APPEALED:                 OKTIBBEHA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    CHRISTOPHER B. SELLERS (PRO SE)
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: LAURA HOGAN TEDDER
NATURE OF THE CASE:                        CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                   DENIED MOTION FOR POST-
                                           CONVICTION RELIEF
DISPOSITION:                               AFFIRMED – 06/09/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., ISHEE AND CARLTON, JJ.

       IRVING, P.J., FOR THE COURT:

¶1.    In this appeal, this Court is asked to decide whether the Circuit Court of Oktibbeha

County erred in denying Christopher Sellers’s pro se motion for post-conviction relief (PCR),

wherein he alleged that his sentence was illegal and his trial counsel was ineffective.

¶2.    Finding that the circuit court committed no error, we affirm.

                                          FACTS

¶3.    On July 13, 2012, a grand jury indicted Sellers for malicious mischief in violation of
Mississippi Code Annotated section 97-17-67 (Rev. 2006), and the circuit court later

appointed counsel to represent him. On October 16, 2012, the State filed a motion to amend

the indictment to charge Sellers as a habitual offender under Mississippi Code Annotated

section 99-19-81 (Supp. 2014). That same day, Sellers filed a petition to enter a guilty plea,

and the circuit court held a plea hearing. The record reveals that a stand-in attorney1

represented Sellers during the hearing.2

¶4.    After accepting Sellers’s guilty plea, the circuit court sentenced him to a term of five

years in the custody of the Mississippi Department of Corrections (MDOC), imposed a

$10,000 fine, and ordered him to pay restitution. On January 8, 2014, Sellers filed his PCR

motion in the circuit court, and after the court denied the motion, he perfected this appeal.

                                        DISCUSSION

¶5.    The standard of review of a circuit court’s denial of a PCR motion is limited. On

appeal, this Court must reverse the circuit court’s judgment “only if [the circuit court’s]

factual findings are clearly erroneous; however [this Court] review[s] the circuit court’s legal

conclusions under a de novo standard of review.” Beal v. State, 58 So. 3d 709, 710 (¶2)

(Miss. Ct. App. 2011) (citing Doss v. State, 19 So. 3d 690, 694 (¶5) (Miss. 2009)).

       I.       Illegal Sentence


       1
           The stand-in attorney was employed by Seller’s attorney’s law firm.
       2
         According to Sellers, less than twenty-four hours before the plea hearing, his
attorney informed him that he had a dentist’s appointment that conflicted with the time of the
hearing.

                                               2
¶6.    Sellers argues that the circuit court lacked the authority to impose the maximum

sentence because he could have received the maximum sentence only if he had stood trial.

He also argues that Luckett v. State, 582 So. 2d 428 (Miss. 1991) (overruled on other grounds

by Rowland v. State, 42 So. 3d 503 (Miss. 2010)), required the circuit court to impose a lesser

sentence. Sellers also argues that the circuit court erred in sentencing him as a habitual

offender because the evidence was insufficient to: (1) establish his prior convictions and (2)

prove that he served a sentence of one year or more for those convictions. He contends that

the evidence of his prior convictions consisted solely of handwritten notes, which were

unreliable and constituted inadmissible hearsay because they were written by the victim in

this case.

¶7.    Sellers further contends that the circuit court violated Rule 11.03 of the Uniform Rules

of Circuit and County Court Practice by: (1) failing to file an order amending the indictment,3

and (2) granting the motion to amend absent sufficient proof of (i) his “previous

convictions[,] (ii) the nature or description of the offense constituting the previous

convictions, (iii) the state or federal jurisdiction of [the] previous conviction[s], and (iv) the

date of the judgment.”

¶8.    In response, the State argues that the applicable habitual-offender sentencing statute,



       3
         Both Sellers and the State, in their briefs, seem to believe that the order amending
the indictment was never filed. However, our perusal of the record shows that the motion
to amend and the order allowing the amendment were both filed on October 16, 2012, the
same date that Sellers pleaded guilty pursuant to a plea agreement.

                                                3
section 99-19-81, required the circuit court to impose the maximum sentence prescribed for

malicious mischief. The State also argues that Luckett is inapplicable because Luckett

applies only to those cases where only the jury is authorized to give a life sentence but has

failed to do so. The State further argues that there was sufficient evidence to establish

Sellers’s habitual-offender status. Additionally, the State argues that although “[n]o order

[amending the indictment] was ever entered on the record[,]” Sellers did not preserve this

issue for appeal because he failed to object during his plea hearing.

¶9.    In the motion to amend the indictment, the State alleged that Sellers had been

convicted of felony driving under the influence (DUI) and aggravated battery of a pregnant

woman. In the plea petition, Sellers: (1) admitted that he had received the two convictions

identified by the State in the motion to amend, (2) confirmed that he had been fully advised

by his attorneys regarding the nature of his case and the legal ramifications of his guilty plea,

and (3) acknowledged that “if [he pleaded] ‘[g]uilty[,]’ the [c]ourt [could] impose the same

punishment as if [he] had [pleaded] ‘[n]ot [g]uilty[,]’ [had stood] trial[,] and [had] been

convicted.” Sellers also acknowledged the sentencing recommendation to be made by the

State, which was “[five] years habitual.”

¶10.   During the plea hearing, the following colloquy took place:

       [BY THE COURT]:               You have at least two prior felony convictions?

       [SELLERS]:                    Yes, I do.

       [BY THE COURT]:               One’s an aggravated battery, and the other one is
                                     a felony DUI?

                                                  4
          [SELLERS]:                   Yes, sir.

          BY THE COURT:                [(Speaking to Prosecutor)] State is not pursuing
                                       the motion to amend?

          BY [PROSECUTOR]:             Yes, sir. I thought you’d want to take that up at
                                       sentencing. The State would pursue its motion to
                                       amend to make [Sellers] the little habitual under
                                       99-19-81.

                                               ****

          BY THE COURT:                You have the documentation that you wish to
                                       introduce?

          BY [PROSECUTOR]:             Yes, sir.

          BY THE COURT:                Pass it to the court reporter. Mark it as an exhibit,
                                       please, [C]ourt [R]eporter, and pass it to me.

¶11.      At that point, the State introduced a sentencing order entered by the circuit court that

established Sellers’s conviction for felony DUI and the two-year sentence that followed. The

State also introduced a sentencing order entered by the Circuit Court of Bay County, Florida,

that established Sellers’s conviction for aggravated assault on a pregnant woman and the

resultant sentence of two years and six months in the custody of the Florida Department of

Corrections. After reviewing that evidence, the circuit court granted the motion to amend

and sentenced Sellers.

¶12.      The order amending the indictment, which the circuit court filed on October 16, 2012,

states:

          [T]he [i]ndictment in the above styled and numbered cause should be amended
          to include the following:

                                                   5
              . . . AND FURTHER that the said Christopher Sellers was
              previously convicted in the Circuit Court of Oktibbhea County,
              Mississippi, in Cause #2011-0229-CR[,] for the crime of DUI
              3rd OF[F]ENSE, a felony, and sentenced on January 30, 2012,
              to serve a term of one (1) year or more in [MDOC custody];

              AND FURTHER that the said Christopher Sellers was
              previously convicted in the Circuit Court of the Fourteenth
              Judicial Circuit of the State of Florida, [i]n and [f]or Bay
              County, in Case #[]06-2426G[,] for the crime of Aggravated
              Battery on a Pregnant Woman, a felony, and sentenced on
              September 15, 2008, to serve a tern of [o]ne (1) year or more in
              the Florida Department of Corrections.

¶13.   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.

(Emphasis added). At the time of Sellers’s conviction, the crime of malicious mischief

carried a maximum sentence of five years in the custody of MDOC, a $10,000 fine, or both.

See Miss. Code Ann. § 97-17-67. As the State correctly argues, section 99-19-81 mandated

that the circuit court impose the maximum sentence prescribed by section 97-17-97, and the

circuit court did just that. This issue is without merit.

¶14.   Additionally, we agree with the State that Luckett is inapplicable to this case. In

Luckett, the trial court sentenced the defendant to life imprisonment after he pleaded guilty

to the crime of forcible rape in violation of Mississippi Code Annotated section 97-3-65(2)

                                               6
(Rev. 2014). Luckett, 582 So. 2d at 429. The defendant filed a motion to vacate the

sentence, which the trial court denied. Id. He then appealed, arguing that the trial court had

erred in imposing the life sentence because he pleaded guilty. Id. On appeal, the Mississippi

Supreme Court held that a court cannot sentence a defendant convicted under section 97-3-

65(2) to a term of life unless the jury fixes the penalty, and if the jury does not fix the penalty

at life, then the trial court is obligated to “sentence the defendant to a definite term

reasonably expected to be less than life.” Id. This case is factually distinguishable because

Sellers was not convicted under section 97-3-65(2), and he did not receive a life sentence.

This issue is without merit.

¶15.   Because we interpret Sellers’s Rule 11.03 argument as an attack on his habitual-

offender status, we combine our discussion of his Rule 11.03 argument and his habitual-

offender argument, and we find that those arguments are without merit. Rule 11.03 states

in relevant part:

       The indictment must include both the principal charge and a charge of
       previous convictions. The indictment must allege with particularity the nature
       or description of the offense constituting the previous convictions, the state or
       federal jurisdiction of any previous conviction, and the date of judgment.

Sellers’s argument that the circuit court violated Rule 11.03 by failing to enter an order

amending the indictment fails primarily because the circuit court did file the order amending

the indictment and did so on the date that Seller’s entered his guilty plea. Also, as evidenced

by the order amending the indictment, the amended indictment set forth the nature of

Sellers’s prior convictions, the jurisdictions of the convictions, and the dates of the

                                                7
sentencing judgments. Therefore, the evidence supports a finding that the amended

indictment was in compliance with Rule 11.03.

¶16.      Moreover, the record reveals sufficient evidence to prove Sellers’s habitual-offender

status.

          Generally, to sentence a defendant as a habitual offender, the State must prove
          the prior offenses by competent evidence, and the defendant must be given a
          reasonable opportunity to challenge the prosecution’s proof. However, where
          the defendant enters a plea of guilty and admits those facts which establish his
          habitual status, the State has met its burden of proof.

Aranyos v. State, 115 So. 3d 116, 118 (¶5) (Miss. Ct. App. 2013) (citation omitted). Here,

the State produced sentencing orders which established that Sellers had been convicted of

two felonies “brought and arising out of separate incidents at different times and [that he

was] sentenced to separate terms of one (1) year or more in a[] state . . . penal institution.”

Additionally, Sellers admitted during the plea hearing that he previously had been convicted

of two felonies. Therefore, as stated, this issue is without merit.

          II.    Ineffective Assistance of Counsel

¶17.      Sellers argues that he received ineffective assistance of counsel because his attorney

failed to inform him that his five-year sentence was mandatory under section 99-19-81.

Sellers also argues that his attorney’s failure to object to the amendment of the indictment

prejudiced his case. Sellers further argues that his attorney’s sending a stand-in attorney to

represent him during the plea hearing constituted ineffective assistance of counsel.

Additionally, Sellers argues that his stand-in attorney “coerced” him into pleading guilty. In


                                                 8
response, the State argues that Sellers has not met his burden of proving ineffective

assistance of counsel.

¶18.     During the plea hearing, prior to accepting Sellers’s plea, the circuit court asked him

if he had any objections to the stand-in attorney’s representation, and Sellers responded by

saying that “[the stand-in attorney is] a good man.” In an attempt to clarify Sellers’s

response, the circuit court asked him, “Okay. I take that statement to mean then you have no

objection?” He then responded, “No sir, I don’t.” After that, the following colloquy took

place:

         BY [PROSECUTOR]:                    There’s a plea agreement that he would
                                             plead guilty as a 99-19-81 habitual
                                             offender[.]

                                              ****

         BY THE COURT:                       As I understand [that the amendment to the
                                             indictment is a] part of a plea bargain agreement,
                                             I assume then there is no objection by the defense
                                             to the motion to amend?

         [DEFENSE ATTORNEY]:                 No objection, Your Honor.


         BY THE COURT:                       [(Speaking to Sellers)] Do you understand
                                             that on a plea of guilty as an habitual
                                             offender, the [c]ourt must sentence you to
                                             the maximum sentence authorized by law;
                                             that sentence being five years in the
                                             [custody of MDOC] and a $10,000 fine?

         [SELLERS]:                          Yes, sir.

¶19.     In Cage v. State, 149 So. 3d 1038, 1046 (¶21) (Miss. 2014) (internal citations and

                                                9
quotation marks omitted), the Mississippi Supreme Court stated:

       When assessing an ineffective-assistance claim, [an appellate court] applies the
       two-pronged standard[.] The first prong . . . requires the [defendant] to show
       that counsel’s performance was deficient. There is a strong presumption that
       counsel’s conduct falls within the wide range of reasonable professional
       assistance. Under the second prong, even if counsel’s conduct is deemed to
       be professionally unreasonable[,] the [judgment] must stand if the error had no
       effect on the judgment. Accordingly, the defendant must show that there is a
       reasonable probability that, but for counsel’s unprofessional errors, the result
       of the proceeding would have been different.

¶20.   Here, as previously noted, Sellers acknowledged in the plea petition that the State

would recommend a five-year sentence, and before accepting his guilty plea, the circuit court

informed him that it was obligated to impose the maximum sentence under section 97-17-67.

Therefore, Sellers cannot now legitimately claim that he was prejudiced by his attorney’s

alleged failure to inform him that he would receive a mandatory five-year sentence.

Additionally, Sellers has not explained how his stand-in attorney’s failure to object to the

amendment of the indictment prejudiced his case. The record reveals that Sellers reached

a plea agreement with the State, whereby the State would charge him as a habitual offender

under section 99-19-81. Therefore, any objection by his stand-in attorney to the amendment

of the indictment would have been imprudent, as the amendment had been agreed to before

the plea hearing. Further, during the plea hearing, when questioned by the circuit court

regarding his stand-in attorney’s representation, Sellers expressed satisfaction. In fact,

Sellers specifically stated that he had “no objection” to his stand-in attorney’s representation.

Finally, Sellers has not explained how his attorney’s absence during the plea hearing


                                               10
prejudiced his case in any way, and there is no evidence that the stand-in attorney coerced

Sellers to plead guilty. Therefore, Sellers has not proven that he received deficient or

professionally unreasonable representation. This issue is without merit. Because we find

that the circuit court did not err in denying Sellers’s PCR motion, we affirm.

¶21. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY
DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO OKTIBBEHA COUNTY.

    LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON,
MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART
WITHOUT SEPARATE WRITTEN OPINION.




                                            11
