        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                 NO. 2014-CP-01182-COA

DERIERA MAGEE A/K/A DERIE’RA MAGEE                                          APPELLANT
A/K/A DERIERA A. MAGEE A/K/A DERIERA
ALEJANDOUR MAGEE

v.

STATE OF MISSISSIPPI                                                          APPELLEE
DATE OF JUDGMENT:                          9/10/2014
TRIAL JUDGE:                               HON. ANTHONY ALAN MOZINGO
COURT FROM WHICH APPEALED:                 PEARL RIVER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    DERIERA MAGEE (PRO SE)
ATTORNEYS FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                           BY: LADONNA C. HOLLAND
                                               JOHN R. HENRY JR.
NATURE OF THE CASE:                        CIVIL - POSTCONVICTION RELIEF
TRIAL COURT DISPOSITION:                   DENIED PETITION FOR
                                           POSTCONVICTION COLLATERAL RELIEF
DISPOSITION:                               AFFIRMED: 11/10/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ.

       GRIFFIS, P.J., FOR THE COURT:

¶1.    Derie’ra Magee appeals the denial of his petition for postconviction collateral relief

(PCCR), claiming: (1) that he received no arraignment after being charged under a new

indictment, (2) that his double-jeopardy rights were violated by his conviction under the new

indictment, and (3) that he received ineffective assistance of counsel. We affirm the

judgment of the circuit court.

                                         FACTS
¶2.    On February 20, 2009, Magee was indicted on felony drug charges. In May 2009, the

prosecutor made a motion to amend the indictment to charge Magee as a habitual offender.

This motion was never granted.

¶3.    The district attorney then obtained a new indictment on June 12, 2009, charging

Magee with two counts of possession of a controlled substance as a habitual offender. Miss.

Code Ann. § 99-19-83 (Rev. 2015). In Count I, Magee was charged with possession of a

controlled substance (cocaine) with intent to distribute under Mississippi Code Annotated

section 41-29-139(a) (Supp. 2015). As to Count II, he was charged with possession of a

controlled substance (marijuana) under Mississippi Code Annotated section 41-29-139(c)

(Supp. 2015).

¶4.    Then on January 19, 2010, the State reduced the charge, and Magee pleaded guilty

to possession of a controlled substance as a habitual offender and was sentenced to serve

sixteen years. Miss. Code Ann. §§ 41-29-139(c) & 99-19-81 (Rev. 2015).1 The prosecutors

did not pursue a conviction as to Count II of the indictment. Magee subsequently filed a

PCCR petition, which was denied by the circuit court.

                                        ANALYSIS

¶5.    When “reviewing a trial court’s dismissal of [a PCCR petition] . . . We will not disturb

the trial court’s factual findings unless they are found to be clearly erroneous.” Mann v.



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       After briefing was completed in this case, Magee filed a pro se “motion to
amendment to show amendment to order of conviction to correct sentence” to bring the
Court’s attention to an amended order of conviction correcting aspects of his sentence. The
amended order was part of the supplemental record that this Court requested on its own
motion. Therefore, Magee’s motion is moot.

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State, 2 So. 3d 743, 745 (¶5) (Miss. Ct. App. 2009). “[W]here questions of law are raised,

the applicable standard of review is de novo.” Id.

       I.      Magee waived any objection to a lack of arraignment.

¶6.    Magee first argues that he was not arraigned under the second indictment and that

because of this error, his conviction should be reversed. The record is not clear as to whether

Magee was arraigned under the second indictment. We note that Magee failed to raise this

issue in his original PCCR petition and is barred from raising it for the first time on appeal.

Holmes v. State, 97 So. 3d 704, 706 (¶8) (Miss. Ct. App. 2011). Notwithstanding this

procedural bar, we address Magee’s claim.

¶7.    “A defendant may waive arraignment, either expressly or impliedly, by proceeding

to trial without objection, and one who has by his assent and conduct thus impliedly joined

issue with the state on an affidavit or indictment, cannot, by objection to a later arraignment,

avoid a conviction.” Spry v. State, 796 So. 2d 229, 233 (¶12) (Miss. 2001) (quoting Bufkin

v. State, 134 Miss. 1, 16, 98 So. 452, 454 (1923)). Therefore, “by pleading guilty without

objecting to his arraignment,” a defendant waives any objection. Id.

¶8.    Magee pleaded guilty under Count I in the second indictment. He made no objection

at the time of his pleading; in fact he made no objection to his lack of arraignment until this

appeal. Magee was scheduled for trial the day that he pleaded guilty. “Arraignment is

deemed waived where the defendant proceeds to trial without objection.” Id. At the plea

hearing, Magee was again made aware of all the charges against him. He made no objections

to the charges or his guilty plea. This issue is without merit.



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       II.    Magee’s guilty plea did not violate the protection against double jeopardy.

¶9.    Magee also argues that his double-jeopardy rights were violated because he pleaded

guilty to a misdemeanor charge of possession of marijuana in the Picayune City Court. This

alleged charge arose from the same arrest, where it appears that Magee was in possession of

one marijuana cigarette and several small bags of cocaine.

¶10.   Generally, claims made for the first time on appeal are barred. Holmes, 97 So. 3d at

706 (¶8). But the supreme court has held that “errors affecting fundamental constitutional

rights are excepted from the procedural bars . . . .” Rowland v. State, 42 So. 3d 503, 506 (¶9)

(Miss. 2010). The court has also “deemed the right to be free from double jeopardy a

‘fundamental right.’” Id. at (¶7). Even when a defendant has pleaded guilty to a charge,

“[he] does not waive his double[-]jeopardy claim.” Rush v. State, 749 So. 2d 1024, 1027 (¶9)

(Miss. 1999). Thus we address the merits of Magee’s double-jeopardy claim.

¶11.   “The three primary purposes of the Double Jeopardy Clause are that (1) it protects

against a second prosecution for the same offense after an acquittal, (2) it protects against a

second prosecution for the same offense after a conviction, and (3) it protects against

multiple punishments for the same offense.”         Rush, 749 So. 2d at 1026 (¶8).         But

“Mississippi has long recognized that separate offenses, though committed under a common

nucleus of operative fact, [do] not present a legal impediment to multiple prosecutions under

the [D]ouble [J]eopardy [C]lause . . . .” Johnston v. State, 172 So. 3d 756, 759 (¶8) (Miss.

Ct. App. 2012) (citing Henley v. State, 749 So. 2d 246, 249 (¶12) (Miss. Ct. App. 1999)).

¶12.   The record is silent regarding any city court conviction. Assuming Magee did plead



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guilty to both crimes, his double-jeopardy rights were not violated because these crimes were

not the same offense. The circuit court conviction pertained to his possession of cocaine,

while the alleged city court conviction resulted from his possession of marijuana. Magee

committed two offenses simultaneously, but double jeopardy is not violated when a

defendant is convicted of two offenses arising from a common nucleus of fact.

       III.   Magee did not suffer ineffective assistance of counsel.

¶13.   Magee then argues that he had ineffective assistance of counsel.

       To prove ineffective assistance of counsel, a defendant must show that: (1) his
       counsel’s performance was deficient, and (2) this deficiency prejudiced his
       defense. The burden of proof rests with the defendant to prove both prongs.
       Under Strickland, there is a strong presumption that counsel’s performance
       falls within the range of reasonable professional assistance. To overcome this
       presumption, the defendant must show that there is a reasonable probability
       that, but for the counsel’s unprofessional errors, the result of the proceeding
       would have been different.

Maggitt v. State, 26 So. 3d 363, 365 (¶12) (Miss. Ct. App. 2009) (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984)) (internal citations and quotations omitted).

¶14.    Because of Magee’s alleged double-jeopardy violation, he argues that he had

ineffective assistance of counsel. Having found that Magee’s double-jeopardy rights were

not violated, Magee has no basis for ineffective assistance of counsel.

¶15.   Magee’s claims as to the arraignment, double jeopardy, and ineffective counsel have

no merit. We affirm the judgment of the Circuit Court of Pearl River County.

¶16. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY
DISMISSING THE PETITION FOR POSTCONVICTION COLLATERAL RELIEF
IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PEARL
RIVER COUNTY.



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    LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, MAXWELL, FAIR,
JAMES AND WILSON, JJ., CONCUR.




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