        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2016-CP-00921-COA

SAMUEL CONWILL A/K/A SAMUEL B.                                              APPELLANT
CONWILL A/K/A SAMUEL BRENT CONWILL

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                          01/21/2016
TRIAL JUDGE:                               HON. LEE J. HOWARD
COURT FROM WHICH APPEALED:                 CLAY COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    SAMUEL CONWILL (PRO SE)
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: ALICIA MARIE AINSWORTH
NATURE OF THE CASE:                        CIVIL - POSTCONVICTION RELIEF
DISPOSITION:                               AFFIRMED - 10/17/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., BARNES AND WESTBROOKS, JJ.

       WESTBROOKS, J., FOR THE COURT:

¶1.    Samuel Conwill appeals the dismissal of his petition for postconviction relief (PCR)

in the Clay County Circuit Court. Finding no error, we affirm.

                       FACTS AND PROCEDURAL HISTORY

¶ 2.   Conwill was indicted on one count of possession of methamphetamine precursors and

one count of possession of methamphetamine. Conwill pled guilty to possession of

methamphetamine in exchange for the State retiring the possession-of-precursors count.

Following his conviction and sentence, Conwill filed a motion to correct the Mississippi

Department of Correction’s record of a parole to a detainer, as to another charge and another
sentence. The trial court dismissed that motion. Conwill subsequently filed a petition to

“vacate [the] illegal sentence.” The trial court dismissed that petition. Conwill then filed a

motion to appeal out-of-time and his notice of appeal. The trial court granted his motion to

appeal out-of-time.

¶3.    On appeal, Conwill argues that he was denied due process and the right to

confrontation. He claims that during his sentencing hearing, the records of his previous

convictions, known as “pen packs,” were admitted into evidence without foundational

testimony to certify their accuracy. He asserts that the admission of the pen packs was

reversible error. We find this argument to be without merit.

                                STANDARD OF REVIEW

¶4.    “Circuit courts may summarily dismiss a PCR motion ‘if 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.’” Dixon v. State, 52 So. 3d 1254, 1254 (¶2) (Miss. Ct.

App. 2011) (quoting Robinson v. State, 19 So. 3d 140, 141-42 (¶6) (Miss. Ct. App. 2009)).

In reviewing the circuit court’s dismissal of a PCR motion, the circuit court’s factual findings

will not be disturbed unless clearly erroneous. Mann v. State, 2 So. 3d 743, 745 (¶5) (Miss.

Ct. App. 2009).

                                       DISCUSSION

¶5.    At Conwill’s guilty-plea hearing, the State moved to amend the indictment to reflect

Conwill’s habitual offender status and entered the pen packs into evidence as proof of his

status as a habitual offender. Conwill’s trial counsel did not object to the motion, and the



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trial court granted the State’s motion to amend. During the hearing, Conwill’s trial counsel

stated that Conwill was aware that the indictment could be amended any time prior to trial

and did not contest the amendment, because the habitual offender stipulation was part of the

plea agreement. “When an accused fails to object to the habitual offender issue during the

sentencing phase, he is procedurally barred to do so the first time on appeal.” Reed v. State,

180 So. 3d 755, 756 (¶4) (Miss. Ct. App. 2015) (quoting Heidelberg v. State, 45 So. 3d 730,

732 (¶6) (Miss. Ct. App. 2010)). Conwill did not object to the motion to amend the

indictment. Therefore, this matter is procedurally barred.

¶6.    Notwithstanding the procedural bar, Conwill’s assertion that pen packs are insufficient

proof of habitual offender status without a testimonial foundation is without merit. “[U]nder

[s]ection 99-19-81 of the Mississippi Code, proof of habitual status is sufficient where the

State demonstrates that a defendant was sentenced to terms in excess of one year.” Frazier

v. State, 907 So. 2d 985, 991 (¶15) (Miss. Ct. App. 2005) (citing Miss. Code Ann. §

99-19-81) (Rev. 2015)). “[C]ertified copies of ‘pen packs’ suffice as competent evidence

of prior convictions.” Id. at 991 (¶16) (citing Dixon v. State, 812 So. 2d 225, 231 (¶27)

(Miss. Ct. App. 2001)). This Court’s ruling in Frazier does not support Conwill’s contention

that pen packs need authentication and a testimonial foundation to support sentencing as a

habitual offender.

¶7.    Conwill argues that Frazier contradicts the Mississippi Supreme Court’s holding in

Kettle v. State, 641 So. 2d 746 (Miss. 1994), and the United States Supreme Court’s holding

in Bullcoming v. New Mexico, 564 U.S. 647 (2011). We do not agree. The issue presented



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in Kettle was whether someone other than the testing technician could authenticate the

laboratory results to support a conviction. Our supreme court held that testimonial evidence

from a person, other than the testing technician, violated the Sixth Amendment right to

confrontation. Kettle, 641 So. 2d at 750. Likewise, in Bullcoming, the United States

Supreme Court found that surrogate testimony of a scientist who did not sign the testimonial

certification or observe the test reported in the certification violated the defendant’s Sixth

Amendment right to confrontation. Bullcoming, 564 U. S. at 652. The holdings in Kettle and

Bullcoming do not contradict this Court’s holding in Frazier. The evidence in question in

those cases required scientific analysis of laboratory results by the testing individual, whereas

pen packs do not. The preparation and management of pen packs are administrative in

nature, and they only need to be certified by the custodian who maintains the records in the

ordinary course of business. Accordingly, we find that testimonial evidence need not be

proffered to authenticate pen packs. Finding no error, we affirm the circuit court’s dismissal

of Conwill’s PCR petition.

¶8.    AFFIRMED.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,
WILSON AND GREENLEE, JJ., CONCUR. TINDELL, J., NOT PARTICIPATING.




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