IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2014-CP-00755-COA

ROY DALE WALLACE A/K/A ROY D. WALLACE APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 04/30/2014 TRIAL JUDGE: HON. JOHN C. GARGIULO COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: ROY DALE W ALLACE (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LA DONNA C. HOLLAND NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF TRIAL COURT DISPOSITION: DENIED MOTION FOR POSTCONVICTION RELIEF DISPOSITION: AFFIRMED – 11/24/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. IRVING, P. J., FOR THE COURT: ¶1. The Harrison C ounty Circuit Court denied R oy W allace’s sec o n d mo t ion f or postconviction relief (PCR), f

inding it to be both procedurally barred and without m erit. W allace

now appeals, arguing that the c ircuit court erred in not granting the m otion because his sentence is illegal. ¶2. Finding no error, we af f irm

. FACTS ¶3. W a llace was indicted, o n July 30, 2007, f or robbery

. On Decem

b er 4, 2007, the Statef

iled a m otion t o am end the indictm ent to charge h im as a habitual of f e nder under Mississippi Code Annotated section 99-19-81 (Rev. 2015). The am ended indictm ent a lleged that (1) on January 22, 1987, W allace w as convicted of f elony aggravated assault and se n t e n c e d t o a
term of not less than one y ear nor m ore than ten y e a rs in the W est V irginia State Penitentiary ; (2) on March 15, 2001, W allace was convicted of aggravated robbery and sentenced to ten
y ears i n the custody of the Tennessee Departm ent of C orrections (TDOC); and (3) on March 15, 2001, W allace was convicted of aggravated robbery a nd sentenced to a t erm of ten y ears in the custody of

the TDOC. ¶4. On Dece mb e r 1 0, 2007, W allace pleaded guilty to r obbery , and the t rial court sentenced him u nder section 99-19-81 to t welve y ears in the custody o f the M issis s i p pi Departm ent of Corrections without the possibility o f parole or p robation. The trial court and this Court have previously noted that the m otion t o a m end was granted on the sam e day as the guilty plea, Decem

ber 10, 2 007, but w a s not e ntered until D ecem ber 11, 2007. See W allace v. State, 88 So. 3d 789, 790-91 (¶3) (Miss. Ct. App. 2012). ¶5. Following his sentencing, W allace f i led h is f irst PCR m otion, and the trial court denied the m o tion. W allace appealed t h a t o rder of denial, arguing that h is sentence was illegal b ecause “the circuit court erred b y not conf irm ing the prior convictions relied upon
to q ualif y him as a habitual of

f ender.” See id. at 790 (¶1). This Court af f irm ed, f inding that the State had of

f ered s uf f icient proof o f W allace’s habitual-of f e n der status. I

d. at 792 (¶13).

2¶6. On April 21, 2014, W allace f i led a second PCR m otion. 1 The trial court f ound that W a llace’s m otion was successi v e a n d , theref ore, procedurally barred. The trial court also f ound that n otwithstanding the procedural bar, W allace’s m otion was without m erit. A c c o r d i n g l y , the trial court denied W allace’s m otion. It i s f rom t his denial that W allace appeals. DISCUSSION ¶7. W e review a t rial c ourt’s f indings of f

a ct regarding a denial or d ism issal of a PCR

m otion under an abuse-of -discretion s tandard. C

rosby v. State, 16 So. 3d 74, 77 (¶5) (Miss. Ct. App. 2009). H owever, questions of law are reviewed de novo. W illiams v. State, 872 So. 2d 711, 712 (¶2) (Miss. Ct. A pp. 2004) (citing Pace v. S tate, 770 So. 2d 1052, 1055 (¶4) ( M i s s . Ct. App. 2 000)). “The t rial court m a y sum m arily dism iss a P CR m otion wh e r e ‘ i t plainly appears f

ro m the f

ace of the m otion, any annexed exhibits[ ,] a nd the prior proceedings in the case that the m ovant is not e ntitled to any relief [ .]’” W h ite v. State, 59 So. 3d 633, 6 35 ( ¶ 4) (Miss. Ct. App. 2011) (quoting Miss. Code Ann. § 99-39-11(2) (Supp. 2010)). Accordingly , it i s well settled in our jurisprudence that a trial court’s denial of a PCR

m otion will not be reversed u nless the trial court’s decision was clearly erroneous. Smith v. State, 8 06 So. 2d 1148, 1150 (¶3) (Miss. Ct. App. 2002). I. Procedural Bar

1 A ctu ally , Wallace f

iled a letter co n testin g th e v alid ity o f h is sen ten ce, w h ich th e trial co u rt treated as a P C R

m o tio n . 3¶8. Under the Unif orm Post-Conviction Collateral R elief Act (UPCCRA), an order "deny i ng relief

. . . is a f

inal judgm ent and shall be conclusive until reversed. It shall be a bar
to a s econd or successive m otion u nder this article." M iss. Code Ann. § 99-39-23(6) (Rev. 2015). W allace’s f

irst PCR m otion was denied by t he trial court i n April 2011. Pursuant to secti o n 9 9

- 3 9

- 2 3 ( 6), that denial barred the PCR m otion at issue in this appeal. Also, Mississippi Code Annotated s ection 99-39-5(2) (Rev. 2015) p rovides that “[ a ] m otion f or relief

. . . shall b e m ade,

. . . i n [ a] case [ where there was a] guilty plea, within three (3) y ears af ter entry of t he judgm ent of conviction.” W allace’s 2014 PCR m otion was not f iled until April 21, 2014, m ore than six y ears af ter h is Decem

ber 10, 2007 guilty plea. Theref ore, we f ind that W allace’s 2014 PCR m otion i s also tim e-barred u nder s e ction 99-39-5(2). In addition, Mississippi Code Annotated section 9 9-39-21(3) (Rev. 2015) p rovides that “[ t]he doctrine of res judicata shall apply to all issues, both f

actual and legal, decided at trial and

on direct appeal.” The trial court previously f ound that W allace w a s properly sentenced as

a h abitual of

f ender, when i t d enied W allace’s 2011 P CR m otion to vacate his conviction and
sentence as a habitual of

f e nder under section 99-19-81, and this Court f urther conf

irm ed that issue by af

f irm ing t he d e cision. See W allace , 88 So. 3d at 790 (¶1). As such, W allace’s claim is also barred by

the doctrine of

res judicata. ¶9. Although W a llace’s c laim is successive and untim ely , this Court l ooks t o see whether

an exception applies t o the p rocedura l b ars. W hen a successive PCR m otion is f iled, “the burden f alls on the m ovant to show he has m et a statutory exception.” W hite, 5 9 So. 3 d at

46 3 5 ( ¶8) (citing Adams v. State, 9 54 So. 2d 1051, 1053 ( Miss. Ct. App. 2007)). “Erro r s

af f ecting f undam e ntal constitutional rights are excepted f rom t h e p r o c e d ural bars of the [U P C C RA].” Id. (internal citation and quotation m arks om itted). However, “m ere a sser t i o n s of constitutional-rights violations do not suf f ice t o overcom e the procedural bar.” Id. at 636 (¶11) (citing C

h a n d ler v. State, 44 So. 3d 442, 444 ( ¶8) (Miss. Ct. App. 2010)). Although W a llace argues that h is f undam e n t a l constitutional r ights were violated, his argum ent is without substance, a s the record does not reveal any error by the trial court in s e ntencing W a llace a s a habitual of

f ender. T heref

o re, W allace has not proved an exception suf f icient
to overcom e the procedural bars. II. Amendment of the Indictment ¶10. Procedural bar notwithstanding, W allace’s argum ent lacks m erit. W allace argues that his s entence as a habitual of f ender is illegal because the order granting the State’s m otion to

am end the indictm ent t o c harge him as a h abitual of f e nder was not entered until the day af ter he entered his guilty plea. “Rule 7.09 of the Unif orm R u l e s o f C i rcuit and County Court provides t hat indictm ents m ay be am ended to cha rge the def endant as a h abitual of

f ender. The only lim itation on [ an] am endm ent is that the def endant m u st be ‘af

f orded a f air opportunity to present a def ense and [ not be] unf

airly surprised.’” W

hitfield v. S

tate, 105 So. 3d 385, 3 88 (¶11) (Miss. Ct. App. 2012) (quoting U RCCC 7 .09). In r ef erence to Rule 7.09, the Mississippi Suprem e Court has stated: The rule does not speak to the tim ing of t he am endm ent, only that the def endant m ust b e af f orded a f air opportunity t o present a d ef ense and n ot [ be]
5unf

airly surprised. T his m eans that the d e f e n d a nt m ust be a f f o rded due process of law and be given f air notice of the natu r e and cause of the accusation. Gowdy v. State, 56 So. 3d 540, 545 (¶16) (Miss. 2010). ¶11. This Court rejected a sim ilar claim in W hitfield, 105 So. 3d 385. There, the S tate f iled

a m otion t o am end the indictm e nt to charge W h itf ield a s a h abitual of

f ender on the sam e day that h e entered his guilty plea. I d. at 386 (¶3). At the plea hearing, the trial court accepted W h itf ield’s guilty plea as a habitual o f f ender. However, the trial court def e r red s e ntencing and did not f

ile an o rder a m ending t h e i n d i ctm ent until the sentencing hearing, which occurred n early a m onth af ter the guilty -plea hearing. Id. at 387 (¶¶5-6)

. W e f ound that the trial court had not erred in sentencing W hitf ield as a habitual of

f ender prior t o entering the order am ending the indictm ent because “the am endm ent

. . . was not an unf air s u r p r i s e to W h itf ield, and the record conclusively p rove[ d ] W hitf ield knowingly e ntered his guilty plea as a habitual of

f ender.” Id. at 389 (¶15). ¶12. Here, the record ref lects that the m otion to am end was f iled a week prior t o the plea hearing. W a llace adm its that he is not arguing a lack of notice. Theref ore, he w as n ot denied

an “opportunity to present a def ense” and was not “ unf

airly surprised.” As such, w e f ind this issue is without m erit. Accordingly , we af f irm

. ¶13. THE JUDGMENT O F THE HA R R I S O N COUNTY CIRCUIT COURT D E N Y I N G T H E M O T I O N F O R P O S T
- C O N V I C T I O N RELIEF IS AFFIR M E D . A L L COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY. LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, M A X WELL, FAIR, JAMES AND WILSON, JJ., CONCUR.
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