IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2014-CP-01345-COA SCOTTY B. LYLES A/K/A SCOTTY LYLES APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 02/07/2013 TRIAL JUDGE: HON. JAMES T. KITCHENS JR. COURT FROM W HICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: SCOTTY B. LYLES (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF TRIAL COURT DISPOSITION: MOTION FOR POST-CONVICTION RELIEF DISMISSED DISPOSITION: AFFIRMED - 05/17/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND WILSON, JJ. BARNES, J., FOR THE COURT: ¶1. Scotty B

. L y l e s , a p p earing pro se, appeals the O ktibbeha County Circuit Court’s dism issal of

his m otion f

or post-conviction relief

(PCR). Finding no error, we af f irm

. STATEMENT OF FACTS AND PROCEDURAL HISTORY ¶2. On May 2 2, 2006, L y les robbed the Tobacco Shed, a convenience store in Starkville, Mississippi. J a nice Kilgore, who was working at the s tore on t his day , testif ied that between 10 and 11 a.m ., a m an wearing all-black c lothing entered the store and pulled s om ething over his f ace. He then attem

pted t o rob her at knif

e-point. The crim e was captured by the store’s surveillance cam era. Ly les f led f rom the store, a n d Kilgore ran f rom the building scream ing,“I’ve b een ro b b e d

. T h e r e he go[ es].” Kilgore and several witnesses outside the store

positively identif ied Ly les as the robber and the m an running f rom the store. ¶3. A grand j ury returned a two-count i ndictm ent against L y les f or r obbery and attem

pted robbery , at the Tobacco Shed and another store, on t wo consecutive day s, r espectively

. The

counts were severed – C ount I was retired to the f ile, and the State proceeded against Ly les

on Count II. On April 17, 2007, the State f iled a m otion to a m end the indictm ent to ref lect Ly les’s status as a habitual of f ender under Mississippi C o de Annotated section 99-19-83 (Rev. 2015). Evidence of approxim ately f ourteen o ther prior f

e lonies such as burglary , grand larceny , and thef

t, i n I l l i n ois and Mississippi, was subm itted t o the court. However, the

m otion was not granted by the trial court until the day of the jury

verdict. ¶4. Af ter a jury trial, Ly les was convicted of arm ed r obbery

. Evidence was subm itted of convictions f

or num erous f

e lonies, at least one of

which was violent. He was sentenced to lif e im prisonm ent in the c ustody of the Mississippi Departm e n t of Corrections, as a habitual of f ender under section 99-19-83, without eligibility f o r parole or probation. ¶5. On February 6, 2013, Ly les f iled a P C R mo t i o n i n the Oktibbeha County Circuit Court, claim ing that his indictm e nt was im p roperly am ended to ref

lect his habitual-of

f ender

status. He cites Gowdy v. State , 56 So. 3d 540 ( Miss. 2010 ) , i n support of his a rgum ent. G o w d y h eld an indictm ent cannot be am ended f ollowing a g uilty verdict and just prior to sentencing to allege h a b i t u a l-of f e nder status. Id. at 545 (¶19). The trial court, however, f ound Gowdy did not apply since the m otion to am end the indictm ent was f iled bef ore Ly les’s trial and sentencing. Ly les’s PCR m otion was dism issed, and he now tim ely appeals.

2STANDARD OF REVIEW

¶6. In reviewing the trial court’s dism issal of a PCR m o tion, this Court will not disturb the trial court’s f

actual f indings unless they are f

ound to be clearly e r

roneous. Questions of law a re reviewed d e novo. W hatley v. S

tate , 123 So. 3d 461, 4 66 (¶6) (Miss. Ct. App. 2013). ANALYSIS ¶7. L y l e s r a i s e s two i ssues. First, he argues that, under Gowdy , the trial court erred i n granting, af

t er his jury trial, t he S tate’s m otion to am end his indictm ent to include habitualof f ender status. Second, he contends his indictm ent w as def ective b ecause the ame n d e d portion of his indictm ent charging him as a habitual of f e nder did not conclude with the words “against the peace a nd dignity of t he State of Mississippi.” Each of these issues is procedurally

barred; however, we shall discuss the m otion-to-am end issue on the m erits.

Motion to Am end Indictm ent ¶8. Ly les c laim s his d ue-pr o c e s s r i g h t s w e r e violated when the trial court granted the State’s m otion to am end his indictm ent af ter his jury

trial. ¶9. U n i f

o rm Rule of C ircuit and County Court Practice 7.09 p rovides that indictm ents

m ay be am ended, but such an “[ a]m endm ent shall be all o wed only if the def endant is

a f f o r d ed a f air opportunity to present a def ense and is not unf

airly surprised.” Thes e requirem ents are assessed on a case-by

- case basis. McCain v. State , 81 So. 3d 1055, 1062 (¶16) (Miss. 2012). Rule 7.09, h owever, “does not speak to the tim ing of t he am endm ent.” Carr v. State , 178 So. 3d 320, 321 (¶7) ( M iss. 2015) ( quoting Gowdy , 56 So. 3 d at 545 (¶16)).

3¶10. In Gowdy , the suprem e court f o u n d “ a n a me n d me n t t o t h e i n d i c t me n t t o allege habitual o f

f ender status af

ter conviction is an unf

air surprise,” but the suprem e court “did not establish a per se tim i ng rule.” Id. Gowdy ’s rule w as clarif ied in McCain , where the f ocus shif ted f rom when the indictm e nt was am ended to when the def endant was put on notice that the State w ould seek a habitual-of f ender enhancem ent. Carr , 178 S o . 3 d at 321 n.2; see McCain , 81 So. 3d at 1061-62 (¶¶13-15). ¶11. First, Ly les’s PCR m otion is procedurally barred, as it i s u ntim ely

. Under t he Unif o rm Post-Conviction Collateral Relief Act (UPCCRA), a PCR m otion m ust b e f iled within three
y ears of the tim e the p etitioner’s direct appeal i s ruled upon. Miss. Code Ann. § 99-39-5(2) (Rev. 2 0 1 5 )

. H e r e, Ly les’s direct appeal of this conviction was af f irm e d by this Court on May 19, 2009. S

ee L yles v. S ta te , 1 2 S o . 3 d 5 5 2 , 5 5 5 (¶1 7 ) (M iss. C t. A p p . 2 0 0 9 ). He f iled his PCR m otion in February 2013, over three y ears l ater. 1 Thus, his PC R m o t i o n is tim ebarred. ¶12. Certain statutory exceptions could waive the procedural b ar, such as an intervening Mississippi Suprem e Court decision like Gowdy , if it a p plied. See Miss. Code Ann. § 99-39- 5(2)(a)(i). H o w e v e r, Gowdy does not apply , because, as the S tate points out, it c annot be applied retroactively to cases that were f inal b ef ore April 7, 2011, the date Gowdy ’ s m andate was issued. See Carr , 178 So. 3d at 321 (¶6) (holding Gowdy does not apply retroactively

to habitual-of

f ender convictions that were f inal w hen Gowdy was issued). This Court

1 I n D e c e m

b er 2 0 1 2 , th e M ississip p i S u p rem e C o u rt g ran ted L y les p erm issio n to p ro ceed in t h e trial co u r

t o n p o st-co n v ictio n -relief p r o ce e d i n g s r e g ard in g t h e i ssu e o f h is am en d ed in d i ctm en t an d an y d u e-p ro cess v io latio n .

4af

f irm ed Ly les’s conviction on M ay 19, 2009, and the m andate to his appeal was issued on June 23, 2009, bef

ore the Gowdy opinion was f inal. Even if the rule established in Gowdy could be applied retroactively , however, this case is f actually distinguishable f

rom Gowdy

. ¶13. In Gowdy , on the m orning of t rial, the parties had an on-the-record discussion about plea negotiations f

or G owdy ’s f

e l o n y - D U I charge. T he State recom m ended a one-y ear
sentence in custody if Gowdy p leaded guilty

. Gowdy rejected the o f f er, and a jury trial ensued. Gowdy , 56 So. 3d at 544 (¶14). The next day , af ter G owdy was c onvicted, the State told the trial c o u r t i t h ad just received inf orm ation about Gowdy ’s prior c onvictions in another state, and th a t i t w o uld seek to am e nd his indictm ent to include habitual-of f ender

status under either section 99-19-81 or -83. I d

. a t ( ¶ 15). Two m onths later, the day of Gowdy ’s sentencing, the State f iled its m otion to am end the indictm ent t o charge Gowdy as

a habitual of

f ender under section 99-19-83, w hich r equires a m andatory lif e sentence. Id. at 544-45 (¶15). Bef

ore the hearing, the trial court ruled against the def endant’s objection to the am endm ent, stating it did not prejudice h im

. Id. at 5 45 (¶15). The suprem e court held this ruling was in error because of “unf air surprise” to Gowdy , vacated his enhanced penalty , and rem anded the case f

o r resentencing. Id. at 546 (¶22). ¶14. McCain is also instructive on t he appli c a t i o n o f G o w d y a n d what constitutes f

air notice. In McCain , t he def endant was indicted f

or robbery

. McCain , 81 So. 3d at 1057 (¶4). Approxim ately eight m onths bef o re trial, a hearing sum m ary f i l e d b y t h e trial court stated that during plea negotiations, the State acknowledged that it planned to introduce a t trial prior convictions of the def

endant, i ncluding bank rob b e r y . I d

. The next m onth, the State

5disclosed at a hearing t hat i t i n t e n d e d to f ile a m otion to am end the indictm ent to include habitual-of

f ender status u nder section 9 9-19-83, and f iled it the next day

. I

d. at 1057-58 (¶4). Seven m onths l ater, the day the jury trial began, the S t a t e r e m i n ded t he trial judge and counsel opposite that its m otion to am e nd the indictm ent had n ot been ruled u pon by the trial

court. T he next day , t he def endant was convicted; however, at sentencing, def ense counsel claim ed he and his client were unaware of the m otion to am e nd the indictm ent, even though counsel claim e d h e had a copy of “the f ile.” The def

en d a n t was sentenced as a habitual of f ender to l if

e in prison. Id. at 1058 (¶5). The suprem e court af f irm ed h is sentence, holding that un d e r t h e s e circum stances, the def endant received f

air notice and was not “unf airly surprised” by

the habitual-of

f ender enhancem ent under Gowdy and Rule 7.09. Id. at 1062 (¶15). ¶15. As stated earlier, the State’s m otion t o a me n d L y l e s ’ s i n d i c t me n t to ref lect his habitual-of

f ender status w as f

iled on April 1 7, 2007, approxim a t e l y two weeks bef ore his trial. T he assistant district attorney inf orm ed the trial judge that the m otion was served on def ense counsel on the sam e date. The trial court, however, d id not address the m otion until af ter the jury

returned a guilty

verdict, but bef

ore sentencing. The trial j udge explained on the record that the court “does not address m otions to a m end the indictm ent f or s e ntencing purposes . . . until that need arises.” The judge c o ntinued that, the w eek bef ore, in another of Ly les’s cases, 2 he conducted a section 99-19-83 habitual-of f e n d e r h earing and f

ound

2 L y les h a d b een co n v i cted in a j u r y t r i a l t h e p r ev io u s w eek , b ef o re th e sam e trial j u d g e, o n a ch arg e o f f

alse p reten se, an d w as sen t en ced to lif e im p riso n m en t as a h ab itu al o f f en d er. T h i s C o u rt a f

f irm e d th e co n v ictio n in M ay 2 0 0 9

. S ee L yles , 1 2 S o . 3 d a t 5 5 5 (¶1 7 )

. 6bey ond a reasonable d oubt that Ly les had been previously c o nvicted of approxim ately

f ourteen f elonies, f rom thef t to burglary to robbery , and enum e r a t e d each o f them on the record. These sam e prior f elonies were presented to the court f or the sentence enhancem ent in this c a s e . T h e State m oved to adopt the prior sentencing-hearing evidence f or this conviction – which had the sam e parties and concerned the sam e issues – without objection f rom the def

ense. The trial cour t granted the State’s m o tion t o am e nd the indictm ent

s h o w i n g L y les was a habitual of f ender under section 99-19-83 and sentenced h im to lif e im p risonm ent without the possibility of parole or probation. ¶16. Ly les claim s he was unf airly surprised because he had no notice until h is sentencing hearing that his indictm ent m ight be am ended to ref l ect habitual-of

f ender status. However, the a ssistant district attorney reported to the trial judge that Ly les’s counsel was s erved with the m otion to a m end t wo w eeks bef ore trial. Ly les of

f ers no proof but his own s tatem ent that he was unaware of t he enhanced penalty

. The week bef ore trial i n this case, Ly les had gone thr o u g h t h e s a m e h a

b i t u a l

- o ffe n der-sentence-enhancem ent procedure at a sentencing hearing af ter his conviction f

or f a lse pretense. ¶17. Unlike G owdy , L y les had f air notice. Def

endant Gowdy r ejected a plea deal of f ering

a capped one-y ear sentence in f a v o r o f a j u r y trial, not knowing the State intended to seek habitual-of

f ender status until two m onths af ter the jury verdict, and just bef ore the s e ntencing hearing. Gowdy , 56 So. 3 d at 544-45 (¶¶14-15)

. H e r e , t h e State had obtained Ly les’s crim inal record at l east two weeks bef ore trial, and f

iled the m otion to am end, w hich properly detailed all of Ly les’s of

f enses q ualif y ing him f

or habitual-of

f ender statu s . In Gowdy , the

7m otion was f iled two m onths af

ter trial on the day of s e ntencing. T hus, Ly l es received f air notice o f the S tate’s intentions bef ore trial and was not “unf a i rly surprised.” S

ee Mc C a i n , 81 So. 3d at 1062 (¶15). ¶18. Further, just because the trial court did not g r a n t t h e a m e n d me n t u n t i l af ter the conviction, does not m ean Ly les did not receive proper notice. See N ewberry v
. State , 85 So. 3d 8 8 4, 890 (¶¶14-15) (Miss. Ct. App. 2012) (apply ing Gowdy , t his Court f ound the trial court’s decision to wit h h o l d r u ling on the State’s m otion to am end t he indictm ent to add habitual-of

f ender status – until af

ter def endant w as convicted – did n o t result in unf air surprise). The trial judge specif icall y stated that he did not address m o tions to am end the i n d i ctm ent f

or sentencing “until that need arises,” and com m ented that counsel was awar e of t his p r o cedure. W e f

ind that the trial court d id n ot err in granting the State’s m otion to

am end the indictm e nt. ¶19. THE JUDGMENT OF THE CIRCUIT COU R T OF OKTIBBEHA COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIBBEHA COUNTY. LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR.

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