IN THE SUPREME COURT OF MISSISSIPPI

NO. 97-CA-00491-SCT

THOMAS CLINTON BLACKWELL a/k/a "TOMMY"

v.

STATE OF MISSISSIPPI

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,

PURSUANT TO M.R.A.P. 35-A

DATE OF JUDGMENT: 02/26/97

TRIAL JUDGE: HON. ELZY JONATHAN SMITH, JR.

COURT FROM WHICH APPEALED: COAHOMA COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: PRO SE

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: WAYNE SNUGGS

BY: DEIRDRE McCRORY

DISTRICT ATTORNEY: LAURENCE Y. MELLEN

NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF

DISPOSITION: AFFIRMED - 2/12/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 3/31/98

BEFORE SULLIVAN, P.J., BANKS AND MILLS, JJ.

BANKS, JUSTICE, FOR THE COURT:

In this case, the appellant challenges the denial of his petition for post-conviction relief, arguing that

the indictments were defective because the habitual offender allegations were not included before the

phrase "against the peace and dignity of the state of Mississippi." Pursuant to our decision in Earl v.

State, 672 So. 2d 1240 (Miss. 1996), we conclude that this argument lacks merit and affirm the

lower court's judgment.

I.

Thomas Blackwell was charged via three separate indictments with attempting to obtain a substance

by misrepresentation as a subsequent and habitual offender; burglary and possession of a controlled

substance as a habitual offender; and uttering forgery as a habitual offender. Blackwell pled guilty and
was sentenced to fifteen years for uttering forgery and to two six-year terms for the possession

counts, to be served concurrently without the possibility of probation or parole.

Following his conviction, Blackwell filed a petition for post-conviction relief, asserting that the

indictments were defective, that his attorney was ineffective, and that he was denied the right to a fair

and impartial trial. The circuit court denied the petition, finding that the indictments were not

defective but were identical to the indictment this Court upheld as proper in Earl v. State, that

Blackwell failed to object to the indictment, that he received effective assistance of counsel, and that

he received a fair and impartial trial.

Aggrieved, Blackwell appealed to this Court.

II.

Blackwell agrees that his convictions and sentences as a habitual offender are void because the

habitual offender allegations were provided after the phrase, "against the peace and dignity of the

state of Mississippi." The indictments provided in pertinent part:

. . . when the said Thomas Clinton Blackwell . . . forged and counterfeit . . . and the defendant

is also charged as a habitual offender as is set forth in the attachment to this indictment, made

a part hereof by reference herein . . . and against the peace and dignity of the State of

Mississippi.

(Emphasis added).

There were attachments to the indictments on which prior convictions supporting the habitual

offender allegations were enumerated.

In Earl v. State, this Court held that it was proper for an indictment to incorporate and charge, by

reference, the habitual offender allegation (which was set out completely on an attachment) on the

main page of the indictment before the concluding phrase. Earl, 672 So. 2d at 1244. The instant

cause presents the exact situation in Earl v. State, and Blackwell's argument fails for the reasons

given in that case.

Had the indictments been defective, Blackwell's failure to object would have waived this error, as

would have his valid guilty plea. See Brandau v. State, 662 So. 2d 1051, 1055 (Miss. 1995) (holding

formal defect in the indictment subject to waiver for failure to object); Anderson v. State, 577 So. 2d

390, 391 (Miss. 1991) (holding that a voluntary, knowing, intelligent guilty plea forfeits all

nonjurisdictional defects and rights incident to trial).

Regarding Blackwell's ineffective assistance claim, it is axiomatic that counsel cannot be ineffective

for failing to object to a nonexistent defect or claim. See Anderson, 577 So. 2d at 392 (rejecting an

ineffective assistance claim based on a fallacious premise). Moreover, there is nothing in the record

which suggests that Blackwell was deprived of a fair and impartial proceeding. This assignment of

error lacks merit.

III.
For the above reasons, this Court finds that the lower court properly denied Blackwell's petition for

post-conviction relief. We therefore affirm.

DENIAL OF POST CONVICTION RELIEF AFFIRMED.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., McRAE, ROBERTS, SMITH, MILLS

AND WALLER, JJ., CONCUR.