IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2015-KA-01899-COA ROBERT A. MAX WELL A/K/A ROBERT MAX W ELL A/K/A ROBERT ANTHONY MAX W ELL APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 10/29/2008 TRIAL JUDGE: HON. DAVID H. STRONG JR. COURT FROM W HICH APPEALED: LINCOLN COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES ERIN E. PRIDGEN ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN JASON L. DAVIS DISTRICT ATTORNEY: DEW ITT T. BATES JR. NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: GRANTED APPELLANT AN OUT-OF-TIME APPEAL PURSUANT TO THE UNIFORM POST-CONVICTION COLLATERAL RELIEF ACT REGARDING HIS CONVICTION OF MANSLAUGHTER AND SENTENCE AS A HABITUAL OFFENDER OF TW ENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS W ITHOUT ELIGIBILITY FOR PAROLE OR EARLY RELEASE, AND TO PAY A $10,000 FINE AND FULL RESTITUTION DISPOSITION: AFFIRMED: 04/11/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ. GRIFFIS, P.J., FOR THE COURT:¶1. Robert A. Maxwell is bef ore this Court on a p e t i tion f or post-conviction collateral relief (PCCR) where he r equested and w as granted an out-of -tim e appeal. The circuit court granted the PCCR m otion and allowed Maxwell leave to f ile an out-of

-tim e a p peal. W e consider his direct appeal and f ind no reversible error as to his conviction and sentence. FACTS AND PROCEDURAL HISTORY ¶2. Maxwell was indicted in Lincoln C ounty on t h e charge of capital m urder. The indictm ent was subsequently am e nded to charge Maxwell with m urder. ¶3. On October 29, 2008, M axwell was f ound guilty of the l e s s e r-included o f f ense of

m anslau g h t e r . Following his conviction, but bef ore sentencing, the S tate of Mississippi

mo v e d to am end the i ndictm ent to charge Maxwell as a habitual of f ender pursuant t o Mississippi Code Annotated section 9 9

- 1 9 -81 (Rev. 2015). The circuit court granted the

m otion and sentenced Maxwell to twenty y e ars in the c ustody of t he M ississippi D epartm ent of Corrections, to be served day f or day pursuant to section 99-19-81. ¶4. Two y ears later, on October 19, 2010, Maxwell f iled a pro se notice of

appeal. The clerk issued a s h o w-cause notice, which required Maxwell to show cause as to why the appeal “should not b e dism issed as untim ely f iled, f or f ailing to com

ply w ith the rules of this court.” On Novem

ber 16, 2010, Maxwell’s appeal was d ism issed as untim ely , and the

m andate was issued Decem b er 8, 2010. ¶5. On February 25, 2015, M axwell f iled an Application f

or Leave to Proceed in the Trial Court. Maxwell v. State , 2015-M-00302. Maxwell asked the Mississippi Suprem e Court to allow h im to proceed under the Mississippi Unif orm Post-Conviction Collateral R elief Act

2(UPCCRA). Miss. Code Ann. §§ 99-39-1 to -29 (Rev. 2015). On April 1, 2015, the suprem e

court entered an order that stated: “Af ter due c o n s i d eration, we f ind that M axwell’s application s hould b e dism issed without prejudice to be f iled in the trial court.” Maxwell v. State , 2015-M-00302 (citing Martin v. State , 556 So. 2d 3 57, 358-60 (Miss. 1990)). In Martin , the suprem e court held: Under this section [ (99-39-7)], and [ section] 99-39-25, t here are o n l y t w o instances in which this Court can entertain a p o s t-conviction m otion. One is where the m a tter is presented o r i g i nally to the trial court and thereaf ter appealed to this Court pursuant to [ section] 99-39-25. The o ther is w here the prisoner is r e quired t o f

irst seek leave o f t h is Court to proceed in the lower court. The case at bar does not f it either situation. As a result, the suprem e c ourt dism issed Maxwell’s application without p rejudice f or it “to be f iled in the trial court.” M axwell v. State , 2015-M-00302. ¶6. On Oct o b e r 1 3, 2015, Maxwell f iled his petition f

or PCCR in the circuit court. On Decem ber 16, 2015, the circuit court granted the petition. The circuit court ordered: THIS CAUSE is b ef

ore the [ circuit] court on a [ petition] f or [ PCCR].

. . . Mr. Maxwell petitions the [ c ircuit] court to grant leave to f i l e a n o ut of tim e appeal.

. . . [ Maxwell] attests that his attorney did not inf o rm him of his right to a p p e a l

. T h e [ c i r cuit] court f inds that the delay w as d

ue to no f ault of

. . . Maxwell, personally , and that he should be, and is hereby [ ,] granted leave to f ile an out of

tim e appeal, and that he m ay do so in f

orm a pauperis. The ef f ect of the circuit c ourt’s order was t o allow Maxwel l l e ave to f i le an out-of

-tim e appeal. ¶7. Maxwell f

iled a notice of appeal. Maxwell argues the c i rcuit court erred in allowing the State to am end his indictm ent af ter conviction to charge him as a habitual of

f ender. ANALYSIS

3¶8. Maxwell asserts his appeal is a “direct appeal” f rom the c ircuit court. However, the State asserts Maxwell’s appeal is an out-of -tim e appeal subject to a procedural bar. ¶9. W e b egin with the S tate’s argum e n t

. “A trial court h as the authority to grant a crim inal def

endant’s m ot i o n f

o r an out-of

-tim e appeal if grounds exist and the request is brought u nder the [ UPCCRA].” Do r s e y v
. S tate , 986 So. 2d 1080, 1083 (¶10) (Miss. Ct. App. 2008) (citing Miss. Code Ann. § 99-39-5(1)(i) (Rev. 2015)). However, even a PCCR petition that asks f

or leave to f

ile an out-of

-tim e appeal m

ust be f iled “within three (3) y ears af ter t he t im e in which the petitioner’s direct appeal is ruled upon.” Miss. Code Ann. § 99- 39-5(2). Here, M a xwell’s direct appeal was d ism issed by t his Court in Novem b er 2010. As

a result, Maxwell’s P CCR petition was not tim ely f iled and was subject to the tim e-bar. The circuit court could have d ism issed the petition as p r o c e d u r a lly barred. Instead, the circuit
court f ound that grounds e xisted f or an out-of

- tim e appeal and granted Maxwell’s request f or

an out-of -tim e a ppeal pur s u a n t to section 99-39-5(1)(i). Accordingly , Maxwell’s appeal bef ore this Court is an out-of

-tim e appeal, as authorized u nder the UPCCRA. T he S tate asks that we f i nd Maxwell’s PCCR petition procedurally barred. ¶10. There are exceptions to the procedural bar, such as an intervening decision of t h e Mississippi Suprem e Court that would have adversely af f ected the outcom e o f the conviction

or sentence. Miss. Code Ann. § 99-39-5(2)(a)(i). Here, Maxwell argues that there was an intervening dec i s ion that would have adversely a f f ected the outcom e of h is sentence. He claim s that Gowdy v. State , 56 So. 3d 540 (Miss. 2010), should be applied retroactively

. If Maxwell’s argum ent is correct, then there would be no proce d u r a l bar. As a result, we

4consider Maxwell’s argum ent.

¶11. Maxwell argues that the jury f ound him guilty of m anslaug h t e r , w h ich carried a

m axim u m penalty of twenty y ears in prison. M iss. C ode Ann. § 97-3-25 (Rev. 2006). The State m ade a m o tion to am end the indictm e nt af ter t he jury verdict but bef ore Maxwell was sentenced. T he State asked that M axwell be sentenced as a habitual of f ender under section 99-19-81. If Maxwell was sentenced u nder section 99-19-81, he would be required to serve the twenty -y ear s e ntence f or the conviction, and he would not be eligible f or a ny reduction, suspension, parole, or probation. Maxwell’s counsel did not object. Now, Maxwell argues that this am e ndm ent was im proper under Gowdy , 56 So. 3d at 546 (¶22). ¶12. In Gow d

y , i m me diately a f

ter Gowdy ’ s conviction of f e lony d riving under the inf luence, the S tate i nf

orm ed the circuit court that it h ad just received i nf orm ation regarding Gowdy ’s prior convictions in Iowa and would seek to am end t he i ndictm ent to include his habitual-of

f ender status. Id. at 544 (¶15). The State f urther inf o rm ed t he circuit court that it was uncertain whether the am endm ent would charge Gowdy under se c t i o n 99-19-81 or Mississippi Code Annotated section 9 9-19-83 (Rev. 2015). Gowdy , 56 So. 3d at 544 (¶15). Alm ost two m onths later, the S tate f iled i ts m otion to am end the indictm ent to charge Gowdy

as a h a b i t u a l o f

f e nder under section 99-19-83. Gowdy , 56 So. 3d at 544-45 (¶15). Just bef ore sentencing, the circuit court allowed the S t a t e to am end the indictm ent to ref lect Gowdy ’s habitual-of

f ender status. Id

. at 542 ( ¶5). T he circuit court adjudicated Gowdy as

a habitual of

f e nder a nd sentenced him to lif e i m prisonm ent without the possibility of parole. Id

.

5¶13. On app e a l , t he M ississippi Suprem e Court interpreted Unif orm Rule of Circuit and County C ourt 7.09, which allows an indictm ent to b e am ended to charge the def endant as a habitual of

f ender “only if the def

endant is af

f orded a f air opportunity to present a def ense and is not unf

airly s urprised.” Id. at 545 (¶16). T he court f ound that “an am endm ent to the indictm ent to allege habitual of f ender status af

ter conviction is a n unf

air surprise.” Id

. at 545 (¶19). The court then vacated Gowdy ’s sentence and rem anded t h e c a s e f or resentencing. Id . at 546 (¶24). ¶14. Recently , i n Carr v. State , 178 So. 3d 3 20, 321 ( ¶6) (Miss. 2015), the court held that “[ t]he rule we a nnounced in Gowdy does not ap p l y r etroactively to cases that w ere f inal bef ore April 7, 2011, the date the m andate was issued in Gowdy

. ” ¶15. Here, Maxwell’s direct a p p e a l w a s dism issed and the m andate was issued prior to April 7, 2011. T hus, Maxwell’s case wa s f i n a l bef ore Gowdy was decided. Thus, Gowdy does not apply retroactively to Maxwell’s case. As a r esult, Gowdy is n either an intervening decision f

or purposes of the tim e-bar exception nor a basis f or us to reverse M axwell’s conviction and sentence on the m erits of the direct appeal. ¶16. As a result, we f

ind that Maxwell’s conviction and sentence should be af f i rm ed. ¶17. THE J UDGMENT OF THE LINCOLN COUNTY CIRCUIT C O U R T OF CONVICTION OF MANSL A UGHTER AND SENTENCE A S A HABITUAL OFFENDER O F TWENTY YEARS IN THE C USTODY OF THE MISSISSIPPI DEP A R T MENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR EARLY RELEASE, AND TO PAY A $10,000 FINE AND FULL RESTITUTION, IS AFFIRMED. ALL COSTS O F T H I S APPEAL ARE ASSESSED TO LINCOLN COUNTY. LEE, C.J., IRVING, P.J., BARNES, ISHEE, C ARLTON, FAIR, WILSON AND G R E E N LEE, JJ., C ONCUR. WESTBROOKS, J., CONCURS IN PART AN D

6DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

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