IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2015-CP-00917-COA CARDIOS BARKER A/K/A CARDIOS M. BARKER APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 03/02/2015 TRIAL JUDGE: HON. JAMES T. KITCHENS JR. COURT FROM W HICH APPEALED: LOW NDES COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: CARDIOS BARKER (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W AKELAND BYRD NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF TRIAL COURT DISPOSITION: DENIED MOTION FOR POSTCONVICTION RELIEF DISPOSITION: AFFIRMED - 10/25/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., JAMES AND GREENLEE, JJ. LEE, C.J., FOR THE COURT: ¶1. In this appeal, we m ust decide whether the Circuit Court of Lowndes County erred in deny ing Cardios B arker’s m otion f or postconviction reli e f ( P C R ). Finding no error, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. In April 2012, a Lowndes County grand jury indicted Barker f or possessing less than
0.1 gram o f cocaine in violation o f Mississippi Code A nnotate d s e ction 41-29-139 (Supp. 2011). Bef

ore trial, the State subm itted a m otion to am end the indictm ent to charge Barkeras a habitual of f ender under Mississippi Code Annotated section 99-19-81 (Rev. 2015). 1 ¶3. Af ter his trial began, Barker d e c i d e d t o p l e ad guilty

. Barker’s guilty -plea petition provided in relevant part: [ A]nd the District Attor ney shall m ake n o recom m endations to the Court concerning m y

sentence except as f

o llows:

. . . [ A]sk f

o r judicial review on h abitual of f ender status [ and] sentence accordingly

. District Attorney agrees not to seek an enhanced penalty under the habitual of

f ender status but asks f

or the 4 y ear m ax sentence be habitual, f ines [ and] costs by

court. ¶4. The circuit court a ccepted Barker’s p lea on August 3 0, 2 0 1 2

. H owever, the court withhel d i t s ruling on the State’s m otion to a m end the indictm ent and delay e d s e ntencing until O ctober 2 3, 2012, to provide Barker tim e t o def end the c laim that he was a habitual of f ender. ¶5. At the sentencing hearing, the State presented evidence to show that B a r k e r was a habitual of

f e nder. 2 The State inf

orm ed the circuit court:
Pursuant to the agreem e nt between counsel f o r the def endant and counsel f

or the State, the S tate is just seeking t o am e n d the i ndictm ent to m ake him a [ ] habitual of

f ender, not seeking to m ake him enhanced a s [ a ] habitual of f ender. In other words, the m axim um sentence would be f

our y ears as [ a] habitual of f ender as opposed to eight y e ars . . . . And counsel f

or Barker responded: “ That’s m y understanding, also, Your Honor

. . . . [ T]he
agreem ent was f

or h im to serve [ a] habitual term , n ot an e n hanced term .” The c ircuit court

1 A lth o u g h th e m o tio n w as n o t stam p ed as f i led u n til th e d a y o f th e trial, b o th p arties ag reed th at th e m o tio n h ad b een su b m i tted th e d ay b ef o re.

2 In cau se n u m

b er 1 9 9 9 -0 1 9 1 -C R 1 , B ark e r w as co n v icted o f th e s ale o f co cain e an d sen ten ced to serv e f

iv e y ears. I n cau se n u m

b e r 1 9 9 9 -3 4 5 -C R 1 , B ark er w as c o n v icted o f p o ssessio n o f

.1 g ram o f co cain e an d sen ten ced to serv e th r ee y ears.

2g r a n ted the State’s m otion to am end the indictm ent, s entenced B arker to f our y ears, a n d ordered Barker to pay

a f ine of $10,000. ¶6. Af ter he w as convicted and sentenced, Barker f iled a PCR m otion, where he claim ed: ( 1 ) his sentence a m ounted to an illegal sentence because he was not indicted as a habitual of f ender, and ( 2) his attorney was inef f ective f or “f ail[ ing] to object to the [ circuit court] sentencing [ him ] a s a h abitual of f e n d e r a b s e nt a grand jury indictm ent.” The circuit court denied Barker’s m otion without a hearing. Barker appeals.
STANDARD OF REVIEW ¶7. “W hen reviewing a circuit co u r t ’ s dism i ssal of a PCR m otion, this Court will only

reverse a circuit court’s f a ctual f ind i n gs if the f

indings are determ ined to b e clearly
erroneous.” Pickle v. State , 115 S o . 3 d 896, 898 (¶10) (Miss. Ct. App. 2013) (citation

om itted). Issues of law are reviewed de novo. Id. ¶8. This Court has r ecognized that a “circuit court m ay dism iss a [ PCR m otion] without

an evidentiary hearing where it plainly appears f rom the f a ce of the m otion, any annexed exhibits and the prior proceedings in the case that the m ovant is not entitled to any relief .” Id. at 899 (¶12) (internal quotations and citation om itted).
DISCUSSION ¶9. In h is reply brief

, Barker raises claim s that were not raised in his PCR m otion bef ore the circuit court. “A def

endant who f

ails to raise a n issue in [ his PCR m o tion] bef o re the trial
court m ay not raise that issue f or the f irst tim e on appeal.” M

arshall v. State , 136 So. 3d 443,
445 ( ¶3) (Miss. Ct. App. 2013) (quoting Fluker v. S tate , 17 So. 3d 181, 183 (¶5) (Miss. Ct.

3App. 2009)). Theref ore, we lim it our review to those issues raised in the circuit court.
I. Illegal Sentence ¶10. Unif

orm Rule of Circuit and County

Court Practice 7.09 provides: All indictm ents m ay be am ended as to f orm but not as to the substance of the of f ense charged. I ndictm ents m ay also be am ended to c harge the d ef endant as [ a] habitual of

f ender o r t o elevate the l evel of the of f ense where the of

f ense is one which is subject to enhanced punishm ent f or subsequent of

f enses and the am endm ent is to a ssert prior of f en s e s j u s t i f

y ing s uch enhancem ent

. . . . Am endm ent shall be allowed only if the def endant is af

f o rded a f

a i r opportunity

to present a def

ense and is not unf

a irly surprised. ¶11. Barker claim s h i s s e n t e n c e a mo u n t e d to an illegal sentence because he was not indicted a s a habitual of

f ender. However, Barker’s indictm e nt was am ended to charge h im

as such. The record ref

lects that the c ircuit court delay ed sentencing to af f ord Barker a f

air opportunity

to present a def

ense. Thus, Barker was not unf airly surprised. ¶12. Furtherm ore, this C ourt has held that an illegal sentence is “one that does n ot conf orm
to the applicable penalty statute.” Shies v. State , 185 So. 3d 1081, 1085 ( ¶13) (Miss. Ct. App. 2016) (citation om itted). Section 99-19-81 provides: Every person c onvicted in this state of a f elony who shall have been c onvicted twice previously of any f elony or f

e deral crim e upon c h arge s s e p a r ately brought and arising out of separate incidents at dif f erent t im es a nd who shall have been sentenced t o s e p a r a te term s of one ( 1) y e ar or m ore in any state and / o r f e d e ral penal institution, whether in this state or e lsewhere, shall be sentenced to the m axim

um term of im

prisonm ent prescribed f

or such f elony , and such sentence shall not be reduced o r suspended nor shall s u ch person be eligible f or parole or probation. ¶13. The State established that Barker h a d p r e v i o u sly been convicted of two separate f elonies, a nd that he had been sentenced to separate term s of one y ear or m ore. Barker was sentenced f

or the s ubject of

f ense to f

our y ears, which was the m axi mu m term of

4i mp r i s o nm ent under section 4 1-29-139. Thus, Barker’s claim that he received an illeg a l

sentence is without m erit.
II. Ineffective Assistance ¶14. In order to prevail o n a c laim of inef f ective assistance of c ounsel, Barker m ust show: (1) that h is “counsel’s representation f ell b e l o w a

n o b j e c t i v e s t a n dard of r easonableness”; and (2) that but f

or counsel’s errors, there is a “reasonable probability ” that the outcom e of the proceeding would have been dif f erent. Kyles v. State , 185 S o. 3d 408, 4 11 (¶4) (Miss. Ct. App. 2016) (citation om itted). ¶15. Barker claim s his a ttorney w as inef f ective f or “f ail[ i ng] to object to the [ circuit court] sentencing [ him ] as a habitual of f ender absent a grand jury indictm ent.” However, Barker

was indicted. And, af

ter the State presented evidence of Barker’s habitual-of f ender status, his indictm ent was am ended to charge him as a habitual of f ender. Furtherm ore, Barker f ails
to s how h ow the outcom e would have been dif f erent without his counsel’s alleged errors. Thus, Barker’s claim that his counsel was inef f ective is without m erit. ¶16. T H E J U D G M E N T OF THE CIRCUIT C OURT OF LOWND E S C O U N T Y DENYING THE MOTION FOR POSTCONVICTION R ELIEF IS AFFIRMED. A L L COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY. IRVING AND G RIFFIS, P.JJ., BARNES, I SHEE, CARLTON, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR.

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