IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2014-KA-01783-COA ANDREW GRAHAM, JR. A/K/A ANDREW GRAHAM APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 11/03/2014 TRIAL JUDGE: HON. MICHAEL M. TAYLOR COURT FROM W HICH APPEALED: LINCOLN COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES JUSTIN TAYLOR COOK ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W AKELAND BYRD DISTRICT ATTORNEY: DEE BATES NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF CONSPIRACY AND SENTENCED, AS A HABITUAL OFFENDER, TO FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND ORDERED TO PAY A $2,000 FINE DISPOSITION: AFFIRMED - 03/01/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., CARLTON AND JAMES, JJ. CARLTON, J., FOR THE COURT: ¶1. A Lincoln County jury f ound Andrew G raham guilt y o f c o n s p i r a c y t o p o s s ess a controlled substance inside a c or r e c t i o n a l f a cility

. See Miss. Code Ann. § 47-5-198 (Rev. 2011); Miss. Code Ann. § 9 7-1-1 ( Rev. 2006). The Lincoln C ounty Circuit Court sentencedGraham , as a habitual of f ender, to f

ive y ea r s in the custody of the Mississippi D epartm ent of Corrections (MDOC) and f in e d Graham $2,000. Graham appeals his conviction to this
Court and raises the f

ollowing issues: (1) whether his indictm ent was def ective; (2) whether the evidence was legally suf f icient to support his conviction; and (3) w hether he was illegally sentenced as a habitual of f ender. Finding no error, we af f irm

. FACTS ¶2. A g rand jury indicted Graham w ith the f ollowing charges in a two-count indictm ent: Count I , bringing m arijuana, a controlled substance, into a correctional f acility ; a nd Count II, conspiracy

to possess a controlled substance inside a correctional f acility

. Prior to trial, the State m oved to am end G raham ’s indictm ent to ref lect his habitual-of

f ender status under Mississippi Code Annotated section 99-19-81 (Rev. 2007). During the pretrial hearing on its m o t ion, t he S tate of

f e red into evidence certif

ied copies of sente n c i n g o r d e rs related to Graham ’s prior f

elony c onvictions to p rove the predicate of f enses to establish Graham ’s habitual-of

f ender status. T h e c i r c u i t court took judicial n otice o f the certif i ed copies of Graham ’s prior sentencing o rders and adm itted the orders into evidenc e . A s t h e record ref lects, the sen t e n c i n g orders ref lected that Graham possessed the f ollowing f

elony convictions: (1) burglary of a n autom obile and c onspiracy in cause num ber 0 1-248-MS, with

a sentence of three y ears in MDOC’s custody ; and (2) possession of a f irearm by a c onvicted
f elon in cause num

b er 05-104-LT, with a sentence of three y e ars in MDOC’s custody

. ¶3. The r ecord ref

l e c t s t h a t Graham raised no objection to the State’s m otion to am end

2his indictm ent to charge habitual-of f ender status under s ection 99-19-81. In additio n , Graham f a iled t o object t o the validity or suf f iciency of the State’s evidence a s to Graham ’s prior f elony convictions that the c ircuit court adm itted into e vidence. Af ter reviewing the
State’s evidence, the circuit court g ranted the State’s m otion t o am end Graham ’s indictm ent to ref lect his prior f

elony convictions and his habitual-of f ender status. ¶4. At Graham ’s trial, Of f i c e r T e r e s a L awrence testif ied that she w as o n duty at the Lincoln County Jail on the evening of February 24, 2012. W hile the inm ates spent tim e in the jail y ard, O f

f icer Lawrence m onitored their activity f rom the control room . As she watched the m onitors showing video f rom the y a r d’s c a m eras, O f f icer L a wrenc e n o t i c e d

som e su s p i c i ous a ctivity

. Of f icer Lawrence testif

ied that two doors o pened onto the y ard. The f irst door allowed inm a tes and jail personnel to access the y ard f rom inside the jail. The second door was located in one of the y a rd’s exterior w alls. O f f icer L awrence testif

ied that this e xterior door a llowed a ccess bey ond the jail in case of a n e m ergency . Of f i cer Lawrence testif i ed that she n oticed Graham and ano t h e r i n m a t e standing by t he y a rd’s exterior door.
As she watched the jail’s video m onitor, Of f icer Lawrence stated that she saw Graham and the other inm ate bend down b y the exter i or door and “get stuf f o ut f rom under the door.” Based on the activity s he observed, Of f i cer L awrence alerted Of f ice r s L arry M orris and Donald Jam es. ¶5. Af ter Of f icer Lawrence contacted them , Of f icer Morris and Of

f icer Jam es conducted

a search of each inm ate as h e reentered the jail. Of f i cer Jam es testif

ied that there were about

3six o r seven inm ates to search. Terrance Hudson w a s the third inm ate the of f icers searched. Of f icer Jam es testif

ied that he discovered three envelopes concealed on Hudson. ¶6. Af ter searching Hudson, the of f icers searched Graham , w ho was the next inm ate to
reenter the jail. According to Of f icer Morris’s testim ony , G raham had com plained of f

eeling cold bef ore he went outside. As a result, the of f icers a l lowed Graham to take a blanket with
him to the y ard. As Graham a ttem pted to r eenter the jail be h i n d H u d s on, Of f icer Morris noticed that Graham ’s blanket looked bulky

. B o th of f i cers testif

ied that G raham attem

pted

to pass t he blanket over Of f icer Jam es’s head to Hudson. Of f i cer Jam es also testif

ied that Graham m ade a s tatem ent to the ef f ect that Of

f i c e r J a m e s should “let him [ (Graham )] go, don’t worry

about [ the blanket.]” ¶7. Despite Graham ’s attem pts to pass the blanket t o Hudson, the of f icers intercepted the blanket bef

ore Graham could c om

plete the transf

er. Af ter com pleting their searches of the

rem aining inm ates, Of

f icer Morris and Of

f icer Jam e s took t he conf

iscated item s to the jail’s control r oom . In addition to t he envelopes in Hudson’s p ossession, the of f icers discovered

a y ellow bag inside Graham ’s blanket that conta i n e d additional e nvelopes. Of f icer Jam es testif i ed that the envelopes concealed in G r a h am ’s blanket contained t obacco and what appeared to be m a rijuana. Later in the State’s case-in-chief , t h e j u r y heard testim ony that

t e sts perf orm ed by the Mississippi Crim e Laboratory conf irm ed the green leaf

y s ubstance
f ound in the envelopes was m arijuana. ¶8. The jury also h eard testim ony f rom Chief Deputy Johnny Hall Jr. Chief Deputy Hall

4testif

i ed t hat h e received a phone call the evening of F ebruary 2 4, 2012, i nf orm ing him that

som eone had t ried t o sneak contraband into the jail. Af ter receiving the phone call, Chief Deputy Ha l l went to the jail and viewed t he surveillance video. Consistent with other testim o ny presented by the State, C hief Deputy Hall testif i ed that the video showed Graham , who had a blanket wrapped around him , and Hudson s tanding near th e jail y ard’s exterior door. Chief Deputy Hall f urther testif

ied that, upon inspecting the e xterior jail-y ard door, he observed a sm all crack in the door near the locking m echanism

. According to Chief Deputy Hall’s testim ony , the crack was large enough to slide som e thing through the opening. ¶9. Af ter hearing t he e vidence and testim ony , the jury f ailed to reach a v erdict on Count
I of Graham ’s indictm ent f or bringing m arijuana, a controlled s ubstance, into a correctional
f acility

. However, the jury f o und Graham guilty of C ount II f or conspiracy t o p o s s e s s a controlled substance inside a corr e ctional f acility

. On appeal, Graham attacks the suf f iciency of his indictm ent as to Count II, and he attacks the suf f iciency of the jury ’ s verdict f

inding
him guilty of Count II charged in the indictm ent. ¶10. During Graham ’ s sentencing hearing, t he State sought to have Graham sentenced as

a habitual of

f ender. The circuit court r ef erenced its pretrial ruling, which ordered Graham ’s indictm ent to be am ended to ref lect his prior f

elony convictions a nd his habitual-of f ende r
status. Af t er ref e rencing its p revious ruling, t he circuit court sentenced Graham , as a habitual of f ender, to f

ive y ears in MDOC’s custody and f ined Graham

$2,000. ¶11. On appeal, Graham argues that the c ircuit c o urt illegally sentenced him as a habitual

5of

f ender. As stated, however, the record ref lects that G r a ham raised no objection to his enhanced sentence d

uring the sentencing hearing. I n a ddition, Graham ’s p osttrial m otion f or

a judgm ent notwithstanding the verdict (JNOV) or, in the alternative, a new trial f ailed to raise the issue. I nstead Graham asserted t he f ollowing assignm ents of

error in his posttrial

m otion: (1) the verdict was contrary t o the evidence; (2) the verdict was a g ainst the weight of the evidence; and (3) the circuit court erred by “altering the jury p a n e l i n t he m anner in which the panel was altered prior to trial.” ¶12. Aggrieved by the circuit court’s denial of his p osttrial m otion, Graham now appeals to this Court.
DISCUSSION
I. Whether Graham ’s indictm ent w as defective. ¶13. G r a h a m a s s e r t s h i s indictm ent w as f atally def ective f or f ail u r e t o s p e c i f

y t h e contraband t hat he conspired to possess in the correctional f acility

. “W hether an indictm ent is f atally def ective i s a question of law, which this Court reviews de n ovo.” Jones v. State , 130 S o. 3d 519, 524 (¶13) (Miss. Ct. App. 2013) (citing Moten v. State , 20 So. 3d 757, 759 (¶4) (Miss. Ct. App. 2009)). ¶14. The r ecord ref

lects that Graham f

ailed to raise this a rgum ent bef ore the circuit court. “Generally , a trial j udge will not be f ound i n e r r o r o n a m atter not presented to him f or decision. It is only in cases w here the indictm ent does not charge an of f e nse that def

ects in

an indictm ent m a y be challenged on appeal f or t he f irst tim e.” Id. at (¶14) (internal citations

6and q

uotation m arks om itted). During the trial court proceedings, Graham f ailed to preserve
any objection to the suf f iciency of his indictm ent. Theref o re, a b s e n t a showing of jurisdictional error or actual prejudice, he waived com p laints as to suf

f iciency

. See Brooks

v. State , 573 So. 2d 1350, 1353-54 (Miss. 1990); Perkins v. State , 487 So. 2d 791, 792 (Miss. 1986); Jones v. State , 356 So. 2d 1182, 1184 (Miss. 1978). 1 ¶15. As our caselaw establishes:

The purpose of an indictm ent is to give the def endant r easonable notice of the charges against him in order that he m ay prepare an adequate def

e nse. Brawner v. S

tate , 947 So. 2d 254, 265 ( ¶31) (Miss. 2006) (citing B rown v. State , 890 So. 2d 9 01, 918 (¶61) (Miss. 2004)). Indictm ents m ust contain “a plain, concise[ ,] and def inite w r i t ten statem e nt o f t he e s sential f acts constituting the of

f ense charged and shall f

ully notif y the def endant of the nature and cause o f the accusation.” URCCC 7.06. The ultim ate test f or the validity of a n indictm ent is whether the def endant was prejudiced in preparing his def ense. M edina v. State , 688 So. 2d 727, 730 (Miss. 1996).
Jones , 130 So. 3d at 524 (¶13). ¶16. The r ecord ref

lects that Graham ’s i ndictm ent included the e s sential statuto r y e l em e nts of t he charges against Graham , and the indictm ent provided Graham with r easonable notice of the charges so t hat he could prepare an a dequate def ense. S ee id. 2 The record also ref lects

1 C f. M iss. C o d e A n n . § 9 9

- 3 9 -2 1 (1 ) (R ev . 2 0 1 5 ) ( “F ailu re b y a p r iso n er to raise o b j e c tio n s , d ef

en s es, claim s, q u estio n s, issu es[ ,] o r erro rs eith er i n f act o r law w h ich w ere cap ab le o f d eterm in atio n at trial an d /o r o n d irect a p p eal, reg ard less o f w h eth e r su ch are b ased o n th e l a w s an d th e C o n stitu tio n o f th e state o f M i s s i s sip p i o r o f th e U n ited S tates, sh all co n stitu t e a w aiv er th ereo f a n d sh all b e p ro ced u rally b arre d , b u t t h e co u rt m ay u p o n a sh o w in g o f cau se an d actu al p rej u d ice g ran t relief f ro m th e w aiv er.”).

2 S ee a lso D a v is v
. S ta te , 1 7 1 S o . 3 d 5 3 7 , 5 4 0 ( ¶1 1 ) (M iss. C t. A p p . 2 0 1 5 ) (statin g th at t h e o b

j ectiv e o f an in d ictm e n t is to p ro v id e th e d e f e n d an t w ith f

air n o tice o f th e crim e ch arg ed ) ; S

h o rter v. S t

a te , 9 4 6 S o . 2 d 8 1 5 , 8 1 8 (¶¶9 -1 1 ) (M iss. C t. A p p . 2 0 0 7 ) (d iscu ssin g

7that the indi c t me n t tracked the language of the charging statute. Count I o f Graham ’s

indictm ent charged that Graham “did wilf ully , unlawf

ully , f eloniously [ ,] and knowingly bring [ m ]arihuana, a controlled substance, into the Lincoln County J a il, a c o r r e c t ional
f acility [ .]” Count II of

Graham ’s indictm ent f

urther charged the f

ollowing: Graham and Terrance D. Hudson did wilf ully , unlawf

ully , f eloniously [ ,] and knowingly conspire and agree, each w ith t he other, and / o r w i th s om e other person or persons to the grand jurors unknown, to com mi t t he c rim e of possession o f a controlled substance inside a correctional f a c i l i t y . . . ; all of said conduct a lleged and set f o rth in counts one and two o f this i n d i c t m ent hav i n g t h en and t here been based on t wo o r m ore acts o r transactions connected together or constituting parts of a com m on schem e or plan[ .] ¶17. G r a h a m a r g u e s t h at his indictm ent f ailed to provide him with any notice of t h e controlled substance he allegedly conspired to p ossess in the correctional f acility

. Graham
f urther contends i t is “inconsequential” that Count I of his indictm ent charged h i m with unlawf ully bringing m arijuana into a correctional f acility

. According t o Graham ’s a rgum ent, Count I is an entirely s eparate c harge f rom Count II, a n d theref o re, Count II’s f

ailure to specif y the controlled substance that he was charged with conspiring to possess renders his indictm ent def

ective as to that charge. ¶18. T o s upport his argum ent that his indictm ent is def ective, Graham cites this Cour t ’ s
recent opinion in W

a r ren v. State , 2013-KA-00926-COA, 2015 W L 326660 (Miss. Ct. App.
Jan. 27, 2015). In W

a rren , the indictm ent c h a r g e d t he def e ndant with p ossession of a controlled substance in a correctional f acility in violation of section 47-5-198. W arren , 2015

th e essen t ial elem en ts o f

th e d ef e n d an t’s in d ictm en t).

8W L 326660, at *1 (¶1). On appeal, W arren argued h er indictm ent was def ective f or f ailure

to identif y the controlled substance she was alleged to have p o s s e s s e d. Id. at *2 (¶7). Agreeing with W arren’s argum en t , this Court r eversed the circuit court’s judgm ent and

rem anded the case. Id. at *3 (¶13). ¶19. D e s pite Graham ’s assertions on appeal, we f ind W arren distinguish a b l e f

r o m t h e present f acts. Unlike in W

arren , w h ere the indictm ent contained only one charge that entirely f ailed to specif

y t he n a ture of the controlled substance at issue, Count I o f Graham ’s indictm ent p rovided notice that m arijuana c onstituted the controlled substance that Graham

was charged with unlawf u lly possessi n g. Furtherm ore, Count II of Graham ’s indictm ent clearly acknowledged that “all [ the] c onduct alleged and set f orth in counts one and two of [ the] indictm ent [ were] based o n two o r m ore a cts or transactions connected together or constituting parts of a com m on schem e or plan[ .]” ¶20. Mississippi Code Annotated section 99-7-2(1 ) ( R e v . 2 0 1 5 ) a n d U nif orm Rule of Circuit and County Court 7.07(A) allow m ultiple-count indictm ents when the of f enses are based upon t he sam e act or transaction or when the o f f enses are based upon two o r m ore acts

or transactions that are connected or constitute parts of a c o mmo n s c h em e or plan. Additionally , a def

endant is procedurally barred f r om a rguing an objection to a m u lti-count indictm ent on appeal where the def endant f a iled to raise the objection at trial. S ee Patrick

v. State , 754 So. 2d 1194, 1195-96 (¶7) (Miss. 2000); Thomas v. State , 1 4 So. 3d 812, 816 (¶6) (Miss. Ct. A pp. 2009). The r ecord ref lect s that Graham ’s indictm ent i ncluded all the

9essential statutory e lem ents of t he charges against him and provided hi m with suf f icient notice o f the c harges so t hat he suf f e red no prejudice in preparing his def ense. See J

o n e s , 130 S o. 3d at 524 (¶13). Accordingly , we f ind that Graham ’s f

a ilure to raise this a rgum ent bef ore the circuit court procedurally bars the issue on appeal.
II. Whether the evidence w as legally sufficient to support Graham ’s conviction. ¶21. In his next assignm e nt o f e r r o r , G r a h a m a s s e r t s t h a t t he State’s case as to the conspiracy ch a rge was based com pletely on circum stantial evidence and s peculation. Furtherm o re, Graham a lleges that the State f ailed to show a “union of t he m inds” between
h i ms e l f and Hudson. Based on these argum ents, Graham contends that the S tate f ailed t o present suf

f i cient evidence to convict him of c o nspiracy

. ¶22. W h en addressing an a r g u me n t r egarding the legal suf f iciency of the e vidence, this Court applies the f

o llowing standard of

review: [ T]he critical inquiry is whether the evide n c e shows b ey ond a reasonable doubt that the accused c om m itted the act cha r g e d , a n d that he d id s o under such circum stances that e v e r y e l e m ent of the of f ense existed. If

, viewing the evidence in the light m o st f avorable to the State, any rational trier of f act could have f ound, bey o nd a r easonable doubt, that t he essential elem ents of the crim e existed, this C ourt w ill af f irm t he c onvictio n . T h e jury determ ines the credibility

of witnesses and resolves conf licts in the evidence.
Barron v. State , 1 30 So. 3d 531, 536 (¶13) (Miss. Ct. App. 2013) ( int e r n a l c i t a t i o ns and quotation m arks om itted). ¶23. In discussing the crim e of conspiracy , our caselaw has previously stated:
A conspiracy occurs when two or m o r e persons conspire to com m it a
1 0crim e. Miss. Code Ann. § 97-1-1(a) (Rev. 2006).

. . . The suprem e court h as

stated that: For there to be a conspiracy , “there m ust be recognition on the part of the conspirators that they a r e e n t e r ing into a com m on plan and knowingly intend to f urther its com m on purpose.” The conspiracy agreem ent need not be f orm al or express, but m ay be inf erred f rom the circum stances, particularly by declarations, acts, and conduct of the alleged conspirators. Furtherm o re, the existence of a co n s p iracy , and a def endant’s m em

bership in i t, m a y be proved entirely by

circum stantial evidence.
W illiams v. State , 984 So. 2d 989, 991-92 (¶14) ( Miss. Ct. App. 2007) (quoting Franklin v. State , 676 So. 2d 287, 288 (Miss. 1996)). ¶24. Upon r e view, we f ind the S tate presented suf f icient evidence f

or a j ury to determ ine that Graham entered into a com m on plan to p o s s e s s a c o ntrolled substance inside a correctional f

acility

. T he testim ony ref lected that, on the evening of F ebruary 24 , 2012, of f icers allowed Graham

to take a blanket with him t o the jail y ard because he com plained that he f elt cold. Further testim ony revealed that, a s Of f icer L awrence m o n i t o r ed the
inm ates’ activity in the y ard, she noticed suspicious behavior. Of f i cer L awrence testif

ied that she observed G raham and another inm ate stand b y the y ard’s exterior door, bend down, and retrieve item s f

rom underneath t he door. C hief Deputy Hall, who inspe c t e d the door af ter the incident, f

ound a sm all opening that could allow som eone t o slip an item through the door near the locking m echanism

. ¶25. A f t er observing t he two inm ates’ suspicious b ehavior, Of f i cer L a w r e n c e a l e r t e d Of f icer Morris a nd Of

f icer Jam es, who conducted a search of each inm ate as he r e e n t e r e d

1 1the jail. The o f f icers discovered three envelopes concealed on Hudson’s person. Graham , who was the next inm ate in line, attem pted to pass his blanket to Hudson bef ore the of f icers searched him

. Of

f icer Jam es testif

ied t hat Graham e ven stated that Of f icer Jam e s s h ould just allow Graham to p ass the blanket to Hudson. Th e of f i cers ref used to allow the exchange, however, and they

conf iscated Graham ’s blanket. ¶26. Upon exam i ning the blanket in Graham ’s possession, the of f icers discovered a y ellow bag. Inside the y ellow bag, t he of f icers d iscovered m o r e e n v e l o pes. W hen the of f icers inspected the envelopes concealed on Hudson’s person and inside G raham ’s b lanket, they
f ound tobacco and a green leaf y s ubstance t hat l ooked like m arijuana. Tests perf o rm ed by

t he Mississippi Crim e Laboratory later conf i rm ed that t he green leaf y substance i n t h e envelopes was, i n f

act, m arijuana. Besides t he testim ony about the events of February 24, 2012, the S tate of

f ered into evidence the contraband discovered during the search of Hudson and Graham

. In addition, the j ury viewed the s urveillance video the j ail’s c am eras captured of the incident. ¶27. As previously

stated, “the existence of

a conspiracy , and a def

endant’s m em

bership
in i t, m ay be p roved e ntirely b y circum stantial evidence.” W illiams , 984 S o. 2d at 991-92 (¶14) (quoting Franklin , 676 So. 2d at 288). Viewing t he evidence i n the record in the light

m ost f a vorable to the State, we f ind that a rational juror could have f ound Graham guilty of conspiracy to possess a controlled substance inside a correctional f acility

. See Barron , 130 So. 3d at 536 (¶13). As a result, we f ind that this argum ent lacks m erit.

1 2III. Whether Graham w as illegally sentenced as a habitual offender.

¶28. I n h i s f

i n a l a s s i g n me n t o f e rror, Graham challenges h is s entence as a habitu a l of f ender. Graham a sserts n o argum ent that he l acked notice of the State’s intent to seek an enhanced sentence under section 99-19-81. Moreover, Graham raises no attack o n the validity of his am ended indictm ent or the prior f elony convictions supporting his habitualof f ender status. Instead, Graham a rgues t he State presented i nsuf f icient evidence during his sentencing hearing to prove his habitual-of f ender status. Based on this argum e nt, Graham asserts that the circuit court erred by sentencing him a s a habitual of f ender. ¶29. As the record ref

lects, Graham

raised no objection during the pretrial hearing to the
S tate’s m otion t o a m end his indictm ent to ref l ect h is prior f

elony convictions a n d h i s habitual-of

f ender status. In addition, during his sentencing hearing, Graham f a iled to object

to his sentence as a habitual of f ender. Graham a gain f

ailed to atta c k h i s s e n t e n c e in his

m otion f o r a JNOV or, in the alternative, a new trial. As our caselaw establishes, Graham ’s f ailure to raise an argum ent bef ore the circuit court challenging h is sentence p r o c e d u r ally bars this issue f

rom appellate review. See Conner v. State , 1 38 S o. 3d 143, 150 (¶19) (Miss. 2014); Heidelberg v. State , 45 S o. 3d 7 3 0 , 7 3 2 ( ¶6) (Miss. Ct. App. 2010). “The suprem e
court and this court have previously m ade clear t hat: ‘W h en a n a ccused f ails to object to the habitual[ -]of

f ender issue during the sentencing phase, he is p rocedurally barred to do so [ f or] the f irst tim e on appeal.’” Heidelberg , 45 So. 3d at 7 32 (¶6) ( quoting Sims v. S tate , 775 So. 2d 1291, 1294 (¶16) (Miss. Ct. App. 2000)).

1 3¶30. Recognizing the procedural b ar to his argum ent, Graham asserts that this Court should

review the issue f

or plain e rror. “The plain-error doctrine p rovides f o r appellate review of obvious errors n ot properly r aised by the d ef endant at t r i a l , which af f ect a def endant’s
‘f u ndam e n tal, substantive rights.’” Id. a t (¶7) (quoting Smith v. S tate , 986 So. 2d 290, 294 (¶10) (Miss. 2008)). To prove plain error, Graham m ust show “(1) an error at the t rial level (2) that resulted in a m anif est m iscarriage of justice.” I d. (citing S

tephens v. S

tate , 911 So. 2d 424, 432 (¶19) (Miss. 2005)). ¶31. “A def

endant has a f

undam ental right of f

reedom f rom an illegal sentence.” Conner , 138 So. 3d at 150 (¶19). “Bef ore a court m a y sentence a def e ndant under section 99-19-81, the State m

ust properly

charge the accused as a habitual of f ender a nd ‘then prove the prior of f enses by com

petent evidence bey ond a reasonable d oubt.’” Heidelberg , 45 So. 3d at 733 (¶9) (quoting Joiner v. State , 32 So. 3d 542, 544 (¶12) (Miss. Ct. App. 2 010)). I n addition, “[ t]he accused must have ‘a reasonable opportunity t o challenge the State’s p roof .’” Id. (quoting Joiner , 32 So. 3d at 544 (¶12)). ¶32. The record ref

l ects that, prior to trial, the State m o ved to am end Graham ’s indictm ent
to c harge him a s a habitual of f ender under section 99-19-81. During t he pretrial hearing on the State’s m otion, the State r em inded the circuit c ourt that the court had a m ended Graham ’s indictm ent in a previous case to charge habitual-of f ender status. However, Graham was later
f ound not guilty

of the crim e charged in the previous case. ¶33. At the pretrial hearing in the pres e n t c a s e , t h e State s upported its m otion to am end

1 4Graham ’s indictm e nt by of f e ring certif

ied c o p i e s of the s entencing orders related to Graham ’s prior f

elony convictions. Graham r aised no o bjection to the evidence or the State’s motion, and the circuit court t hen adm itted the prior sentencing orders into evidence. T h e circuit court then grant ed the State’s m otion to am end Graham ’s i ndictm ent to ref lect his prior f elony convictions and his habitual-of f ender status. ¶34. During sentencing, the record ref l e c t s t h a t t h e c i rcuit c ourt ref erenced its pretrial ruling to am end Graham ’s indictm ent to ref lect his prior f

e lony convictions and h a b itualof f ender s tatus. The circuit court t h e n s e n t enced Graham , as a h abitual of f ender, to f

ive
y ears in MDOC’s custody a nd f ined Graham $2,000. As the r ecord ref lects, Graham raised

no objection to his sentence as a habitual of f ender either d

uring the sentencing hearing or in his posttrial m otion f

o r a JNOV or, in the alternative, a new trial. ¶35. I n H

e i d e l b e r g , t h i s C o u r t d e c i ded a case sim ilar to the present m a tte r . We

sum m arized the f

acts and issues in Heidelberg as f ollows: Bef ore trial, the State m oved to am end the indictm ent to charge Heidelberg as a habitual of

f e nder. The State pr o v i ded certif ied c o pies of t wo s e ntencing orders docum enting H eidelberg’s p rior f elony convictions. And the circuit judge o rdered the indictm ent am ended to ref lect Heidelberg’ s prior f

e lony convictions and habitual-of f ender status. A f

ter the jury returned a guilty verdict, the State again advised the c ircuit judge that Heidelberg had two prior f elony convictions. T he judg e t h en sentenced H eidelberg as a habitual of f ender to lif

e in the custody of the [ M DOC] without e ligibility f o r p arole or probation. On appeal, Heidelberg claim s t h e State’s f ailure to of

f er the certif ied sentencing orders during the sentencing hearing requires r eversal of his sentence. Because H eidelberg raises this i ssue f or the f i rst tim e on appeal, we f ind it procedurally barred. Further, since Heidelberg neither contests the validity or suf

f iciency o f his prior f

elony convictions supporting his enhanced sentence nor otherwise points t o any notice-based def iciencies in the am ended
1 5charging docum ent, we af f irm

. Heidelberg , 45 So. 3d at 731 (¶1). ¶36. The record here ref lects that, by the tim e o f G r a h a m’ s s e n t e n c i n g h e a r i n g , no uncertainty existed as to the State’s intention to seek an enhanced penalty under section 99-
19-81. F urtherm o re, our c aselaw establ i s h e s t hat sentencing orders constitute com petent evidence of a def

endant’s prior c o n v i ctions. See Heidelberg , 45 So. 3d a t 7 33 (¶14). Although Graham possessed suf f icie n t notice o f the State’s intent to seek an enhanced sentence, and although h e possessed a mp le o pportunity t o challenge the State’s proof , Graham f a iled to do so. In addition, like th e def endant in Heidelberg , Graham “neither contests the validity

or suf f iciency of his prior f

elony convictions supporting h is enhanced

s e n t ence nor otherwise points t o any notice-based def iciencies in the am ended c h a r g i n g docum ent[ .]” Id. at 731 (¶1). ¶37. Af ter reviewing the f

a cts in t h e r e c o r d a n d a p p l i c a b l e c a selaw, we f ind that no

m anif est m iscarriage of justice resulted f rom Graham ’s sentence as a habitual of f ender. See id. at 732 ( ¶7). As a result, we decline to review Graham ’s claim of error as plain error, and

we f ind no m erit to Graham ’s argum e nt t h a t t h e c i r c uit court im posed an i llegal sentence against him

. ¶38. T H E J U D G M E N T O F T H E L I NCOLN COUNTY CIRCUIT C OUR T O F CONVICTION OF C O NSPIRACY A N D SENTENCE, AS A HABITUAL OFFENDER, OF FIVE YEARS IN THE CUSTODY OF T H E M I SSISSIPPI DEPARTMENT OF CORRECTIONS AND T O PAY A FINE OF $2 ,000 IS AFFIRMED. ALL COSTS OF THIS APP E A L A R E ASSESSED TO LINCOLN COUNTY.
1 6LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, JAMES AND WILSON, JJ.,

CONCUR. IRVING, P.J., A ND FAIR, J., CONCUR IN PART AND IN THE RESULT W I T H O U T S E P A R A T E W R I T T E N O P I N I O N . G R E E N L E E , J . , N O T PARTICIPATING.

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