IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-00054-COA DENNIS TERRY HUTCHINS A/K/A DENNIS HUTCHENS A/K/A DENNIS HUTCHINS A/K/A DENNIS HUTCHINGS A/K/A DENNIE TERRELL HUTCHINS A/K/A DENNIS T. HUTCHINS APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 12/23/2013 TRIAL JUDGE: HON. ROBERT B. HELFRICH COURT FROM W HICH APPEALED: FORREST COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: LISA MISHUNE ROSS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W AKELAND BYRD NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF TRIAL COURT DISPOSITION: DENIED MOTION FOR POSTCONVICTION RELIEF DISPOSITION: AFFIRMED - 03/31/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND MAX WELL, JJ. LEE, C.J., FOR THE COURT:

FACTS AND PROCEDURAL HISTORY ¶1. In 2011, a Forrest County gra n d j u r y r e t u r n e d a n e i ght-count indictm ent against Dennis Hutchins. Prior to trial, the indictm ent was am ended to charge Hutchins as a habitual of f ender under Mississippi Code Annotated section 99-19-83 ( S u p p . 2 0 14). I n support of i t s mo tion to am end t he indictm ent, the State produced t he p en packs detailing Hutchins ’ sconvictions and sentences. H u t c h ins h ad been convicted of grand l arceny in 1990, and

sim ple assault on a police of

f i cer in 1991. ¶2. The S tate proceeded t o trial on two of the eight counts. A jury f ound Hutchins guilty of these two c ounts. Prior to sentencing, a plea deal was reached whe r e H u t c h i n s would plead guilty to two additio n a l c o u n t s a nd, in return, be sentenced f or all f our counts under Mis s i s sippi Code Annotated section 99-19-81 (Supp. 2014) rather than section 99-19-83. The trial court sentenced Hutchins to six y ears f or each jury conviction, with the sentences to run consecutively

to each other. The trial court also sentenced Hutchins to six y ears f or each guilty -plea c onviction, with th o s e s e n t ences to r un consecutively to each other. However, the t rial c ourt set the sentences f or the two jur y convictions to run concurrently with the sentences im

posed in the guilty

- plea convictions, f or a total of twelve y e ars in the custody of the M ississippi Departm ent of C orrections (MDOC). The sentencing o r d er f or the jury convictions stated Hutchins was sentenced as a habitual of f ender pursuant to section 99-19-81. ¶3. Hutchins f

iled a m otion f

or post-conviction relief (PCR) a l leging his tri a l c o u n s el provided inef

f ective a ssistance. According t o Hutchins, his trial c o u n s e l s h ould have objec t e d t o t h e m otion to a m e nd the indictm ent because Hutchins had not served one y ear f or his conviction f

or sim ple assault on a p o l i c e o f f i c e r . Af ter a h earing, the trial court denied Hutchins’s PCR m o tion. Hutchins now appeals, asserting that his trial counsel was inef f ective b y f

a iling to object to the S tate’s m otion to am end t he indictm ent to charge h im as a habitual of

f ender under section 99-19-83.

2S TANDARD OF REVIEW

¶4. W h en reviewing a trial court’s d enial o r d i s missal of a PCR m otion, we will only disturb the trial c ourt’s decision i f it is clearly erroneous; however, we review the trial court’s legal conclusions under a d e novo standard of r eview. Hughes v. State , 106 So. 3d 836, 838 (¶4) (Miss. Ct. App. 2012). DISCUSSION ¶5. As all of Hutchins’s issues are related t o w h e t h e r h e w a s properly indicted as a habitual o f

f ender under section 99-19-83, we will address them together. Hutchins contends his trial counsel w as inef f ective by f

ailing to object to t h e S t a t e ’ s motion to am end the indictm ent to charge h im under s ection 99-19-83 because he did not serve one y ear in prison

on his conviction f

or sim ple assault on a police of

f icer. Section 9 9-19-83 required the State

to prove bey ond a reasonable doubt that H utchins had been convicted o f two prior f elonies arising f rom separate i ncidents, o ne being a crim e o f violence, and was sentenced to and served “separate term s of o ne (1) y ear or m ore, whether s erved c oncurrently or not,” f or each conviction. ¶6. Hutchins was convicted of grand larceny on May 10, 1990, sentenced to three y ears suspended, and placed on probation. He was arrested on Jul y 2 9 , 1 9 91, f or sim ple assault

on a police of

f icer. Hutchins’s probation f or the grand-larceny

conviction was revoked on Septem ber 27, 1991, and he was ordered to serve three y ears in p rison. O n O ctober 25, 1991, Hutchins pleaded g uilty to s i mp l e a s s a ult on a police of f icer, and was sentenced to serve

3three y e ars c oncurrently with his sentence f or grand larc e n y . A c c o r ding to the pen pack 1 produced by t h e S t a t e , Hutchins was d ischarged f r om prison on July 10, 1 992. Hutchins
argues this indicates he did not serve one y ear in prison f or sim ple assault on a police of

f icer. Hutchins also argues t hat he pleaded guilty to the other two crim es as a non-violent of f ender under section 99-19-81 because his attorney had advised him that i t w a s t h e o n ly way to avoid being sentenced t o lif e under section 9 9-19-83. In f act, during his plea colloquy , the trial court stated, “the consideration f or y our entry of a guilty p lea is the State is reducing the habitual portion of that statute f rom [ section] 99-19-8[ 3 ], which would m ean lif e in prison without parole, to [ section] 99-19-8[ 1], which is just a day -per-day [ sic] sentence. Do y ou understand that? ” Hutchins replied that he did. ¶7. T h e S t ate r elies upon R ice v. State , 134 So. 3 d 2 92, 298 (¶15) ( Miss. 2 014), f or th e principle that “serving one y ear or m or e o n concurrent s e ntences im posed f o r separate convictions arising out of separate incidents at d if f erent t im es am ounts to serving m ore than

one y ear on each sentence.” A ccording to Rice , b ecause the MDOC calculates c oncurrent sentences by

beginning with the f

irst date of

incarceration f

or the f irst cause, each day that Rice s e rved f

o r his f irst of f ense would also count as t im e served f or his second of

f ense. Id

. T h e S tate contends that because Hutchins’s sentence f or sim ple assault o n a police of f i ce r

ran concurrently w ith his sentence f or grand l arceny , he served the s am e am o unt of tim e f or both c o nvictions. The State argues that the M DOC b egan calculating Hutchins’s sentences f or both causes o n F e bruary 3, 1991, and Hutchins was d ischarged on J uly 10, 1992,

1 “P en p ack s are th e reco rd s m ain tain ed o n in m ates s en ten ced to th e cu sto d y o f th e [ M D O C ] .” Ja sp er v. S ta t e , 8 5 8 S o . 2 d 1 4 9 , 1 5 2 (¶1 1 ) (M iss. C t. A p p . 2 0 0 3 ). 4indicating that he served a total of 523 day s in prison. ¶8. W e note that t he February 3, 1991 d ate is f r om the pen pack and i s listed under the heading “sentence begins.” According to the record, Hutchins w as in pri s o n b etween Septem ber 22, 1990, and March 1, 1991, f or a probation violation. On February 27, 1991, while Hutchins was in prison, the trial c ourt entered an order f inding Hutchins had violated his probation by f

ailing to report. The t rial court then m odif ied the original (May 1 0, 1990) probation conditions. Hutchins was released f r om prison on March 1 , 1991, and placed on probation again. Hutchins was out of prison until July 29, 1991, when h e was arrested f or sim ple assault on a p olice of

f icer. Regardless, Hutchins served m ore than one y ear in prison f or his grand-larceny conviction. Per Rice , the tim e served f or his grand-larceny conviction counted as tim e served f

or h i s conviction f

or sim p le assault o n a police of

f i cer. Thus, it was
not im proper f or the S tate to i nitially charge Hutchins a s a habitual of f ender under section 99-19-83. Consequently , his t rial counsel was not inef f e c t i v e i n f

ailing to object to the indictm ent. This issue is without m e rit. ¶9. T H E J U D G M E N T O F T H E F O R R E S T C O U N T Y C I R C U I T C O U R T D E N Y I N G T H E M O T I O N F O R P O S T-CONVICTION R EL I E F I S A F F I R M E D . A L L COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT

. GRIFFIS, P.J., B ARNES, ISHE E , C ARLTON, MAX WELL AND FAIR, JJ., CONCUR. I R V I NG, P.J., AND ROBERTS, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

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