IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2015-CP-01301-COA
DEX TER MOORE APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 08/07/2015 TRIAL JUDGE: HON. JAMES T. KITCHENS JR. COURT FROM W HICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: DEXTER MOORE (PRO SE) ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W AKELAND BYRD JASON L. DAVIS NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF TRIAL COURT DISPOSITION: POSTCONVICTION-RELIEF PETITION DISMISSED DISPOSITION: AFFIRMED - 12/06/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., JAMES AND GREENLEE, JJ. JAMES, J., FOR THE COURT: ¶1. This appeal arises f rom Dexter Moore’s postconviction-relie f ( P C R ) petition in the Circuit Court of Oktibbeha County , Mississippi. The circuit court dism issed M oore’s PCR petition f rom his 2010 conviction as procedurally barred. Finding no error, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. In 2010, an O ktibbeha County grand jury indicted Moore f o r two counts of selling a

c ontrolled substance within 1,500 f eet of a park (Counts I and II). The g rand j u r y a l s o indicted Moore f

o r one count of possession of a controlled s ubstance (Count III). A s part ofthe plea agreem e nt, the State agreed to only prosecute Counts I and III. Further, in exchange

f or Moore pleading guilty , the State recom m e nded a thirty -y e ar sentence, with twenty -nine
y ears suspended, f

or Count I and sixteen y ears as a habitual of f ender f or Count III. ¶3. At Moore’s plea hearing, on M a y 4 , 2 0 1 0 , t h e S t a t e m oved t o am end Moore’s indictm ent to c harge him as a habitual of f ender, r ef lecting his p lea agreem e n t

. Moore did

not object to the am e ndm e nt of his indictm e nt. The circuit c ourt sentenced Moore according to the State’s recom m endations. ¶4. On June 2, 2015, over three y e ars af ter his sentence, Moore f

iled a PCR petition with the circuit court. M oore r aised m ultiple issues in his petition. Am ong these, Moore argued that his sentence w as illegal and that his claim could not be procedurally barred. In support of t his a r gum ent, Moore cited Gowdy v. State , 56 S o. 3d 540 ( Miss. 2010), as an intervening decision that excepted his petition f rom the n orm al procedural bars. H e c l a i med that the circuit court erred by

allowing his indictm ent to be am ended. ¶5. The c ircuit court denied M oore’s petition, f i nding t hat it w as pro c e d u r a lly barred.
Moore now appeals the sam e issues to this Court

. S i n ce Moore’s petition i s procedurally barred, we will only address M oore’s claim t hat the Gowdy rule excepts his petition f rom the procedural bar.
STANDARD OF REVIEW ¶6. We w i l l only reverse the dism issal or denial of a PCR petition where t h e c i r c u i t court’s decision i s clearly erroneous, but we r e v i e w q u estions of l aw under a de novo standard. Crosby v. State , 16 So. 3d 74, 77 (¶5) (Miss. Ct. App. 2009).

2DISCUSSION

¶7. The circuit court properly denied Moore’s PCR petition. Mississippi Code Annotated section 9 9-39-5 (Rev. 2015) provides that a PCR petition “shall be m ade[ ,] .

. . in case of a guilty plea, within thr e e ( 3 ) y e a r s af ter entry of the judgm ent o f conviction.” This section excepts a petitioner f

rom the tim e-bar where his petition raises “an intervening decision of the Suprem e Court of either the State of Mississippi or the U nited States w hich would have actually adversely af

f ected the outcom e of his convic t i o n o r s e ntence.” Id

. § 99-39-5(2)(a)(i). ¶8. Here, Moore argues that the Mississippi Suprem e Court issued a ruling that m ade his

sentence illegal a f

ter his conviction. U nder Gowdy , it is im proper f or the S tate t o am end an indictm ent to charge a def endant as a habitual of

f ender af ter the def

endant’s conviction by

a j ury . Gowdy v. State , 56 So. 3d 540, 546 (¶22) (Miss. 2010). The rule in Gowdy , though, does not apply retroactively

. Carr v. State , 178 So. 3 d 320, 3 23 (¶14) (Miss. 2015) (“ Gowdy announced a new rule of

law that does not apply

retroactively .”). ¶9. Because Moore’s PCR petition was f iled on June 2, 2015—f

ive y ears af

ter his May 4, 2010 sentencing, his petition is tim e-barred. M oore’s argum ent that Gowdy e xcepts his petition f r om the tim e-bar, as an i ntervening decision, is not persuasive because Carr held that G owdy does not apply retroactively

. Gowdy was issued on Decem ber 16, 2010, seven

m onths af ter Moore’s sentencing becam e f inal i n May 2010. In light of these f acts, Moore’s petition is procedurally

barred. ¶10. Also, we note that Moore—if he w ere not procedurally barred—would not b e entitled

3to any relief under Gowdy

. 1 At the hearing, Moore not o nly did not o bject to the am endm ent

of his indictm ent, he asked f or it. The record ref

lects that M oore ple d g u ilty pursuant to a plea agreem ent, that am ending t he indictm ent to charge him as a habitual of f e nder on one of

t h e c o u n t s w as p a rt of the deal, and that Moore r eceived substantial leniency i n exchange. During the thorough and detailed col l o q u y f o llowing Moore’s acquiescence to the

am endm ent, he was questioned as to his understanding o f the e f f e c t o f habitual-of

f ender status. Moore then explicitly pled guilty

as a habitual of

f ender: Q. How do y o u pl e a d i n c ount three, possession of cocaine, m ore than a tenth of a gram , as an enhanced of f e nder a nd as a [ ] habitual offender?
A. Guilty ( E mp hasis a dded). Moore’s plea was f ound t o be “f

reely , voluntarily , knowingly and intelligently entered,” and h e was adjudicated guilty and sentenced i n accord with the pleabargain agreem ent. “[ A] knowing and voluntary guilty plea waives an i ndictm ent’s f ailure

to i n clude habitual of

f e nder s tatus.” Joiner v
. State , 61 So. 3d 156, 159-60 (¶10) (Miss. 2011). Moore’s postconviction claim of unf air surprise i s not only p rocedurally barred, it is without m erit as well.

1 We n o te t h at G o w d

y’s m an d ate “th at th e d ef en d an t m u s t b e a f f o rd ed a f

air o p p o rtu n ity to p resen t a d ef en se an d n o t [ b e ] u n f

a i rly su r p rised ” co u ld a

p p ly to a p leab arg ain ag reem en t. G o w d y d i scu sses p lea b arg ain s in its reaso n in g : F in ally , n o tice o f th e ch arg e in clu d es n o t ice o f th e ap p l icab l e m in im u m a n d m ax im u m p e n alties. U n d er R u l e 8 .0 4 (A )(4 ) (b ) , b ef o re a d ef en d an t can p lead g u ilty , th e trial c o u rt h as a d u ty to en s u re th a t h e “u n d erstan d s th e n atu re a n d co n seq u en ces o f th e p lea, an d th e m ax im u m a n d m in im

u m p en a lties p ro v id ed b y law .” G o w d y , 5 6 S o . 3 d at 5 4 6 (¶2 1 ) (citin g U R C C C 8 .0 4 (A )(4 )(b )). 4CONCLUSION

¶11. Because M oore f

iled his p etition m ore than three y ears af ter entry of his judgm ent and Gowdy does not apply

retroactively , we af

f irm the dism issal of

Moore’s PCR petition. ¶12. THE J U DGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY DISMISSING T HE PETITION FOR POSTCONVICTION RELIEF I S AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIBBEHA COUNTY. LEE, C .J., GRIFFIS, P .J., B A R N E S , I S H E E , C A R

L T O N , F A I R, WILSON AND GREENLEE, J J . , CONCUR. IRVING, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

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