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McNulty v. State

Court of Appeals of Mississippi

November 4, 2014

CHRISTOPHER MCNULTY A/K/A " BIG HURT" A/K/A CHRISTOPHER L. MCNULTY, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 06/11/2012. TRIAL JUDGE: HON. DAVID H. STRONG JR. TRIAL COURT DISPOSITION: CONVICTED OF THE UNLAWFUL SALE OF AT LEAST ONE-TENTH BUT LESS THAN TWO GRAMS OF COCAINE AND SENTENCED AS A HABITUAL OFFENDER TO THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY A $25,000 FINE.

FOR APPELLANT: JOSEPH A. FERNALD JR.

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JEFFREY A. KLINGFUSS.

BEFORE LEE, C.J., ISHEE AND JAMES, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

OPINION

ISHEE, J.

¶1. On June 11, 2012, Christopher McNulty was convicted by a jury in the Lincoln County Circuit Court of the unlawful sale of at least one-tenth but less than two grams of cocaine. He was sentenced, as a habitual offender, to thirty years in the custody of the Mississippi Department

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of Corrections (MDOC). McNulty filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The motion was denied. McNulty appeals. Finding no error, we affirm the circuit court's judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. On February 9, 2009, McNulty was indicted for the sale of at least one-tenth but less than two grams of cocaine. The indictment followed a controlled buy set up by law enforcement officials where a confidential informant met with McNulty and received the substance from him. The interaction was videotaped. McNulty ultimately reached an agreement with the State, which offered to amend the indictment to the lesser-included offense of unlawful possession of more than one-tenth but less than two grams of cocaine.

¶3. The State filed a motion to amend the indictment to include the lesser-included offense of possession on April 16, 2012. The circuit court granted the motion. A plea hearing was held on the same day. During the plea colloquy, the circuit court discovered that McNulty was currently serving probation for automobile burglary. Subsequently, the circuit court was not willing to follow the State's recommendation. The State had not been aware of McNulty's prior felony conviction and stated that, had it been aware, the recommendation would not have been made.

¶4. As such, the circuit court allowed McNulty to withdraw his guilty plea and the State to withdraw the motion to amend the indictment. The case was then continued. On May 24, 2012, the State filed a motion to amend the indictment to reflect McNulty's habitual-offender status. The motion was granted. A jury trial was held from June 4 through June 6, 2012, pursuant to the original indictment charging McNulty with the unlawful sale of cocaine. At the conclusion of the State's case-in-chief, McNulty moved to dismiss, arguing that the State had failed to establish a prima facie case. The motion was denied, and the defense rested. The jury returned a verdict finding McNulty guilty of the unlawful sale of at least one-tenth but less than two grams of cocaine.

¶5. Following the jury's verdict, the State moved to amend the indictment. The defense argued that the amended indictment charging McNulty with possession of cocaine was still in effect and the circuit court could not sentence him outside of the maximum penalty for possession. The circuit court concluded that, following the plea hearing, the original indictment was reinstated when McNulty was allowed to withdraw his guilty plea. In reaching this conclusion, the circuit court stated:

I gave [McNulty] the option of . . . sentencing him on that date, blind, or withdrawing his guilty plea, and he chose to withdraw his guilty plea. When he did, he went forward on the original charges for which he was indicted. If there was an order that was not entered, that was simply an oversight. But there is no question. The [r]ecord should be clear that he was allowed to withdraw his guilty plea ...

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