of Judgment: 11/17/2015
FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT HON. LEE J.
HOWARD TRIAL JUDGE.
ATTORNEY FOR APPELLANT: MARK ATKINSON (PRO SE).
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
BILLY L. GORE.
IRVING, P.J., CARLTON AND WESTBROOKS, JJ.
Mark Atkinson appeals the Lowndes County Circuit Court's
dismissal of his petition for postconviction relief (PCR). On
appeal, Atkinson asserts the following issues: (1) whether he
was improperly sentenced as a habitual offender; (2) whether
his indictment failed to give him sufficient notice; and (3)
whether he received ineffective assistance of counsel.
Finding no error, we affirm the circuit court's dismissal
of Atkinson's PCR petition.
A Lowndes County grand jury indicted Atkinson for the
following charges: Count I, possession of methamphetamine in
an amount greater than 0.1 grams but less than 2 grams; Count
II, possession of the controlled substance hydrocodone; and
Count III, possession of methamphetamine precursors.
See Miss. Code Ann. § 41-29-139 (Rev. 2013);
Miss. Code Ann. § 41-29-313 (Rev. 2013). On May 15,
2013, the State filed a motion to amend Atkinson's
indictment to reflect his status as a habitual offender under
Mississippi Code Annotated section 99-19-81 (Rev. 2015).
At the start of Atkinson's plea hearing, also on May 15,
2013, the State introduced evidence of his two prior felony
convictions. The State first offered into evidence a
certified sentencing order from Lowndes County in cause
number 94-444-CR1 to show that Atkinson had previously been
convicted of the sale of less than one ounce of marijuana and
sentenced to three years in the custody of the Mississippi
Department of Corrections (MDOC). The State next offered into
evidence a certified pen pack from the Marion County Circuit
Court in Alabama in cause number 1998000070.7101 to show that
Atkinson had previously been convicted of possession of a
controlled substance and sentenced to ten years in the
custody of the Alabama Department of Corrections. After
Atkinson raised no objection to the State's motion, the
circuit court granted the motion and amended the indictment
to reflect Atkinson's habitual-offender status.
Pursuant to a plea-bargain agreement, Atkinson pled guilty to
Count I, possession of methamphetamine, and the State moved
to retire the remaining two counts charged in his indictment.
After conducting a plea colloquy, the circuit court found
that Atkinson entered his guilty plea to Count I knowingly,
voluntarily, and intelligently. The circuit court therefore
accepted Atkinson's guilty plea to Count I and retired
the two remaining counts. The circuit court entered its May
15, 2013 order sentencing Atkinson as a habitual offender to
serve eight years in MDOC's custody, without the
possibility of probation or parole, and to pay a fine of $50,
On July 28, 2015, Atkinson filed a PCR petition asserting
that the circuit court erroneously sentenced him as a
habitual offender. Aggrieved by the circuit court's
dismissal of his PCR petition, Atkinson
"When reviewing a circuit court's denial or
dismissal of a PCR [petition], we will reverse the judgment
of the circuit court only if its factual findings are
'clearly erroneous'; however, we review the circuit
court's legal conclusions under a de novo standard of