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Atkinson v. State

Court of Appeals of Mississippi

April 11, 2017

MARK ATKINSON APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          Date of Judgment: 11/17/2015

         COURT 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.

          BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ.

          CARLTON, J.

         ¶1. 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.

         FACTS

         ¶2. 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).

         ¶3. 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.

         ¶4. 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, 000.

         ¶5. 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 appeals.[1]

         STANDARD OF REVIEW

         ¶6. "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 ...


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