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Dortch v. State

Court of Appeals of Mississippi

April 18, 2017

DERRICK DORTCH, APPELLANT,
v.
STATE OF MISSISSIPPI, APPELLEE

          DATE OF JUDGMENT: 10/14/2015.

         MADISON COUNTY CIRCUIT COURT, HON. JOHN HUEY EMFINGER, TRIAL JUDGE.

          ATTORNEY FOR APPELLANT: CYNTHIA ANN STEWART.

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON.

          BEFORE IRVING, P.J., FAIR AND WILSON, JJ.

          IRVING, P.J.

         ¶1. Derrick Dortch was convicted by the Madison County Circuit Court after pleading guilty to shooting into an occupied dwelling and to aggravated assault. Pursuant to the firearm-enhancement statute, the circuit court enhanced Dortch's sentences. Dortch later filed a petition for post-conviction relief (PCR), alleging that the circuit court erred in enhancing his sentences. After the circuit court denied Dortch's PCR petition, he filed this appeal. We affirm.

         PROCEDURAL FACTS

         ¶2. After Dortch's guilty pleas, the circuit court sentenced him to two ten-year concurrent terms of imprisonment in the custody of the Mississippi Department of Corrections (MDOC), with five years suspended from each sentence, five years of supervised probation for each sentence, and an additional five-year enhancement term to run consecutively to each ten-year term, for a total to ten years to serve.

         ¶3. As stated, Dortch filed a PCR petition, arguing that the circuit court erred in enhancing his sentences pursuant to Mississippi Code Annotated section 97-37-37 (Rev. 2014). His argument before the circuit court, as it is here, was that the circuit court erred because he "was not given notice that the court was seeking the enhancement." Specifically, Dortch contends that the court erred when it enhanced his sentence despite the fact that the State had failed to include the enhancements in his two indictments, and never mentioned the enhancements during plea negotiations or in its plea offer. Further, Dortch maintains that he did not receive "any notice of the enhancement[s] until the original plea date of November 1[7], 2014, [1] and only then, by the trial judge. " Additional facts, as necessary, will be related during our discussion of this matter.

         DISCUSSION

         ¶4. "Whether a defendant received fair notice of a sentence enhancement is a question of law that [appellate courts] review de novo." Sallie v. State, 155 So.3d 760, 762 (¶7) (Miss. 2015).

         ¶5. Dortch's initial plea hearing took place on November 17, 2014, during which Dortch stated that he wished to plead guilty to both offenses for which he was charged. The November 17, 2014 plea-hearing transcript is void of any on-the-record mention of the two sentence enhancements.[2] However, the court did not accept his guilty plea at that time.

         ¶6. Dortch's plea hearing was continued until December 8, 2014, during which the first on-the-record mention of the two sentence enhancements took place:

[BY THE COURT]: Do you also understand that both of these cases involve the use of a firearm in the commission of the crime, and under 97-37-37, I'm mandated to impose a separate sentence in each case of five years. That would be in addition to any ...

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