IN THE SUPREME COURT OF MISSISSIPPI
NO. 2015-KA-01220-SCT
RODNEY D. RUSHING a/k/a RODNEY RUSHING
a/k/a DEWAYNE RUSHING a/k/a RODNEY
DEWAYNE RUSHING
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 08/13/2015
TRIAL JUDGE: HON. DAVID H. STRONG, JR.
TRIAL COURT ATTORNEYS: BRENDON ADAMS
JASON BARRETT
COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC
DEFENDER
BY: ERIN ELIZABETH PRIDGEN
GEORGE T. HOLMES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY: DEE BATES
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 07/21/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE DICKINSON, P.J., COLEMAN AND BEAM, JJ.
BEAM, JUSTICE, FOR THE COURT:
¶1. Rodney D. Rushing was indicted by a Lincoln County grand jury of unlawful
possession of six dosage units of amphetamine, in violation of Mississippi Code Section 41-
29-139 (Rev. 2013). A jury found Rushing guilty of the charged offense, and the trial court
sentenced Rushing to three years in the custody of the Mississippi Department of Corrections
(MDOC), as a habitual offender pursuant to Mississippi Code Section 99-19-81 (Rev. 2015).
Rushing thereafter filed a motion for a judgment notwithstanding the verdict (JNOV) or in
the alternative, a motion for a new trial, which the trial court denied. He then filed a notice
of appeal. On appeal, appellate counsel for Rushing filed a Lindsey brief,1 stating there are
no arguable issues on appeal. Having reviewed the record, we affirm the trial court’s
judgment of conviction and sentence.
FACTS AND PROCEDURAL HISTORY
¶2. On July 28, 2014, Officer Brian Cavin of the Brookhaven Police Department and
another officer were dispatched to an abandoned house in Brookhaven, Mississippi, on the
report of suspicious activity at the location. Upon arrival at the location, Cavin saw a small
brown car parked next to a line of woods running next to the house. Officer Cavin saw track
marks leading from the car into the woods. Officer Cavin walked toward the back of the
house on the side where the tracks were located, while the other officer walked around the
other side of the house. A black pickup truck was parked behind the house. As Cavin
approached the pickup, he saw flashlights coming from inside the woods. He “ordered the
subjects out of the woods,” and four individuals walked out. Cavin detained the individuals
and called for additional officers to come to the scene. One of the individuals was Rushing,
whom Cavin identified at trial.
1
In Lindsey v. State, 939 So. 2d 743 (Miss. 2005), this Court set forth a procedure for
appellate counsel representing a criminal defendant to follow when no arguable issues appear
to exist in the record.
2
¶3. The officers handcuffed each of the individuals and moved them to the road in front
of the house. Rushing was the driver of the brown vehicle parked in front of the house.
While inspecting the vehicle, Cavin saw in plain view some pills sitting in one of the
cupholders inside the vehicle.
¶4. Another officer, while searching Rushing, found a pill in Rushing’s pants pocket.
Agent Keith Dickerson, a narcotics agent with Lincoln County Sheriff’s Department, was
then called to the scene. Upon arrival, Dickerson collected the pill removed from Rushing’s
person along with the pills located in the brown vehicle. The pills all had the same
pharmaceutical markings. The Mississippi Crime Laboratory later determined that all of the
pills were amphetamines.
¶5. Rushing told Dickerson the pills belonged to him and that he had a prescription for
them. Dickerson told Rushing if he could produce a prescription for the pills, any charges
filed against him for illegal possession of narcotics would be dropped. Rushing never
provided a valid prescription for the pills.
¶6. In November 2014, a Lincoln County grand jury indicted Rushing for illegal
possession of six (6) dosage units of amphetamine in violation of Section 41-29-139. The
trial court appointed legal counsel to represent Rushing. That attorney later withdrew from
the case due to a conflict. The trial court then appointed new counsel to assist Rushing, and
trial was scheduled for August 13, 2015.
¶7. A pretrial status hearing was held two days before trial on August 11, 2015, in which
both Rushing and his attorney appeared before the trial court. Rushing’s attorney advised
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the court that they had been involved in plea negotiations with the district attorney’s office
the week prior. But the offers proposed by the district attorney’s office since had been
rejected by Rushing and Rushing was requesting a trial. Rushing’s attorney told the court
that she had advised Rushing that a late guilty plea would result in a blind plea with the court.
The State told the trial court that it would be requesting leave from the court to amend
Rushing’s indictment to include habitual-offender status under Section 99-19-81. The State
informed the trial court that Rushing was aware the State would be seeking an amendment.
¶8. At that point, the trial court queried Rushing as to whether Rushing understood that
if his indictment were amended to charge Section 99-19-81 habitual-offender status, and
Rushing were convicted, then Rushing would receive the maximum penalty for the
underlying offense, which is three years–to be served day for day in the custody of the
MDOC. Rushing told the trial court that he understood.
¶9. Rushing’s indictment was amended that day to include habitual-offender status under
Section 99-19-81, based on evidence that Rushing had been “convicted twice previously of
felonies upon charges separately brought and arising out of separate incidents at different
times and for which Rushing was sentenced to separate terms of one year or more in a penal
institution in Mississippi.” The instant matter proceeded to trial two days later, on August
13.
¶10. At trial, following the State’s case-in-chief, Rushing offered for his defense the
testimony of Pepper Allen. Allen testified that she was with Rushing the night of July 28,
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when Rushing was arrested at the vacant house. She told the jury that the pills found by the
police belonged to her and that she had a prescription for them.
¶11. According to Allen, earlier that evening while at a local car wash with Rushing and
others, she had washed the car in which the pills later were found. The car, a gold Saturn,
belonged to David Wise, who also was with the group the night Rushing was arrested. Allen
said she had removed the pills from her pocket and placed them in the car’s cupholder so
they would not get wet. She forgot to retrieve the pills afterward when she left the car wash
with her boyfriend in his black pickup truck. When asked why she did not tell the police the
pills belonged to her, Allen said because no one had asked, and she had forgotten that she
had left the pills in Wise’s vehicle.
¶12. Rushing testified after Allen. Rushing corroborated Allen’s testimony that the pills
belonged to Allen, and that Allen had put them in Wise’s cup holder so they would not get
wet. Rushing added that Allen had handed him one other pill to put in the cupholder but he
had forgotten, and had put it in his pants pocket.
¶13. Rushing told the jury that when officers questioned him later that evening about the
pills, he had forgotten they belonged to Allen. Rushing said he was concerned at the time
about his friend Wise, who did not have a driver’s license, which is why he told the police
he was driving the vehicle. Rushing said he told the police the pills belonged to him because
he had a prescription for Adderall, though with a lesser milligram dosage. But since he had
a prescription, he thought it best to say the pills belonged to him so Wise would not get in
trouble.
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¶14. The jury found Rushing guilty of unlawful possession of at least two but less than ten
dosage units of amphetamine. The trial court sentenced Rushing to three years in the custody
of the MDOC, as a habitual offender under Section 99-19-81. The trial court further ordered
Rushing to pay a $3,000 fine, $300 in restitution to Southwest Narcotics Unit, and $444.50
in court costs.
¶15. The State Public Defender, Indigent Appeals, handled Rushing’s appeal. Appellate
counsel submitted a Lindsey brief stating no arguable issues existed on appeal. Appellate
counsel requested this Court grant Rushing additional time to file a pro se brief.
¶16. By order entered on January 12, 2016, this Court granted Rushing until February 22,
2016, to file a brief. That time has since expired, and this matter has been submitted for a
decision on the merits.
DISCUSSION
¶17. In Lindsey, this Court outlined the following procedure when appellate counsel
determines there are no appealable issues in the record. Lindsey, 939 So. 2d at 748.
(1) Counsel must file and serve a brief in compliance with Mississippi Rule of
Appellate Procedure 28(a)(1)-(4),(7); see also [Smith v.] Robbins, 528 U.S.
[259, 280-81, 120 S. Ct. 746, 145 L. Ed.2d 756 (2000)] (stating that “counsel’s
summary of the case’s procedural and factual history, with citations of the
record, both ensures that a trained legal eye has searched the record for
arguable issues and assists the reviewing court in its own evaluation of the
case.”).
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify
that there are no arguable issues supporting the client’s appeal, and he or she
has reached this conclusion after scouring the record thoroughly, specifically
examining: (a) the reason for the arrest and the circumstances surrounding
arrest; (b) any possible violations of the client’s right to counsel; (c) the entire
trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial
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misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into
evidence or not; and (h) possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to the defendant,
inform the client that counsel could find no arguable issues in the record, and
advise the client of his or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issue or should the appellate
court discover any arguable issue in its review of the record, the court must,
if circumstances warrant, require appellate counsel to submit supplemental
briefing on the issue, regardless of the probability of the defendant’s success
on appeal.
(5) Once briefing is complete, the appellate court must consider the case on its
merits and render a decision.
Lindsey, 939 So. 2d at 748 (internal citations and footnotes omitted).
¶18. For purposes of thorough review, we find that the only potential arguable issue in this
case was the fact that Rushing’s indictment was amended two days before trial to contain
Section 99-19-81 habitual-offender status.
¶19. Currently, Rule 7.09 of the Uniform Rules of Circuit and County Court provides that
amendments to indictments are permissible as long as the defendant is not unfairly surprised
and has reasonable notice for preparation of a defense. Rule 7.09 states:
All indictments may be amended as to form but not as to the substance of the
offense charged. Indictments may also be amended to charge the defendant as
an habitual offender or to elevate the level of the offense where the offense is
one which is subject to enhanced punishment for subsequent offenses and the
amendment is to assert prior offenses justifying such enhancement (e.g.,
driving under the influence, Miss. Code Ann. § 63-11-30). Amendment shall
be allowed only if the defendant is afforded a fair opportunity to present a
defense and is not unfairly surprised.
URCCC 7.09.
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¶20. While Rule 7.09 “does not speak to the timing of the amendment,” it instructs that
“the defendant must be ‘afforded a fair opportunity to present a defense’ and ‘not be unfairly
surprised.’” Gowdy v. State, 56 So. 3d 540, 545 (Miss. 2010) (quoting URCCC 7.09).
“Whether notice of a possible enhanced sentence was given sufficiently in advance of trial
‘should be considered on a case-by-case basis.’” Williams v. State, 131 So. 3d 1174, 1177
(Miss. 2014) (quoting McCain v. State, 81 So. 3d 1055, 1061 (Miss. 2012)).
¶21. The record illustrates that, through formal pleadings filed two days in advance of trial,
the State informed Rushing of its intent to seek enhanced punishment under Section 99-19-
81. The State’s motion provided details of Rushing’s two prior felony convictions and
sentences, to wit: on October 25, 2000, Rushing pleaded guilty in the Lincoln County Circuit
Court to burglary of a dwelling, in Cause Number 00-292-MS, and he was sentenced to nine
years in the custody of the MDOC; and, on October 20, 2008, Rushing pleaded guilty in the
Lincoln County Circuit Court to felony motor-vehicle theft, in Cause Number 08-203-LS-LT,
and he was sentenced to seven years in the custody of the MDOC. The State submitted a
sentencing order for each prior conviction in its motion to amend.
¶22. At the August 11 pretrial hearing, Rushing’s trial counsel, Lesa Baker, indicated to
the trial court that she and Rushing previously had discussed his prior convictions. Baker
informed the trial court that Rushing “was under a belief that the first felony had been
expunged.” Baker told the court she personally had pulled the file on that conviction and
found no paperwork reflecting an expungement. She said the file contained information that
Rushing and his probation officer had met with the judge who had presided over that matter,
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and that Rushing had been discharged from MDOC custody because he was in the process
of going into the National Guard. But Baker reiterated that she did not see anything that
showed an expungement and Rushing had not provided her any paperwork to that effect. At
the conclusion of the hearing, the trial court found that Rushing’s two prior convictions and
sentences fall within the confines of Section 99-19-81.
¶23. Based on the record, we cannot say that the State failed to provide Rushing adequate
notice of its intent to seek enhanced punishment for Rushing as a recidivist under Section 99-
19-81, or that Rushing was “unfairly surprised” by the State’s amendment request. Rushing
did not dispute either of his prior convictions; rather, he claimed the 2000 conviction had
been expunged. As his attorney told the trial court, no evidence supports Rushing’s
expungement claim. And even if such evidence did exist, Rushing still would have to
contend with Mississippi Code Section 45-27-21 (Rev. 2015), which states, in pertinent part,
that “[a]ny criminal conviction which has been expunged or nonadjudictated may be used for
the purpose of determining habitual offender status . . . .”
¶24. Based upon this Court’s review of the record, Rushing’s appellate attorney has
complied with Lindsey’s requirements. We find no issues that require supplemental briefing.
CONCLUSION
¶25. Accordingly, we affirm Rushing’s conviction and sentence.
¶26. CONVICTION OF UNLAWFUL POSSESSION OF AT LEAST TWO (2) BUT
LESS THAN TEN (10) DOSAGE UNITS OF AMPHETAMINE AND SENTENCE OF
THREE (3) YEARS TO SERVE DAY FOR DAY, AS A HABITUAL OFFENDER, IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED. THE APPELLANT SHALL PAY A FINE IN THE AMOUNT OF $3,000,
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RESTITUTION IN THE AMOUNT OF $300 TO SOUTHWEST NARCOTICS UNIT,
AND COURT COSTS IN THE AMOUNT OF $444.50.
WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS,
KING, COLEMAN AND MAXWELL, JJ., CONCUR.
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