IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-CA-01650-COA
DERRICK DORTCH APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 10/14/2015
TRIAL JUDGE: HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: CYNTHIA ANN STEWART
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: KAYLYN HAVRILLA MCCLINTON
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: PETITION FOR POST-CONVICTION
RELIEF DENIED
DISPOSITION: AFFIRMED – 04/18/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
IRVING, P.J., FOR THE COURT:
¶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.
1
Both parties argue, and the front page of the transcript indicates, that the initial plea
hearing took place on November 11, 2014. However, the rest of the record—including the
actual transcript of the hearing—indicates that the hearing actually took place on November
17, 2014. This inconsistency is most likely the result of a scrivener’s error; for clarity, we
will use November 17, 2014, as the hearing date.
2
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 sentence imposed for each of those offenses. Do you
understand that?
[BY DORTCH]: Yes, sir.
****
[BY THE COURT]: And knowing that, do you still wish to go forward with
your plea?
[BY DORTCH]: Yes, sir.
2
Of note, however, is that both parties contend in their briefs that Dortch first
received notice of the sentence enhancements on the date of his initial plea
hearing—November 17, 2014. Further, on December 8, 2014, when the trial judge first
addressed the sentence enhancements, counsel for Dortch acknowledged that he had learned
of these enhancements “at the beginning of the plea, but originally, [they were] not part of
the recommendation by the State. [They were] not in the original recommendation, and my
client was not indicted under the enhancement portion.” Thus, while Dortch may have
received notice of the enhancements on November 17, 2014, such notice must have taken
place off the record.
3
****
[BY THE COURT]: Do you understand that I’m not bound by any
recommendation the State may make as to sentence and, instead, I could
impose the maximum sentence authorized by law for each of these offenses
and order that [they] run consecutively to each other?
[BY DORTCH]: Yes, sir.
[BY THE COURT]: And on top of that, I could tack on the additional five-
year mandatory punishment for each of these offenses - -
[BY DORTCH]: Yes, sir.
[BY THE COURT]: - - because of the use of a firearm?
[BY DORTCH]: Yes, sir.
[BY THE COURT]: And knowing that, do you still wish to go forward with
your plea?
[BY DORTCH]: Yes, sir.
After this conversation, the trial court asked the State for the factual basis and received the
State’s sentencing recommendation, which included the two sentence enhancements. After
the State gave its recommendation, the court asked Dortch if that was the recommendation
he expected to hear, to which Dortch answered, “yes, sir.” The court then asked Dortch’s
counsel if that was the recommendation that he had received from the State and
communicated to his client prior to the beginning of the plea. Counsel answered as follows:
Your Honor, at the beginning of the plea, but originally, it was not part of the
recommendation by the State. It was not in the original recommendation, and
my client was not indicted under the enhancement portion and at the
sentencing phase I would like to be heard in argument that the enhancement
does not apply.
4
The court requested counsel to approach the bench and held an off-the-record conference.
When the proceedings resumed, the court, without addressing the sentence enhancements,
stated:
All right. Mr. Dortch, the bottom line, it’s not too late at this point to stop this
hearing and proceed to trial, but it will be after I accept your pleas of guilty.
So before I do that, I need to make sure this is what you want to do. Do you
want to plead guilty?
Dortch responded, “Yes, sir.” Thereafter, he pleaded guilty to both charges.
¶7. Immediately after Dortch’s guilty pleas were accepted, Dortch’s counsel renewed
Dortch’s argument regarding the sentence enhancements. The court found that although
Dortch’s indictments did not include section 97-37-37, Dortch had been aware of the
enhancements “for some while because [the parties had] gone over [them] a couple of times
in open court.”3
¶8. In support of his argument in his PCR petition and again on appeal, Dortch cites
Sallie, 155 So. 3d at 763 (¶¶9-10), in which our supreme court found that the defendant,
Sallie, “received no proper notice regarding the fact that he was facing a firearm
enhancement that would increase his sentence by ten years,” where he was not notified that
he might be sentenced under the enhancement until after he was convicted by a jury and only
then by the trial court, sua sponte. Sallie was indicted for aggravated assault and possession
of a firearm as a felon. Id. at 761-62 (¶3). “Sallie’s indictment did not indicate that the State
3
Our perusal of the record does not indicate any times that the enhancements were
discussed other than at the December 8, 2014 plea hearing.
5
would seek any sentence enhancement. Furthermore, the State in no way indicated pretrial
that it would seek the firearm enhancement.” Id. at 763 (¶9). After Sallie was convicted of
the two charges, the trial judge,4 without provocation by the State, invoked the firearm-
enhancement provision set forth in Mississippi Code Annotated section 97-37-37(2) and
sentenced Sallie thereunder. Id. at 762 (¶3).
¶9. Sallie appealed his sentence on the basis that “he did not receive fair, pretrial notice
that he might be sentenced under the firearm enhancement statute,” thereby resulting in
“unfair surprise” and a violation of his due-process rights. Id. at (¶5). This Court affirmed
Sallie’s convictions and sentence on the basis that, “given the elements of the crimes as listed
in the jury instructions, the jury in this case found the elements of the firearm enhancement
beyond a reasonable doubt.” Id. at 763 (¶8). The Mississippi Supreme Court agreed with
our analysis as to this point. Id. However, the supreme court reversed our decision on the
basis that our analysis “fail[ed] to address the crux of Sallie’s argument, that he has a right
to fair notice that the sentence enhancement is being sought.” Id. Further, the supreme court
concluded that “Sallie did not receive timely or sufficient notice that the State[5] intended to
enhance his sentence using the firearm enhancement,” which “violated his right to due
process, as he was not given a fair opportunity to present a defense and he was unfairly
4
We note that the trial judge in Sallie and the trial judge here are the same.
5
The supreme court recognized in a footnote that the State “did not actually seek the
firearm enhancement, but that the trial court raised it sua sponte. However, after the trial
court raised the issue, the [State] argued in support of applying the firearm enhancement to
Sallie’s sentence.”
6
surprised by the post-conviction notice that the firearm enhancement would be considered.”
Id. at 764 (¶¶13-14).
¶10. The circuit court, in its order denying Dortch’s PCR petition, found that Sallie was
inapplicable to Dortch’s case because Dortch was given adequate notice of the possible
sentence enhancements:
It is clear from a review of the transcript of the proceedings on November 11th
[sic] and December 8, 2014, prior to the entry of his plea of guilty, Dortch was
advised of the applicability of [section] 97-37-37(1) and the effect it would
have upon his sentence. He was advised of the mandatory five (5) year
additional term for each count and that it would run consecutively to the
sentence for each underlying offense. Dortch acknowledged that he
understood and wished to go forward with his pleas of guilty.
We agree. Dortch is distinct from Sallie in the critical aspect that Dortch was notified of the
potential sentence enhancements prior to the court accepting his guilty pleas, whereas Sallie
was not notified until after a jury convicted him. Although a mere matter of minutes
separates Dortch’s and Sallie’s circumstances—here, Dortch was notified, at least on the
record, of the enhancement minutes prior to entering his guilty plea, whereas Sallie was
notified minutes after his conviction—the results are substantial. Had Sallie been notified
of the firearm enhancements prior to his conviction, he might have chosen to alter his defense
strategy in accordance with those enhancements. In contrast, Dortch had the ability to
proceed to trial after learning that his sentences would be enhanced. The trial court notified
him that his sentence would be enhanced prior to his entering his guilty plea, and specifically
asked him before the court accepted his guilty plea and adjudicated him guilty if he
7
understood that the court was required to impose the mandatory firearm enhancement on both
of his convictions.6 As such, we find that Dortch’s case is distinguishable from Sallie, and
that Dortch, unlike Sallie, was not unfairly surprised or prejudiced with respect to the firearm
enhancements.
¶11. No case law requires that an indictment include an actual reference to the sentence
enhancement; rather, federal and Mississippi jurisprudence only require that an indictment
include the facts involved in such an applicable sentence enhancement, such that those facts
are required to be proven beyond a reasonable doubt.7
¶12. In this case, Dortch was indicted for aggravated assault and shooting into an occupied
dwelling. The facts required for application of the firearm enhancement were contained in
both of Dortch’s indictments. Shooting into an occupied dwelling necessarily requires proof
that a firearm was used. The same is true for the commission of the crime of aggravated
assault in this case because the aggravated-assault charge is that Dortch shot at his victim
with a handgun. As such, it cannot be reasonably argued that Dortch was not put on notice
that he might be sentenced under the firearm-enhancement statute. Dortch, along with the
6
However, we note that Dortch’s defense strategy likely would not have changed
significantly whether he considered the firearm enhancements or not, as the facts required
for proving the enhancements are heavily intertwined with the facts of the two crimes with
which Dortch was charged.
7
The Apprendi requirement that such a fact be submitted to a jury is waived here,
due to the fact that Dortch entered a plea of guilty with respect to both charges; as Dortch
waived his right to a jury trial by pleading guilty, he also waived the requirement that the
jury serve as fact-finder with respect to the sentence enhancements. Apprendi v. New Jersey,
530 U.S. 466, 490 (2000).
8
rest of the general public, received notice of the statute’s existence on the day it was passed
by the Mississippi Legislature. Upon receiving his indictment, Dortch knew or should have
known that the firearm enhancement was a possibility with respect to the particular crime for
which he was charged.
¶13. Dortch was clearly notified by the court prior to entering his guilty pleas that the court
would enhance his sentences. According to his attorney’s statement, they were not aware at
the beginning of the plea hearing on November 17, 2014, that the State intended to seek the
sentence enhancement. However, Dortch did not plead guilty until December 8, 2014, and
the record indicates that at some point during the November 17, 2014 plea proceedings, he
became aware that the State would recommend that his sentences be enhanced. Therefore,
we find no merit to his contention that he was unfairly surprised by the fact that the State
sought the sentence enhancements.
¶14. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY
DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, FAIR, WILSON AND
GREENLEE, JJ., CONCUR. WESTBROOKS, J., DISSENTS WITHOUT
SEPARATE WRITTEN OPINION
9