¶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.
¶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, 2014,
¶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.
¶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:
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:
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:
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."
¶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 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,
¶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[
¶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:
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 understood that the court was required to impose the mandatory firearm enhancement on both of his convictions.
¶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.
¶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 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.