author: LAMAR, Justice, WALLER, Chief Justice, DICKINSON, Presiding Justice, CHANDLER, Justice,

text:
    In the Interest of S.M.K.S., A Minor v. YOUTH COURT OF UNION COUNTY, Mississippi.
    No. 2012-CT-01237-SCT.
    Supreme Court of Mississippi.
    Jan. 22, 2015.

      Tiffany L. Kilpatrick, David G. Hill, Oxford, attorneys for appellant.
    Stephen P. Livingston, attorney for ap-pellee.
   ON WRIT OF CERTIORARI

LAMAR, Justice,

for the Court:

¶ 1. The Court of Appeals affirmed the Union County Youth Court’s adjudication of thirteen-year-old S.S. as a delinquent for resisting arrest, and we granted S.S.’s petition for certiorari. After review, we find no error in the Court of Appeals’ conclusion, and we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 29, 2011, the New Albany Police Department received a report that shots had been fired in the vicinity of Madison Street, Garfield Street, or Hayes Street. All of these streets intersected and were “right there together on the north side of town.” Officer Ben Kent heard the report — which he classified as a “serious situation” — activated his blue lights and siren and headed to the north side of town. On the way, the report was updated to state that the suspects were driving a tan Cutlass. When Officer Kent heard this new information, he headed to Cleveland Street, because he “knew that there was a tan Cutlass that stayed on Cleveland Street at the duplex apartments.”

¶ 3. When Officer Kent arrived at the duplex, he saw the tan Cutlass and an SUV parked in front, and he noticed “several people in the yard.” Officer Kent stopped his car in order to “keep the SUV in between [him] and the people in the yard to give [himself] a little bit of cover.” Officer Kent got out of his patrol car and drew his weapon. He focused his attention on S.S.’s sixteen-year-old brother, D.S., but was trying to keep S.S. in his peripheral vision. Officer Kent began giving them orders to “let [him] see their hands.” Officer Kent testified that he continued to approach the two of them, continued to order them to show their hands, and then he told them to put-their hands on the car. When Officer Kent ordered them to put their hands on the car, S.S. stated “I’m not putting my hands on the car.”

¶ 4. At that point, Officer Kent testified that he holstered his pistol and put S.S. “over the hood-of the car to gain [S.S.’s] compliance so that [he] could pat [S.S.] down to check whether or not he had weapons.” Other members of the New Albany Police Department arrived around that time. S.S. continued to struggle with Officer Kent. According to Officer Gabe Wilson, S.S. was “doing everything [he could] to keep from putting his hands behind [his back]. He’s kicking. He’s yelling. He’s punching. He’s doing whatever he can to try to keep the officers from taking control.” Officer Brent Baker eventually tased S.S., and he stopped struggling. Officer Wilson handcuffed S.S. and put him in a patrol car.

¶ 5. Officer Kent then turned his attention toward D.S., while Officer Stewart Dodds attempted to keep onlookers away from the other officers. Officer Dodds testified that he noticed a “large crowd,” and that there were two other individuals near the car. He kept his attention on these individuals because they were “kind of trying to run off,” and the officers “didn’t know where the gun was at [that] time.” Officer Wilson described the scene as “mass chaos.” He described how the officers tried to “get the scene secure” and as “safe as possible,” because there were “some smaller children in the area” and some “elderly people.” And, according to Officer Dodds, it was the “most hostile environment” he had experienced during his four years as a police officer.

¶ 6. In May 2011, the Union County prosecuting attorney filed a petition alleging that S.S. should be adjudicated a delinquent child for resisting arrest, in violation of Mississippi Code Section 97-9-73. On July 20, 2012, the Youth Court conducted a hearing on the State’s petition. Officers Kent, Wilson, Baker, Dodds, and several other officers testified regarding their involvement in the events that led to S.S.’s arrest, and S.S. presented one witness in his defense. The Youth Court ultimately adjudicated S.S. a delinquent child for “committing the act of arrest: resisting or obstructing in violation of § 97-9-73 ...” S.S. appealed, and we assigned his case the Court of Appeals, which affirmed the Youth Court. We then granted S.S.’s petition for certiorari.

STANDARD OF REVIEW

¶ 7. The Court of Appeals correctly stated that the standard of review for youth-court matters is the reasonable-doubt standard:

We consider all the evidence presented to the youth court in the light most favorable to the State. If the evidence is such that, beyond a reasonable doubt, reasonable [minds] could not have reached the youth court’s conclusion, we must reverse. However, if the evidence in the record supports the youth court’s adjudication, considering the reasonable doubt standard, then we must affirm.

In re S.M.K.S., No.2012-CA-01237-COA, 155 So.3d 876, 878-79, 2014 WL 43968, *2 (Miss.Ct.App. Jan. 7, 2014) (quoting In re L.C.A., 938 So.2d 300, 303 (Miss.Ct.App.2006)); see also In re D.K.L., 652 So.2d 184, 189 (Miss.1995).

ANALYSIS

¶ 8. In his brief before the Court of Appeals, S.S. stated that the “sole” issue on appeal is:

Whether Officer Ben Kent lacked sufficient probable cause thereby rendering the arrest of S.S. unlawful such that the prosecution could not prove the essential element of “lawfulness” necessary to adjudicate S.S. delinquent on the grounds of resisting arrest as a matter of law.

We interpret S.S.’s argument as follows: Officer Kent did not have “probable cause” to arrest S.S. for anything; thus Officer Kent’s actions in arresting S.S. were unlawful, and one cannot be properly charged and convicted of resisting an unlawful arrest. We address these arguments in turn.

¶ 9. S.S. argues that Officer Kent had no probable cause to arrest him for firing the shots. First, we find nothing in the record to support S.S.’s assertion that he was being placed under arrest for firing the shots. Second, we find that S.S.’s probable-cause argument is a red herring. It is true that the Youth Court petition does not cite the underlying crime for which S.S. allegedly was resisting arrest. But the Juvenile Detention Report states that S.S. was charged with “disorderly conduct,” along with resisting arrest. So we cannot agree with S.S.’s argument that Officer Kent had to have probable cause to arrest him for discharging the weapon in order for his arrest to be lawful.

¶ 10. Rather, we must determine if Officer Kent’s arrest of S.S. for disorderly conduct was lawful. We first note that, because Officer Kent personally observed S.S. committing what he perceived to be a breach of the peace — the underlying offense for which S.S. was arrested — the requirement of probable cause was not implicated. See, e.g., Bird v. State, 154 Miss. 493, 122 So. 539, 540 (1929) (“It is well settled that an officer may make an arrest for a misdemeanor committed in his presence without a warrant....”); see also Miss.Code Ann. § 99-3-7(1) (Rev. 2007) (“An officer or private person may arrest any person without warrant, for ... a breach of the peace threatened or attempted in his presence.... ”).

¶ 11. Second, we find that Officer Kent’s actions in arresting S.S. for disorderly conduct were lawful under the facts of this case. Officer Kent — in response to a report of shots fired and to what he classified as a “serious situation” — testified that he drew his weapon and approached S.S. and his older brother D.S. and began ordering them to show their hands. Officer Kent testified that he continued to approach the two of them, continued to order them to show their hands, and then told them to put their hands on the car. When Officer Kent ordered them to put their hands on the car, S.S. stated “I’m not putting my hands on the car.”

¶ 12. We find that S.S.’s refusal to “promptly comply with or obey a request, command, or order of’ Officer Kent — “a law enforcement officer, having the authority to ... arrest any person for a violation of the law” — constituted a circumstance “which may cause or occasion a breach of the peace,” as two of the other officers at the scene described the situation as “very hostile” and as “mass chaos.” So Officer Kent, as a New Albany police officer, lawfully arrested S.S. for disorderly conduct when S.S. failed to obey Kent’s commands to show his hands or to place his hands on the car under circumstances that could lead to a breach of the peace, which is all that is required under the disorderly conduct statute.

¶ 13. Finally, the evidence introduced at the delinquency hearing certainly shows that S.S. resisted arrest, and S.S. does not appear to deny that he did. Officer Kent testified that, after S.S. refused to place his hands on the car, he holstered his weapon and put S.S. “over the hood of the car to gain [S.S.’s] compliance so that [he] could pat [S.S.] down to check whether or not he had weapons.” Other officers had arrived on the scene by that time, and S.S. continued to resist being patted down. S.S. struggled and would not put his arms behind his back, and some of the other officers ultimately tased S.S. to gain compliance.

¶ 14. So, in sum, we find that sufficient evidence exists to support the Union County Youth Court’s adjudication of S.S. as a delinquent. Officer Kent personally observed S.S. refuse to comply with his orders under circumstances that “may cause or occasion a breach of the peace.” He was therefore authorized by statute to arrest S.S. for disorderly conduct. And because S.S. resisted that lawful arrest, he was properly adjudicated a delinquent. We cannot say, after viewing all the evidence in the light most favorable to the State, that “reasonable minds could not have reached the youth court’s conclusion beyond a reasonable doubt,” and we therefore affirm the decision of the Court of Appeals and the Union County Youth Court.

¶ 15. AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., PIERCE AND COLEMAN, JJ., CONCUR. WALLER, C.J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., AND PIERCE, J.; JOINED IN PART BY LAMAR AND COLEMAN, JJ. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, CHANDLER AND KING, JJ. CHANDLER, J„ DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J.

WALLER, Chief Justice,

specially concurring:

¶ 16. I fully agree with the majority opinion and write separately to address the underlying Fourth Amendment issue presented by this case, which S.S. raises in his petition for certiorari. That issue is whether S.S. was seized within the meaning of the Fourth Amendment when Officer Kent approached him with his weapon unholstered. I would find S.S. was never seized because he never actually submitted to Officer Kent’s show of force. See Brendlin v. California, 551 U.S. 249, 254, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). Furthermore, Officer Kent’s actions were reasonable under the circumstances, and when he approached S.S., he had reason to believe S.S. might have information about a possible crime. Therefore, S.S.’s Fourth Amendment rights were not violated.

¶ 17. It should first be noted that whenever an individual’s Fourth Amendment rights are at stake, the issue of probable cause or reasonable suspicion is reviewed de novo. Eaddy v. State, 63 So.3d 1209, 1212 (Miss.2011) (quoting Dies v. State, 926 So.2d 910, 917 (Miss.2006)). This standard of review applies to all Fourth Amendment issues, including those raised in youth court. See In Interest of M.I., 519 So.2d 433, 436 (Miss.1988) (stating “neither the Fourteenth Amendment nor the Bill of Rights is for adults only” (citing In Re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527 (1967))).

¶ 18. The Fourth Amendment of the United States Constitution and Article 3, Section 28 of the Mississippi Constitution protect individuals from unreasonable searches and seizures. U.S. Const, amend. IV; Miss. Const, art. 8, § 23 (1890). This Court employs a two-part analysis to determine if a search or seizure is reasonable. Eaddy v. State, 63 So.3d 1209, 1212-13 (Miss.2011). The Court must determine “(1) whether the officer’s action was justified at its inception, and (2) whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Gonzales v. State, 963 So.2d 1138, 1142 (Miss.2007).

¶ 19. A police officer may approach an individual during the course of an investigation into possible 'criminal activity without the interaction rising to the level of a seizure requiring probable cause. Floyd v. City of Crystal Springs, 749 So.2d 110, 114 (Miss.1999). A police officer may even detain the person to conduct an investigatory stop when the officer has “reasonable suspicion, grounded in specific and articu-lable facts ...” that the person is connected with criminal activity. Eaddy v. State, 63 So.3d 1209, 1213 (Miss.2011); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). That is, a police officer does not need probable cause to approach an individual while investigating criminal activity. See Terry, 392 U.S. 1, 88 S.Ct. 1868. In fact, “[cjonsideration of the constitutionality of seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Floyd v. City of Crystal Springs, 749 So.2d 110, 117 (Miss.1999) (quoting Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979)); see also Singletary v. State, 318 So.2d 873, 876 (Miss.1975). When an officer has reason to believe that an individual may be armed and possibly may pose a danger to the officer and others, the officer is justified in taking the measures necessary to safeguard himself and the public. Terry, 392 U.S. at 24, 88 S.Ct. 1868. This includes a limited detention of an individual and a pat-down search of the outer clothing to ensure an individual is not armed. Id. Furthermore, the determination of probable cause for an arrest is a practical matter, based upon “conventional considerations of everyday life” and not legal technicalities. Strode v. State, 231 So.2d 779, 782 (Miss.1970).

¶ 20. The investigation of gunshots fired from a vehicle presents a dangerous and precarious situation. Police officers responding to such crimes must not only investigate the crime but must also take reasonable measures to safeguard themselves and others. Terry, 392 U.S. at 24, 88 S.Ct. 1868. As such, in the current case, we must first look at whether Officer Kent acted reasonably in having his weapons drawn. See id. And second, we must decide whether, under these circumstances, Officer Kent violated S.S.’s Fourth Amendment rights when he approached S.S. with his weapon drawn. See Floyd, 749 So.2d at 117.

¶ 21. Officer Kent arrived at the duplex shortly after the report of shots fired. Officer Kent found the tan Cutlass in front of the duplex with S.S. and others standing nearby. A significant crowd also had gathered in front of the duplex, adding complexity to this possibly deadly situation. Given the potential for harm to Officer Kent and members of the nearby crowd presented by a possible shooter at the duplex and the need to investigate the shooting, Officer Kent acted reasonably in having his weapon drawn when he exited his vehicle. See Singletary v. State, 318 So.2d 873, 877 (Miss.1975) (providing that, while making a reasonable investigatory stop, police officers have the right to protect themselves from attack by a hostile suspect).

¶ 22. Furthermore, Officer Kent did not violate S.S.’s Fourth Amendment rights by approaching him as part of his investigation. First, S.S. was never seized within the meaning of the Fourth Amendment because he was neither under physical control of Officer Kent, nor did he submit to Officer Kent’s show of authority. California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). In Hodari D., the United States Supreme Court addressed whether a seizure occurred where an officer made a “show of authority,” but the person refused to submit to that authority or to obey the officer’s commands. Id. The Supreme Court found that such a person is not “seized” for purposes of the Fourth Amendment, providing “the Fourth Amendment ... does not remotely apply ... to the prospect of a policeman yelling ‘Stop, in the name of the law!’ at a fleeing form that continues to flee. That is no seizure.” Id.; see also Brendlin v. California, 551 U.S. 249, 254, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (“A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise, there is at most an attempted seizure, so far as the Fourth Amendment is concerned.”).

¶23. Officer Kent, in responding to a report of shots fired from a tan Cutlass in that neighborhood, had the authority to investigate and to speak with individuals standing near the tan Cutlass, including S.S.See Floyd, 749 So.2d at 115. The fact that Officer Kent’s pistol was unhol-stered as he spoke to S.S. does not alone constitute a seizure. In United States v. Mendenhall, the U.S. Supreme Court found that a person is seized for purposes of the Fourth Amendment under circumstances in which a reasonable person would not feel free to leave. United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). In the current case, when Officer Kent approached S.S. and his brother D.S., Officer Kent had his weapon pointed at D.S. Officer Kent, rightly concerned about his safety and the safety of the nearby crowd, instructed both S.S. and D.S. to show him their hands. Only after S.S. refused to show Officer Kent his hands or to put his hands on the car, did Officer Kent seize S.S.All prior show of force had been directed at D.S.; therefore S.S. cannot argue he was seized at that point under the Fourth Amendment. To find otherwise would mean that every person in the yard at that moment who saw and heard Officer Kent was seized under the Fourth Amendment.

¶ 24. Additionally, S.S. was not unlawfully detained at any time prior to his refusal to obey Officer Kent’s orders. Officer Kent, as part of his investigation, was free to question S.S. because Officer Kent had reason to believe S.S. may have had information about or been involved in the shooting. See Eaddy, 63 So.3d at 1213. While Officer Kent testified that he believed D.S., and not S.S., was involved in the shooting, the facts that the shots recently had been fired in the area and reportedly from a vehicle matching the description of the car S.S. was standing beside, could cause a reasonable officer under the circumstances to conclude that S.S.may have had information regarding the shooting. Therefore, Officer Kent was justified in approaching S.S., and due to the threat posed by a potential armed gunman -in the area, Officer Kent acted reasonably in having his weapon unhol-stered as he approached S.S.

¶25. Because Officer Kent acted reasonably in having his weapon drawn, and because he had reason to believe S.S. might have information about a possible crime, Officer Kent did not violate S.S.’s Fourth Amendment rights when he initially approached him. Nor was S.S. ever seized prior to Officer Kent observing S.S.’s disorderly conduct, because S.S. never submitted to Officer Kent’s show of force. Therefore, I fully agree with the majority opinion in affirming the judgments of the Court of Appeals and the Union County Youth Court.

RANDOLPH, P.J., AND PIERCE, J., JOIN THIS OPINION. LAMAR AND COLEMAN, JJ., JOIN THIS OPINION IN PART.

DICKINSON, Presiding Justice,

dissenting:

¶ 26. This ease presents a troubling issue that both the majority and concurring justices skillfully avoid by reaching back to a civil-rights-era statute that was never argued to the trial judge, and that they presume empowers the police — even when they lack probable cause or reasonable suspicion — to order citizens to obey their commands, and to arrest them for “disorderly conduct” when they refuse.

¶ 27. According to the majority, a citizen standing on a public sidewalk who is committing no crime, who has committed no crime and who is not even suspected of having committed a crime may properly be arrested for “disorderly conduct ” for refusing to put his hands on a car to be searched by a police officer who admits he has no probable cause or reasonable suspicion to conduct the search.

¶ 28. And what is worse, for the majority to say that S.S. resisted arrest when he was being arrested for “disorderly conduct” stretches the outer bounds of any credible interpretation of the facts before us. The petition — the Youth Court’s version of an indictment — makes no mention of “disorderly conduct.” During the entire hearing before the Youth Court, the prosecutor never mentioned or argued “disorderly conduct,” let alone proved it. Defense counsel had no reason ’ to defend against “disorderly conduct” because it was neither mentioned in the petition nor raised by the prosecutor. And perhaps most importantly, the police officer who arrested S.S. never mentioned “disorderly conduct” and provided no testimony whatsoever about attempting to arrest S.S. for “disorderly conduct.”

¶ 29. But my concern goes far beyond the question of whether the State argued “disorderly conduct.” My fear is this Court’s casual, pervasive grant of power to the police to arrest citizens who have done nothing wrong and who are not suspected of having done anything wrong, simply because they do not agree to put their hands on a car to be searched.

¶ 30. I want to be very clear: Had Officer Kent testified that he was reasonably concerned that S.S. might have a weapon, I would not be writing this dissent. Had he testified that he reasonably suspected that S.S. was the one who fired the gun, I would not be writing this dissent. But Officer Kent testified his “concern wasn’t with S.S.” and he “did not think [S.S.] had shot the weapon.”

¶ 31. Did Officer Kent have a right to order S.S. to put his hands on the car? Not even the majority claims he did. The majority recognizes Officer Kent had no probable cause or reasonable suspicion concerning S.S. The majority says S.S. committed disorderly conduct, not for refusing to put his hands on the car, but because his refusal was likely to lead to a breach of the peace. This is an interesting conclusion by the majority, given that nothing even close to this argument was made by the prosecutor, or by Officer Kent.

¶ 32. As S.S. stated in his brief, “[t]he prosecution’s witnesses and the petition itself fail to point to a specific criminal act giving rise to the arrest that S.S. allegedly resisted.... ” This alone is reason enough to reverse this case. But I would reverse it for the additional reason that police officers who lack any probable cause or reasonable suspicion concerning a citizen have no right to order that citizen to put their hands on a car to be searched. And I am astonished that a majority of this Court believes otherwise. For these reasons, I respectfully dissent.

BACKGROUND FACTS

¶ 33. Thirteen-year-old S.S., who had done nothing wrong, stood on a public sidewalk near a parked car that fit the general description of a car from which a gunshot reportedly had been fired at another location. Investigating Officer Ben Kent spotted the unoccupied car parked near an apartment complex. Several other persons, including males — one of the males was S.S.’s older brother, D.S. — females, and children, were standing in a nearby yard. Officer Kent got out of his patrol car, drew his pistol, and approached the scene. He testified about the moments that followed:

Q. Officer, did you know both D.S. and S.S., you knew who they were?
A. I had never dealt with them personally. Some officers in the past had some dealings with them and gave me some information about where they stayed and the vehicle they were driving.
Q. Did you know who they were when you saw them when you drove up?
A. No, sir. I did not, not at the time.

¶ 34. In the Juvenile Detention Report, Officer Kent stated:

There were several people outside, so I drew my pistol and told all the males by the car to place their hands on the car so I could pat them down for weapons.

At this juncture, as Officer Kent approached with his pistol and began to order S.S. to show his hands and put his hands on the car, there is not a scrap of evidence to indicate that the men, women, and children who stood in the yard talking presented any threat of any kind.

¶ 35. Next, according to the Youth Court Petition, S.S. “resisted his lawful arrest by [Officer Kent] by refusing to put his hands on the car and struggling with the officers.” When Officer Kent was later asked what S.S. had done to “resist,” he replied: “Well, he just would not put his hands behind his back, struggling.”

¶ 36. Ordinarily, when a person resists arrest for some crime — say, assault — the person is indicted and prosecuted for both assault and resisting, arrest. That did not happen here. Officer Kent’s testimony clearly established that at no point did he ever suspect S.S. of having any involvement in the crime being investigated. In fact, Officer Kent testified that as he approached — with his weapon drawn — his “concern wasn’t with S.S.” and he “did not think [S.S.] had shot the weapon.”

¶ 37. Prior to Officer Kent’s move to arrest S.S., there is no evidence whatsoever that S.S. did anything other than say, “I’m not putting my hands on the car.” For that, the Youth Court adjudicated him a delinquent. It is from that adjudication that S.S. appeals.

ANALYSIS

¶ 38. The key issue is whether S.S. committed disorderly conduct. If he did not, then Officer Kent’s attempt to arrest S.S. was unlawful. And at least in theory, citizens have the right to resist an unlawful arrest.

■Arrest must be lawful

¶ 39. Police officers have no power to exercise any authority over citizens except the powers specifically granted by the statutes and ordinances that control their respective jurisdictions. And where a police officer without probable cause attempts to exercise the power to arrest, a citizen is justified in resisting that arrest. The statute that criminalizes resisting arrest— Section 97-9-73 — states:

It shall be unlawful for any person to obstruct or resist by force, or violence, or threats, or in any other manner, his lawful arrest or the lawful arrest of another person by any state, local or federal law enforcement officer, and any person or persons so doing shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not more than Five Hundred Dollars ($500.00), or by imprisonment in the county jail not more than six (6) months, or both.

This statute clearly and specifically restricts its reach to lawful arrests. Prior to today’s case, no statute criminalized resisting an unlawful arrest. Apparently, “disorderly conduct” now is an exception.

Disorderly conduct

¶40. The majority claims that S.S. committed the crime of disorderly conduct. The Mississippi Legislature enacted the disorderly conduct statute in 1964, during the Civil Rights movement’s sit-ins, protests, marches, and other acts of civil disobedience. Armed with the power of this new statute, police officers could arrest not only the protester or sit-in participant, but everyone else who refused to do whatever the officer ordered them to do during the course of the arrest. Specifically, the disorderly conduct statute states:

(1) Whoever, with intent to provoke a breach of the peace, or under such circumstances as may lead to a breach of the peace, or which may cause or occasion a breach of the peace, fails or refuses to promptly comply with or obey a request, command, or order of a law enforcement officer, having the authority to then and there arrest any person for a violation of the law....

The statute clearly does not come into play unless a law enforcement officer has “the authority to then and there arrest any person for a violation of the law.” The phrase “then and there” is not to be found in the- majority opinion, and understandably so, because Officer Kent had no authority “then and there” to arrest S.S. or anybody else.

¶ 41. I believe that the phrase “having the authority to then and there arrest any person for a violation of the law ” means an officer must have authority — at the particular time and place he gives the order— to arrest some particular person; and the authority to arrest requires probable cause. The arguments in favor of this interpretation are many.

¶42. First, no constitutional provision or statute grants police officers unbridled authority to make arrests. And no citation of authority is necessary for the universally accepted proposition that police officers are not authorized to arrest anyone without observing the crime or. possessing probable cause that the person committed a crime.

¶43. Also, and perhaps most importantly, this Court has expressed a view consistent with mine in numerous cases. For instance, this Court has said that if a police officer:

does not have authority to make an arrest at the instant he begins his pursuit for that purpose, the fact that the person the officer is pursuing violates in [sic] a traffic law in making his escape does not thereby authorize the arrest which began unlawfully.

If a police officer always has authority to make arrests within the officer’s jurisdiction, this language makes little sense.

¶ 44. In another case, this Court held:

The authority of the arresting officer in the instant case cannot be denied. It is undisputed that he was a peace officer and as such he had authority under [statute omitted] to make an arrest without a warrant if a felony had in fact been committed and he had reasonable cause to believe that defendant had committed it.

The Nash Court’s use of the word “if” as a qualifier to the officer’s authority makes it even more clear that officers do not have authority to make arrests without probable cause.

¶ 45. And in still another case, this Court stated:

It has been universally recognized as a rule of law in the United States that a police officer is authorized to arrest a person without a warrant where the officer has reasonable cause to believe a felony has been committed and that the person proposed to be arrested is the one who committed it.

¶46. These cases, and numerous others, clearly set forth the proposition that a police officer’s “authority to then and there arrest any person for a violation of the law” is limited to those instances where the officer has probable cause to arrest some person.

¶ 47. But there is a more compelling reason supporting my interpretation. Because both police officers and citizens alike have the general right to make arrests at any time or place, why would the “disorderly conduct” statute include the limiting language? Section 99-3-1 empowers police officers and citizens alike to make arrests. Section 99-3-3 says arrests “may be made at any time or place.” Clearly, the “disorderly conduct” statute granted police officers the power to give orders — and to arrest those who disobeyed those orders — during the course of a specific arrest.

¶ 48. At the very least, the interpretation of the “disorderly conduct” statute requiring the police officer to have probable cause to then and there arrest some particular person is in concert with numerous previous opinions from this Court and certainly is a reasonable interpretation. Thus, it should trump a different interpretation that is less favorable to a criminal accused. The majority provides no explanation why it fails to do so.

¶ 49. The majority’s description of the duplex yard as a “chaotic scene” conjures up visions of a crime scene fraught with danger, where menacing thugs milled around, shouting threats, brandishing knives and guns, and committing violent acts. But the facts in the record conclusively establish that Officer Kent voluntarily drove to a place where he had no reason to believe any crime had been committed. When he arrived (before the other police officers), he found a thirteen-year-old kid and some people standing in a yard, including women and children. There is nothing to suggest anyone was breaching the peace. There was no gun, knife, threat, or aggressive behavior of any kind on the part of anyone present, prior to Officer Kent pulling his gun and ordering S.S. to place his hands on the car.

¶ 50. The majority cites testimony by officers who arrived after Officer Kent had pulled the gun and ordered S.S. to place his hands on the car. Certainly, Officer Kent’s own actions do not justify charging S.S. with “disorderly conduct.” And it is noteworthy that Officer Kent’s appreciation of, or concern for, any danger was not such that he waited in his patrol car for back-up officers to arrive.

¶ 51. Here, we must simply ask who Officer Kent had probable cause “to then and there” arrest when S.S. “fail[ed] or refusefd] to promptly comply with or obey [his] request, command, or order.” The answer is that he had no probable cause to arrest anyone. The record lacks any evidence that Officer Kent already possessed probable cause to arrest anyone present when he drew his pistol and ordered S.S. to show his hands and put his hands on the car. Officer Kent’s only reason for going to the duplex on Cleveland Street instead of the location of the shooting was that he knew a car similar to the description often parked there.

¶ 52. The State presented no evidence that Officer Kent had information to connect any particular person present on Cleveland Street to the shooting or any other crime. Because the authority to arrest depends on the existence of probable cause, the State failed show that when Officer Kent ordered S.S. to put his hands on the car, he had the “authority to then and there arrest any person.”

¶ 53. It is a sobering and frightening suggestion that, just because police officers are generally authorized to make arrests, they have the power to order citizens to do whatever the officers want them to do, and that a citizen’s failure to comply with the officer’s orders — no matter how unreasonable — should be made a crime, even though the officer had no probable cause to arrest anyone, and not even sufficient reasonable suspicion to make an investigatory stop and search.

¶ 54. If the law is to be as the majority suggests today, then the following decades-old quote from Williamson v. State has no meaning at all:

An investigatory stop may be made even where officials have no probable cause to make an arrest as long as they have “reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony ... or ‘some objective manifestation that the person stopped is, or is about to be engaged in criminal activity.’ ”

Applying the majority’s interpretation of the disorderly conduct statute, I see little need for police officers to worry too much about the technicalities of reasonable suspicion, articulable facts, or probable cause. A savvy police officer need only give a person a few orders (“put your hands on the car” or “get off that sidewalk,” etc.) and as soon as the person fails to comply with one of the orders, the officer may skip the Terry stop and proceed directly to an arrest for disorderly conduct. And if the person resists, the officer may add the charge of resisting arrest and then, as here, abandon the arrest for disorderly conduct.

¶ 55. The majority stands untroubled by this danger because it assumes citizens are sufficiently protected by the statute’s requirement of a finding that the refusal to obey the officer’s order must demonstrate “intent to provoke a breach of the peace, or under such circumstances as may lead to a breach of the peace.” What protection did that requirement provide S.S.? He did nothing but say seven words: “I’m not putting my hands on the car.” I remind the reader that S.S. was a thirteen-year-old kid, standing on a public sidewalk, who had done nothing wrong. And knowing he had done nothing wrong, he simply refused to place his hands on a car. If the trial court can find that this simple refusal amounted to S.S.’s intent to breach the peace, than what would not? The majority’s perceived protection is no protection at all.

CONCLUSION

¶ 56. To conclude this doomed effort to ignite some interest in the constitutional protections being trampled today, I recite the following from the United States Supreme Court’s opinion in Terry v. Ohio:

[Cjourts still retain their traditional responsibility to guard against police conduct which is over-bearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires. When such conduct is identified, it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials.

The issue here is not whether at some point Officer Kent might have developed the right to frisk S.S. Rather, the issue is whether Officer Kent had probable cause to arrest S.S., or anyone else present, when he ordered S.S. to place his hands on the car. Because he did not, Officer Kent had no authority to arrest S.S. for disorderly conduct, and S.S. had every right to resist that arrest. And because the State presented insufficient evidence to adjudicate S.S. a delinquent for resisting a lawful arrest, I respectfully disagree with the views expressed by the majority and hereby dissent.

KITCHENS, CHANDLER AND KING, JJ., JOIN THIS OPINION.

CHANDLER, Justice,

dissenting:

¶ 57. I fully concur with Justice Dickinson’s dissent. I write separately to express appreciation and respect for the difficult situations law enforcement officers frequently face as responses to reports of violence unfold. The desire to control potential threats to safety, as well as the difficulty in immediately ascertaining particular threats in a hostile environment, makes arriving at the perfect judgment call challenging. However, with full appreciation of this challenge, I must agree with Justice Dickinson that, in this instance, the officer lacked probable cause and reasonable suspicion to arrest or perform a Terry stop on the youth. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). I cannot endorse the creation of a circular justification for such stops and arrests.

DICKINSON, P.J., JOINS THIS OPINION.

      . "It shall be unlawful for any person to obstruct or resist by force, or violence, or threats, or in any other manner, his lawful arrest ... by any state, local or federal law enforcement officer, and any person or persons so doing shall be guilty of a misdemean- or....” Miss.Code Ann. § 97-9-73 (Rev. 2014) (emphasis added).

      . The disorderly conduct statute states, in pertinent part:
      Whoever, with intent to provoke a breach of the peace, or under such circumstances as may lead to a breach of the peace, or which may cause or occasion a breach of the peace, fails or refuses to promptly comply with or obey a request, command, or order of a law enforcement officer, having the authority to then and there arrest any person for a violation of the law, to: (i) Act or do or refrain from acting or doing as ordered, requested or commanded by said officer to avoid any breach of the peace at or near the place of issuance of such order, request or command, shall be guilty of disorderly conduct, which is made a misdemeanor....
      Miss.Code Ann. § 97 — 35—7(i)(i) (Rev. 2014) (emphasis added).

      . S.S. challenges only whether he was resisting a "lawful” arrest.

      . Williamson v. State, 876 So.2d 353, 355 (Miss.2004) (quoting Singletary v. State, 318 So.2d 873, 876 (Miss.1975)).

      . This was the law before today’s case. After today, resisting an unlawful arrest may be relabeled "disorderly conduct.”

      . Taylor v. State, 396 So.2d 39, 42 (Miss.1981) (quoting Smith v. State, 208 So.2d 746, 747 (Miss.1968) (citing Pettis v. State, 209 Miss. 726, 48 So.2d 355 (1950); Craft v. State, 202 Miss. 43, 30 So.2d 414 (1947))).

      . Miss.Code Ann. § 97-9-73 (Rev. 2014) (emphasis added).

      . Miss.Code Ann. § 97-35-7(1) (Rev. 2014).

      . Id. (emphasis added).

      . Terry v. State, 252 Miss. 479, 485, 173 So.2d 889 (1965) (emphasis added).

      . Nash v. State, 207 So.2d 104 (Miss.1968) (emphasis added).

      . Powe v. State, 235 So.2d 920, 922 (Miss.1970) (emphasis added).

      .Miss.Code Ann. § 99-3-1 (Rev. 2007).

      . Miss.Code Ann. § 99-3-3 (Rev. 2007). See Shinall v. State, 199 So.2d 251 (Miss.1967) (peace officers and citizens may make arrests at any time), ovemded on other grounds by Flowers v. State, 473 So.2d 164, 165-66 (Miss.1985).

      . Williamson, 876 So.2d at 355 (emphasis added) (quoting Floyd v. State, 500 So.2d 989, 992 (Miss.1986) (quoting McCray v. State, 486 So.2d 1247, 1249-50 (Miss.1986))).

      . Terry v. Ohio, 392 U.S. 1, 15, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (emphasis added).


source: Caselaw Access Project

author:
KING, Justice, DICKINSON, Presiding Justice,
      RANDOLPH, Presiding Justice,

license: Public Domain

text:
    Craig D. SALLIE a/k/a Craig D. Sallie, Sr. a/k/a Craig Sallie v. STATE of Mississippi.
    No. 2012-CT-01280-SCT.
    Supreme Court of Mississippi.
    Jan. 22, 2015.

      Cynthia Ann Stewart, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
   KING, Justice,

for the Court:

¶ 1. Craig Sallie was convicted of aggravated assault for shooting Gregory Johnson in the back with a firearm, as well as of possession of a firearm by a convicted felon. He was sentenced to twenty years for the aggravated assault conviction and ten years for the possession of a firearm conviction, to run concurrently. The trial court also sentenced Sallie to an additional ten years pursuant to the firearm sentence enhancement statute, with that sentence to run consecutively to the other sentences. The Court of Appeals affirmed Sallie’s convictions and sentence, finding that the trial court did not err by limiting Sallie’s cross-examination of Johnson, and that Sallie’s lack of notice of the firearm enhancement did not render the sentence illegal. Sallie moved for rehearing, which the Court of Appeals denied. Sallie then petitioned this Court for certiorari review. We granted Sallie’s petition to address the issue of whether Sallie was entitled to notice of the firearm enhancement to his sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. For the most part, the recitation of relevant facts is taken from the Court of Appeals opinion:

Prior to the incident giving rise to Sallie’s convictions, Sallie accused Johnson of stealing a bottle of whiskey from him. Johnson testified that Sallie had threatened him twice regarding the whiskey. On November 28, 2011, an unarmed Johnson walked past Sallie’s house en route to his own home.[ ] According to Johnson, as he walked past Sallie’s house, Sallie yelled to him, demanding that Johnson come into his yard. Johnson refused and told Sallie to come into the street so that they could settled the dispute like men. Johnson admitted that he called Sallie a coward and a b* * * *.■ He testified that Sallie then pulled out a gun and stated, “Naw, you come in my yard.” When Johnson turned to walk away, Sallie started shooting at him. Sallie shot Johnson five times, with one bullet hitting Johnson in the spine, paralyzing him from the waist down. In his statement to the police, Sallie claimed that Johnson came into his yard acting like he was drunk and “maybe high.” He also stated that Johnson initiated the dialogue and that he was “mumbling” words to Sallie. Sallie added that he “reacted without conscious” and shot Johnson, but that he did not initially intend to get violent with him.
Johnson admitted that he drank whiskey and smoked marijuana on the day of the incident before the shooting occurred. He denied using cocaine that day, but admitted that he had used cocaine in the past....

Sallie v. State, 155 So.3d 872, 873, 2013 WL 6233904, at *1, 2012-KA-01280-COA (Miss.Ct.App. Dec. 3, 2013).

¶ 3. At the close of the trial, the jury was instructed. The jury instruction on aggravated assault required that the jury find beyond a reasonable doubt that Sallie “[d]id purposely, knowingly, feloniously and intentionally cause or attempt to cause bodily injury to Gregory Johnson, a human being, by the use of a deadly weapon or other means likely to produce death or serious bodily harm” and that he did so “[b]y shooting Gregory Johnson in the back with a firearm.” Moreover, the jury instruction on possession of a firearm by a convicted felon required that the jury find beyond a reasonable doubt that Sallie “[djid unlawfully, knowingly and felo-niously possess a firearm” when Sallie “had previously been convicted of a felony offense.” After the jury convicted Sallie on both counts, the trial judge scheduled the sentencing hearing and stated that “I also wish to consider the firearm enhancement as provided by 97-37-37(2).” See Miss.Code Ann. § 97-37-37(2) (Rev. 2014) (“any convicted felon who uses or displays a firearm during the commission of any felony shall ... be sentenced to an additional term of imprisonment ... of ten (10) years.... ”).

¶ 4. At the sentencing hearing, Sallie objected to consideration of the Section 97-37-37 firearm enhancement based on a lack of notice from the State and based on the trial court raising the enhancement sua sponte. The trial court sentenced Sallie to twenty years for aggravated assault, ten years for felon in possession of a firearm, and then enhanced his sentence by ten years under Section 97-37-37(2).

¶ 5. Sallie appealed, arguing that the trial court erred by limiting Sallie’s cross-examination of Johnson regarding Johnson’s alleged cocaine use, and arguing that the firearm enhancement to his sentence was illegal given that he did not receive fair, pretrial notice that he might be sentenced under that statute. Sallie argued that the lack of notice, or unfair surprise, regarding the firearm enhancement violated due process. The Court of Appeals affirmed Sallie’s convictions and sentence. It found that the trial court “did not abuse its discretion in sustaining the State’s objection to defense counsel’s line of questioning inferring that Johnson had used cocaine on the day of the incident.” Sallie, 155 So.3d at 874, 2013 WL 6233904, at *2. The Court of Appeals then found that the enhanced portion of Sallie’s sentence was legal. It analyzed Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and found that all the elements of the firearm enhancement had properly been submitted to the jury and had been found by the jury beyond a reasonable doubt. It concluded that the indictment need not make reference to the enhancement statute, therefore, there was no unfair surprise regarding the firearm enhancement.

¶ 6. Sallie filed a petition for writ of certiorari with this Court, which we granted. We agree that the trial court did not abuse its discretion by limiting Sallie’s cross-examination of Johnson. Therefore, we limit our review to the question of whether Sallie received fair notice of the firearm enhancement. See Guice v. State, 952 So.2d 129, 133 (Miss.2007) (Supreme Court “unquestionably” has the authority to limit the issues on review).

ANALYSIS

¶ 7. Whether a defendant received fair notice of a sentence enhancement is a question of law that we review de novo. See Williams v. State, 131 So.3d 1174, 1176-77 (Miss.2014).

¶ 8. We agree with the Court of Appeals that the jury must find the elements of the firearm enhancement beyond a reasonable doubt under Apprendi before a trial court may apply the enhancement. We also agree 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. That analysis, however, fails to address the crux of Sallie’s argument, that he has a right to fair notice that the sentence enhancement is being sought.

¶ 9. 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. Only after the jury convicted Sallie did Sallie receive any indication that the trial court might consider the firearm enhancement at sentencing.

¶ 10. The firearm enhancement applied to Sallie’s case applies when a prior convicted felon uses or displays a firearm during the commission of a felony. Miss. Code Ann. § 97-37-37(2) (Rev. 2014). Uniform Rule of Circuit and County Practice 7.09 provides that

... Indictments may ... be amended ... 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. ...
Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.

URCCC Rule 7.09. Moreover, the firearm enhancement clearly increases a defendant’s sentence beyond the maximum allowed for the underlying offenses. Miss. Code Ann. § 97-37-37(2) (Rev. 2014) (the enhancement is “in addition to the punishment provided” for the underlying felony). Generally, indictments must include information specific enough to allow a defendant to determine what punishment he faces. See Apprendi, 530 U.S. at 478-81, 120 S.Ct. 2348; Gowdy v. State, 56 So.3d 540, 546 (Miss.2010) (“[Njotice of the charge includes notice of the applicable minimum and maximum penalties.”). Sallie received no proper notice regarding the fact that he was facing a firearm enhancement that would increase his sentence by ten years. The dissent confuses the issue by citing an Oregon case that determines that Apprendi only requires that the jury find the elements of the offense, not that they be included in the indictment. We agree, as is explicitly stated in Paragraph 8 of this opinion: “We agree with the Court of Appeals that the jury must find the elements of the firearm enhancement beyond a reasonable doubt under Appren-di before a trial court may apply the enhancement. We also agree 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.” The dissent’s reasoning is a red herring. We analyze under our state caselaw whether Sallie received fair notice of the maximum penalty to which he was subjected. He did not.

¶ 11. In Gowdy, this Court examined an indictment that was amended post-conviction to add habitual offender status. Gow-dy, 56 So.3d at 542. The Court found that “the State may not amend the indictment to add an enhanced penalty after conviction.” Id. at 545 (emphasis in original). The Court pointed to Rule 7.09 in support of this, as it provides that the defendant be afforded a fair opportunity to present a defense and must not be unfairly surprised by an amendment to an indictment. Id. As the Court noted in Gowdy, increasing a defendant’s potential punishment after trial unfairly strips him of the ability to consider the increased sentence when considering plea bargains. Id. at 546. Knowledge of the potential punishment may also influence a defendant’s trial strategy.

¶ 12. In Boyd v. State, this Court examined a case in which the defendant was placed on notice during pretrial proceedings, on the day of trial, that the State was seeking a subsequent drug offender sentencing enhancement. Boyd v. State, 113 So.3d 1252, 1255 (Miss.2013). The Court cited Gowdy with approval, and found that the verbal notice given to the defendant on the date of trial was not sufficient, specifically noting that “[t]he verbal notice given by the State did not sufficiently inform Boyd what his sentence might be if he were found to be a subsequent offender.” Id. at 1256. The court found “that adequate notice is achieved through formal pleadings which include the specific amendment to be offered and which are filed sufficiently in advance of trial to ensure that a defendant will have a ‘fair opportunity to present a defense’ and will not be ‘unfairly surprised.’ ” Id. This Court also considered a subsequent drug offender enhancement in Williams. Williams, 131 So.3d at 1178. The Court found that the State failed to offer a “specific amendment” to charge the defendant as a subsequent drug offender, and noted that he was first apprised of this enhancement at his sentencing hearing. Id. The Court thus found that the defendant was not given proper notice in advance of trial that the State was going to seek enhanced punishment, and reversed the sentence. Id.

¶ 13. Likewise, in the case at hand, Sallie was not given adequate pretrial notice that an enhanced punishment would be sought until after his conviction. The lack of notice violated his right to due process, as he was not given a fair opportunity to present a defense and he was unfairly surprised by the post-conviction notice that the firearm enhancement would be considered. Thus, we must reverse the portion of Sallie’s sentence that constitutes the firearm enhancement.

CONCLUSION

¶ 14. We decline to find error that would reverse Sallie’s convictions. Therefore, we affirm in part the judgments of the Court of Appeals and the trial court. However, we find that Sallie did not receive timely or sufficient notice that the State intended to enhance his sentence using the firearm enhancement. Using the firearm enhancement to increase Sallie’s sentence resulted in unfair surprise. Accordingly, we reverse in part the judgments of the Court of Appeals and the trial court, vacate Sallie’s sentence, and remand the case to the Madison County Circuit Court for resentencing.

¶ 15. THE JUDGMENTS OF THE COURT OF APPEALS AND THE MADISON COUNTY CIRCUIT COURT ARE AFFIRMED IN PART AND VACATED IN PART, AND THIS CASE IS REMANDED.

WALLER, C.J., KITCHENS, CHANDLER AND COLEMAN, JJ., CONCUR. DICKINSON, P.J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, CHANDLER AND COLEMAN, JJ. RANDOLPH, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY LAMAR AND PIERCE, JJ.

DICKINSON, Presiding Justice,

concurring:

¶ 16. I join the majority's precise application of our precedent on sentencing enhancements — as that precedent currently stands. But I write separately to explain why I believe this Court should carefully consider whether “sentence enhancements” that result from conduct that occurred during the commission of the crime being charged are, in truth, not sentence enhancements at all, but rather are elements of the crime, requiring a grand-jury indictment and a finding beyond a reasonable doubt by a petit jury.

¶ 17. In Mississippi, the maximum sentence for first-offense trespass — a misdemeanor — is a $250 fine. Suppose the Legislature abolished the crime of burglary and, in its place, added the following “sentence enhancement” to trespass:

Except to the extent that a greater minimum sentence is otherwise provided by any other provision of law, any convicted trespasser whose trespass was committed by breaking and, entering the dwelling of another with the intent to commit a crime during the commission of the trespass shall, in addition to the punishment provided for such trespass, be sentenced to an additional term of imprisonment in the custody of the Department of Corrections of not less than three (3) years nor more than twenty-five (25) years, which sentence shall not be reduced or suspended.

¶ 18. This “sentence enhancement”— which, according to our current precedent, need not be included in the indictment— elevates the misdemeanor to a felony. The same would be true if the Legislature abolished capital crimes and made death a “sentence enhancement” to murder. Likewise, this would apply if the Legislature abolished the crimes of possession of illegal drugs with intent to sell .and drug trafficking and added “sentence enhancements” to a drug-possession conviction for intent to sell and for trafficking.

¶ 19. Simply put, it seems to me we should consider whether the firearms “sentence enhancement” constitutes a separate criminal offense which requires indictment by a grand jury and conviction by a petit jury.

¶20. The “sentence enhancement” at issue in this case states:

(2) Except to the extent that a greater minimum sentence is otherwise provided by any other provision of law, any convicted felon who uses or displays a firearm during the commission of any felony shall, in addition to the punishment provided for such felony, be sentenced to an additional term of imprisonment in the custody of the Department of Corrections of ten (10) years, to run consecutively, not concurrently, which sentence shall not be reduced or suspended.

The statute punishes any convicted felon who uses a firearm during the commission of a felony with ten years’ incarceration.

¶ 21. In speaking to the question of when a fact in a case becomes an element of the crime, Justice Thomas stated in Apprendi v. New Jersey:

A long line of essentially uniform authority addressing accusations, and stretching from the earliest reported cases after the founding until well into the 20th century, establishes that the original understanding of which facts are elements was even broader than the rule that the Court adopts today.

Based on the common-law view, he found “that a ‘crime’ includes every fact that is by law a basis for imposing or increasing punishment.” So:

if the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact — of whatever sort, including the fact of a prior conviction — the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny.

¶22. Justice Thomas’s view — that every aggravating fact affecting the sentence should be determined by the grand jury— may go too far. But where the Legislature increases the maximum punishment for an aggravating fact that is a part of the crime itself — such as the use of a gun while committing the crime — it seems to me that aggravating fact becomes an element of the crime, rather than a sentence enhancement.

¶ 28. Stated another way, if the firearms enhancement is to be used by the prosecution to increase the maximum penalty beyond the penalty of the crime for which the accused was indicted, it surely elevates the underlying offense into an aggravated form of the substantive offense. So perhaps we should call it what it is: a substantive offense, not a sentencing enhancement.

¶ 24. If prospective acts that result in a prison sentence are elements of a crime, then they require indictment by a grand jury. And neither disguising them as “sentencing enhancements” nor providing the defendant fair notice cures that constitutional infirmity. The constitutional requirement of an indictment for criminal conduct very well may be, in part, to provide notice. But the primary purpose is to place ordinary citizens between the power of the State and the accused. These citizens — these grand jurors — have the sole authority under the law to decide whether the prosecutor may proceed with a criminal trial. For this reason, I cannot agree with Presiding Justice Randolph’s views.

¶ 25. Until the issue is brought before this Court in a proper case, and a majority of this Court agrees that prospective conduct — regardless of how it may be labeled by this Court or' the Legislature — may not be prosecuted without an indictment, I will continue to join majority opinions — like Justice King’s in this case — that protect a defendant’s right to notice that the State intends to utilize a sentencing enhancement.

KITCHENS, CHANDLER AND COLEMAN, JJ„ JOIN THIS OPINION.

RANDOLPH, Presiding Justice,

concurring in part and dissenting in part:

¶ 26. The question of whether the petitioner, a seasoned felon, or his counsel was caught unaware that this sentencing enhancement was applicable is not the issue. The petitioner, like everyone else, was put on notice on July 1, 2004, that a mandatory sentencing enhancement would be added to his future sentence(s) if he used or displayed a firearm while committing yet another felony. The facts negate claims of unfair surprise, lack of a fair opportunity to present a defense, and a denial of due process.

¶ 27. Under our state’s Constitution and the strict separation of powers it explicitly imposes in Article 1, Section 2, we lack the power to substitute our judgment for that of the Legislature. Courts have a “constitutional mandate to faithfully apply the provisions of constitutionally enacted legislation.” Tallahatchie Gen. Hosp. v. Howe, 49 So.3d 86, 92 (Miss.2010). The law is explicit that a sentence enhancement of ten years is mandatory for “any convicted felon who uses or displays a firearm during the commission of any felony....” Miss.Code Ann. § 97-37-37(2) (Rev. 2014). Contrary to petitioner’s claim, each element required to enhance his sentence under Section 97-37-37(2) was alleged in the indictment and subsequently presented to a jury, which found each element beyond a reasonable doubt. A sentencing enhancement is not a separate offense that must be pleaded in the indictment. Section 97-37-37 of the Mississippi Code is well within the* constitutional authority of the Legislature. The law, as followed by the trial court and affirmed by the Court of Appeals, is constitutional. His sentence was neither illegal nor unconstitutional. I concur with the majority’s holding that petitioner’s conviction should be affirmed.

¶28. The crime began over an argument about a missing bottle of whiskey and ended with the petitioner shooting the unarmed victim in the back five . times. The victim was left paralyzed from the waist down. It is obvious that petitioner’s prior time at the state penitentiary did little to convince him that obedience of the law was a worthwhile goal.

¶ 29. Petitioner was charged and convicted of aggravated assault and possession of a firearm by a convicted felon. Petitioner asserts that the trial court erred in applying the law consistently with the legislative mandate. He claims that he should have been put on further notice by an amendment to his indictment.

¶ 30. After petitioner’s conviction, the trial judge stated that he was:

going to set sentencing for Monday at 9:00 o’clock, and I also wish to consider the firearm enhancement as provided by 97-37-37(2); and, if you will, provide me with any brief that you wish to provide me on that. I’m fairly familiar with the law, but if you want to provide me with a brief, I would like to hear it.

At the sentencing hearing, which was conducted five days after his conviction, petitioner argued that he was not given notice of the sentencing enhancement and there was no attempt by the State to amend the indictment to include the enhancement. The State argued and the trial court agreed that Section 97-37-37(2) provided for a mandatory enhancement and was not required to be included in the indictment. In sentencing the petitioner, the trial court stated:

As it relates to 97-37-37,1 do review the statutes as mandatory, and I’m familiar with the Mayes [sic] case and some other cases where the court has applied this punishment. I don’t think — there is not a case that I’ve seen at this point where it either requires that it be charged in the indictment or any notice given; so, accordingly, I’ll impose a sentence under the statute that I believe is mandatory.
Under 97-37-37, the jury’s verdict in Count I found that you did discharge— that you did use or display a firearm during the commission [of] a felony in that you shot him with that firearm so the jury’s verdict in Count I provides the requirement that I sentence you under 97-37-37 to an additional term of 10 years in the custody of the Mississippi Department of Corrections to run consecutively with the sentences imposed in Count I and II, and that that sentence shall not be reduced or suspended according to law.

There is no requirement, pursuant to our Constitution, caselaw, court rules, or statutes, that the indictment must contain specific notice that an enhanced sentenced will be given pursuant to Section 97-37-37(2). The trial court properly applied the mandatory ten-year sentencing enhancement to petitioner’s sentence. As such, petitioner’s sentence should be affirmed.

¶ 31. Accused persons are constitutionally afforded due process of law. See U.S. Const, amend. VI, Miss. Const, art. 3, § 14. Pursuant to Article 3, Section 26 of the Mississippi Constitution, an accused is also afforded the following rights:

a right to be heard by himself or counsel, or both, to demand the nature and cause of the accusation, to be confronted by the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in all prosecutions by indictment or information, a speedy and public trial by an impartial jury of the county where the offense was committed; and he shall not be compelled to give evidence against himself. ...

Miss. Const, art. 3, § 26. See also U.S. Const, amend. XIV. Additionally, the purpose of an indictment, pursuant to Section 27, is:

(1) to furnish the accused such a description of the charge against him as will enable him to make his defense and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause, (2) to inform the court of the facts alleged so that it may decide whether they are sufficient in law to support a conviction if one should be obtained and (3) to guard against malicious, groundless prosecution. Indictments and Informations, 41 Am.Jur.2d § 3 (1968).

Jefferson v. State, 556 So.2d 1016, 1021 (Miss.1989).

¶ 32. Rule 7.06 of the Rules of Uniform Circuit and County Court Practice states that the indictment “shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” URCCC 7.06 (emphasis added). Rule 7.06 also states that the following “shall” be included in an indictment:

1. The name of the accused;
2. The date on which the indictment was filed in court;
3. A statement that the prosecution is brought in the name and by the authority of the State of Mississippi;
4. The county and judicial district in which the indictment is brought;
5. The date and, if applicable, the time at which the offense was alleged to have been committed. Failure to state the correct date shall not render the indictment insufficient;
6. The signature of the foreman of the grand jury issuing it; and
7. The words “against the peace and dignity of the state.”

Id.

¶ 33. The indictment complied with Rule 7.06, as it stated the facts surrounding the “offenses charged.” Petitioner was indicted on February 1, 2012, for “... purposely, knowingly, feloniously and intentionally caus[ing] or attempting] to cause bodily injury ... by use of a deadly weapon ... by shooting Gregory Johnson in the back with a firearm ...” and "... unlawfully, knowingly, and feloniously possessing] a firearm when [he] had been previously convicted of a felony offense .... ” The indictment adequately charged that petitioner previously had been convicted of a felony, including the crime, the court, the case number, and the sentence. The indictment also charged that petitioner had used a firearm when he shot the victim during the commission of a felony. The statute reads that a convicted felon who uses a firearm “shall ... be sentenced to an additional term of imprisonment....” Miss.Code Ann. § 97-37-37(2). Section 97-37-37(2) is not an “offense” as referenced in the Rules of Uniform Circuit and County Court Practice, see Stewart v. State, 131 So.3d 569, 575 (Miss.2014), and applies only post-conviction.

¶ 34. “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000) (emphasis added). The following language from State v. Reinke, 354 Or. 98, 309 P.3d 1059 (2013), casts further light on Apprendi vis a vis inclusion within an indictment:

After Apprendi some defendants argued in this court that we should hold that the federal constitution requires states to include sentence enhancement facts in indictments. Given Apprendi's reasoning, we explained in State v. Cox, 337 Or. 477, 498-500, 98 P.3d 1103 (2004), that the defendant’s unpreserved federal constitutional claim raising that issue did not constitute plain error and did not reach it. Shortly after this court decided Cox, another case squarely presented the issue, and we explained that, “[although Apprendi requires that the jury find the facts that would support an enhanced sentence, we do not agree that Apprendi requires, as a matter of state criminal procedure, that enhancement factors be set out in the indictment.” State v. Sawatzky, 339 Or. 689, 698, 125 P.3d 722 (2005). The court explained that neither Apprendi nor Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), had held that the Grand Jury Clause of the Fifth Amendment applies to the states and that the relevant question under state law is whether the indictment sets out the elements of the offense, as defined by the state legislature. Id.; cf. Hurtado v. California, 110 U.S. 516, 534-35, 4 S.Ct. 111, 28 L.Ed. 232 (1884) (holding that due process does not require states to proceed by indictment in felony cases).

Reinke, 354 Or. at 104, 309 P.3d at 1062 (2013). Such reasoning is persuasive.

¶ 35. Pursuant to Apprendi, the questions of fact, i.e., whether the petitioner was a previously convicted felon who used a firearm, were submitted to the jury. The jury found those facts beyond a reasonable doubt. The findings of fact were the elements required for a guilty verdict of aggravated assault by shooting the victim with a firearm and of being a convicted felon in the possession of a firearm, such that the statute mandated.the trial judge to enhance petitioner’s sentence for the legislatively prescribed term.

¶ 36. The cases relied upon by the majority are clearly distinguishable from the facts of the ease presented to us today, as those cases, unlike the case today, required an amendment to the indictment in order to enhance those defendants’ sentences. In Gowdy v. State, 56 So.3d 540, 544 (Miss.2010), Gowdy was indicted for felony driving under the influence of alcohol. Prior to trial, the State offered Gow-dy a plea deal in which he would serve one year in prison, two years’ post-release supervision, and pay a $2,000 fine. Id. at 544. Gowdy rejected the plea offer and proceeded to trial. Id. The next day following Gowdy’s conviction, the State received- information about Gowdy’s prior arrests in another state and informed the trial court that it would seek to amend the indictment to include Gowdy’s habitual-offender status. Id. On the day of Gowdy’s sentencing hearing, nearly two months later, the State amended his indictment to charge him as a habitual offender under Mississippi Code Section 99-19-83, which requires a mandatory life sentence. Id. at 545. The trial court overruled Gowdy’s objection to the amendment, finding no prejudice, and sentenced Gowdy to life imprisonment without the possibility of parole. This Court found there was prejudice because “Gowdy would have been in a better position to make an informed and rational decision when presented with a proposed plea bargain.” Id. at 546. This Court held that the State should not have been allowed to amend the indictment, and the Court reversed the enhanced-sentencing portion of Gowdy’s sentence. Id. Absent an amendment to the indictment, Gowdy’s sentence could not have been enhanced under Section 99-19-83.

¶ 37. In this case, there is no evidence of a plea offer in the record. Petitioner was not offered a deal of one year and then subsequently sentenced to life in prison. His prior conviction was included in his indictment, thus giving him notice that he would face a sentencing enhancement of ten years if the jury found him guilty of being a convicted felon who used a firearm in a subsequent felony. Petitioner cannot argue unfair surprise. See McCain v. State, 81 So.3d 1055, 1062 (Miss.2012) (citing URCCC 7.09) (“McCain received fair notice, was not ‘unfairly surprised’ by the habitual-offender addition, and was ‘afforded a fair opportunity to present a .defense.’ ”).

¶ 38. Boyd v. State, 113 So.3d 1252 (Miss.2013), is likewise distinguishable. Boyd was indicted for the sale of marijuana (more than thirty grams but less than a kilogram) within 1,500 feet of a school or 1,000 feet of the real property of a school. Id. at 1253. During pretrial proceedings, the State informed the court that it would seek to amend the indictment based on an out-of-state conviction if Boyd was found guilty of the charges. Id. at 1254. Initially, Boyd was facing a forty-year sentence and, if the indictment was amended, he was told that his sentence could be doubled. Id. at 1255. The next day during the sentencing hearing, the State filed a motion to amend the indictment to charge Boyd as a subsequent drug offender. Id. at 1254. The State’s motion was granted, and Boyd was sentenced to 120 years in the custody of the Mississippi Department of Corrections. Id. His sentence was enhanced by Mississippi Code Section 41-29-142 (within 1,500 feet of a school) and enhanced again by Mississippi Code Section 41-29-147 (second offense). This Court found that “[although the State told the trial court that it would seek ‘to double up to 80 years’ because he was a subsequent offender, Boyd actually was sentenced to a total of 120 years. This disparity supports our finding that -Boyd did not receive adequate notice of the State’s intention to seek a sentence enhancement.” Id. at 1256.

¶ 39. This petitioner was not misinformed of his possible sentence to justify a finding that he was unfairly surprised. The cases relied upon by the majority involve defendants who were not informed that they faced possible life sentences. Per the constitutional mandate issued by the Legislature in its passing of Section 97-37-37, the trial court properly enhanced the petitioner’s sentence by ten years, because the jury found, beyond a reasonable doubt, that petitioner was a previously convicted felon who had used a firearm in a subsequent felony.

¶ 40. The cases cited and relied upon do not stand for the same proposition ruled upon today. Each case required an amendment of the indictment in order to enhance the defendant’s sentence. That is precisely what distinguishes today’s case. No amendment of the indictment was required. Section 97-37-37 provides for a mandatory ten years be added to a sentence for a convicted felon who uses a firearm in a subsequent felony. Our law does not require that this enhancement be included in the indictment in order for the enhancement to be applicable.

¶ 41. This case is akin to Mayers v. State, 42 So.3d 33 (Miss.Ct.App.2010), which was cited by the trial court at the sentencing hearing. In Mayers, the Court of Appeals held that “Section 97-37-37, which is entitled: ‘Enhanced penalty for use of firearm during commission of felony,’ is clearly a sentence enhancement and does not set out separate elements of the underlying felony.” Id. at 45. The Court further held that the jury “found beyond a reasonable doubt that Mayers was a convicted felon and that Mayers used a firearm -during the commission of a felony.” Id. at 46. The Court of Appeals rejected Mayers’s argument that his sentencing enhancement was not listed in the indictment, as each factor of Section 97-37-37 was “contained in the indictment and was submitted to the jury. No other factors were required to be determined by Section 97-37-37 that had not already been decided by the jury.” Id. at 46. The Court of Appeals found that, although the sentencing enhancement was not needed in the indictment, Mayers was erroneously sentenced pursuant to the wrong section. Id. Section 97-37-37(2) was not in effect at the time Mayers committed his crime; therefore, he should have been sentenced pursuant to Section 97-37-37(1), which became effective on July 1, 2004. Id. at 46-47.

¶ 42. The petitioner argues unfair surprise, but like Mayers, the petitioner does not argue one factual element required to be satisfied for the application of the statute was unmet and not decided by the jury. Each fact required for the application of Section 97-37-37(2) was contained in the indictment and was submitted to the jury. The jury found beyond a reasonable doubt that petitioner was a convicted felon and that petitioner had used a firearm during the commission of a felony. No other factors were required to be determined by Section 97-37-37(2) that had not already been decided by the jury beyond a reasonable doubt, negating his argument of unfair surprise.

¶ 43. Petitioner claims that he should have been put on further notice by an amendment'to his indictment. Notice is necessary for the preparation of a defense. However, petitioner makes no claim that his defense was compromised, or even that his defense would have been different had he been made aware of the sentencing enhancement. Notice of this particular mandatory sentencing enhancement was found in the legislative act. This particular mandatory sentencing enhancement is not required to be pleaded in the indictment, unlike the habitual-offender enhancements, which our rules require to be pleaded in the indictment.

¶ 44. The only defense to having petitioner’s sentence enhanced would have been for him to contest the State’s evidence, challenging his prior felony conviction. Petitioner offered no such proof. Quite the opposite, he stipulated that he previously was convicted of a felony. Thus, any argument that he was prejudiced evaporates.

¶ 45. Neither the trial court- nor the Court of Appeals overlooked its constitutional duties. Each properly applied a constitutionally permissible penalty. I would affirm.

LAMAR AND PIERCE, JJ„ JOIN THIS OPINION.

      . Mayers v. State, 42 So.3d 33, 45-46 (Miss.Ct.App.2010), cited by the dissent, also focused on an Apprendi analysis, and did not specifically analyze the issue of the right to fair notice, making only generalized statements about notice in the context of the Ap-

        prendí analysis. In any event, to the extent it is inconsistent with today’s opinion, Mayers is overruled.

      .The Court of Appeals determined that Sallie did not cite any authority that mandated the State include the language of Section 97-37-37(2) in the indictment, thus, the issue was without merit. However, in his briéf to the Court of Appeals, Sallie cited several cases and rules that provide that criminal defendants must be given reasonable notice that the State plans to seek a sentence enhancement.

      . We recognize that the prosecutors in this case 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 prosecutors argued in support of applying the firearm enhancement to Sallie’s sentence.

      . Sallie was sentenced to the maximum sentences under the aggravated assault and felon in possession of a firearm statutes, and then had the ten year firearm enhancement added onto the sentences.

      . Miss.Code Ann. § 97-37-37(2) (Rev. 2014).

      . Apprendi v. New Jersey, 530 U.S. 466, 501, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (Thomas, J., concurring).

      . Id.

      . Id.

      . On July 1, 2007, the enhancement was increased from five years to ten years. See Miss.Code Ann. § 97-37-37(2) (Rev. 2014).

      . The trial court was referring to Mayers v. State, 42 So.3d 33 (Miss.Ct.App.2010), discussed supra.

      . Prior to his trial, petitioner and the State entered into a stipulation that petitioner was a convicted felon.

      . The trial court was affirmed by the Court of Appeals in a unanimous opinion authored by Presiding Judge Irving. Judge James concurred in part with the opinion.


author: BARNES, J.,

text:
    Robert E. LEWIS, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-02041-COA.
    Court of Appeals of Mississippi.
    March 8, 2011.

      Robert E. Lewis Jr., Appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
    Before LEE, C.J., BARNES, ROBERTS and CARLTON, JJ.
   BARNES, J.,

for the Court:

¶ 1. Robert Lewis, Jr., appearing pro se, appeals the Circuit Court of Lowndes County’s dismissal of his motion for post-conviction relief. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In August 2006, Lewis was indicted for capital murder stemming from an incident that occurred in May 2006 where Lewis shot the victim twice in the head while robbing the victim of his automobile, cellular telephone, money, and other items. In June 2008, the State moved to amend Lewis’s indictment to include the proper date of the crime and his three prior felony convictions in order to reflect Lewis’s status as a habitual offender. The trial court subsequently granted the motions to amend. According to the plea-hearing transcript of August 28, 2008, Lewis’s trial had already commenced when he decided, outside of the presence of the jury, to plead guilty. The trial judge sentenced Lewis to life imprisonment without eligibility for probation or parole, as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007), in the custody of the Mississippi Department of Corrections (MDOC).

¶ 3. In November 2009, Lewis filed a motion for post-conviction relief in the circuit court, wherein he claimed his indictment was defective because it did not include the relevant subsection for capital murder; his guilty plea was involuntary; and the trial court abused its discretion in sentencing him to life imprisonment. The circuit court dismissed Lewis’s motion, finding his claims without merit. Lewis timely appeals.

STANDARD OF REVIEW

¶ 4. This Court will not disturb the trial court’s dismissal of a motion for post-conviction relief unless the decision is clearly erroneous. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). Questions of law are reviewed de novo. Id.

ANALYSIS

¶ 5. Lewis raises three issues, arguing that his indictment was defective; his guilty plea was involuntary; and the trial court erred in failing to quash his indictment. Because Lewis’s first and third issues involve his indictment, we shall discuss them together.

1. The Indictment

¶ 6. Lewis argues that his indictment violates Mississippi Code Annotated section 99-17-20 (Rev.2007) because it fails to list the subsection of the capital murder statute under which he was charged. Thus, Lewis claims that the trial court erroneously denied his oral motion to quash his indictment. Lewis contends that because of the omission of the subsection in his indictment, he was misinformed about the true nature of the charged crimes. He frames his argument, however, around the trial court’s alleged lack of subject-matter jurisdiction, but the issue is actually one of whether his indictment was defective.

¶ 7. “The purpose of the indictment is to provide the accused reasonable notice of the charges against him so that he may prepare an adequate defense.” Brawner v. State, 947 So.2d 254, 265 (¶ 31) (Miss.2006) (citing Brown v. State, 890 So.2d 901, 918 (¶ 61) (Miss.2004)). Indictments thus must contain “a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” URCCC 7.06. The Mississippi Supreme Court has stated “that the ultimate test, when considering the validity of an indictment on appeal, is whether the defendant was prejudiced in the preparation of his defense.” Medina v. State, 688 So.2d 727, 730 (Miss.1996).

¶ 8. Additionally, when the charge is capital murder, section 99-17-20 states in pertinent part:

No person shall be tried for capital murder, or any other crime punishable by death as provided by law, unless such offense was specifically cited in the indictment returned against the accused by setting forth the section and subsection number of the Code defining the offense alleged to have been committed by the accused.... Any conviction of the accused for an offense punishable by death shall not be valid unless the offense for which the accused is convicted shall have been set forth in the indictment by section and subsection number of the Code which defined the offense allegedly committed by the accused.

(Emphasis added.) “It is the intent of Section 99-17-20 that the relevant code section be cited to place the defendant on notice as to what makes the offense a capital one.” Davis v. State, 914 So.2d 200, 205 (¶ 19) (Miss.Ct.App.2005) (citing Gray v. State, 728 So.2d 36, 70 (¶ 173) (Miss.1998); Rhymes v. State, 356 So.2d 1165, 1167 (Miss.1978)). However, when a defendant pleads guilty, as here, it is well established that “[a] valid guilty plea waives all technical and non-jurisdictional defects in an indictment.” Garner v. State, 944 So.2d 934, 939 (¶ 14) (Miss.Ct.App.2006) (citing Brooks v. State, 573 So.2d 1350, 1355 (Miss.1990)). Such is the case here.

¶ 9. Lewis’s indictment states in pertinent part: “that ROBERT EARL LEWIS, JR. ... did unlawfully, wilfully, and feloniously, with or without the design to effect death, kill and murder [the victim], a human being, without authority of law and not in necessary self-defense, while engaged in the commission of the crime of Robbery, in violation of Section 97-3-19 MCA 1972 as amended....” At the top of the indictment is typed the offense “CAPITAL MURDER (§ 97-3-19).” Admittedly, Lewis’s indictment does not include the relevant subsection for capital murder anywhere in the document. However, the indictment does provide essential facts concerning the offense charged and adequately informs Lewis of the nature of the charges against him, meeting all of the requirements of URCCC 7.06. We cannot see from the indictment’s language how Lewis could be misinformed, as he contends, about the nature of the offenses charged.

¶ 10. In its brief, the State does not address Lewis’s argument about the indictment’s lack of a subsection for capital murder. However, the indictment specifically states that Lewis was charged with “capital murder” under section 97-3-19 “while engaged in the commission of ... robbery.” Thus, the indictment was sufficient to give Lewis reasonable notice of the crime charged so he could prepare an adequate defense. Moreover, the intent of section 97-3-19, which is to put the defendant on notice as to why the murder was capital, is met, even if the subsection of the capital murder statute is missing. We fail to see how Lewis’s defense could be prejudiced here by the missing subsection, because the indictment specifically charges him with “capital” murder and gives essential facts for the crimes of the murder while engaged in a robbery. We note that the indictment need not set forth the facts of the underlying felony of robbery. See Gray, 728 So.2d at 71 (¶ 174) (citing State v. Berryhill, 703 So.2d 250, 256 (¶ 23) (Miss.1997)) (“A capital murder indictment based on an underlying felony, other than burglary, does not have to specifically set forth the elements of the underlying felony used to elevate the crime to capital murder.”)

¶ 11. Importantly, even if Lewis’s indictment was defective for not including the subsection for capital murder, by pleading guilty Lewis waived his rights to any technical or non-jurisdictional defects in his indictment, which would include this omission. Additionally, section 99-17-20 states that “[n]o person shall be tried for capital murder, or any other crime punishable by death,” unless the offense’s subsection is specifically cited in the indictment. Here, Lewis was not convicted by ⅝ jury, but abandoned his trial to plead guilty and thereby avoid the possible imposition of the death penalty. The record shows Lewis had reasonable notice of the crimes charged, even without the inclusion of the subsection, and his defense was in no way prejudiced by its omission. Accordingly, this issue is without merit.

2. The Guilty Plea

¶ 12. Next, Lewis argues that his guilty plea was invalid because he was misinformed about the nature of his crime due to his indictment’s omission of the subsection for capital murder, even though he admitted to the trial court during his plea hearing that he understood the charges against him. He claims that the record indicates that neither he, his counsel, nor the court understood the essential elements of the crime charged. Since he was not provided “real notice” of the nature of the charges against him, Lewis concludes his plea is void.

¶ 13. A guilty plea will be found valid if it is voluntarily and intelligently made by the defendant before the trial court. Burrough v. State, 9 So.3d 368, 373 (¶ 11) (Miss.2009). A plea is voluntarily and intelligently given if the trial court advises “the defendant of his rights, the nature of the charge against him, as well as the consequences of the plea.” Id. (citing Harris v. State, 806 So.2d 1127, 1130 (¶ 9) (Miss.2002)). Furthermore, there is a “strong presumption of validity that goes with solemn declarations made in open court and the need for finality.” Hannah v. State, 943 So.2d 20, 25 (¶ 11) (Miss.2006) (citing Baker v. State, 358 So.2d 401, 403 (Miss.1978)). The burden of proof is on the petitioner to prove that his plea was invalid. Id. (citing Gardner v. State, 531 So.2d 805, 810 (Miss.1988)).

¶ 14. The transcript of Lewis’s plea hearing shows that he voluntarily admitted under oath that he was guilty of the charge of capital murder. The State explained its proof would show that Lewis shot and killed the victim while robbing him. The trial judge also advised Lewis of the nature of the charge, the effect of the plea on his rights, and the sentence. The judge clearly explained that if the jury convicted Lewis of the charge, the jury could impose the death penalty. If the jury did not agree on the death penalty, the judge explained that he could impose the sentence of life in prison without the possibility of parole. Lewis stated he understood. There is no evidence in the transcript to suggest that Lewis was “misinformed” or lacked “real notice” of the charge of capital murder just because the subsection of the murder statute was not included on his indictment.

¶ 15. Moreover, the record shows Lewis was not under any duress or coercion to enter the plea, nor was he under the influence of drugs or alcohol. Lewis stated his defense counsel fully discussed his case with him and any possible defenses. Finally, Lewis signed a petition to enter a guilty plea that reiterated his plea was voluntary and intelligent; thus, it was valid.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . Documentation of this motion is not in the record before us, but Lewis contends that it is found in his trial transcript. However, he claims that his trial transcript was never produced for him. Regardless, inclusion of any documentation of the oral motion to quash the indictment would not change the final disposition of this opinion.