IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2015-KA-00819-COA CRAIG D. SALLIE A/K/A CRAIG D. SALLIE, SR. A/K/A CRAIG SALLIE APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 05/12/2015 TRIAL JUDGE: HON. JOHN HUEY EMFINGER COURT FROM W HICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: CYNTHIA ANN STEW ART ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART DISTRICT ATTORNEY: MICHAEL GUEST NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: ON REMAND, REMOVED FIREARM ENHANCEMENT BUT ORDERED TW O REMAINING SENTENCES TO BE SERVED CONSECUTIVELY TO ONE ANOTHER INSTEAD OF CONCURRENTLY DISPOSITION: AFFIRMED - 12/06/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. ISHEE, J., FOR THE COURT: ¶1. In 2012, C raig D. Sallie was convicted by a jury of aggravated assault af ter Sallie was f ound to have shot G regory J ohnson in the back, resulting in J ohnson’s paraly sis. The jury also f ound Sallie guilty of being a f elon in i l l egal possession o f a f irearm

. The Madison County Circuit Court s e ntenced Sallie to thirty y ears in the cu s t o dy of the Mississippi Departm ent o f Corrections (MDOC) f or the two c onvictions

– twenty y ears f or theaggravated-assault conviction and ten y ears f o r being a f

elon in possession o f a f

i rearm , with the s entences to run concurrently

. The circuit court went on to e nhance Sallie’s sentence by ten y ears f

or his use of

a deadly weapon in the com m ission of the aggravated assault. The ten-y ea r e nhancem ent was ordered to run consecutively to the other sentences, with all
sentences in the c ustody of the M D O C

. S a l l ie appealed the c o nvictions and sentences. Ultim a tely , the Mississippi Suprem e Court af f irm e d Sallie’s i n i t ial two convictions but reversed the ten-y ear enhancem e nt. The suprem e court then r em anded the case to the circuit
court f or resentencing b ased on the r em oval of the enhancem en t

. The circuit court subsequently resentenced Sallie to twenty y ears f or the aggravated-assault conviction and
ten y ears f

or being a f

elon i n possession o f a f

i rearm , which m irrored the previous sentence. However, the circuit court ordered the s entences to run consecutively t o one another instead of concurrently

. Sallie appeals, claim ing the circuit court was without a uthority t o alter the
sentences f

rom running concurrently to r unning consecutively

. Finding no error, w e af f irm

. S TATEMENT OF FACTS ¶2. Sallie has previously a ppealed his conviction and s entence to this C ourt. As such, we will glean f

r om our o riginal r ecitation of th e f a c t s f o r a n overview of Sallie’s underly ing circum stances: On Novem

ber 28, 2011, an unar me d J o h nson walked past Sallie’s house en route t o his own hom e . According t o J o h n s o n , as he w alked past Sallie’s house, Sallie y elled to him , dema n ding t hat Johnson com e into h is y ard. Johnson ref

used a nd told Sallie to c o m e into the street so that they could settle [ their] dispute like m en. 1 Johnson adm itted that he called Sallie a c o ward and

1 S allie h ad p rev io u sly accu sed Jo h n s o n o f stealin g a b o t tle o f

w h isk ey f ro m h im

. S a llie v. S ta te , 1 5 5 S o . 3 d 8 7 2 , 8 7 3 (¶3 ) (M iss. C t. A p p . 2 0 1 3 ) (v acated in p art). 2a b****. He testif ied that Sallie then pulled out a gun and stated, “Naw, y ou com e in m y y ard.” W hen Johnson turned to walk away , Sallie started shooting at him

. Sallie shot Johnson f ive tim es, with one bullet hitting J ohnson in the spine, paraly

zing him f

rom the waist d o w n . I n his statem ent to the police, Sallie claim e d t h a t Johnson cam e into his y ard acting like he was drunk and “m ay be high.” He also stated that Johnson initiated the dialogue and that he was “m um bling” words to Sallie. Sallie added that he “ r eacte d w i t h o u t conscious” and s hot J ohnson, but that he did not initially intend to get violent with him

. Sallie v. State , 155 So. 3d 872, 873 (¶3) (Miss. Ct. App. 2013) (vacated in part). ¶3. W e upheld t he circuit c ourt’s judgm e nt in its entirety o n appeal. I d

. a t 8 7 5 (¶13). However, on certiorari, the suprem e c ourt af f irm ed t he convictions and s e n t e n c e s but reversed the sentence enhancem ent. Sallie v
. State , 155 So. 3d 760, 764 (¶14) (Miss. 2015). Specif ically , the suprem e court stated: W e decline to f

ind error t hat would reverse S allie’s conviction.

. . . However, w e f ind that Sallie did not receive tim ely or suf f icient notice that t he State intended to enhance his sentence using t he f i rearm enhancem ent[ ,]

. . . [ which] resulted in unf

air surprise. Accordingly , we reverse in part the judgm ents of the Court of Appeals and the trial court, vacate Sallie’s sentence, and rem and the case to the Madison County Circuit Court f

or resentencing. Id

. ¶4. Af ter the case was rem anded fo r r e s e n t e n c i n g , the circuit court conducted a sentencing hearing on May 12, 2015. At that tim e, the circuit c o urt sentenced Sallie t o twenty y ears f or the aggravated-assault conviction and ten y ears f o r being a f

elon in possession of a f

irearm

– the sam e length of ti me c ontained in the original sentence im posed by the circuit court. However, the circuit co u

r t ordered that the sentences run consecutively to one a n other instead of concurrently . On appeal, Sallie asserts that this change was illegal. DISCUSSION
3¶5. On appeal, Sallie asserts that the circuit court illegally issued a greater s entence to him

o n r e ma n d than was previously ordered f ollowing the trial. Sallie relies on a line of c a s e s originating with Leonard v. State , 271 So. 2 d 445 (Miss. 1973), f or t he notion that “once a circuit or county c ourt e xercises its option to im pose a d e f

i n i t e sentence it cannot subsequently set that sentence aside and im pose a greater sentence.” Id

. at 4 47. This legal
tenet was reiterated by this C ourt m ore recently in Eastman v
. State , 909 S o. 2 d 171 (Miss. Ct. App. 2005). ¶6. However, Leonard and Eastman are both easily distinguishable f rom the case at hand.
In Leonard , W alter Leonard p leaded guilty i n the W ashington C ounty Circuit Court to two of f enses, and was sentenced t o two y e a r s o n e a c h o f f e n se, with the sentences to run consecutively

. However, his sentences w ere suspended, and he was put on probation f or the entirety of the s e ntence. Leonard soon violated h is probation. The circuit court resentenced him to ten y ears f

or each o f f ense, with the sentences to run c onsecutively f or a t otal of twenty
y ears. The suprem e court reversed the c ircuit court’s sentence since t he f inal sentence was

m uch greater, and varied distinctly , f rom the o riginal sentence. Leonard , 271 So. 2d at 447. ¶7. In Eastman , Jam es Thom as Eastm an pleaded guilty t o two counts and was sentenced
to ten y ears on Count I, and f if teen y ears o n Count II. Eastm an wa s r e c o mmended to an MDOC program that, if com pleted, would negate the ten-y ear sentence f or the f irst of f ense. The second sentence was also suspended, and it appears Eastm an n ever actually served any jail tim e. Instead, Eastm an w as p l aced on f ive y ears of supervised p robation af ter s uccessf

ul

com pletion of the M DOC program . His p robation was s oon revoked f or just cause. Af

ter

4com

pleting another probationary program o f f e r ed through MDOC, E a stm an was again released on supervised probation f or f ive y e ars. However, his probation was revoked f o r a second tim e shortly

af ter his release. ¶8. At his revocation hearing, the State requested that the circuit court im pose the f ifteeny ear sentence o riginally i ssued f or Count II, which w as concurrent to Count I. Instead, the ci r cuit court im

p osed a consecutive t en-y ear sentence f or C ount II. E astm an appealed the circuit court’s judgm en t b e c a u se it im posed a greater overall sentence than the original
sentence (twenty y ears to serve as opposed t o f if t een). Using Leonard as a basis, this Court determ ined that the c i r cuit court was not a llowed to restructure the overall sentence into

consecu t i v e ten-y ear sentences as opposed to t he original concurrent ten- and f if teen-y ear
sentences because it m ade the total sentence greater than originally im posed. Eastman , 909 So. 2d at 174 (¶¶12-13). ¶9. Here, the circuit court did not alter the num ber of y ears t o which S allie was o riginally sentenced. Likewise, the c ircuit court did not restructure S allie’s sentence to increase the

num ber of y ears h e would serve. T he o riginal sentence e ntailed twenty y e ars f or the aggravated-assault conviction and ten y e ars f or the f elon-in-possession-of

-a-f irearm conviction, w ith t en y ears added f or the enhancem ent. The f irst two sentences were to run concurrently and the en h a n c e me n t w as to run consecutively – this gave Sallie an original
sentence o f t hirty y ears. T he suprem e court vacated Sallie’s entire sentence on rem and and, hence, the circuit court was w ith authority to im p ose upon S allie a new sentence w ithin the original thirty -y ear param e ter. The circuit court se ntenced Sallie t o twenty y ears and ten

5y ears on each of f ense, respectively , a s h ad been the o riginal s entence. B y changing the
sentences f

rom concurrent to consecutive, the circuit court kept the new s entence within the original thirty -y ear window. Theref ore, the restructuring of the sentence does not f all within the conf ines of Leonard or Eastman

. W e f ail to f ind error in the cir c u i t c o u r t ’ s j udgm ent. This issue is without m erit, and the circuit court’s judgm ent is af f irm ed. ¶10. T H E J U D G M E N T O F THE MADISON COUNTY C I R C U I T C O U R T I S A F F I R M E D . ALL COSTS OF THIS APPEAL ARE ASSESSED T O MADISON COUNTY. GRIFFIS, P.J., BARNES, CARLTON, FAIR, WILSON AND GREENLEE, JJ., C O N C U R . L E E , C . J . , D I S S E N T S W I T H SEPARATE WRITTEN OPINI O N , J O I N E D BY JAMES, J.; IRVING P.J., JOINS IN PART. LEE, C.J., DISSENTING: ¶11. The m ajority af

f irm s t he trial court’s resentencing of Sallie on rem and f ollowing the
suprem e court’s decision to vacate a p ortion of S allie’s sentence b ased upon the f irearm

e n hancem ent. Because the suprem e court h ad af f i rm ed S allie’s original s entenc e s , notwithstanding the vacation of the f irearm enhancem ent, I f

ind that the t ria l c o u r t lacked j u r i s diction t o r estructure Sallie’s s entences to run consecutively where the origi n a l s e n t e n c e s were ordered to run concurrently

. Furtherm o re, the restructuring o f the sentences resulted in a g reater sentence than the original sentence, which violates well-settled caselaw on the

m atter. Thus, I respectf

u lly dissent. ¶12. In 2012 Sallie was convicted and sentenced to s erve twenty y e a r s f o r a g g r a v ated assault a nd t en y ears f

or f elon in possession of a f

irearm , ordered to run concurrently , with

an additional ten y ears under the f irearm -enhancem ent statute, f or a total of thirty y ears. On

6appeal this C ourt af f i rm ed both the convictions and the sentences of Sallie. Sallie v. State , 155 So. 3d 872, 875-76 (¶13) (Miss. Ct. App. 2013) (vacated in part). ¶13. On writ of c e r t i o r a r i , t h e s u p r e m e court af f i rm ed in part a nd reversed i n part the judgm ents of the trial court and this Court. Sallie v
. State , 155 S o. 3d 760, 764 (¶14) (Miss. 2015). The suprem e court clearly i ndicated that its r eview of Sallie’s appeal was lim ited only “to address the issue of whether Sallie was entitled to n otice of the f irearm enhancem ent to his s entence.” Id. at 761 (¶1). The suprem e court af f irm ed the convictions and sentences of S a l l i e but “ reverse[ d] the portion of Sallie’s sentence that constitute[ d] the f irear m enhancem ent,” d

ue to the “lack of notice

. . . [ and] unf a ir s urprise by t he post-conviction notice that the f

irearm e nhancem ent w o u l d b e c onsidered.” Id. at 764 (¶13) (em phasis added). Accordingly , the case was rem anded to the trial court f or resentencing. Id. at (¶14). ¶14. On rem and the t rial court sentenced Sallie again t o serve twenty y ears f or aggravated assault a nd t en y ears f

or f elon in p ossession o f a f

irearm , to run consecutively f or a total of thirty y e ars, as opposed to the original s entence ordered to run c o n c u r r e n t ly

. The resentencing resulted in the sam e am ount o f time i mposed b y the original sentence, which included t he ten-y e ar f

irearm e nhancem e nt that was vacated b y t h e suprem e court as unconstitutional. W ith the vacation of the f irearm enhancem ent, the new sentence now exceeds the original sentence of twenty y ears. ¶15. The tri a l c o u r t l a c k e d j u r i s d i c tion to alter Sallie’s sentences f rom concurrent to consecutive because the suprem e court had af f irm ed these portions of Sallie’s sentences as noted in the court’s m andate: “[ t]he judgem ents of the Court of A ppeals a n d t h e M a d i son

7C o u n t y Circuit Court are af f irm ed in part and vacated in part

. . . .” Id. at 7 6 5 ( ¶ 1 5 )

. T h e “vacated i n part” ref

ers only to the f

irearm enhancem ent as indicated by the c ourt’s grant of

a lim i ted review only “ to a ddress the issue of whether Sallie was entitled to notice of the f irearm enhancem ent to his sentence.” Id. a t 761 (¶1). The c ourt’s r eview dealt only with the addition of the f

irearm enhancem ent “to his sentence” and not t he sentence itself

. Again, the c o u r t accordingly stated, “ [ W ]e m ust reverse t he portion of Sallie’s sentence that constitutes the f

i rearm enhancem e nt.” Id. at 764 (¶13) ( em phasis added). Because the court reversed o nly a portion of Sallie’s sentence – nam ely the f irearm enhancem ent – the

rem aining portions of the s entence were included in the “ af f irm ed in part” order of the court and thus were not within the jurisdiction of t he trial court to alter upon rem and. ¶16. In a ddition to the trial court’s l ack of jurisdiction t o alter the sentence o n rem and, its resentencing was illegal. The s uprem e court has a lso held that “ once a circuit or county court exercises its option t o im

pose a def

inite sentence, it cannot subsequently set such a sentence aside and im

pose a greater sentence.” Leonard v
. State , 271 So. 2d 445, 4 47 (Miss. 1973)

. That principle w as f

urther r e i t e r a ted b y this Court in E astman, where we held that a court

m ay “enf orce t he term s of the original sentence

. . . [ but] a c t[ s] im properly by am ending the initial sentence [ to a greater s e ntence], a s o ur caselaw has long held such alterations are im p roper.” Eastman v. S

tate , 909 So. 2d 171, 1 7 3 ( ¶ 1 0 ) ( M i s s . Ct. App. 2005). The trial court’s resentencing of Sallie o n t h e c onvictions of a ggravated assault a n d f elon in
possess i o n o f a f

irearm im properly am ended Sallie’s o riginal sentence of twenty y ears on those two convictions to a greater sentence of thirty y ears.

8¶17. The m ajority acknowledges that a t rial c o u r t c a n n o t i s s u e a greater sentence on

rem and than that which was previously ordered f ollowing trial, nor can i t r estructure
concurrent sentences into consecutive sentences to resu l t in a greater overall sentence. However, the m ajority b elieves that this princi ple is not violated here because Sallie’s original overall sentence (including the f irearm enhancem ent) was thirty y ears, and he was

res e n t enced (without t he f irearm enhancem ent) to thirty y ears, resulting in no greater
sentence but rather the sam e length of tim e . T he conf iguration is m isguided. The suprem e court’s v acation of the f

irearm enh a n c e me n t lef

t in ef f e ct the original sentence of twenty
y ears f or aggravated assault and ten y ears f o r f e l o n i n p o ssession o f a f i rearm , to run concurrently f

or a total of twenty y ears. The trial c ourt’s resentencing exceeds by ten y ears the original sentence as it rem ains af ter t h e suprem e court’s m andate t o v acate the f irearm enhancem ent. ¶18. The trial court lacked jurisdiction to am end the portions of Sallie’s s entence that were af f irm ed b y the suprem e court. Further, I d o not f ind that the suprem e c ourt’s v a c a t i o n o f the f irearm enhancem ent was sim ply to allow the trial court to reconf igure Sallie’s sentence again to achieve the sam e am ount of tim e as the original and v acated s entence by disrupting well-settled law that a trial c o u rt cannot im pose a g reater sentence than that which it has already ordered. I believe the trial court erred i n r e s t ructuring Sallie’s original c oncurrent
sentences to run consecutively , both violating t he suprem e court’s m andate and r esulting in

a g reater sentence than that which was o riginally im posed f or the two convictions; thus, the sentence is illegal. Theref ore, I respectf

ully dissent.

9JAMES, J., JOINS T HIS OPINION; IRVING, P.J., JOINS T HIS OPINION IN

PART.

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