IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2014-KA-00056-COA
ANTONIO COOPER A/K/A ANTONIO M. COOPER APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 11/21/2013 TRIAL JUDGE: HON. ALBERT B. SMITH III COURT FROM W HICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: MELANIE DOTSON THOMAS DISTRICT ATTORNEY: BRENDA FAY MITCHELL NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, AGGRAVATED ASSAULT, AND SENTENCED AS A HABITUAL OFFENDER TO TW ENTY YEARS AND AN ADDITIONAL CONSECUTIVE TEN YEARS AS AN ENHANCEMENT FOR THE DISPLAY OR USE OF A FIREARM BY A CONVICTED FELON DURING THE COMMISSION OF A FELONY; AND COUNT II, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCED AS A HABITUAL OFFENDER TO TEN YEARS, W ITH THE SENTENCE IN COUNT I TO RUN CONCURRENTLY W ITH COUNT II, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, W I THOUT ELIGIBILITY FOR PAROLE OR PROBATION DISPOSITION: AFFIRMED IN PART; REVERSED AND RENDERED IN PART - 06/02/2015 MOTION FOR REHEARING FILED:MANDATE ISSUED:

BEFORE IRVING, P.J., BARNES AND FAIR, JJ. BARNES, J., FOR THE COURT: ¶1. Antonio C ooper appeals t he sentence im posed by the Circuit Court of B olivar County

. A jury f ound C ooper guilty of aggravated assault and p ossession o f a f irearm by a c onvicted
f elon. The trial court f

ound he was a habitual of f ender under Mississippi Code Annotated section 99-19-81 (Supp. 2014). C ooper was sentenced to serve the m axim um sentence of twenty y ears f

or aggravated assault a nd ten y ears f or f e lon in possession of a f

irearm . The trial c ourt f

urther ordered Cooper to serve an additional ten-y ear sentence under Mississippi Code Annotated section 97-37-37(2) ( R e v . 2 0 1 4) f or u sing or d isplay ing a f i rearm in the

com m ission of t he f

elony of aggravated assault. On appeal, the State adm its, and this Court

a grees, that it w as error f or the trial court to im

pose two e n hanced sent e n c e s f o r t h e aggravated-assault conviction. Theref ore, we r everse and render the te n -y ear f irearm

enhancem ent portion of

Cooper’s sentence f

or the aggravated-assault conviction.
STATEMENT OF FACTS AND PROCEDURAL HISTORY ¶2. In Septem

ber 2013, Cooper was indicte d f o r a g g r a v a t e d a s s a u l t ( C o u n t I) and possession of a f

irearm by a convicted f

elon (Count II). In the indictm ent, the State sought

two sentencing enhancem ents on Count I

– h abitual-of f e nder status under section 99-19-81, and u se a n d display of a f irearm by a convicted f

elon during the com m ission o f a f elony under s ection 97-37

- 3 7 ( 2 )

. On Count II, the State again sought a habitual-of f ender sentencing enhancem ent.

2¶3. C o o p e r p l e aded n ot guilty and proceeded to trial in Novem ber 2013. The S t a t e presented evidence that i n the early evening of June 19, 2013, Cooper was driving a green Pontiac and approached a group of individuals having a cookout on Church Street in Cleveland, M ississippi. Cooper r olled d own the passenger-side window of the vehicle and shot into the crowd with a s m all chrom e revolver. He s truck the victim , Richard Brown, in the upper arm

. ¶4. Five e y e witnesses f or the State, including the victim , identif ied C ooper as the shooter, and t estif ied t h at Cooper had had a recent phy sical altercation with another person at the cookout – Charlie McGee – who was s tanding n ext to the victim at the tim e of the shooting.
W h ile Cooper h as a look-alike brother, all f ive o f the ey ewitnesses testif ied that it was Cooper and not his brother w ho f ired the s hot f

rom the green vehicle. Cooper, t estif y ing on his own behalf

, of f ered alibi t estim ony that at the tim e of the shooting he was at his sister’s house and did not shoot Brown, who was his best f riend. ¶5. The jury f

ound Cooper guilty of b oth counts. P rior to trial, Cooper had stipulated that he was a f

elon at the tim e of the incident. During s entencing, t h e S t a t e entered certif ied records of Cooper’s prior convictions (a conviction f or three counts of burglary of a dwelling
f or which he was sentenced t o f ourteen y ears, a nd o ne conviction f or f elony escape f

or which he received a one-y e ar sentence). ¶6. Related to the issue on appeal, the trial court sentenced Cooper to twenty y ears as a habitual o f

f ender f or a ggravated a ssault, and also s e ntenced h im a s econd tim e o n the sam e charge to an additional t en y ears under the f i rearm -enhancem ent statute, to run consecutively

3to t he sentence f o r aggravated assault. Cooper f iled a m otion f

or a judgm ent notwithstanding the verdict (JNOV) or, i n the alternative, a new trial, claim ing the t rial court erred i n ref using

a j ury i nstruction on w itness i dentif ication, the verdict was against the o verwhelm ing weight of the evidence, a nd a ny other a pparent errors in the record. The m o tion was d enied. Cooper appealed. ¶7. In January 2014, Cooper f iled a statem e nt of issues f o r appeal w ith the trial court, and the issues were the sam e as the issues in the m otion f o r a JNOV. However, in May 2014, Cooper, now represented by the Of f ice of the State Public Def ender, Ind i g e n t Appeals Division, claim ed only o ne error – that the trial court e r red in im posing an additional ten-y ear sentence under the f

irearm -enhancem ent statute. T he State a d m its error in the trial court’s
im p osition of

two sentencing enhancem ents f or Cooper’s aggravated-assault conviction. 1
ANALYSIS ¶8. Cooper claim s the trial court erred in im posing an additional ten-y ear sentence, and the State conf

esses this error. Section 97-37-37(2) provides: Except to the extent that a greater minimum sentence is o therwise provided by any other provision of law , any convicted f elon who uses or display s a f irearm during the com m ission of any f elony shall , i n a d d ition to the punishm ent provided f

or such f elony , be sentenced to an additional term of i m prisonm ent in t h e c u s tody of the Departm ent of Corrections of ten (10) y ears, to r un con s e cutively , not concurrently , which sentence shall not b e reduced or

1 T h i s C o u r

t s u b s eq u en tly g ran ted C o o p er p erm issio n to f ile a p ro se su p p lem en tal b rief u n d er M ississip p i R u l e o f A p p ellate P ro ced u re 2 8 (b ), w h ich h e f i led i n S e p tem

b er 2 0 1 4

. In it, h e arg u es h is i n d ictm en t an d a rrest w arran t s w ere i mp r o p e r . H e claim s h is in d ictm en t w as in v alid b ecau se it d id n o t in clu d e th e w o rd “statu te,” an d h is arrest w arran ts w e re in v alid b ecau se a j u d g e o r clerk d id n o t “sig n o f f ” o n t h em . We f

i n d b o th arg u m en ts p ro ced u rally b arred b ecau se th ey w ere n o t raised b e f o r e th e t rial co u rt. S

ee R o s s v. S ta te , 6 0 3 S o . 2 d 8 5 7 , 8 6 1 (M iss. 1 9 9 2 ). F u rth er, th ey are w ith o u t m erit. 4suspended.

(Em phasis added). The statute applies t he t en-y ear f irearm enh a n c e me n t “[ e]xcept to the

extent that a greater m inim um sentence is otherwise provided.” Cooper’s m andatory twenty

y ear sentence f

or a ggravated assault as a habitual of f ender under s ection 99-19-81 provides

a “ g reater m inim

um sentence” than the ten-y ear enhancem ent statute. Theref ore, section 97- 37-37(2) was inapplicable to this case. The trial court erred in i m p osing t he additional teny ear sentence. ¶9. Both parties cite Harris v. State , 9 9 S o. 3 d 169 (Miss. 2 012), as analogous. In Harris ,

a jury convicted the def endant of ag g r a v a t e d a s s ault and p ossession o f a f i rearm by a convicted f

elon. Id. at 1 7 1 ( ¶9). He had been charged u nder two sentence enhancem ents

–

as a h abitual of

f ender under section 99-19-81, a nd f or use and display of a f

irearm during a f elony under section 97-37-37(2). Id. at 170 (¶3). The trial court sentenced the def endant

as a habitual of

f ender to the m axim

um sentence of twenty y e ars f or aggravated assault, and

ten y e a rs f

or possession of a f

irearm by a c o n victed f

elon. The trial judge sentenced the def endant to an a dditional ten y ears f or the l atter crim e under the f irearm enhancem ent. The Mississippi Suprem e Court reversed this Court’s judgm ent on the sentencing issue, agreeing with t he d ef

endant that the additional t en-y ear sentence was in error because the m andatory twenty

- y ear sentence f

or a ggravated assault a s a h abitual of f ender carried “ a greater

m inim um sentence” t han the ten y ear f irearm -enhancem ent sentence. Id

. at 172, 174 (¶¶11, 13-14, 26). ¶10. W e f

ind the Harris analy sis applicable here. The trial court was required to sentence

5Cooper as a habitual of f ender to the m axim

u m s entence of twenty y ears f or aggravated assault; thus, section 99-19-81 provided a “greater m inim um s entence” t han the t e n - y e a r enhancem ent. Accordingly , the trial court erred in sen tencing Cooper under 97-37-37(2).
W e theref o re reverse and render the ten-y ear-enhancem ent portion of Johnson’s sentence f or the aggravated-assault conviction. ¶11. THE JUDGMENT O F THE CIRCUIT COURT OF BOLIVAR COUNTY OF CONVICTION OF COUNT I, AGGRAVATED ASSAULT, AND SENTENCE AS A HABITUAL OFFENDER OF TWENTY YEARS; AND COUNT I I, POSSESSION OF A FIREARM BY A CONV I C T ED FELON, AND SENTENCE, AS A HABITUAL O F F E N D E R , O F T E N Y E A R S , W I T H T H E S E N T E N C E S T O R U N C O N C U R R E N T L Y , A L L I N T H E C U S T O D Y O F T H E M I S S I S S I P P I D E P A R T M E N T O F C O R R E C T I O N S , WITHOUT E L IGIBILITY FOR P A R O L E O R PROBA T I O N , I S AFFIRMED. THE S ENTENCE OF TEN YEARS AS AN ENHAN C E M E N T F O R THE U SE OF A FIREARM I N THE COMMISSION OF A FELONY IS REVERSED AND RENDERED. ALL COSTS O F THIS A PPEAL ARE ASSESSED TO BOLIVAR COUNTY. LEE, C.J., IRV ING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAX W ELL, FAIR AND JAMES, JJ., CONCUR.

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