Rel: December 15, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. 

Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, 

Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections 

may be made before the opinion is published in Southern Reporter.

Alabama Court of Criminal Appeals

OCTOBER TERM, 2023-2024

_________________________

CR-2022-1168

_________________________

John Michael Cosper

v.

State of Alabama

Appeal from Cullman Circuit Court

(CC-21-59 and CC-21-180)

McCOOL, Judge.

John Michael Cosper appeals his convictions for two counts of 

second-degree aggravated stalking, see § 13A-6-91.1, Ala. Code 1975, and 

one count of violating a domestic-violence order, see § 13A-6-142, Ala. 

Code 1975. The trial court sentenced Cosper to serve 10 years' 
CR-2022-1168

2

imprisonment for each of his stalking convictions and to serve 1 year of 

incarceration in the Cullman County jail for his violating-a-domesticorder conviction, with the sentences to run concurrently.

Facts and Procedural History

In March 2020, Cosper's former wife, Brandi, obtained from the 

trial court a protection-from-abuse order ("the PFA order") that 

prohibited Cosper from "harassing, stalking, annoying, threatening, or 

engaging in conduct that would place [Brandi] in reasonable fear of bodily 

injury." (C. 156.) At trial, the State asked Brandi to explain the basis for 

the PFA order, and she testified as follows:

"Q. What was the basis for you asking for [the PFA order]?

"A. The basis of that was because [Cosper] was following me 

everywhere I was going. At work, he was leaving 

voicemails cussing me out. I was working at the 

Diagnostic Center at that time. It was interfering with 

-- I was trying to hide it the best I could, but then it 

started getting really, really bad to where he knew 

where I was at all times. If I was at, you know, Walmart, 

he's texting me, you know, why are you here, why are 

you there, threatening, threatening me or -- he would 

start hallucinating if I was -- that I was always a whore 

and seeing somebody and --

"Q. But you were divorced?
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3

"A. Yes, we were, but we were off and on. But still, at that 

time, I was trying to keep him away, completely away 

from me because he was so paranoid and crazy."

(R. 47-48.)

According to Brandi, Cosper continued to harass her after she 

obtained the PFA order. Specifically, Brandi testified that Cosper had 

placed a tracking device on her automobile on two separate occasions (a 

fact Cosper admitted at trial), that he had repeatedly followed her to 

various places, that he "would be calling [her] all night" (R. 70), that he 

had "show[n] up every day knocking on [her] back door" (R. 81-82), that 

he had "busted [her] front door" (R. 81), and that he had been "violent 

and verbally abusive." (R. 83.) Regarding the effect Cosper's actions had 

on her, Brandi testified as follows:

"Q. Did the fact that [Cosper] was doing this, did this cause 

you any kind of mental anguish or emotional anguish? Were 

you scared?

"A. Yes, sir, I was because he was pretty bad off."

(R. 57.) Brandi also testified that Cosper's actions had threatened her 

employment; specifically, she testified that she "[got] in trouble at work" 

because Cosper "would not stop calling [her] work." (R. 70.)
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4

Cosper disputed Brandi's testimony that he had caused her any fear 

and, in support of that contention, testified that, even after Brandi

obtained the PFA order, she would initiate contact with him "[e]very 

day." (R. 148.) Cosper specifically testified to one telephone call he had 

received from Brandi around July 4, 2020:

"Q. So you had a telephone call from [Brandi], and what was 

the call?

"A. She called and said the 4th of July was coming up next 

weekend. She said that she wanted to rent a motel room 

and watch the fireworks. She said she would buy some 

steaks, her treat, and I told her that I was scared to; I 

didn't want to get in any more trouble than what I 

already was. But I'd love to, wish I could, but -- you 

know. And I've got it recorded if anybody don't believe 

me.

"Q. All right. So you have a recording of that particular 

telephone call that you've just described?

"A. I do. Yes, sir.

"Q. And tell the court, how is it recorded?

"A. I downloaded an app on my phone and recorded it."

(R. 153-54.) Cosper's court-appointed counsel, Edward Coey, then sought 

to have the recording of that telephone call admitted into evidence "for 

the purpose of authenticating" Cosper's testimony (R. 156), and the State 

objected on various grounds. The trial court stated that it could not make 
CR-2022-1168

5

an admissibility ruling until it heard the recording, at which point the 

following colloquy occurred:

"[THE STATE]: I'd like to hear the whole thing, by the 

way, not just the part where --

"[COSPER]: It's a 37-minute video recording and only 

just a portion of it is --

"COEY: The only -- the whole thing is lengthy. We 

weren't intending to inject that whole thing into this. We 

were only intending to inject the part that was directly 

relevant to what [Cosper] just said.

"....

"THE COURT: But in the interest of completeness if 

we're going to include any of it, I have to know what all of it 

says so I can determine if any of it should be admitted. So 

let's have it.

"[COSPER]: The whole thing?

"THE COURT: Yes, sir.

"[COSPER]: I'm not sure if I have -- I don't have enough 

battery to play the whole thing.

"[THE STATE]: Judge, we object.

"THE COURT: Mr. Coey, it's just a black-letter rule, you 

can't offer just a portion of something without --

"COEY: Yes. I understand. Well ... [w]e don't have the 

electronic capability to play the whole thing, so I guess we'll 

just have to move on.
CR-2022-1168

6

"[THE STATE]: Once again, Judge, the part they're 

wanting to enter is not relevant to anything. [Brandi] has 

testified that that conversation took place.

"THE COURT: Right, I understand. I'm assuming that 

there's not anything that she blurted out on the phone that 

she didn't admit on the stand. I just don't know that. But 

you're not indicating that she said anything other than what 

she testified to and what Mr. Cosper just testified to?

"COEY: That's the crux of it, yes.

"THE COURT: Well, I think that would be cumulative. 

And since we can't hear the whole thing, I'm not going to allow 

just a portion.

"COEY: I understand."

(R. 159-60.)

The jury convicted Cosper of two counts of second-degree 

aggravated stalking and one count of violating a domestic-violence order. 

On August 16, 2022, the trial court held the sentencing hearing and 

pronounced Cosper's sentences, and the court issued a written sentencing 

order the next day. Following the sentencing hearing, Coey withdrew 

from the case, and Cosper obtained new counsel.

On September 2, 2022, Cosper, through his new counsel, filed a 

motion for a new trial in which he raised two claims of ineffective 

assistance of counsel. First, Cosper argued that Coey should have 
CR-2022-1168

7

objected to Brandi's testimony that she had sought the PFA order 

because Cosper was "hallucinating," "paranoid," and "crazy." Second 

Cosper argued that Coey should have ensured that the recording of 

Brandi's telephone call to Cosper was "transferred from [Cosper's] 

cellular telephone to a medium that would have allowed it to have been 

heard by [the trial court] and the jury in its entirety." (C. 66.) 

Approximately 10 days later, the trial court issued an order scheduling a 

hearing on Cosper's motion for October 11, 2022.

On September 22, 2022, Cosper filed an amended motion for a new 

trial in which he raised a third claim of ineffective assistance of counsel 

-- namely, that Coey had had a conflict of interest that required him to 

withdraw from the case. Specifically, Cosper alleged that Coey had 

"represented Cosper's landlord in an eviction proceeding against Cosper 

during his representation of Cosper in the criminal matter." (C. 69.) 

On October 11, 2022, the trial court held the scheduled 

postjudgment hearing and denied Cosper's motion for a new trial. Cosper 

filed a timely notice of appeal.

Discussion
CR-2022-1168

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On appeal, Cosper argues that the trial court erred by denying his 

motion for a new trial because, he says, he raised three meritorious 

ineffective-assistance-of-counsel claims. 

"'"'"It is well established that a ruling on a 

motion for a new trial rests within the sound 

discretion of the trial judge. The exercise of that 

discretion carries with it a presumption of 

correctness, which will not be disturbed by this 

Court unless some legal right is abused and the 

record plainly and palpably shows the trial judge 

to be in error." '" Hosea O. Weaver & Sons, Inc. v. 

Towner, 663 So. 2d 892, 895 (Ala. 1995) (quoting 

Kane v. Edward J. Woerner & Sons, Inc., 543 So. 

2d 693, 694 (Ala. 1989), quoting in turn Hill v. 

Sherwood, 488 So. 2d 1357 (Ala. 1986)).'

"Ex parte Hall, 863 So. 2d 1079, 1081-82 (Ala. 2003).

"In McNair v. State, 706 So. 2d 828 (Ala. Crim. App. 

1997), this Court explained:

"'In order to prevail on an ineffective 

assistance of counsel claim, a defendant must meet 

the two-pronged test set out by Strickland v. 

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. 

Ed. 2d 674 (1984).

" '"First, the defendant must 

show that counsel's performance was 

deficient. This requires showing that 

counsel made errors so serious that 

counsel was not functioning as the 

'counsel' guaranteed the defendant by 

the Sixth Amendment [to the United 

States Constitution]. Second, the 
CR-2022-1168

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defendant must show that the deficient 

performance prejudiced the defense. 

This requires showing that counsel's 

errors were so serious as to deprive the 

defendant of a fair trial, a trial whose 

result is unreliable. Unless a 

defendant makes both showings, it 

cannot be said that the conviction ... 

resulted from a breakdown in the 

adversary process that renders the 

result unreliable."

"'Id. at 687, 104 S. Ct. at 2064.

" '"The performance component outlined in 

Strickland is an objective one: that is, whether 

counsel's assistance, judged under 'prevailing 

professional norms,' was 'reasonable considering 

all the circumstances.'" Daniels v. State, 650 So.

2d 544, 552 (Ala. Cr. App. 1994) (quoting 

Strickland, 466 U.S. at 688, 104 S. Ct. at 2065). 

Once a defendant has identified the specific acts or 

omissions that allegedly were not the result of 

reasonable professional judgment on counsel's 

part, the court must determine whether those acts 

or omissions fall outside the wide range of 

professionally competent assistance. Id.

"'When reviewing a claim of ineffective 

assistance of counsel, we indulge a strong 

presumption that counsel's conduct was 

appropriate and reasonable. Hallford v. State, 629 

So. 2d 6 (Ala. Cr. App. 1992), cert. denied, 511 U.S. 

1100, 114 S. Ct. 1870, 128 L. Ed. 2d 491 (1994); 

Luke v. State, 484 So. 2d 531 (Ala. Cr. App. 1985).

" '"....."
CR-2022-1168

10

"'....

"'And, even if an attorney's performance is 

determined to be deficient, the petitioner is not 

entitled to relief unless it is also established that 

"there is a reasonable probability that, but for 

counsel's unprofessional error, the result of the 

proceeding would have been different. A 

reasonable probability is a probability sufficient to 

undermine confidence in the outcome." 

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

"'In an ineffective assistance of counsel 

claim, the burden is on the claimant to show that 

his counsel's assistance was ineffective. Ex parte 

Baldwin, 456 So. 2d 129 (Ala. 1984), aff'd, 472 U.S. 

372, 105 S. Ct. 2727, 86 L. Ed. 2d 300 (1985).'

"706 So. 2d at 839."

Hutcherson v. State, 243 So. 3d 855, 862-64 (Ala. Crim. App. 2017). With 

these principles in mind, we turn to Cosper's ineffective-assistance-ofcounsel claims.

I.

Cosper argues that Coey provided ineffective assistance by not

objecting to Brandi's testimony that she had sought the PFA order 

because Cosper was "hallucinating," "paranoid," and "crazy." In support 

of his contention that Brandi's testimony was inadmissible, Cosper 

argues that, if the State wanted Brandi to offer an opinion on his mental 
CR-2022-1168

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state, it should have qualified her as an expert witness under Rule 702, 

Ala. R. Evid., which provides that an expert witness may testify in the 

form of an opinion if certain requirements are met. 

However, Rule 701, Ala. R. Evid., provides that, in limited 

circumstances, a lay witness may also testify in the form of an opinion. 

Specifically, Rule 701 states:

"If the witness is not testifying as an expert, the 

witness's testimony in the form of opinions or inferences is 

limited to those opinions or inferences which are (a) rationally 

based on the perception of the witness and (b) helpful to a 

clear understanding of the witness's testimony or the 

determination of a fact in issue."

Moreover,

"[t]he Alabama Supreme Court in Ex parte Lee, 506 So. 

2d 301 (Ala. 1987), stated:

"'In Alabama, a lay witness may give his 

opinion on the question of a defendant's sanity or 

insanity as long as the proper predicate has been 

laid. Williams v. State, 291 Ala. 213, 279 So. 2d 

478 (1973); Lokos v. State, 434 So. 2d 818 (Ala. 

Crim. App. 1982), affirmed, 434 So. 2d 831 (Ala. 

1983); Carroll v. State, 370 So. 2d 749 (Ala. Crim. 

App.), cert. denied, 370 So. 2d 761 (Ala. 1979). To 

lay a proper predicate for the admission of such an 

opinion, a witness must first have testified: (1) to 

facts showing that he had an adequate opportunity 

to observe such defendant's conduct in general, 

and (2) to his personal observation of specific 

irrational conduct of the defendant. See Williams 
CR-2022-1168

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v. State, supra; Lokos v. State, supra; Carroll v. 

State, supra. See also C. Gamble, McElroy's 

Alabama Evidence, § 128.02 (3d ed. 1977). ...'

"506 So. 2d at 303."

Albarran v. State, 96 So. 3d 131, 174 (Ala. Crim. App. 2014).

 In this case, Brandi's testimony that Cosper was "hallucinating," 

"paranoid," and "crazy" was based on her personal observations of 

Cosper's "'specific irrational conduct.'" Albarran, 96 So. 3d at 174 

(citation omitted). Specifically, Brandi testified that, even after she 

obtained the PFA order, Cosper "follow[ed] [her] everywhere [she] was 

going," that he "le[ft] voicemails cussing [her] out," that he sent her 

threatening text messages, that he believed she "was always a whore and 

seeing somebody," that he was violent toward her and caused physical 

damage to her home, and that he was verbally abusive to her. Thus, 

there was a sufficient predicate for Brandi to testify to her opinion of 

Cosper's mental state, which is to say that her testimony in that regard 

was admissible. See Albarran, 96 So. 3d at 174 (holding that a witness 

could testify as to whether he believed that the defendant was "crazy" 

because the witness's testimony was based on his personal observations 

of the defendant's conduct). Therefore, there was no merit to the 
CR-2022-1168

13

objection that Cosper argues Coey should have raised, and it is well 

settled that defense counsel cannot be deemed ineffective for failing to 

raise a meritless objection. See Van Pelt v. State, 202 So. 3d 707, 732 

(Ala. Crim. App. 2015) (holding that, because the witness's testimony was 

admissible, "trial counsel was not ineffective for failing to object to the 

testimony"). Accordingly, Cosper has failed to demonstrate that Coey

performed deficiently by not objecting to Brandi's opinion of his mental 

state.

Furthermore, even if that part of Brandi's testimony was 

inadmissible, Cosper has not demonstrated that "'"there is a reasonable 

probability that ... the result of the proceeding would have been 

different" '" if her testimony had been excluded. Hutcherson, 243 So. 3d 

at 864 (citations omitted). According to Cosper, there was a "substantial" 

likelihood that, given Brandi's testimony, "the jury perceived him to be 

someone suffering from severe mental illnesses." (Cosper's reply brief, p. 

4.) However, even if that contention is true, Cosper does not explain why 

the jury's belief that he was suffering from "severe mental illnesses"

would have impacted the jury's verdict. The jury was tasked with 

determining whether Cosper committed second-degree aggravated 
CR-2022-1168

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stalking and whether he violated a domestic-violence order, and there 

was ample evidence to support a finding that Cosper committed those 

offenses. Also, the trial court expressly instructed the jury that guilty 

verdicts on those charges had to be based solely on the jury's 

determination that the State had proven the elements of those offenses 

beyond a reasonable doubt, and we presume the jury followed the trial 

court's instructions. Anderson v. State, 360 So. 3d 1117, 1122 (Ala. Crim. 

App. 2022). Thus, there is not a reasonable probability that the jury's 

verdict turned on Brandi's opinion of Cosper's mental state. 

For the foregoing reasons, the trial court did not err by denying 

Cosper's first ineffective-assistance-of-counsel claim.

II.

Cosper argues that Coey provided ineffective assistance by failing 

to ensure that the recording of Brandi's telephone call to Cosper "had 

been ... transferred from [Cosper's] cellular telephone to a medium that 

would have allowed it to have been heard by [the trial court] and the jury 

in its entirety." (Cosper's brief, p. 15.) However, even if Coey performed 

deficiently in this regard (and we do not suggest that he did), Cosper 
CR-2022-1168

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suffered no prejudice.1 As Coey explained at trial, the purpose of 

introducing the recording of Brandi's telephone call was to demonstrate 

that, despite her allegation that she was afraid of Cosper, she had 

contacted him a few months after obtaining the PFA order and had told 

him that "she wanted to rent a motel room" with him. However, Brandi 

admitted on cross-examination that she and Cosper had been "talking 

about getting a motel room" around that time. (R. 83-84.) Thus, the trial 

court correctly found that the recording of Brandi's telephone call would 

have been cumulative to other evidence presented at trial, and, as this 

Court has repeatedly stated, defense counsel cannot be deemed 

ineffective "for failing to present evidence that would have been 

cumulative to other evidence presented at trial." Peraita v. State, [Ms. 

CR-17-1025, Aug. 6, 2021] ___ So. 3d ___, ___ (Ala. Crim. App. 2021). 

Accordingly, the trial court did not err by denying Cosper's second

ineffective-assistance-of-counsel claim.

III.

1"In reviewing claims of ineffective assistance of counsel, this Court 

need not consider both prongs of the Strickland test" because "the failure 

to establish one of the prongs is a valid basis, in and of itself, to deny the 

claim." Hutcherson, 243 So. 3d at 864 (internal citations omitted).
CR-2022-1168

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Cosper argues that Coey provided ineffective assistance as the 

result of an alleged conflict of interest. Specifically, Cosper alleged that 

Coey had "represented Cosper's landlord in an eviction proceeding 

against Cosper during his representation of Cosper in the criminal 

matter."

In Lowery v. State, 340 So. 2d 830, 834 (Ala. Crim. App. 1976), this 

Court stated:

"It has been uniformly held that after the expiration of 

thirty days from the rendition of a final judgment, no 

additional grounds can be assigned to a motion for a new trial 

filed within the thirty-day period that are not germane to, or 

merely elaborative of, grounds previously assigned."

Likewise, in Jones v. State, 362 So. 2d 1303, 1313 (Ala. Crim. App. 1978), 

this Court held that one of the defendant's claims on appeal was "not 

properly presented to this Court for review" because, although the 

defendant had filed a timely motion for a new trial, the motion had "made 

no mention whatsoever of the [claim]"; instead, the defendant had raised 

the claim for the first time after the time for filing a motion for a new 

trial had expired.

In this case, Cosper first raised his conflict-of-interest claim in the 

amended motion for a new trial that he filed on September 22, 2022, 
CR-2022-1168

17

which was more than 30 days after his sentences were pronounced, and 

that claim was "not germane to, or merely elaborative of, [the] grounds 

[he] previously assigned" in his original motion for a new trial but, 

instead, was an entirely new claim being presented for the first time. 

Lowery, 340 So. 2d at 843. Thus, because Cosper did not raise this claim

within 30 days of the pronouncement of his sentences, "the issue is not 

properly presented to this Court for review." Jones, 362 So. 2d at 1313. 

IV.

Although Cosper has not demonstrated that he is entitled to relief 

from his convictions, we must remand this case for the trial court to 

correct Cosper's sentences for his second-degree-aggravated-stalking 

convictions because the sentences are illegal. Neither party raises an 

issue concerning those sentences, but it is well settled that an illegal 

sentence is a jurisdictional issue that this Court must notice ex mero 

motu. Towns v. State, 293 So. 3d 975, 985 (Ala. Crim. App. 2019).

Aggravated stalking in the second degree is a Class C felony. See § 

13A-6-91.1(b). At the time of Cosper's offenses, § 13A-5-6(a)(3), Ala. Code 

1975, provided that the sentence for a Class C felony had to be "not more 

than 10 years or less than 1 year and 1 day and must be in accordance 
CR-2022-1168

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with subsection (b) of Section 15-18-8[, Ala. Code 1975,] unless 

sentencing is pursuant to Section 13A-5-9[, Ala. Code 1975]," i.e., the 

Habitual Felony Offender Act.2 At the time of Cosper's offenses, § 15-18-

8(b), provided, in pertinent part:

"Unless a defendant is sentenced to probation, drug 

court, or a pretrial diversion program, when a defendant is 

convicted of an offense that constitutes a Class C or D felony 

offense and receives a sentence of not more than 15 years, the 

judge presiding over the case shall order that the convicted 

defendant be confined in a prison, jail-type institution, 

treatment institution, or community corrections program for 

a Class C felony offense or in a consenting community 

corrections program for a Class D felony offense, except as 

provided in subsection (e), for a period not exceeding two years 

in cases where the imposed sentence is not more than 15 

years, and that the execution of the remainder of the sentence 

be suspended notwithstanding any provision of the law to the 

2Effective July 1, 2023, the Alabama Legislature amended § 13A-5-

6(a)(3) to remove the requirement that a sentence for a Class C felony 

"must be in accordance with subsection (b) of Section 15-18-8 unless 

sentencing is pursuant to Section 13A-5-9." See Act No. 2023-461, Ala. 

Acts 2023. However, "'a criminal offender must be sentenced pursuant 

to the statute in effect at the time of the commission of the offense, at 

least in the absence of an expression of intent by the legislature to make 

the new statute applicable to previously committed crimes.'" 

Zimmerman v. State, 838 So. 2d 404, 406 n.1 (Ala. Crim. App. 2001)

(quoting 24 C.J.S. Criminal Law § 1462 (1989)). We have reviewed Act 

No. 2023-461, and we find no indication that the Legislature intended for 

the amended version of § 13A-5-6(a)(3) to apply retroactively. Thus, the 

trial court was required to sentence Cosper for his Class C felonies based 

on the version of § 13A-5-6(a)(3) that was in effect at the time of his 

offenses.
CR-2022-1168

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contrary and that the defendant be placed on probation for a 

period not exceeding three years and upon such terms as the 

court deems best."3

(Emphasis added.) 

In short, then, at the time of Cosper's offenses,

"§§ 13A-5-6(a)(3) and 15-18-8(b), Ala. Code 1975, d[id] not 

allow a trial court to impose a 'straight' sentence for a Class 

C felony when the Habitual Felony Offender Act does not 

apply. Instead, under §[§] 13A-5-6(a)(3) and 15-18-8(b), once 

the trial court impose[d] on a defendant a sentence length 

between 1 year and 1 day and 10 years, the trial court [had 

to] either:

"(1) Sentence the defendant to probation, 

drug court, or a pretrial diversion program; or

"(2) 'Split' the confinement portion of the 

defendant's sentence to a period not exceeding two 

years, suspend the remainder of the defendant's 

sentence, and impose a term of probation on the 

defendant that does not exceed three years.

"Here, [Cosper] is not a habitual felony offender and was 

not sentenced under § 13A-5-9, Ala. Code 1975. Yet the trial 

court sentenced [Cosper] to a 'straight' 10-year sentence in the 

Alabama Department of Corrections [for each of his second3Act No. 2023-461, Ala. Acts 2023, amended § 15-18-8, and, under 

the amended statute, a trial court is not required to split a sentence for a 

Class C felony but has the discretion to do so. However, because there is 

no indication that the Legislature intended for the amended version of §

15-18-8 to apply retroactively, the trial court was required to sentence 

Cosper under the version of the statute that was in effect at the time of

his offenses. Zimmerman v. State, 838 So. 2d 404, 406 n.1 (Ala. Crim. 

App. 2001).
CR-2022-1168

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degree-aggravated-stalking convictions], which, as explained 

above, [was] impermissible under § 13A-5-6(a)(3), Ala. Code 

1975[, at the time of Cosper's offenses]. Thus, we must 

remand this case to the trial court to impose a sentence on 

[Cosper] for [each of] his conviction[s] for [second-degree 

aggravated stalking] that complies with [the versions of] §§ 

13A-5-6(a)(3) and 15-18-8(b) [that existed at the time of his 

offenses].

"In so doing, however, we note that [Cosper's] 10-year 

sentence[s] [are] valid; thus, the trial court cannot change the 

underlying sentence[s]. See generally Moore v. State, 871 So. 

2d 106, 110 (Ala. Crim. App. 2003) (recognizing that, when 

the base sentence imposed by the trial court is valid, the trial 

court cannot alter it on remand)."

Born v. State, 331 So. 3d 626, 637-38 (Ala. Crim. App. 2020) (footnotes 

and citations to record omitted).

Conclusion

We affirm Cosper's convictions and his sentence for his violating-adomestic-order conviction. We reverse Cosper's sentences for his seconddegree-aggravated-stalking convictions and remand the case for the trial 

court to hold a new sentencing hearing at which it imposes sentences that 

comply with the versions of §§ 13A-5-6(a)(3) and 15-18-8(b) that existed 

at the time of Cosper's offenses. The trial court shall take all necessary 

action to ensure that the circuit clerk makes due return to this Court 

within 42 days of the date of this opinion, and the record on return to 
CR-2022-1168

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remand shall include the transcript of the sentencing hearing and the 

trial court's amended sentencing order.

AFFIRMED AS TO CONVICTIONS; AFFIRMED IN PART AND 

REVERSED IN PART AS TO SENTENCES; AND REMANDED WITH 

INSTRUCTIONS.

Windom, P.J., and Kellum and Cole, JJ., concur. Minor, J., concurs 

specially, with opinion.
CR-2022-1168

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MINOR, Judge, concurring specially.

I concur in the Court's decision. I write separately to explain more 

fully why I concur with Part III, in which the Court holds that John 

Michael Cosper's conflict-of-interest claim is not properly before this 

Court for review. As the Court explains, although Cosper timely moved 

for a new trial, he did not raise the conflict-of-interest claim in that 

motion. Instead, he waited until more than 30 days after the trial court 

had pronounced his sentences. The Court, citing Lowery v. State, 340 So. 

2d 830, 834 (Ala. Crim. App. 1976), and Jones v. State, 362 So. 2d 1303, 

1313 (Ala. Crim. App. 1978), holds that the claim is not properly before 

us. 

In my research, I have found only one citation to Lowery or Jones

for that same point after the Rules of Criminal Procedure became 

effective in 1991: Judge Welch's separate writing concurring in the result 

in Edwards v. State, 991 So. 2d 787 (Ala. Crim. App. 2008). In Edwards, 

Judge Welch "concur[red] in the result reached in the unpublished 

memorandum affirming the trial court's denial of Johnny C. Edwards's 

motion for a new trial." 991 So. 3d at 787 (Welch, J., concurring in the 

result). Edwards had timely moved for a new trial. More than 30 days 
CR-2022-1168

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later, new counsel for Edwards had filed an amended motion for a new 

trial in which Edwards, for the first time, alleged claims of ineffective 

assistance of counsel. According to Judge Welch, this Court in its 

unpublished memorandum rejected those ineffectiveness claims on the 

merits. In his view, however, under Lowery the ineffectiveness claims 

were not properly before this Court.

In Wesson v. State, 644 So. 2d 1302 (Ala. Crim. App. 1994), this 

Court stated: 

"It is well settled that a motion for a new trial is 

'addressed to the sound discretion of the trial court and [his 

decision thereon] will not be revised on appeal unless it clearly 

appears that the discretion has been abused.' Nichols v. 

State, 267 Ala. 217, 228, 100 So. 2d 750, 760-61 (1958). 

Accord, e.g., Ashley v. State, 606 So. 2d 187, 191 (Ala. Cr. App. 

1992); Maddox v. State, 520 So. 2d 143, 154 (Ala. Cr. App. 

1986). This principle, of necessity, must grant to the trial 

court the discretion to decide whether it will consider grounds 

at a hearing on a motion for a new trial that were not set forth 

in that motion. We observe that Rule 24.1, [Ala. R. Crim. P.], 

which governs motions for new trial, clearly contemplates the 

filing of a written motion. See Form 90 (entitled 'Motion For 

New Trial'); Rule 24.3 (motion need not be presented to judge 

in order to perfect filing). Indeed, Justice Maddox has stated 

that 'a motion for a new trial must be in writing.' H. Maddox, 

Alabama Rules of Criminal Procedure § 24.1 at 636 (1990) 

(emphasis added).

"In this case, a written motion for a new trial was filed 

on August 15, 1993. This motion did not contain the allegation 

that trial counsel provided erroneous information concerning 
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good time incentive credit. On August 19, only four days after 

the motion was filed, the motion was set for hearing on 

September 20, 1993. C.R. 4, 17 (Motion for New Trial). The 

motion for a new trial was not amended at any time between 

August 19 and September 20 to add the allegation of good 

time misinformation. The trial judge essentially stated that 

he had not received notice that this particular allegation was 

being raised and that he was therefore not in a position to 

address the allegation. Under the circumstances presented, 

we find no abuse of the trial court's discretion in declining to 

consider this allegation."

644 So. 2d at 1315-16.

This Court's memorandum in Edwards—and Judge Welch's special 

writing—are not controlling precedent. See Rule 54, Ala. R. App. P. 

Although in Wesson this Court suggested that the trial court had 

discretion to consider an amendment filed before the hearing on a motion 

for a new trial, this Court in Wesson did not mention Lowery or Jones in 

that portion of its analysis.4 It is thus unclear that this Court has 

abrogated the Lowery-Jones rule. At most, I read Wesson as implicitly 

recognizing that a trial court has discretion to consider an amendment 

like that filed in Wesson or in this case—but the court need not consider 

it. 

4This Court in Wesson cited Jones for a different point. See Wesson, 

644 So. 2d at 1311. 
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25

The trial court did not state its reasons for denying the conflict-ofinterest claim that Cosper raised in his amended motion for a new trial. 

Under Lowery and Jones, the trial court's denial of the conflict-of-interest 

claim was proper. And, under Wesson, the trial court's denial of that 

claim was a proper exercise of its discretion.