      IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                       NO. 2014-KA-00056-COA

ANTONIO COOPER A/K/A ANTONIO M.                       APPELLANT
COOPER

v.

STATE OF MISSISSIPPI                                   APPELLEE


DATE OF JUDGMENT:              11/21/2013
TRIAL JUDGE:                   HON. ALBERT B. SMITH III
COURT FROM WHICH 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 TWENTY
                               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, WITH THE
                               SENTENCE IN COUNT I TO RUN
                               CONCURRENTLY WITH COUNT II, ALL
                               IN THE CUSTODY OF THE MISSISSIPPI
                               DEPARTMENT OF CORRECTIONS,
                               WITHOUT 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 Cooper appeals the sentence imposed by the Circuit Court of Bolivar County.

A jury found Cooper guilty of aggravated assault and possession of a firearm by a convicted

felon. The trial court found he was a habitual offender under Mississippi Code Annotated

section 99-19-81 (Supp. 2014). Cooper was sentenced to serve the maximum sentence of

twenty years for aggravated assault and ten years for felon in possession of a firearm. The

trial court further ordered Cooper to serve an additional ten-year sentence under Mississippi

Code Annotated section 97-37-37(2) (Rev. 2014) for using or displaying a firearm in the

commission of the felony of aggravated assault. On appeal, the State admits, and this Court

agrees, that it was error for the trial court to impose two enhanced sentences for the

aggravated-assault conviction. Therefore, we reverse and render the ten-year firearm-

enhancement portion of Cooper’s sentence for the aggravated-assault conviction.

            STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2.    In September 2013, Cooper was indicted for aggravated assault (Count I) and

possession of a firearm by a convicted felon (Count II). In the indictment, the State sought

two sentencing enhancements on Count I – habitual-offender status under section 99-19-81,

and use and display of a firearm by a convicted felon during the commission of a felony

under section 97-37-37(2). On Count II, the State again sought a habitual-offender

sentencing enhancement.



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¶3.    Cooper pleaded not guilty and proceeded to trial in November 2013. The State

presented evidence that in 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, Mississippi. Cooper rolled down the passenger-side window of the vehicle and

shot into the crowd with a small chrome revolver. He struck the victim, Richard Brown, in

the upper arm.

¶4.    Five eyewitnesses for the State, including the victim, identified Cooper as the shooter,

and testified that Cooper had had a recent physical altercation with another person at the

cookout – Charlie McGee – who was standing next to the victim at the time of the shooting.

While Cooper has a look-alike brother, all five of the eyewitnesses testified that it was

Cooper and not his brother who fired the shot from the green vehicle. Cooper, testifying on

his own behalf, offered alibi testimony that at the time of the shooting he was at his sister’s

house and did not shoot Brown, who was his best friend.

¶5.    The jury found Cooper guilty of both counts. Prior to trial, Cooper had stipulated that

he was a felon at the time of the incident. During sentencing, the State entered certified

records of Cooper’s prior convictions (a conviction for three counts of burglary of a dwelling

for which he was sentenced to fourteen years, and one conviction for felony escape for which

he received a one-year sentence).

¶6.    Related to the issue on appeal, the trial court sentenced Cooper to twenty years as a

habitual offender for aggravated assault, and also sentenced him a second time on the same

charge to an additional ten years under the firearm-enhancement statute, to run consecutively



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to the sentence for aggravated assault. Cooper filed a motion for a judgment notwithstanding

the verdict (JNOV) or, in the alternative, a new trial, claiming the trial court erred in refusing

a jury instruction on witness identification, the verdict was against the overwhelming weight

of the evidence, and any other apparent errors in the record. The motion was denied. Cooper

appealed.

¶7.    In January 2014, Cooper filed a statement of issues for appeal with the trial court, and

the issues were the same as the issues in the motion for a JNOV. However, in May 2014,

Cooper, now represented by the Office of the State Public Defender, Indigent Appeals

Division, claimed only one error – that the trial court erred in imposing an additional ten-year

sentence under the firearm-enhancement statute. The State admits error in the trial court’s

imposition of two sentencing enhancements for Cooper’s aggravated-assault conviction.1

                                          ANALYSIS

¶8.    Cooper claims the trial court erred in imposing an additional ten-year sentence, and

the State confesses this error. Section 97-37-37(2) provides:

       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

       1
         This Court subsequently granted Cooper permission to file a pro se supplemental
brief under Mississippi Rule of Appellate Procedure 28(b), which he filed in September
2014. In it, he argues his indictment and arrest warrants were improper. He claims his
indictment was invalid because it did not include the word “statute,” and his arrest warrants
were invalid because a judge or clerk did not “sign off” on them. We find both arguments
procedurally barred because they were not raised before the trial court. See Ross v. State,
603 So. 2d 857, 861 (Miss. 1992). Further, they are without merit.

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       suspended.

(Emphasis added). The statute applies the ten-year firearm enhancement “[e]xcept to the

extent that a greater minimum sentence is otherwise provided.” Cooper’s mandatory twenty-

year sentence for aggravated assault as a habitual offender under section 99-19-81 provides

a “greater minimum sentence” than the ten-year enhancement statute. Therefore, section 97-

37-37(2) was inapplicable to this case. The trial court erred in imposing the additional ten-

year sentence.

¶9.    Both parties cite Harris v. State, 99 So. 3d 169 (Miss. 2012), as analogous. In Harris,

a jury convicted the defendant of aggravated assault and possession of a firearm by a

convicted felon. Id. at 171 (¶9). He had been charged under two sentence enhancements –

as a habitual offender under section 99-19-81, and for use and display of a firearm during a

felony under section 97-37-37(2). Id. at 170 (¶3). The trial court sentenced the defendant

as a habitual offender to the maximum sentence of twenty years for aggravated assault, and

ten years for possession of a firearm by a convicted felon. The trial judge sentenced the

defendant to an additional ten years for the latter crime under the firearm enhancement. The

Mississippi Supreme Court reversed this Court’s judgment on the sentencing issue, agreeing

with the defendant that the additional ten-year sentence was in error because the mandatory

twenty-year sentence for aggravated assault as a habitual offender carried “a greater

minimum sentence” than the ten year firearm-enhancement sentence. Id. at 172, 174 (¶¶11,

13-14, 26).

¶10.   We find the Harris analysis applicable here. The trial court was required to sentence



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Cooper as a habitual offender to the maximum sentence of twenty years for aggravated

assault; thus, section 99-19-81 provided a “greater minimum sentence” than the ten-year

enhancement. Accordingly, the trial court erred in sentencing Cooper under 97-37-37(2).

We therefore reverse and render the ten-year-enhancement portion of Johnson’s sentence for

the aggravated-assault conviction.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY OF
CONVICTION OF COUNT I, AGGRAVATED ASSAULT, AND SENTENCE AS A
HABITUAL OFFENDER OF TWENTY YEARS; AND COUNT II, POSSESSION OF
A FIREARM BY A CONVICTED FELON, AND SENTENCE, AS A HABITUAL
OFFENDER, OF TEN YEARS, WITH THE SENTENCES TO RUN
CONCURRENTLY, ALL IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR
PROBATION, IS AFFIRMED. THE SENTENCE OF TEN YEARS AS AN
ENHANCEMENT FOR THE USE OF A FIREARM IN THE COMMISSION OF A
FELONY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO BOLIVAR COUNTY.

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




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