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Cooper v. State

Court of Appeals of Mississippi

June 2, 2015

ANTONIO COOPER A/K/A ANTONIO M. COOPER, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 11/21/2013. TRIAL JUDGE: HON. ALBERT B. SMITH III. 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.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: HUNTER NOLAN AIKENS.

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: MELANIE DOTSON THOMAS.

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

Page 546

NATURE OF THE CASE: CRIMINAL - FELONY

BARNES, J.

[¶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.

[¶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 ...


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