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Cooper v. State

Court of Appeals of Mississippi

December 18, 2018

ALLAN DAVID COOPER APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 12/05/2017

          DESOTO COUNTY CIRCUIT COURT HON. GERALD W. CHATHAM SR. JUDGE

          ATTORNEY FOR APPELLANT: ALLAN DAVID COOPER (PRO SE)

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD

         EN BANC.

          GREENLEE, J.

         ¶1. This is an appeal from the DeSoto County Circuit Court's denial of Allan David Cooper's motion for post-conviction relief (PCR) as meritless. Finding no error, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Cooper was indicted in DeSoto County for obtaining over $35, 000 with the intent to defraud in violation of section 97-19-39 of the Mississippi Code Annotated (Rev. 2006). The State later moved to amend his indictment to classify him as a section 99-19-81 habitual offender:

and the said ALLAN DAVID COOPER having been previously convicted of Bank Fraud in Case No. 2:96-CR-20197-001-TU in the United States District Court of the Western District of Tennessee and sentenced on June 19, 1997, to serve a term of six months imprisonment and three years of supervised release; and the said ALLAN DAVID COOPER having been previously convicted of Theft of Property over $1000 in Case No. 03-05362 in the Criminal Court of Shelby County, Tennessee and sentenced on February 14, 2005, to serve a term of three years in a Tennessee Department of Corrections Workhouse;
and the said ALLAN DAVID COOPER thereby coming under Section 99-19-81, Mississippi Code 1972 Annotated, as amended, a Mississippi habitual offender statute, contrary to the form of the statute in such cases provided, and against the peace and dignity of the State of Mississippi.

See Miss. Code Ann. § 99-19-81 (Rev. 2015).

         ¶3. The court granted the motion, and Cooper pled guilty as a section 99-19-81 habitual offender using bank fraud and theft-of-property to establish that status. The DeSoto County Circuit Court accepted his plea and sentenced him to serve one day in the custody of the Mississippi Department of Corrections, with credit for time served, followed by nine years and 364 days of post-release supervision.

         ¶4. Four years later, Cooper pled guilty to wire fraud in the United States District Court for the Western District of Tennessee. The court sentenced him to serve twenty-seven months in federal prison followed by three years of supervised release.

         ¶5. The State of Mississippi then filed a petition to revoke Cooper's post-release supervision associated with the intent-to-defraud guilty plea on the basis that he had committed a new crime in violation of its terms. After Cooper was released from federal prison, the DeSoto County Circuit Court revoked his post-release supervision and sentenced him to five years' imprisonment.

         ¶6. Cooper moved for post-conviction relief. The circuit court ordered the State to respond to Cooper's motion in light of the Mississippi Supreme Court's holding in Martin v. State, 214 So.3d 217 (Miss. 2017). The State did so, and the court found Cooper's case distinguishable.

         ¶7. The court denied his motion, and Cooper appeals. He asserts that: (1) both the initial sentence and the resultant sentence from his post-release supervision violation were improper because they stemmed from a fatally deficient indictment; and (2) he received ineffective ...


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