Rel 04/04/2008
Notice: This opinion is subject to formal revision before publication in the advance
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Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
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before the opinion is printed in Southern Reporter.
ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2007-2008
_________________________
CR-06-0162
_________________________
Johnny M. Young
v.
State of Alabama
Appeal from Mobile Circuit Court
(CC-86-620)
After Remand from the Alabama Supreme Court
PER CURIAM.
AFFIRMED BY UNPUBLISHED MEMORANDUM.
Baschab, P.J., and McMillan, Shaw, and Wise, JJ., concur.
Welch, J., dissents, with opinion.
CR-06-0162
WELCH, Judge, dissenting.
On August 30, 2006, Johnny M. Young filed a § 13A-5-9.1,
Ala. Code 1975, motion to reconsider his sentence of life
imprisonment without the possibility of parole imposed upon
his 1986 conviction for murder pursuant to the Habitual Felony
Offender Act.
The circuit court summarily denied Young's
motion to reconsider on October 2, 2006.
In its order denying
's Young's motion to reconsider, the trial court stated:
"This matter is before the Court on [Young's]
petition to modify his sentence pursuant to § 13A-59.1, Code of Alabama, 1975. [Young] is presently
serving a sentence of Life Without Parole as a
Habitual Offender following his Murder conviction in
this case.
"Under
this
statute
only
those
who
are
'nonviolent offenders' are eligible for [sentence
reconsideration]. See Kirby v. State, 899 So.2d 968
(Ala. 2004).
The statute in question fails to
define a crime of violence that would exclude a
defendant from its consideration, so the Court looks
to other statutes for guidance. The Uniform Firearms
Act, Alabama Code § 13A-11-70 et seq., includes
among its defined 'crimes of violence,' the crime of
murder. In this case, [Young] was convicted of
murder. The Court finds that [Young] does not meet
the requirement of a 'nonviolent offender' and is
therefore precluded from consideration under this
statute. Defendant's Request for Relief is DENIED."
(R. 20-21.)
2
CR-06-0162
This Court stated in Holt v. State, 960 So. 2d 726 (Ala.
Crim. App. 2006), that the fact that a crime is statutorily
defined as a "violent offense" is not binding on a circuit
court
in
determining
whether
an
inmate
is
a
nonviolent
offender and that merely because an inmate has committed an
offense defined by statute as a violent offense does not mean
that that inmate is a violent offender for purposes of § 13A5-9.1.
This Court further stated that although it would find
no abuse of discretion if a circuit court determined after
considering all the factors presented to it that an inmate who
had been convicted of first-degree robbery was a violent
offender, a circuit court could not find an inmate to be a
violent offender based solely on the fact that he had been
convicted of an offense statutorily defined as a "violent
offense."
From the circuit court's order in the instant case, it is
clear that the trial court based its decision solely on the
fact that Young had been convicted of an offense statutorily
defined
as
a
"violent
offense."
As
a
result
of
that
determination, the trial court found that Young’s petition
3
CR-06-0162
could not be considered -- as opposed to its being considered
and then denied.
"When ruling on motions for reconsideration, a
circuit court often has only the underlying
conviction before it on which to base its ruling.
This Court has repeatedly affirmed those judgments.
In those instances, however, either the circuit
court also examined the facts of the underlying
offense or there was nothing in the record to
suggest that the circuit court had refused to
consider all the information presented to it in
determining that the inmate was a violent offender."
Coats v. State [Ms. CR-06-1686, November 2, 2007] ___ So. 2d
___, ___ (Ala. Crim. App. 2007)(Welch, J., dissenting)
In
this
affirmatively
case,
although
state
that
the
it
circuit
could
not
court
did
consider
not
other
information before it, the court did conclude that Young’s
petition was precluded from sentence reconsideration under
§13A-5-9.1 only because he had been convicted of an offense
statutorily defined as a violent offense.
There is simply no
basis on which to find that the court considered anything
except the fact that the crime for which Young was sentenced
was a statutorily defined crime of violence, i.e., murder.
In its order, the court held that Young was "precluded
from
consideration
petition
had
been
under
this
considered
statute"
and
4
then
and
not
denied.
that
his
(Emphasis
CR-06-0162
added.)
Under Holt, the matters contained in the offender’s
petition and other attendant circumstances must be considered,
not
just
whether
the
crime
for
which
the
offender
was
convicted has been statutorily defined as a crime of violence.
In refusing to consider Young's petition, the court failed to
follow Holt and limited its review to a determination that the
crime
of
murder
was
a
crime
sentence reconsideration.
of
violence
thus
precluding
In accordance with Holt, supra, I
would reverse the circuit court's judgment and remand this
case for the circuit court to set aside its order denying
Young's motion for sentence reconsideration and to consider
Youngs's
motion
pursuant
to
this
Thus, I must respectfully dissent.
5
Court's
ruling
in
Holt.
