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ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2007-2008
Johnny M. Young
State of Alabama
Appeal from Mobile Circuit Court
After Remand from the Alabama Supreme Court
AFFIRMED BY UNPUBLISHED MEMORANDUM.
Baschab, P.J., and McMillan, Shaw, and Wise, JJ., concur.
Welch, J., dissents, with opinion.
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
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
'nonviolent offenders' are eligible for [sentence
reconsideration]. See Kirby v. State, 899 So.2d 968
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."
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
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
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
determination, the trial court found that Young’s petition
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)
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
Under Holt, the matters contained in the offender’s
petition and other attendant circumstances must be considered,
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
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
Thus, I must respectfully dissent.