Darrell J. McNeal v. State of Alabama

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REL: 02/29/2008 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. ALABAMA COURT OF CRIMINAL APPEALS OCTOBER TERM, 2007-2008 _________________________ CR-06-1330 _________________________ Darrell J. McNeal v. State of Alabama Appeal from Jefferson Circuit Court, Bessemer Division (CC-02-682.61) WISE, Judge. The appellant, Darrell J. McNeal, appeals from the circuit court's denial of his petition for postconviction relief filed pursuant to Rule 32, Ala.R.Crim.P., in which he attacked his September 2002 conviction for sexual abuse in the CR-06-1330 first degree, rape in the first degree and his resulting sentence as imprisonment. an habitual No felony direct offender appeal was to taken 20 years' from these convictions. On March petition, 18, 2003, challenging McNeal his discovered DNA evidence. rape filed his first conviction based Rule on 32 newly After conducting an evidentiary hearing, the circuit court dismissed the rape conviction. On December 7, 2004, McNeal filed his second Rule 32 petition, challenging his sexual-abuse conviction, which was denied by the circuit court. the circuit On February 24, 2006, this Court affirmed court's denial of McNeal's second Rule 32 petition, by unpublished memorandum. McNeal v. State (No. CR04-1394), ___ So. 2d ___ (Ala.Crim.App. 2006) (table). A certificate of judgment was issued on June 9, 2006. On January 19, 2007, McNeal filed the instant Rule 32 petition, in which he alleged: (1) that the trial court was without jurisdiction to render judgment or to impose his sentence because, he said, his conviction for sexual abuse was obtained in jeopardy and violation (2) that of his the prohibition sentence 2 against exceeded the double maximum CR-06-1330 authorized by law because, he said, it was illegally enhanced using a North Carolina conviction that would be a misdemeanor in Alabama. On March 15, 2007, the State filed its response and a motion to dismiss McNeal's petition, in which it argued that the petition was both procedurally barred and without merit. On April 4, 2007, the circuit court issued an order denying McNeal's petition. This appeal followed. On appeal, McNeal reasserts the claims presented in his petition to the circuit court. McNeal first argues that the trial court was without jurisdiction to render judgment or to impose his sentence because, he says, his conviction for sexual abuse violates the prohibition against double jeopardy. However, the circuit court dismissed McNeal's conviction for rape, leaving him with but a single conviction - for sexual abuse. McNeal v. State (No. CR-04-1394), ___ So. 2d ___ (Ala.Crim.App. 2006) (table). Therefore, this claim is without merit. McNeal's remaining contention is that his sentence exceeds the maximum authorized by law because, he says, it was illegally enhanced with a prior conviction in North Carolina that would be a misdemeanor in Alabama. 3 This claim raises a CR-06-1330 jurisdictional issue. 21, 31 (Ala.Crim.App. See, e.g., Steele v. State, 911 So. 2d 2004). A challenge to an illegal sentence is "not precluded by the limitations period or by the rule against successive petitions." Jones v. State, 724 So.2d 75, 76 (Ala.Crim.App. 1998). "[A]n allegedly illegal sentence may be challenged at any time, because if the sentence is illegal, the sentence exceeds the jurisdiction of the trial court and is void." Rogers v. State, 728 So. 2d at 691. Thus, this claim is not procedurally barred. This Court has held that an illegal sentence may be challenged at any time, because if it has imposed an illegal sentence, the trial court has exceeded its jurisdiction and the sentence is void. Henderson v. State, 895 So. 2d 364, 365 (Ala.Crim.App. 2004). As a result, McNeal has raised a jurisdictional claim that is not subject to the procedural bars set forth in Rule 32. According to McNeal , his prior conviction in North Carolina used by the State to enhance his sentence was a conviction for taking indecent liberties with a minor, a violation of N.C. Gen. Stat. §14-202.1 (1996), and the minor in question was 15 years old. McNeal contends that this offense in Alabama would be the equivalent of second-degree 4 CR-06-1330 sexual abuse, a Class A misdemeanor, as defined in § 13A-6-67, Ala. Code 1975. Although the State asserted in its response that McNeal's conviction in North Carolina constituted a felony in Alabama, the trial court made no findings of fact as to McNeal's claim and what category of offense his North Carolina conviction would have been in Alabama. Based on our examination of the record, we are unable to determine from the record whether the offense for which McNeal was convicted in North Carolina would have, in fact, constituted a felony offense, e.g., first-degree sexual abuse, or a misdemeanor offense, e.g., second-degree sexual abuse.1 Because McNeal has alleged facts that, if true, would entitle him to relief, the circuit court erred in summarily dismissing his petition. See Ex parte Boatwright, 471 So. 2d 1257 (Ala. 1985). Based on the foregoing, this cause is remanded to the circuit court for a hearing on McNeal's allegation that his sentence exceeds the maximum authorized by law. the circuit court should explain 1 whether On remand, McNeal's North In order for McNeal's conviction to constitute firstdegree sexual abuse, the victim would have had to have been (1) subjected to sexual contact by forcible compulsion, or (2) unable to consent due to physical or mental incapacity. 5 CR-06-1330 Carolina conviction constituted a felony offense in Alabama. The circuit court should make specific findings of fact as required by Rule 32.9(d), Ala.R.Crim.P., and the return to remand shall contain a transcript of the proceedings. If the circuit court determines that McNeal is entitled to relief, then the court may grant such relief as it deems appropriate. The circuit court shall take all necessary action to ensure that the circuit clerk makes due return to remand at the earliest possible time and no later than 56 days from the date of this opinion. REMANDED WITH DIRECTIONS. Baschab, P.J., and McMillan and Welch, JJ., concur. Shaw, J., concurs in the result. 6

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