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CR-07-0922
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)
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before the opinion is printed in Southern Reporter.
ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2008-2009
_________________________
CR-07-0922
_________________________
Bradley Neal Steele
v.
State of Alabama
Appeal from Morgan Circuit Court
(CC-06-801)
BASCHAB, PRESIDING JUDGE.
AFFIRMED BY UNPUBLISHED MEMORANDUM.
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CR-07-0922
McMillan and Wise, JJ., concur; Shaw, J., dissents, with
opinion; Welch, J., joins in dissent.
SHAW, Judge, dissenting.
Although Bradley Neal Steele pleaded guilty in this case
to trafficking in marijuana, a violation of § 13A-12-231(1),
Ala. Code 1975, pursuant to a plea agreement with the State,
the mandatory fines in § 13A-12-281, Ala. Code 1975, and § 3618-7(a), Ala. Code 1975, were not part of that agreement and
were not imposed as part of his sentence.
Ex parte Johnson,
669 So. 2d 205 (Ala. 1995), and Scott v. State, 742 So. 2d 799
(Ala. Crim. App. 1998), relied on by the majority in reaching
its conclusion that this case should not be remanded for the
imposition
of
the
mandatory
fines,
deal
solely
with
the
specific enforcement of a valid plea agreement calling for a
legal sentence.
In both of those cases, the enhancements that
were not part of the plea agreements -- §§ 13A-12-250 and 13A12-270, Ala. Code 1975, in Ex parte Johnson, and § 13A-5-9,
Ala. Code 1975 (the Habitual Felony Offender Act ("HFOA")), in
Scott -- are not self-executing enhancements.
The HFOA must
be invoked before it is legally applicable to a sentence, see,
e.g., Ex parte Williams, 510 So. 2d 135, 136 (Ala. 1987)
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("[I]n
order
to
sentence
a
criminal
defendant
under
the
Habitual Felony Offender Act, the Act must be invoked prior to
the defendant's original sentencing."), and the State must not
only assert, but must properly prove the enhancements in §§
13A-12-250 and 13A-12-270 before they are legally applicable
to a sentence, see, e.g., White v. State, [Ms. CR-07-0369,
August
29,
(refusing
2008]
to
___
remand
So.
for
2d
___
(Ala.
imposition
Crim.
of
App.
the
2008)
sentence
enhancements in §§ 13A-12-250 and 13A-12-270 where, although
the enhancements were charged in the indictment, the State did
not include any facts in the factual basis for the pleas to
support imposition of the enhancements).
In Ex parte Johnson
and Scott, the enhancements in §§ 13A-12-250 and 13A-12-270
and the HFOA were not included by the State in the plea
agreements and, thus, were waived by the State and were not
applicable to the sentences in those cases. 1
1
Of course, once the HFOA is invoked and it is clear from
the record that the defendant has one or more prior
convictions, the HFOA then becomes jurisdictional and this
Court must take notice of the trial court's failure to apply
it. See, e.g., Ingram v. State, 878 So. 2d 1208 (Ala. Crim.
App. 2003) (where State gave notice of intent to invoke the
HFOA and the record established that the defendant has at
least five prior felony convictions, remand was required for
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However, the fines in § 13A-12-281, Ala. Code 1975, and
§ 36-18-7(a), Ala. Code 1975, are self-executing, i.e., the
State does not have to assert them before they are legally
applicable to a sentence, and they have been treated by this
Court
as
not
only
mandatory,
but
also
jurisdictional,
rendering a sentence illegal if they are not imposed.
The
Alabama Supreme Court did not hold in Ex parte Johnson, and
this Court did not hold in Scott, that a defendant is entitled
to specific enforcement of a plea agreement calling for an
illegal sentence.
Indeed, it appears that that particular
issue has never been specifically addressed by the Alabama
Supreme Court.
However, this Court has held that "[a] trial
court cannot accept a plea agreement that calls for an illegal
sentence."
Calloway v. State, 860 So. 2d 900, 906 (Ala. Crim.
trial court to resentence defendant under the HFOA).
Likewise, once the State provides notice and properly proves
the enhancements in §§ 13A-12-250 and 13A-12-270, they also
become jurisdictional and this Court must take notice of the
trial court's failure to apply them. See, e.g., Phelps v.
State, 878 So. 2d 1202 (Ala. Crim. App. 2002) (once State gave
notice of its intent to seek enhancement under § 13A-12-250,
Ala. Code 1975, and presented evidence of the applicability of
the enhancement, remand was required for trial court to impose
the enhancement).
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App.
2002)
(opinion
on
return
application for rehearing).
to
remand
and
on
second
See Moore v. State, 871 So. 2d
106 (Ala. Crim. App. 2003), and Austin v. State, 864 So. 2d
1115 (Ala. Crim. App. 2003).
See also State v. Cortner, 893
So. 2d 1264, 1273 (Ala. Crim. App. 2004) ("[W]e cannot uphold
[a trial court's] decision to order the specific performance
of what is clearly an illegal agreement."), and Warren v.
State, 706 So. 2d 1316, 1317 n.3 (Ala. Crim. App. 1997) ("[A]
defendant cannot consent to a sentence that is beyond the
authority of the court.").
authority
in
other
Although there is a split in
jurisdictions
as
to
whether
specific
performance of a plea agreement is the proper remedy for a
defendant who pleads guilty pursuant to an agreement that
calls for an illegal sentence, see, e.g., People v. Caban, 318
Ill.App.3d 1082, 743 N.E.2 600, 252 Ill.Dec. 732 (2001), and
State v. Parker, 334 Md. 576, 640 A.2d 1104 (1994), and the
cases cited therein, it appears to me that the remedy in
Alabama in a case in which the plea agreement is invalid
because it calls for an illegal sentence
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is not specific
REL 10/31/2008
CR-07-0922
performance, but to allow the defendant to withdraw his or her
plea.
Because the fines in § 13A-12-281 and § 36-18-7(a) are
mandatory and jurisdictional, the sentence in this case is
illegal, and this Court must take notice of that and remand
the case for imposition of the fines.
instead
holding
enforcement
of
that
the
Steele
plea
By not doing so -- and
is
entitled
agreement
--
the
to
specific
majority
is
implicitly holding that the failure to impose the fines in §
13A-12-281
and
§
36-18-7(a)
does
not
render
a
sentence
illegal, i.e., that the fines are not jurisdictional and,
thus, that this Court cannot, from this point forward, take
notice of the failure of a trial court to impose them in any
case.
I cannot agree with that holding in light of this
Court's previous treatment of the fines as jurisdictional.
This Court should be consistent in its treatment of the fines.
The fines are either jurisdictional or they are not.
This
Court has consistently treated the fines as jurisdictional in
the past; thus, they must be treated as jurisdictional in this
case.
I would remand this case to the trial court for it to
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impose the fines and then to allow Steele an opportunity to
withdraw his plea if he so chooses.
dissent.
Welch, J., concurs.
7
Therefore, I respectfully
