Michael Eugene Stevenson v. State of Alabama
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rel: 11/05/2010 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CRIMINAL APPEALS OCTOBER TERM, 2010-2011 CR-09-1307 M i c h a e l Eugene S t e v e n s o n v. S t a t e o f Alabama Appeal from J e f f e r s o n C i r c u i t C o u r t (CC-00-4059.60; CC-00-4061.60) MAIN, Judge. Michael summary Eugene denial postconviction 17, Stevenson o f h i s Rule relief, 2001,g u i l t y - p l e a appeals the circuit 32, Ala.R.Crim.P., i n which he c h a l l e n g e d court's petition f o r h i s September c o n v i c t i o n s f o r second-degree r e c e i v i n g CR-09-1307 stolen property and involving a person resulting attempted sentences, felony or persons as convictions, for conviction. The under a habitual of 15 the in he his petition, in the i l l e g a l ; (2) that involuntarily of was the against him; Interstate was a not h i s R u l e 32 the speedy without (6) convictions for that years' that an on that J u n e 3, there on rendered his were u n l a w f u l l y Detainers regard to the State purposes of the 2 Act; the the of did not sentences induced the that his the the counsel proceedings a p p l i c a t i o n of he charges violated prove or nature the that In defects pleas; (3) (5) plea stated 2009. were understanding and were convictions. him sentencing; the charges ( 4 ) t h a t the p r o c e e d i n g s a g a i n s t with for Stevenson the petition consequences of trial other of ineffective his prior 30 resolution Agreement and three and two appeal alleged: (1) proceedings entered age, with agreement. his g u i l t y pleas c h a r g e s and denied did Stevenson sentencing of imprisonment indicates that of the p l e a Stevenson f i l e d offender pornography attempted-production-of-pornography record that of years conviction n o l l e p r o s s e d as p a r t his petition 17 years' receiving-stolen-property imprisonment production and any at prior Habitual CR-09-1307 Felony Offenders A c t ("the HFOA"); a n d (7) t h a t the search w a r r a n t t h a t r e s u l t e d i n i n c r i m i n a t i n g e v i d e n c e was d e f e c t i v e . The State asserting barred filed that each pursuant without merit. to a motion appeal court claim 32.2(a)(3) On J u l y 1 24, 2009, motion the Rule i n the petition t o Rule the State's circuit to dismiss summarily denies were and t h a t Stevenson to dismiss. On 32 procedurally the claims filed May Stevenson's petition, a were response 13, 2010, t h e petition. This 2 followed. I Because of the f a c t u a l appeal, i n order determine when to address Stevenson that, although 2001, he was n o t a c t u a l l y In hispetition, allegations he e n t e r e d Stevenson i nthepetition a n d on Stevenson's c l a i m s we m u s t was s e n t e n c e d . Stevenson hisguilty sentenced argued plea until that first asserts on S e p t e m b e r December h i sattorney h i m t h a t he w o u l d b e s e n t e n c e d t o c o n c u r r e n t 1 5 - y e a r 9, 17, 2008. informed sentences The S t a t e f u r t h e r a s s e r t e d t h a t Stevenson's a l l e g a t i o n that the State d i d not give notice of i t s i n t e n t i o n t o proceed u n d e r t h e HFOA was a l s o b a r r e d p u r s u a n t t o R u l e 3 2 . 2 ( c ) . 1 The c i r c u i t c o u r t ' s o r d e r s p e c i f i e d R u l e 3 2 . 2 ( a ) ( 3 ) as t h e b a s i s f o r t h e d e n i a l o f some o f t h e c l a i m s ; R u l e 3 2 . 2 ( c ) as t h e b a s i s f o r t h e d e n i a l o f one c l a i m ; a n d t h e l a c k o f m e r i t , as t h e b a s i s f o r t h e d e n i a l o f some o f t h e c l a i m s . 2 3 CR-09-1307 if he agreed decided plead to plead pleading to to guilty guilty, change the however, sentence at that on b o n d f o r 32 he was his still open Stevenson to begin was eventually was trial trial HFOA court 19, d i d not I r e l a n d v. S t a t e , 250 him fled order So. to t o be 2d 602 October the and that serving "case was (C. 49.) 19, 2001, Oklahoma, where on court, that of released affairs, i n Oklahoma. and trial on needed impose concluded." report after Stevenson the to Alabama, to not he range to begin charges a r i s i n g purported the 2001, not the that, Stevenson, to was brought back before that form. did allowed Oct. sentence but returned and and to h i s personal on he belief guilty-plea 3 according that his the instead return a r r e s t e d on court 3 the sentencing serving that contended indicated that i t only Ireland tend Thus, stated later he to as was that days to sentence. court time but supposed on regarding signed claimed, Stevenson based the t r i a l something p u n i s h m e n t on guilty. December he Stevenson 9, 2008, at which time his 4 sentences ( A l a . C r i m . App. the run 1971) . S t e v e n s o n a v e r r e d t h a t a t r a n s c r i p t of the p l e a c o l l o q u y would establish that the requirements of Rule 26.9, A l a . R . C r i m . P . , were not met. 4 4 CR-09-1307 consecutively, in rather than concurrently initially imposed f o r C a s e No. CC-00- 2001. The 4061 case-action-summary continuation (attempted before this indicating not be trial production Court that a s k e d w h e t h e r he contains has court was anything against ordered for of a "called to say him that term pornography) e n t r i e s dated Stevenson pronounced penitentiary says 30 imposed i n case(s) before no "be years" stolen property) year sentence CC-00-4061. the and (C. contrary, S t e v e n s o n was contains the in fact 30); 30); (C. concurrently Thus, record despite before sentenced on this 5 the in the the sentence The Court September (receiving to a 15in arguments indicates 17, case- sentence Stevenson's H a v i n g r e s o l v e d t h a t q u e s t i o n , we now claims. the should that with 31.) and that and CC-00-4059 with 2001, Court s i m i l a r e n t r i e s with regard running 9-10.) 17, sentence concurrent numbered CC00-4059." record imprisoned (C. a c t i o n - s u m m a r y c o n t i n u a t i o n f o r C a s e No. the the s i r " (C. Stevenson of in September as t o why "sentence imposed i n t h i s case i s run to as that 2001. address Stevenson's CR-09-1307 II. None court's of Stevenson's subject-matter p r o c e d u r a l bars i n Rule allegations jurisdiction 32.2. implicate and, the trial therefore, the 5 With regard t o claims 6 (that the State d i d not provide notice of i t s intent t o a p p l y t h e HFOA o r p r o v e c o n v i c t i o n s f o r purposes any p r i o r o f t h e a p p l i c a t i o n o f t h e HFOA) a n d 7 ( d e f e c t i v e s e a r c h w a r r a n t ) , t h o s e c l a i m s a r e , as a s s e r t e d by the S t a t e and found by t h e c i r c u i t c o u r t , b a r r e d p u r s u a n t t o R u l e 3 2 . 2 ( a ) ( 3 ) , b e c a u s e t h e y c o u l d have b e e n , b u t were n o t , raised at t r i a l . See W a l l a c e v . S t a t e , 959 So. 2d 1161, 1164 ( A l a . C r i m . App. 2006) ("A c h a l l e n g e t o i n s u f f i c i e n t notice of t h e S t a t e ' s i n t e n t t o s e e k a p p l i c a t i o n o f t h e HFOA i s s u b j e c t to t h e p r o c e d u r a l b a r s i n R u l e 32.2, A l a . R . C r i m . P . " ) ; parte Batey, 958 So. 2d 339, 341 ( A l a . 2006) to prove a p r i o r of HFOA] is conviction not a [ f o r purposes jurisdictional ("[T]he a n d Ex failure of the application matter; therefore, T h e c l a i m s S t e p h e n s o n p r e s e n t e d i n h i s p e t i t i o n b u t does n o t p u r s u e on a p p e a l a r e deemed t o be a b a n d o n e d . See, e.g., B r o w n l e e v . S t a t e , 666 So. 2d 91, 93 ( A l a . C r i m . A p p . 1995) ("We w i l l n o t r e v i e w i s s u e s n o t l i s t e d a n d a r g u e d i n b r i e f . " ) . 5 6 CR-09-1307 consideration of that issue in a Rule 32 petition is precluded."). With regard resolution of violations of those to claims the the 3 charges (denial speedy him) against of and I n t e r s t a t e Agreement on trial 4 and (alleged Detainers Act), c l a i m s a r e b a s e d on S t e v e n s o n ' s b e l i e f t h a t he was sentenced until December 9, 2008. As we not have d e c i d e d that q u e s t i o n a d v e r s e l y to Stevenson, those claims are b a s e l e s s do n o t e n t i t l e S t e v e n s o n t o any relief. F i n a l l y , with regard to claims 1 ( a l l e g e d d e f e c t s i n the g u i l t y - p l e a and s e n t e n c i n g p r o c e e d i n g s ) plea was without unlawfully an u n d e r s t a n d i n g consequences challenge of been, but involuntarily entered o f t h e n a t u r e o f t h e c h a r g e s and p l e a ) , to that to Rule were n o t , 876 into the extent occurred in that 2001, those they 32.2(a)(3), because they r a i s e d at t r i a l . App. are, as petition, could F i n c h e r v. have State, the v o l u n t a r i n e s s of a g u i l t y p l e a i s not j u r i s d i c t i o n a l ) . To the a r e b a s e d on the 7 2002) claims to that they (Ala. Crim. See the (a c h a l l e n g e extent 2d or and 2 ( t h a t h i s g u i l t y the S t a t e i n i t s motion to d i s m i s s the barred pursuant So. the proceedings a s s e r t e d by 837 induced and trial c o u r t ' s December 9, CR-09-1307 2008, o r d e r p u r p o r t i n g t o o r d e r t h a t S t e v e n s o n ' s s e n t e n c e s r u n consecutively, Stevenson i s entitled t o no r e l i e f on t h o s e c l a i m s b e c a u s e , f o r t h e r e a s o n s we d i s c u s s i n P a r t I I I o f t h i s opinion, the c i r c u i t court's order i s void. III . As n o t e d i n P a r t I I o f t h i s o p i n i o n , many o f S t e v e n s o n ' s a l l e g a t i o n s a r e b a s e d on t h e t r i a l order purporting had previously consecutively. to order that been imposed Stevenson's as sentence. The concurrent court, court to correct a defect i n s e n t e n c e s were t o r u n c o n c u r r e n t l y . On December 9, 2008, when S t e v e n s o n trial after being returned court ordered t h a t Stevenson's Generally, sentence sentences, run a t t h e S e p t e m b e r 17, 2 0 0 1 , s e n t e n c i n g , ordered t h a t Stevenson's a which We a g r e e . trial court sentences, The S t a t e a v e r s on a p p e a l t h a t t h e c a s e i s due t o be remanded f o r t h e c i r c u i t the c o u r t ' s December 9, 2008, "a t r i a l f o r 30 d a y s S t a t e v. Monette, was b r o u g h t from Oklahoma, before the the trial sentences run c o n s e c u t i v e l y . court r e t a i n s j u r i s d i c t i o n t o modify after that sentence i s pronounced." 887 So. 2d 314, 315 ( A l a . C r i m . App. 2 0 0 4 ) . See a l s o Ex p a r t e H i l l , 778 So. 2d 159, 162 ( A l a . 2000) 8 ("[I]f CR-09-1307 a motion f o r a new trial or a request to modify a sentence i s n o t f i l e d w i t h i n 30 d a y s a f t e r s e n t e n c i n g , t h e n a t t h e e n d t h e 3 0 t h day t h e t r i a l court loses a l l j u r i s d i c t i o n to modify a d e f e n d a n t ' s s e n t e n c e . " ) . A l t h o u g h R u l e 27.1, Ala.R.Crim.P., a l l o w s a s e n t e n c i n g c o u r t t o " a t any t i m e , by a nunc p r o order provide that p r e v i o u s l y imposed c o n s e c u t i v e r u n c o n c u r r e n t l y , " we such p r o v i s i o n trial court to, of find more no than 30 days sentences allowing after tunc for a sentence is pronounced, o r d e r t h a t p r e v i o u s l y imposed c o n c u r r e n t sentences be consecutively. served Thus, 6 s e n t e n c e d on S e p t e m b e r 17, 2001, because the t r i a l Stevenson c o u r t was was without j u r i s d i c t i o n t o o r d e r t h a t those p r e v i o u s l y imposed c o n c u r r e n t sentences with run c o n s e c u t i v e l y . instructions December 9, 2008, S e p t e m b e r 17, 2001. that and The the T h e r e f o r e , we trial reinstate trial remand t h i s court vacate the case i t s order sentences of imposed on court s h a l l take a l l necessary a c t i o n t o see t h a t t h e c i r c u i t c l e r k makes due return to t h i s T h e t r i a l c o u r t a l s o has j u r i s d i c t i o n t o r e o p e n a c a s e more t h a n 30 d a y s a f t e r s e n t e n c i n g i n l i m i t e d c i r c u m s t a n c e s , s u c h as c i r c u m s t a n c e r e c o g n i z e d by t h e l e g i s l a t u r e i n e n a c t i n g ยง 13A-5-9.1, A l a . Code 1975. See K i r b y v. S t a t e , 899 So. 2d 968 ( A l a . 2004). No s u c h c i r c u m s t a n c e a u t h o r i z e d by t h e A l a b a m a C o n s t i t u t i o n o f 1901 o r by s t a t u t e e x i s t s i n t h i s case. 6 9 CR-09-1307 Court a t the e a r l i e s t p o s s i b l e the r e l e a s e of this t i m e a n d w i t h i n 28 d a y s after opinion. REMANDED WITH INSTRUCTIONS. W i s e , P . J . , a n d W e l c h , Windom, a n d K e l l u m , J J . , c o n c u r . 10
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