Ex parte Timothy Lamar Trawick. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Timothy Lamar Trawick v. State of Alabama)
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REL: 03/02/2007 Ex parte Trawick 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) 242-4621), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2006-2007 _________________________ 1051563 _________________________ Ex parte Timothy Lamar Trawick PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Timothy Lamar Trawick v. State of Alabama) (Dale Circuit Court, CC-86-256.62; Court of Criminal Appeals, CR-05-1095) LYONS, Justice. Timothy Lamar Trawick petitions for certiorari review of the affirmance by the Court of Criminal Appeals of the trial 1051563 court's dismissal of his Rule 32, Ala. R. Crim. P., petition. Trawick alleged in his Rule 32 petition that his sentence had been illegally enhanced under the Habitual Felony Offender Act, ยง 13A-5-9, Ala. Code 1975 ("the HFOA"). We affirm. Trawick was convicted in 1986 of two counts of rape in the first degree and two counts of sodomy in the first degree. He was sentenced to life imprisonment under the HFOA based on three prior felony convictions in 1976 for the sale of controlled substances. In July 1987, the Court of Criminal Appeals affirmed Trawick's convictions and sentences, Trawick v. State, 512 So. 2d 818 (Ala. Crim. App. 1987), and issued a certificate of judgment. In October 1987, April 1988, and March 2001, Trawick filed petitions for postconviction relief under Rule 32, Ala. R. Crim. P. All three petitions were denied by the trial court; those denials that Trawick appealed were affirmed by the Court of Criminal Appeals. In November 2001, Trawick filed a fourth Rule 32 petition, alleging, among other things, that his enhanced sentence under the HFOA was illegal because, he argued, prior drug-related felonies sentence a for could not non-drug-related 2 be used to offense. The enhance trial the court 1051563 denied the petition, and the Court of Criminal Appeals affirmed its judgment in an unpublished memorandum on the basis that the claim was precluded under Rule 32.2(a)(4), 32.2(b), and 32.2(c), Ala. R. Crim. P. Trawick v. State (No. CR-05-1095, June 23, 2006), ___ So. 2d ___ (Ala. Crim. App. 2006) (table). Trawick petitions this Court for a writ of certiorari on the grounds that the denial of his fourth Rule 32 petition conflicted with prior caselaw and that the Rule 32 petition presented an issue of first impression. Before we consider the merits of Trawick's position, we must first determine whether the Court of Criminals correctly held that precluded. the issue raised in the Rule 32 petition was If so, our inquiry need go no further. The State's brief in this proceeding, which Trawick has not contradicted, states that Trawick raised this same issue -- that under the HFOA a felony conviction for a drug-related offense could not be used to enhance a sentence for a non-drug-related offense -- in his Rule 32 petition filed in March 2001 ("the third petition"). In its brief the State contends that in the third petition, "Trawick argued that his 1986 convictions of sodomy and rape were due to be set aside on grounds of a defective 3 1051563 indictment and excessive sentence." The trial court denied Trawick's third petition, in part, on the basis that "prior felony drug offenses may be used to enhance a sentence under the [HFOA] following a conviction for a felony that was not drug related. Justo v. State, 568 So. 2d 312 ([Ala.] 1990); Powell v. State, 624 So. 2d 220 ([Ala.] 1993)." When the trial court dismissed the third petition, Trawick appealed, and the Court of Criminal Appeals affirmed the trial court's dismissal. Trawick did not file an application for rehearing in the Court of Criminal Appeals; thus, he did not file a petition for certiorari review with this Court in response to the decision of the Court of Criminal Appeals affirming the dismissal of his third petition. Rule 32.2(b), Ala. R. Crim. P., generally precludes a trial court from granting relief in response to a successive Rule 32 petition. Rule 32.2(b) defines a "successive petition" as follows: "If a petitioner has previously filed a petition that challenges any judgment, all subsequent petitions by that petitioner challenging any judgment arising out of the same trial or guilty-plea proceeding shall be treated as successive petitions under this rule." Rule 32.2(b) creates a two-pronged 4 1051563 approach to addressing successive petitions. The first inquiry, under Rule 32.2(b), is whether the grounds raised in the successive petition are duplicative, that is, have the same grounds been raised in a prior petition. Under Rule 32.2(b), "[t]he Court shall not grant relief on a successive petition on the same or similar grounds on behalf of the petitioner." The second prong of Rule 32.2(b) states that "[a] successive petition on different grounds shall be denied" unless one of two exceptions apply. (Emphasis added.) The exception that Trawick attempts to invoke in this case allows the trial court to consider a successive petition when "the petitioner is entitled to relief on the ground that the court was without jurisdiction to render a judgment or to impose sentence." that his Rule 32.2(b), Ala. R. Crim. P. sentence is illegal under the Trawick's claim HFOA presents a jurisdictional claim. See, e.g., Ex parte Robey, 920 So. 2d 1069, 1071-72 (Ala. 2004) (holding that because multiple punishments for the same offense constitute a sentence that exceeds the maximum allowed by law and an illegal sentence affects the trial court's jurisdiction, "Robey is not barred 5 1051563 from asserting in this successive Rule 32 petition the violation of his double-jeopardy rights"); Ex parte Sanders, 792 So. 2d 1087, 1091 (Ala. 2001) ("'[w]hether a sentence is excessive ... is a jurisdictional issue' that is not precluded by the limitations period of Rule 32, by the rule against successive petitions, or by Rule 32.2(a)(3)"). However, Trawick's fourth Rule 32 petition asserts a ground Trawick has previously asserted, even if it is a jurisdictional issue. Therefore, the second prong of Rule 32.2(b), which is limited to successive petitions on different grounds, does not apply. The first prong of Rule 32.2(b) precludes Trawick from reasserting a jurisdictional claim "on the same or similar grounds." Because duplicative, the Trawick's issue jurisdictional having already been claim is raised and adjudicated on its merits by the trial court in his third petition, we containing State, 831 do the So. not reach the jurisdictional 2d 646, second exception. 648-49 (Ala. prong of Compare Crim. Rule 32 Grady v. App. 2001) ("[A]lthough this is a successive petition ... jurisdictional claims are not 'precluded by the limitations period or by the rule against successive petitions.' ... Moreover, from the 6 1051563 record before us, Grady did not claim that his sentence was illegal in his first Rule 32 petition." (emphasis added)). Although our cases have previously stated that jurisdictional claims cannot be precluded as "successive," that exception to Rule 32.2(b) applies only to jurisdictional claims not previously raised and adjudicated on the merits. Because the jurisdictional Trawick is trial claim precluded on court the from merits adjudicated in reasserting a prior that Trawick's petition, jurisdictional claim in a successive petition. Accordingly, the Court of Criminal Appeals properly found that his claim that he had been illegally sentenced under the HFOA was precluded, and that judgment is due to be affirmed. AFFIRMED. See, Woodall, Stuart, Smith, Bolin, Parker, and Murdock, JJ., concur. Cobb, C.J., recuses herself. 7
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