Michael Darnell Oliver v. State of Alabama

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Rel: 06/29/2012 Notice: This 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, 2011-2012 CR-10-1605 Michael Darnell Oliver v. S t a t e o f Alabama Appeal WELCH, Darnell Oliver 3 2 , A l a . R. C r i m . relief Court Judge. Michael Rule from Montgomery C i r c u i t (CC-10-1141.60) from h i s November guilty plea, appeals P., p e t i t i o n from the denial seeking of postconviction 18, 2010, c o n v i c t i o n , p u r s u a n t of second-degree a s s a u l t and h i s his to a sentence of 20- CR-10-1605 years' This imprisonment. petition, O l i v e r d i d not pursue 1 Oliver's first, was timely a direct filed appeal. on May 10, 2011. Oliver's petition, the following 1. That induced nature the presents claims: Oliver's plea of guilty o r n o t made v o l u n t a r i l y w i t h that was unlawfully an u n d e r s t a n d i n g o f t h e charge and t h e consequences o f t h e p l e a the plea Oliver would a g r e e m e n t made w i t h receive prison. sentence Additionally, Oliver's Oliver because claims of the because, deception entering that a guilty only 3 years the 20-year Reese, the judge plea and counsel Brett to advise Harrison that sentence misled who sentencing. Judge Reese Oliver also claims about t h e O l i v e r ' s t r u e that splitting t o Judge guilty attorney and serve that he n e g l e c t e d g u i l t y - p l e a agreement. the d i s t r i c t sentence asserted not mentioned over ineffective a split Oliver was presided the drafted, sentence imposed 2 0 - y e a r s ' imprisonment -- d i d not comply with in though not a r t f u l l y was about counsel's Oliver into plea. O l i v e r a p p e a r s t o a l s o c h a l l e n g e what he b e l i e v e s t o be a c o n v i c t i o n f o rf i r s t - d e g r e e burglary. However, t h i s charge was n o l l e p r o s s e d . 1 2 CR-10-1605 2. That h i s c o n v i c t i o n was unconstitutional favorable counsel his failure evidence withheld At Brett stated at a altercation that with time, and that before O l i v e r c o m m i t t e d an a s s a u l t . withdraw information not-guilty was fired material that t o him her she assaulted boyfriend pulled a Oliver asserted and had he been that this given this he w o u l d h a v e f i l e d asserted a motion plea. Oliver and t h a t i t would have r e s u l t e d i n a h i s counsel his first was counsel, ineffective. Trina continued to conspire w i t h h i s new convince Oliver plead sentence. the that this verdict. 3. T h a t he and h i s sentencing guilty had several shots i n O l i v e r ' s d i r e c t i o n favorable his his Fields she first after started that others his Oliver, Ursula several that until to the disclose argues that on O l i v e r a n d f i r e d to to him pistol information before also according with was r e s u l t of f a c t s from him Oliver information stick a conference pretrial a Oliver told as prosecution discovered Harrison, along the Oliver. newly sentencing. counsel, to of obtained to guilty Oliver also stated that 3 S. Williams counsel, to Oliver a stated but that that Brett Harrison, 20-year counsel's actions she to mandatory deprived CR-10-1605 him o f a speedy t r i a l . ineffective because O l i v e r a s s e r t e d t h a t H a r r i s o n was a l s o he failed 18, enforce guilty-plea on November 2010. 4. T h a t he was d e n i e d Oliver claimed because, after that Oliver told talk appeal about Oliver's never an sentence came to Harrison issues such 1. pleading or reduced. on filed claims was n o t h i s f a u l t information the p o s s i b i l i t y Oliver Oliver November claimed 22, to this that set of forth that he sentence to getting Harrison mailed 2010, c o n c e r n i n g a court reduction, letter. to O l i v e r ' s Rule 32 petition, 2 i n the p e t i t i o n requirements asserted and a p o s s i b l e a response the f o l l o w i n g : The about d i d not respond The S t a t e the h i sconviction. O l i v e r t h a t he w o u l d come t o t h e j a i l as an a p p e a l Harrison to appeal to appeal received to the j a i l . letter asserting the right his failure above, H a r r i s o n but the attorney at sentencing agreement w i t h t h e d i s t r i c t to found i n Rules do not comply 32.3 a n d with the 32.6(b). To t h e e x t e n t t h a t t h e S t a t e ' s motion t o d i s m i s s t h e p e t i t i o n i n d i c a t e s that O l i v e r bore the burden of " p r o v i n g " h i s c l a i m s , we n o t e t h a t a p e t i t i o n e r h a s n o b u r d e n o f p r o o f at the pleading stage. S e e F o r d v . S t a t e , 8 3 1 S o . 2 d 641 ( A l a . Crim. App. 2001). 2 4 CR-10-1605 2. O l i v e r ' s i n e f f e c t i v e - a s s i s t a n c e - o f - c o u n s e l c l a i m s a r e not p l e a d e d w i t h s u f f i c i e n t p e r f o r m a n c e was as d e f i c i e n t and t h a t a r e s u l t of counsel's two requirements U.S. of 668 ( 1 9 8 4 ) , counsel. and is i n S t r i c k l a n d v. Washington, the State claims burglary Therefore, charge a l l claims asserted also that fail the 466 assistance ineffective- to comply with Rules was nolle regarding prossed this (see alleged footnote conviction moot. 4. T h e S t a t e plea was responded to O l i v e r ' s claim i n d u c e d by a p l e a asserting that, prior agreement to that sentencing, explained the consequences of p l e a d i n g confirmed that State asserted mislead to prejudice 32.6(b). 3. T h e 1). Oliver suffered necessary to e s t a b l i s h i n e f f e c t i v e Thus, counsel's a l l e g e d d e f i c i e n t p e r f o r m a n c e -- t h e set forth assistance-of-counsel 32.3 s p e c i f i c i t y t o show t h a t Oliver that or deceived the State, dismissed this understood claim for failure Oliver's Reese Moreover, the o f how was Thus, assertion Rule by attorney and Judge example the plea. t o comply w i t h his guilty not honored guilty no i s a bare 5 was his rights. O l i v e r pleaded i n to entering that and 32.6(b). he according should be CR-10-1605 5. The State c o n v i c t i o n was prosecution asserting that responded obtained that the asserted State witness a witness. should have 6. The State an provided State raised at trial of counsel him to claim that his counsel d e n i e d him State to See Oliver claim. enforce asserted 3 that the that footnote As to plea Oliver the thus, the that incident that by a than this claim therefore, i t is 32.3. sentencing failed and, only the asserted to Rule w i t h i n the this of of Moreover, pleaded that, statute support policy Oliver. his evidence r e s p o n d e d t o O l i v e r ' s c l a i m t h a t he convince asserted to and a s s e r t i n g t h a t the State open-file further s e n t e n c e by and that favorable actually pursuant assistance to has Oliver The claim the u n c o n s t i t u t i o n a l f a i l u r e a d i f f e r e n t account barred ineffective conspired had been procedurally was that defense State Oliver's to d i s c l o s e newly d i s c o v e r e d a l l discovery State by to because plead guilty his to did a fair not 2. 6 not any claim agreement that during prove 3 20-year within to specifics his an the to counsel sentencing, that the Oliver's speedy t r i a l , plead Oliver's did and As counsel a 2 0 - y e a r s e n t e n c e was guidelines. received the agreement CR-10-1605 existed The and State sentence State he did asserted does not further assistance pleaded Rules not that the that and, such, and to Oliver's conviction was through counsel's fault, the State counsel did not bare of the claims manner. with plea. of The ineffective allegations unsupported not do him entitle his to by relief. 32.6(b). As in a timely dissatisfaction Oliver's are as claim voluntariness counsel facts this Oliver's impact asserted of 32.3 assert 7. that his letter concerning because Oliver attorney to reschedule pursuant On order did jail to Rule June 11, denying no that fault the asserted visit state that or 32.6(b). 2011, Oliver's "followed the letter claim (C. the was his claimed only to the up" to be his State, with received should his was respond According he appeal but in j a i l this visit, own, Oliver appeal. not his to that him an that failure of filing confirm a claim or his to dismissed 43.) circuit requested court relief entered and a written stating following: " T h i s m a t t e r i s b e f o r e t h e C o u r t on [ O l i v e r ' s ] P e t i t i o n For R e l i e f From C o n v i c t i o n Or Sentence, f i l e d p u r s u a n t t o R u l e 32, A l a . R. C r i m . P., a n d the 7 the CR-10-1605 S t a t e ' s Answer t o P e t i t i o n Dismiss. f o rR e l i e f and M o t i o n t o " [ O l i v e r ] was i n d i c t e d b y t h e M o n t g o m e r y C o u n t y G r a n d J u r y i n A u g u s t 2010 f o r one c o u n t o f A s s a u l t i n t h e S e c o n d D e g r e e a n d one c o u n t o f B u r g l a r y i n the First Degree. On October 23, 2010, t h e P e t i t i o n e r pleaded, g u i l t y t o A s s a u l t i n t h e Second Degree. T h e B u r g l a r y i n t h e F i r s t D e g r e e c h a r g e was nolle prossed. On N o v e m b e r 1 8 , 2 0 1 0 , t h i s Court sentenced [ O l i v e r ] to twenty years' imprisonment. [ O l i v e r ] f i l e d t h e p r e s e n t p e t i t i o n on, o r about, May 1 0 , 2 0 1 1 . "As a b a s i s f o r t h i s P e t i t i o n , [ O l i v e r ] c l a i m s the following grounds for relief: That h i s c o n v i c t i o n was o b t a i n e d b y a g u i l t y p l e a w h i c h was unlawfully induced o r n o t made v o l u n t a r i l y with understanding o f t h e nature o f t h e charge and t h e c o n s e q u e n c e s o f t h e p l e a ; t h [ a t ] h i s c o n v i c t i o n was obtained by t h e u n c o n s t i t u t i o n a l f a i l u r e of the prosecution to disclose to [Oliver] evidence f a v o r a b l e t o [ h i m ] ; t h a t he was d e n i e d effective assistance o f c o u n s e l ; and t h a t h i s failure to a p p e a l w i t h i n , t h e p r e s c r i b e d t i m e was w i t h o u t f a u l t o f h i s own. " 1 . [ O l i v e r ] made a l a w f u l a n d v o l u n t a r y g u i l t y p l e a t o A s s a u l t i n t h e Second D e g r e e ; t h e B u r g l a r y i n t h e F i r s t D e g r e e c h a r g e was n o l l e p r o s s e d b y t h e State o f Alabama. " 2 . [ O l i v e r ' s ] c o n v i c t i o n was n o t o b t a i n e d any failure of the prosecution to disclose [ O l i v e r ] evidence f a v o r a b l e t o him. of his " 3 . [ O l i v e r ] was p r o v i d e d counsel. effective "4. [ O l i v e r ] f a i l e d t o f i l e sentence or c o n v i c t i o n . 8 a timely by to assistance appeal of CR-10-1605 no " I t i s the f i n d i n g of t h i s Court that evidence to support [ O l i v e r ' s ] claims. there i s " T h e r e f o r e , upon consideration t h e r e o f , and having taken j u d i c i a l notice of the Court's own r e c o r d s , I T I S HEREBY ORDERED, ADJUDGED AND DECREED that the P e t i t i o n f o r E v i d e n t i a r y Hearing i s hereby SUMMARILY D I S M I S S E D w i t h o u t a n e v i d e n t i a r y h e a r i n g pursuant t o Rule 32.7(d) o f t h e Alabama Rules o f Criminal Procedure." (C. 45-46.) Oliver presented provides appellate essentially i n h i s Rule additional reiterates petition. facts on appeal the claims on a p p e a l , Oliver of h i s claims inhis However, i n support brief. " [ T ] h e s e f a c t u a l a l l e g a t i o n s were n o t i n c l u d e d i n h i s p e t i t i o n o r amended p e t i t i o n ; t h e r e f o r e , they are n o t p r o p e r l y b e f o r e t h i s Court f o r r e v i e w and will n o t be c o n s i d e r e d . See, e.g., Bearden v. S t a t e , 825 S o . 2 d 8 68 , 872 ( A l a . C r i m . A p p . 2001 ) ( ' A l t h o u g h B e a r d e n a t t e m p t s t o i n c l u d e more s p e c i f i c facts regarding h i s claims of i n e f f e c t i v e assistance of counsel in his brief to this Court, those a l l e g a t i o n s are not p r o p e r l y before t h i s Court f o r r e v i e w b e c a u s e B e a r d e n d i d n o t i n c l u d e them i n h i s o r i g i n a l p e t i t i o n before the c i r c u i t court.'). See a l s o Hodges v. S t a t e , [Ms. C R - 0 4 - 1 2 2 6 , M a r c h 2 3 , 2007] So. 3d ( A l a . C r i m . App. 2 0 0 7 ) , and Hyde v . S t a t e , 950 S o . 2 d 344 ( A l a . C r i m . A p p . 2006)." B r y a n t v. S t a t e , (Ala. Crim. [Ms. C R - 0 8 - 0 4 0 5 , F e b r u a r y App. 2011). 9 4, 2 0 1 1 ] So. 3d CR-10-1605 II. To the extent claim, thus, 32.3 O l i v e r intended i t i s not supported as the and State to present by a s u f f i c i e n t pleaded, i t does a speedy-trial factual basis not comply and, with Rules the claim 32.6(b). III. To the extent that Oliver intended to present that the p r o s e c u t i o n w i t h h e l d exculpatory unsupported by comply Rules with a sufficient 32.3 and factual evidence, basis and i t i s also also fails to 32.6(b). IV. To because we extent "there note that of proof 641 the the i s no circuit evidence the court App. dismissed to support d i d so i n e r r o r . at the p l e a d i n g ( A l a . Crim. court stage. the petition [Oliver's] claims," O l i v e r h a d no See F o r d v. S t a t e , burden 831 S o . 2d 2001). V Contrary referenced pleaded to the State's in Parts I through a l l of h i s remaining response, other I I I above, claims 10 than Oliver except the claims sufficiently his claim seeking CR-10-1605 an out-of-time circuit court sufficiently true." appeal. However, addressed pleaded Lee v. a l l of undisputed State, neither 723 So. the State Oliver's claims 2d 774, claims. The be as "must 775 nor the taken ( A l a . Crim. App. 1998). VI. Oliver sentenced pleaded i n accordance challenged true, that See entitle a challenge State, v. State, 660 717 S o . 2 d 859 this claim that counsel so time a s an was the plea prevented to r e l i e f . i n a timely So. 2d that was This " I t i s well of a g u i l t y filed 102 6 Rule settled 32 ( A l a . 1994 ) ; 1996)." Baker Waddle v. He also ineffective for allowing h i m t o be agreement. He a s s e r t e d that jury trial and 466 U.S. 668 ineffective assistance, 11 a may be petition. v. State, presents of counsel a claim plea assistance h i s having not a n d i f p r o v e n t o be ( A l a . C r i m . App. 2 0 0 0 ) . ineffective he agreement. of h i s plea, (Ala.Cr.App. S t r i c k l a n d v. Washington, prove claim h i s plea to the voluntariness 784 S o . 2 d 3 6 7 , 369 outside with Oliver f o r the f i r s t Cantu substantive the voluntariness would raised the claim -¬ sentenced counsel's doing a speedy trial. (1984), states that to party must show 1) that CR-10-1605 counsel's performance deficiency was prejudiced the defendant. g u i l t y plea proceedings, for counsel's guilty, error, but would, trial." Hill State's assertion Oliver claim that The instead, v. Lockhart, that voluntary not understood court's guilty address this have that n o t have insisted 474 U.S. Oliver's that of 52 , 5 8 - 5 9 attorney h i s r i g h t s does contrary to Assault pleaded on p r o c e e d i n g (1 9 8 5 ) . the confirmed not address to h i s plea to The explained g u i l t y and t h a t Judge Reese finding that plea 2) "In the context the p e t i t i o n e r would he was s e n t e n c e d circuit and a p e t i t i o n e r m u s t a l s o show t h a t b u t consequences of p l e a d i n g that deficient Oliver's agreement. " [ O l i v e r ] made a l a w f u l a n d i n t h e Second Degree" does claim. VII. Oliver claimed that h i s counsel according to O l i v e r , counsel regarding exculpatory had Oliver entering prosecutor turned a been aware guilty withheld statements of, plea. information made b y U r s u l a would The was i n e f f e c t i v e have State's because, from O l i v e r Fields that, prevented him from assertion that the h a s an o p e n - f i l e p o l i c y a n d t h a t a l l discovery was over t o O l i v e r does n o t a d d r e s s O l i v e r ' s c l a i m t h a t h i s 12 CR-10-1605 counsel withheld decision information to enter a guilty pleaded that h i s counsel State's assertion that a defense witness a State witness from Oliver plea. withheld that Moreover, because information from O l i v e r had a c t u a l l y p l e a d e d him" him, the that had a d i f f e r e n t account of the i n c i d e n t than i s not accurate. prosecution Oliver only The circuit t h a t " [ O l i v e r ' s ] c o n v i c t i o n was n o t o b t a i n e d the affected his court's ruling by any f a i l u r e o f to d i s c l o s e to [ O l i v e r ] evidence favorable d i d not address this to claim. VIII. Oliver appeal. he also claimed However, O l i v e r f a i l e d i n s t r u c t e d counsel seeking plead t h a t he i s e n t i t l e d an appeal. his conviction. appeal because he Rules instructed 32.3 a n d fails his counsel out-of-time in i s petition to appeal out-of-time that to plead t o an to The Oliver pursue that claim d i d not a direct 32.6(b). IX. Oliver's his plea failing claims bargain to assure plea bargain and that he that d i d not receive h i s counsel was the b e n e f i t ineffective of for t h a t he was s e n t e n c e d i n a c c o r d a n c e w i t h h i s and f o r f a i l i n g to d i s c l o s e favorable 13 information CR-10-1605 to O l i v e r that would plea were These the and addressed claims because by not are State, pleadings, the to subject i t appears to from e n t e r i n g a g u i l t y State be sufficiently t h e y were are by deemed t h e y were they have p r e v e n t e d him or the circuit meritorious pleaded, not addressed no on procedural the bar. "[t]he judge the who Alabama presided conduct hold of a hearing over Court the Oliver's over Oliver's We a r e aware So. 1019 the p e t i t i o n e r ' s attorneys on the o f w h a t was alleged plea Based circuit on court the to the and citing Ex circuit observed at t r i a l need attorneys H o l l a w a y v. S t a t e , 2002), 463 ( A l a . 1 9 9 1 ) . no k n o w l e d g e that the e f f e c t i v e n e s s of those ( A l a . C r i m . App. 2d 462, held petitioner's trial u p o n c o n d u c t t h a t he o b s e r v e d . " 1017, has court, From t h a t Judge Reese p r e s i d e d Supreme face undisputed circuit g u i l t y - p l e a p r o c e e d i n g a n d h i s R u l e 32 p e t i t i o n . that their t h e y were by court. 848 parte based So. Hill, However, Judge Reese w o u l d said outside h i s presence not 2d 591 have regarding agreement. foregoing, provide we Oliver 14 remand an this case opportunity to for the present CR-10-1605 evidence court shall evidence or to support either i n the issue specific c l a i m s a n d may return shall opinion, findings one by and Rule evidence written be filed shall presented, findings of of f a c t , within a transcript 56 the circuit accept receiving circuit fact The interrogatories, After the 4 h e a r i n g or written 32.9(a). include above. evidentiary grant whatever r e l i e f i s conducted, the an of a f f i d a v i t s , See the claims l i s t e d conduct form depositions. considering those court regarding and shall Oliver's i t deems n e c e s s a r y . days of circuit the date court's of Due this written of the e v i d e n t i a r y hearing, i f and any o t h e r e v i d e n c e r e c e i v e d o r r e l i e d c o u r t i n making on i t s findings. O l i v e r ' s p e t i t i o n was d e n i e d on J u n e 1 1 , 2 0 1 1 . He f i l e d a n o t i c e s o f a p p e a l on J u n e 2 9 , 2 0 1 1 , a n d on J u l y 1 1 , 2011. On F e b r u a r y 16, 2 0 1 2 , O l i v e r f i l e d w i t h t h e c l e r k o f t h i s Court a "List of Adverse R u l i n g s -Appendix." This "appendix" c o n t a i n s documents a l l e g e d l y from O l i v e r ' s g u i l t y p l e a p r o c e e d i n g s . H o w e v e r , t h i s d o c u m e n t c a n n o t be c o n s i d e r e d b y t h i s C o u r t b e c a u s e i t was n o t made p a r t o f t h e R u l e 32 record. " ' [ T ] h i s C o u r t i s b o u n d b y t h e r e c o r d on a p p e a l a n d cannot c o n s i d e r f a c t s not c o n t a i n e d i n the r e c o r d . ' " McCary v . S t a t e , [Ms. C R - 1 0 - 0 8 6 3 , D e c e m b e r 1 6 , 2 0 1 1 ] So. 3d ( A l a . C r i m . App. 2 0 1 1 ) ( q u o t i n g M o r r o w v . S t a t e , 928 S o . 2d 3 1 5 , 320 n.5 ( A l a . C r i m . App. 2 0 0 4 ) ) . T h i s document i s a k i n to attachments to a b r i e f . "'[A]ttachments to b r i e f s are not considered part of the r e c o r d and t h e r e f o r e cannot be c o n s i d e r e d on a p p e a l . ' " McCary v. S t a t e , So. 3d a t , ( q u o t i n g H u f f v . S t a t e , 596 S o . 2 d 1 6 , 19 ( A l a . C r i m . App. 1991.))" 4 15 CR-10-1605 REMANDED WITH Kellum, concurs Burke, DIRECTIONS. and J o i n e r , i n the result. 16 J J . , concur. Windom, P . J . ,

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