William Andrew Grocholski v. State of Alabama

Annotate this Case

Download PDF

RE: January 11, 2019 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, 2018-2019 _________________________ CR-17-0814 _________________________ Kimberly Ann Wilson v. State of Alabama Appeal from Madison Circuit Court (CC-17-2482) WELCH, Judge. Kimberly Ann Wilson appeals her guilty-plea conviction for trafficking in a controlled substance--methamphetamine, see § 13A-12-231, Ala. Code 1975. She was sentenced to 20 years' imprisonment and was also ordered to pay a $50,000 CR-17-0814 fine, a $2,000 fine under the Drug Demand Reduction Assessment Act, a $100 fee to the Alabama Department of Forensic Sciences, a $100 crime victims compensation assessment, and various court costs and attorney fees. This appeal followed. Facts and Procedural History The record indicates that, on April 3, 2016, the MadisonMorgan County Drug Task Force STAC Team received information through a confidential informant that a woman, identified as Wilson, was preparing methamphetamine to to deliver Whiplash Customs a in large amount Huntsville. of The informant was able to show agents a picture of Wilson and told them that she would be driving a gray Infiniti automobile with a Georgia license plate. STAC agents surveilled a business known as Whiplash Customs property for approximately three hours before they noticed a vehicle approach the property that matched the description given to them by their informant. After the vehicle parked, agents observed Wilson exit the driver's side of the vehicle with a purse on her shoulder. Wilson then walked to the back of her vehicle, knelt down, and tossed a black case underneath her vehicle. 2 CR-17-0814 The agents then moved in and detained Wilson. When one agent reached under Wilson's vehicle, he found the black case. Wilson denied that the case belonged to her. When law- enforcement officers opened the case, they found a yellow bag inside of which was a duct-taped package. Inside the package were three large bags containing a pink ice-like substance that was determined to be methamphetamine. An analysis of the methamphetamine revealed that it weighed 172 grams or 6 ounces. They also found in Wilson's vehicle two cellular telephones and a notebook containing a ledger. After law-enforcement officers read Wilson her Miranda1 rights, they questioned her about the methamphetamine. During that conversation, Wilson initially stated that she did not know what was in the case and that she had gotten the case from a woman who, she said, had told her to deliver the case to Whiplash Customs. She also stated that she had marijuana in her purse. Wilson later admitted, however, that she knew that there was methamphetamine inside the case. On June 21, 2017, Wilson was indicted for trafficking in a controlled substance--methamphetamine, see § 13A-12-231, 1 Miranda v. Arizona, 384 U.S. 436 (1966). 3 CR-17-0814 Ala. Code 1975. On March 2, 2018, Wilson entered a blind guilty plea to that offense. On May 18, 2018, the court sentenced Wilson to 20 years' imprisonment. That same day, Wilson filed a motion asking the circuit court to reconsider her sentence. That motion was subsequently denied. Wilson also filed a motion to alter, amend, or vacate the sentencing order but that motion was also denied. Thereafter, Wilson filed a timely notice of appeal. Discussion I. On appeal, Wilson argues, among other things, that the circuit court erred in ordering her to pay a $2,000 fine under the Drug Demand Reduction Assessment Act, § 13A-12-281(a), Ala. Code 1975, ("the DDRA"). Specifically, she contends that, under the provisions in the DDRA, the court was not permitted to increase her $1,000 DDRA fine based on her prior felony trafficking conviction in Georgia because that specific offense was not enumerated in the statute. We agree. Section 13A–12–281(a), Ala. Code 1975, provides: "In addition to any disposition and fine authorized by Sections 13A–12–202, 13A–12–203, 13A–12–204, 13A–12–211, 13A–12–212, 13A–12–213, 13A–12–215, or 13A–12–231, or any other statute indicating the 4 CR-17-0814 dispositions that can be ordered for such a conviction, every person convicted of a violation of any offense defined in the sections set forth above, shall be assessed for each offense an additional penalty fixed at one thousand dollars ($1,000) for a first offense and two thousand dollars ($2,000) for a second or subsequent offense." (Emphasis added.) This Court has previously addressed a similar issue in Holloway v. State, 995 So. 2d 180 (Ala. Crim. App. 2008). In that case, this Court stated: "'"'"[I]t is well established that criminal statutes should not be 'extended by construction.'"' Ex parte Mutrie, 658 So. 2d 347, 349 (Ala. 1993) (quoting Ex parte Evers, 434 So. 2d 813, 817 (Ala. 1983), quoting in turn Locklear v. State, 50 Ala. App. 679, 282 So. 2d 116 (1973)). "'"'A basic rule of review in criminal cases is that criminal statutes are to be strictly construed in favor of those persons sought to be subjected to their operation, i.e., defendants. Schenher v. State, 38 Ala. App. 573, 90 So. 2d 234, cert. denied, 265 Ala. 700, 90 So. 2d 238 (1956). "'"'Penal statutes are to reach no further in meaning than their words. Fuller v. State, 257 Ala. 502, 60 So. 2d 202 (1952).'"' "Cockrell v. State, 890 So. 2d 174, 180–81 (Ala. 2004)(quoting Ex parte Bertram, 884 So. 2d 889, 891 (Ala. 2003), superseded by statute as stated in 5 CR-17-0814 Hankins v. State, 989 So. 2d 610 (Ala. Crim. App. 2007)).[] "The record shows that Holloway had more than three prior convictions in the State of Ohio for trafficking. As Judge Baschab wrote in her special writing in Williams v. State, 941 So. 2d 342, 343 (Ala. Crim. App. 2006) (Baschab, J., concurring in part and dissenting in part): "'[T]he plain language of § 13A–12–281(a), Ala. Code 1975, indicates that the $2,000 penalty applies only if the previous conviction or convictions were for violations of the sections specifically enumerated in that statute. Compare Ex parte Bertram, 884 So. 2d 889 (Ala. 2003)(holding that, based on the plain language of § 32–5A–191, Ala. Code 1975, a prior out-of-state conviction for driving under the influence cannot be used to enhance a defendant's sentence ... for driving under the influence pursuant to § 32–5A–191, Ala. Code 1975).' "Holloway's Ohio convictions are not enumerated in § 13A–12–281(a), Ala. Code 1975. Therefore, the $2,000 fine the trial court imposed exceeds the $1,000 fine mandated by § 13A–12–281, Ala. Code 1975, for the first offense. Accordingly, this case is hereby remanded for the trial court to set aside the $2,000 Demand Reduction Assessment Act fine, as required by § 13A–12–281(a), Ala. Code 1975." Holloway v. State, 995 So. 2d 180, 182 (Ala. Crim. App. 2008)(footnote omitted). In the present case, the record shows that the circuit court ordered Wilson to pay a $2,000 DDRA fine in light of her 6 CR-17-0814 prior trafficking conviction in Georgia. Like the defendant's out-of-state convictions in Holloway, Wilson's conviction in Georgia is not enumerated in § 13A-12-281(a), Ala. Code 1975. Thus, the fine imposed by the court exceeds that permitted by the statute, and we remand this case for the circuit court to impose a fine of $1,000 as permitted by the DDRA. II. Wilson argues that the circuit court erroneously sentenced her to 20 years' imprisonment. Specifically, Wilson argues that the court mistakenly believed that Wilson was required to serve, at a minimum, a three-year split term and that it did not have the authority to suspend that split sentence. As a result, Wilson contends that this case should be remanded to give the circuit court the opportunity to split and suspend her sentence. The circumstances underlying Wilson's claim here are as follows. Before Wilson entered her guilty plea, the following exchange occurred concerning the punishment Wilson could receive for her trafficking offense: "THE COURT: All right. Do you understand that the charge against you is a Class A felony under Alabama law? 7 CR-17-0814 "[WILSON:] Yes, ma'am. "THE COURT: Do you understand that under Alabama law the range of punishment for a Class A felony is not less than ten years and not more than life or ninety-nine years' imprisonment in the state penitentiary and may include a fine of not to exceed sixty thousand dollars? "[WILSON:] Yes, ma'am. "THE COURT: [Prosecutor,] I'm going to have you state for the record the special consideration that would be in effect since this is a trafficking charge about the minimum time she would have to serve. "[PROSECUTOR:] Your Honor, also the defendant has a prior felony conviction, so the minimum time would be fifteen to life. ".... "THE COURT: All right. Do you understand[, Ms. Wilson,] that the State of Alabama is asserting that prior felony conviction to enhance or to make greater the range of punishment that would apply to this Class A felony? "[WILSON:] Yes, ma'am. "THE COURT: Now if you didn't have the Class A, I'm correct--I'm sorry, if you didn't have the prior, am I not correct that she would be looking at a minimum three-year sentence? "[PROSECUTOR:] That is correct. Minimum of three years, minimum statutory. "THE COURT: Right. Now with the prior, state again, [prosecutor], what is the range of sentencing that would apply and what would the minimum 8 CR-17-0814 mandatory be, so we can make certain we've got that-"[PROSECUTOR:] The range of punishment is not less than fifteen years to life, ninety-nine or life, with the minimum mandatory three years to do that cannot be probated or suspended." (R. 4-6.) After the court finished conducting the guilty-plea colloquy, the following exchange occurred: "THE COURT: All right. And so it may be--you heard us talk about earlier the range of punishment. It could be at the low end, it could be at the maximum, it could be anywhere in between. Do you understand all of those things? "[WILSON:] Yes, ma'am. "THE COURT: All right. "[WILSON:] Can I ask a question? "THE COURT: Ask [defense counsel] first. "[PROSECUTOR:] And, Judge, I just want to emphasize again that the--there is a mandatory three years in prison that the court cannot even set aside that she would not get good time on, probation, or suspension. "THE COURT: Right. "[DEFENSE COUNSEL:] And, Judge, you know, I guess at sentencing we can take that up. Under the Split Sentence Act, the Court is awarded discretion and jurisdiction to fashion a sentence appropriate, regardless of the minimum sentence. "THE COURT: Well, not on trafficking cases. I don't think I can. I think that's the one situation 9 CR-17-0814 where, unless the prosecutor agrees to waive the three years, I can't. I think that's right. We can take it up at sentencing." (R. 10.) At Wilson's sentencing hearing, the following exchange occurred concerning eligible to receive the for range a of punishment guilty-plea Wilson was conviction for trafficking: "[THE COURT:] As I read the statute, and if I'm reading the wrong section then you all can correct it for me, I believe what we're talking about for sentencing is--would be 13A-12-231(11); is that correct? "[PROSECUTOR:] Correct. "THE COURT: Okay. All right. And it was-"[PROSECUTOR:] And also 13A-12-232. "THE COURT: Yeah, right. But as far as the range is concerned, I believe it's subparagraph A, I believe this was six ounces which computes to about a hundred and seventy grams, so I think we're in Section A, correct? "[PROSECUTOR:] Correct. "THE COURT: Okay. So we're looking at a mandatory minimum term of three calendar years and a fine of fifty thousand dollars. "[PROSECUTOR:] Correct. "THE COURT: And then when you look over to the next section, [§ 13A-12-]232, it talks about that 10 CR-17-0814 this sentence may not anything of that nature. be suspended, probated, "Now, [defense counsel] has given me some authority talking about a split sentence that that's not--that that's not applicable, I guess. ".... "[PROSECUTOR:] The lowest you can do on the-"THE COURT: --has got to be the three. "[PROSECUTOR:] Got to be the three. "THE COURT: And it's got to be for service. "[PROSECUTOR:] Correct. "[DEFENSE COUNSEL:] May I respond briefly? "THE COURT: Yes. Yes. Yes. Yes. "[DEFENSE COUNSEL:] Your Honor, the case that the State has provided to the court came out in 1987, and the portion of the Split Sentence Act, Subsection (8)(g) that's at issue in [Ex parte McCormick, 932 So. 2d 124 (Ala. 2005),] and here today, the language that was added in the 1988 amendment to the Split Sentence Act was the portion of--that references the court's ability to suspend the minimum sentence, and it came out after this case. So the opinion was provided before it was even codified into the statute itself. "THE COURT: But I just can't get around, [defense counsel], Section [13A-12-]232 which specifically prohibits any sort of probation, work release, parole, anything in the trafficking case. That's what I can't reconcile. Because it's pretty specific that I can't do that. So I don't know why 11 CR-17-0814 that wasn't discussed in the McCormick case, but it wasn't. ".... "[THE COURT:] Let me hear from [the State] on a recommendation ... [for punishment]. "[PROSECUTOR:] Your Honor, the recommendation-Judge, I believe there's a stipulation of one prior felony, and the minimum would be fifteen [years]. Based on this defendant's--that prior being a possession with the intent to distribute, I cannot recommend the minimum. I would ask for twenty years." (R. 16-21.) The court then heard testimony from witnesses on Wilson's behalf as well as from Wilson herself. Following that testimony, the court pronounced the following sentence: "THE COURT: All right. Having adjudicated Ms. Wilson guilty, as she pled, and having considered all of the arguments and matters that we've talked about here this morning, I hereby sentence Ms. Wilson to a period of incarceration with the Alabama Department of Corrections of twenty years, a fine of fifty thousand dollars as provided by statute, a user penalty fee ... two thousand dollars, a hundred dollar [Department of Forensic Sciences] fee, a Victim's Compensation Assessment of one hundred dollars, court costs and attorneys fees, and a bail bond fee of seven hundred and fifty dollars." (R. 42.) On May 18, 2018, Wilson filed a motion for reconsideration in which she argued that the circuit court should "resentence her under the Split Sentence Act and 12 CR-17-0814 suspend the minimum sentence to be served by way of probation or potentially a reverse-split with probation." (C. 44.) In denying Wilson's motion, the circuit court issued an order in which it stated: "As implied in defendant's motion, there was a significant discussion of sentencing options at the sentencing hearing held herein on May 18, 2018. The State of Alabama argued for a straight sentence of 20 years, while defendant argued in essence for a 'reverse split' sentence. "Split sentences are governed by Ala. Code 15-18-8 (1975) which provides that a judge may split a sentence of twenty years or less if satisfied 'that the ends of justice and the best interests of the public as well as the defendant will be served thereby.' In no way can that section be interpreted to imply that a split sentence is in any way mandatory, or that a defendant has a right to a split sentence. Counsel for defendant made persuasive arguments that a split sentence was authorized; counsel for the State of Alabama made persuasive arguments to the contrary. Regardless which side was correct, however, the Court still had to determine whether a split sentence in this case would serve the ends of justice and the best interests of the public as well as the defendant. After consideration of the entire record in this case, including the Presentence Investigation Report, the Court concluded that a split sentence would not serve those interests. The mandatory minimum sentence applicable to this case was 15 years; the maximum was 99 years or life. The imposed sentence of 20 years is well within the applicable range and was appropriate in this case. Defendant's motion to alter, amend or vacate that sentence is DENIED." 13 CR-17-0814 (C. 216.)(Capitalization in original.) Section 15-18-8, Ala. Code 1975, provides, in pertinent part: "(a) When a defendant is convicted of an offense, other than a sex offense involving a child as defined in Section 15-20A-4(26), that constitutes a Class A or Class B felony offense, and receives a sentence of 20 years or less in any court having jurisdiction to try offenses against the State of Alabama and the judge presiding over the case is satisfied that the ends of justice and the best interests of the public as well as the defendant will be served thereby, he or she may order: "(1) That a defendant convicted of a Class A or Class B felony be confined in a prison, jail-type institution, or treatment institution for a period not exceeding three years in cases where the imposed sentence is not more than 15 years, and that the execution of the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary and that the defendant be placed on probation for such period and upon such terms as the court deems best. "(2) That a defendant convicted of a Class A, Class B, or Class C felony with an imposed sentence of greater than 15 years but not more than 20 years be confined in a prison, jail-type institution, or treatment institution for a period of three to five years for Class A or Class B felony convictions and for a period of three years for Class C felony convictions, during which the offender shall not be eligible for parole or release because of deduction from sentence for good behavior under the 14 CR-17-0814 Alabama Correctional Incentive Time Act, and that the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary and that the defendant be placed on probation for the period upon the terms as the court deems best. ".... "(g) Regardless of whether the defendant has begun serving the minimum period of confinement ordered under the provisions of subsections (a) or (b), if the imposed sentence is not more than 20 years, the court shall retain jurisdiction and authority throughout that period to suspend that portion of the minimum sentence that remains and place the defendant on probation, notwithstanding any provision of the law to the contrary and the court may revoke or modify any condition of probation or may change the period of probation." On appeal, Wilson argues that the circuit court was confused about its ability to impose a split sentence and then to suspend the minimum three-year split term for her trafficking offense and, therefore, it should be given the opportunity to resentence her as permitted by § 15-18-8, Ala. Code 1975. Based on the excerpts from the record quoted above, we do not believe that the court was confused. Instead, we conclude that the court correctly determined Wilson's sentence under Alabama's trafficking statutes and chose not to grant her request for a split sentence based on the fact that it did 15 CR-17-0814 not think that doing so would serve "the ends of justice and the best interests of the public as well as the defendant." Additionally, although we agree with Wilson that § 15-188, Ala. Code 1975, plainly gives the circuit court discretion in deciding whether to suspend the "minimum sentence" required to be imposed by § 15-18-8(a), Ala Code 1975, including the "minimum period of confinement" that § 15-18-8(a)(1) requires for sentences greater than 15 years but not more than 20 years, i.e., three years, that statute does not require the court to do so. Thus, Wilson is not entitled to relief on this claim. Conclusion Accordingly, this case is remanded for the sole purpose of having the circuit court impose a $1,000 DDRA fine as permitted by § 13A-12-281, Ala. Code 1975. Due return should be filed in this Court within 14 days from the date of this opinion. REMANDED WITH INSTRUCTIONS. Windom, P.J., and Kellum, concur. 16 Joiner, and McCool, JJ.,

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.