Ex parte Aaron Cody Smith
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REL: April 15, 2022 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 published in Southern Reporter. Alabama Court of Criminal Appeals OCTOBER TERM, 2021-2022 _________________________ CR-2022-0530 _________________________ Ex parte Aaron Cody Smith PETITION FOR WRIT OF MANDAMUS (In re: State of Alabama v. Aaron Cody Smith) (Montgomery Circuit Court, CC-16-1397) PER CURIAM. Aaron Cody Smith filed this petition for a writ of mandamus requesting this Court to direct Judge Philip Ben McLauchlin, Jr., to set aside his March 4, 2022, order revoking Smith's appeal bond and directing Smith to turn himself in to the Montgomery County Sheriff CR-2022-0530 within 10 days of Judge McLauchlin's order to begin the imposition of his sentence.1 On November 22, 2019, Smith, a former law-enforcement officer with the Montgomery Police Department, was convicted of heat-ofpassion manslaughter, see § 13A-6-3(a)(2), Ala. Code 1975, for killing Gregory Gunn while Smith was on duty. On January 29, 2020, Judge McLauchlin sentenced Smith to 14 years in prison. Smith appealed his conviction and sentence to this Court, and on May 21, 2021, this Court issued an unpublished memorandum affirming Smith's conviction and sentence. During the pendency of Smith's appeal, Judge McLauchlin granted him an appeal bond. After this Court's affirmance of Smith's conviction and sentence, the State moved to revoke his appeal bond. That motion was denied, and the State did not seek mandamus relief at that time. Smith then filed an application for rehearing with this Court, which this Court overruled on February 4, 2022. See Smith v. State, (No. CR-19-0428, February 4, 2022) ___ So. 3d ___ (Ala. Crim. App. 1Smith initially filed this petition in the Supreme Court of Alabama. That Court transferred the petition to this Court on March 31, 2022. 2 CR-2022-0530 2022)(table).2 After this Court overruled Smith's application for rehearing, the State again moved Judge McLauchlin to revoke Smith's appeal bond and to require Smith to turn himself in to the Montgomery County Sheriff to begin serving his sentence. Smith opposed the motion, asserting that he would be filing a petition for a writ of certiorari with the Alabama Supreme Court and that he should remain free on appeal bond until that Court has considered his petition and this Court has issued its certificate of judgment. On March 4, 2022, Judge McLauchlin granted the State's motion and ordered Smith to turn himself in to the Montgomery County Sheriff within 10 days. Smith moved to stay Judge McLauchlin's March 4, 2022, order so that he could file a petition for writ of mandamus with this Court, and that motion was granted. In his petition for a writ of mandamus, Smith argues, as he did before the trial court, that he has not violated the terms of his appeal bond and that he has a right to remain free on his appeal bond until this Court issues its certificate of judgment. In support of his argument, 2In overruling Smith's application for rehearing, this Court withdrew its May 21, 2021, unpublished memorandum and substituted another unpublished memorandum. 3 CR-2022-0530 Smith notes the following statement by this Court in Massey v. State, 587 So. 2d 448, 449 (Ala. Crim. App. 1991): "This Court also notes that because the judgment of conviction was affirmed on appeal, the trial court had no authority to extend the appellant's appeal bond following this Court's issuance of the certificate of judgment, after which time the appellant was under a duty to surrender himself to the sheriff in compliance with § 12-22-244, Code of Alabama 1975…." "A petition for a writ of mandamus will issue only if the following prerequisites are established here: (1) a clear legal right to the relief sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) no adequate remedy at law; and (4) the properly invoked jurisdiction of the reviewing court." Ex parte Jones, 61 So. 3d 1104, 1106–07 (Ala. Crim. App. 2010). In determining whether the prerequisites for the issuance of a writ of mandamus have been established, this Court must first consider whether Smith has a clear legal right to remain free on appeal bond pending the disposition of his petition for writ of certiorari by the Alabama Supreme Court and this Court's issuance of its certificate of judgment. Section 12-22-244, Ala. Code 1975, dictates when an appeal bond concludes and an appellant is required to begin serving his or her sentence. That Code section states: 4 CR-2022-0530 "When the defendant in a case of misdemeanor or felony is sentenced to hard labor, imprisonment or to the penitentiary, gives bail pending the appeal and the judgment of conviction is affirmed or the appeal is dismissed, he is bound by the undertaking of bail to surrender himself to the sheriff, at the county jail, within 15 days from the date of such affirmance or dismissal. If he shall fail to do so, the sheriff must endorse the bail bond forfeited, and a writ of arrest must be issued by the clerk; if not executed, another must be issued, and so on until the judgment has been executed. If the defendant is taken on such writ or if he shall surrender himself to the sheriff, the sentence must, without delay, be carried out as if no appeal had been taken." (Emphasis added.) To determine whether Smith has a clear legal right to the relief he seeks, namely remaining free on appeal bond while his petition for certiorari review is pending in the Alabama Supreme Court, this Court must determine what is meant by the clause in § 12-22-244 "the judgment of conviction is affirmed." "When interpreting a statute, a court must first give effect to the intent of the legislature. BP Exploration & Oil, Inc. v. Hopkins, 678 So. 2d 1052 (Ala. 1996). " 'The fundamental rule of statutory construction is that this Court is to ascertain and effectuate the legislative intent as expressed in the statute. League of Women Voters v. Renfro, 29/2 Ala. 128, 290 So.2d 167 (1974). In this ascertainment, we must look to the entire Act instead of isolated phrases or clauses; Opinion of the Justices, 264 Ala. 176, 85 So. 2d 391 (1956).' 5 CR-2022-0530 "Darks Dairy, Inc. v. Alabama Dairy Comm'n, 367 So. 2d 1378, 1380 (Ala. 1979) (emphasis added). To discern the legislative intent, the Court must first look to the language of the statute. If, giving the statutory language its plain and ordinary meaning, we conclude that the language is unambiguous, there is no room for judicial construction. Ex parte Waddail, 827 So. 2d 789, 794 (Ala. 2001). If a literal construction would produce an absurd and unjust result that is clearly inconsistent with the purpose and policy of the statute, such a construction is to be avoided. Ex parte Meeks, 682 So. 2d 423 (Ala. 1996). " 'There is also authority for the rule that uncertainty as to the meaning of a statute may arise from the fact that giving a literal interpretation to the words would lead to such unreasonable, unjust, impracticable, or absurd consequences as to compel a conviction that they could not have been intended by the legislature.' "73 Am. Jur. 2d Statutes § 114 (2001) (footnotes omitted)." City of Bessemer v. McClain, 957 So. 2d 1061, 1074-75 (Ala. 2006). Contrary to Smith's assertion, §12-22-244 does not state that he is entitled to remain free on an appeal bond until this Court issues its certificate of judgment once this Court has affirmed his conviction. Instead, the plain language of this Code section states that he is to surrender himself to the sheriff within 15 days of the issuance of this Court's decision affirming his conviction. Smith does not have a statutory right to remain free on an appeal bond pending this Court's consideration 6 CR-2022-0530 of an application for rehearing or the Alabama Supreme Court's consideration of a petition for writ of certiorari. A literal reading of the requirement in §12-22-244 that an appellant surrender himself or herself to the sheriff within 15 days of the issuance of this Court's decision affirming a conviction and sentence does not produce an absurd or unjust result. A rehearing before this Court is a discretionary review. See Patty v. State, 652 So. 2d 337 (Ala. Crim. App. 1994). Likewise, there is a distinct difference between an appeal to this Court and certiorari review by the Alabama Supreme Court. "[A] criminal defendant is guaranteed one appeal from his conviction, and that appeal is to [the Court of Criminal Appeals]." State v. Tarver, 629 So. 2d 14, 18 (Ala. Crim. App. 1993). The Supreme Court in criminal cases – with the exception of death penalty appeals – has discretionary jurisdiction through certiorari review. Id. In fact, certiorari "is not regarded as a writ of right but rather as one which is discretionary with the reviewing court and issued to promote the ends of justice, no other adequate remedy being available." Ex parte Sellers, 250 Ala. 87, 88, 33 So. 2d 349, 350 (1948). 7 CR-2022-0530 As Smith notes, this Court in Massey v. State, supra. stated that a circuit judge did not have authority to extend the appeal bond beyond this Court's issuance of its certificate of judgment. In Massey, the appellant filed a motion for reconsideration and a request to extend an appeal bond after this Court had issued its certificate of judgment. Upon consideration of the motion to reconsider, the trial court amended the appellant's sentence. The same day that the trial court resentenced the appellant, he tested positive on a drug screen administered by a probation officer. The trial court thus set aside the sentence it had imposed that day and reinstated its original sentence. The appellant then filed a motion to reconsider the setting aside of his new sentence, and the trial court denied that motion. The appellant then gave oral notice of appeal, and the trial court set another appeal bond. On consideration of that appeal, this Court held that the trial court had lost all jurisdiction to modify the original sentence 30 days after it was pronounced. Thus, the orders amending the sentence and reimposing the original sentence were nullities. Likewise, the trial court did not have authority to set an appeal bond. Therefore, this Court's reference to the trial court's inability to extend the appeal bond past the issuance of the 8 CR-2022-0530 certificate of judgment is nothing more than obiter dictum and is not binding in subsequent cases. See Ex parte Patton, 77 So. 3d 591, 596 (Ala. 2011) ("Because the language … was, therefore, not essential to this Court's ultimate holding … it was… nothing more than dicta and was not binding in subsequent cases.") Because § 12-22-244, Ala. Code 1975, does not permit an appellant to remain free on an appeal bond beyond this Court's affirmance or dismissal of his or her conviction, Smith does not have a clear legal right to the relief he seeks. He therefore is unable to establish the prerequisites for the issuance of the writ of mandamus. Accordingly, this petition is denied. PETITION DENIED. Windom, P.J., and Kellum, McCool, Cole, and Minor, JJ., concur. 9
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