Opinion
No. CR-02-0437.
Released January 30, 2004.
Appeal from Randolph Circuit Court, CC-02-3; CC-02-74, Ray D. Martin, J.
Note from the reporter of decisions: On January 7, 2005, on return to remand, the Court of Criminal Appeals affirmed, without opinion.
Gregory M. Varner, Ashland, for Appellant.
William H. Pryor, Jr., and Troy King attys. gen., and J. Thomas Leverette and Michael B. Billingsley, asst. attys. gen., for Appellee.
John Anthony Altherr was convicted of driving under the influence of alcohol after having been previously convicted of three or more driving-under-the-influence offenses, a violation of § 32-5A-191, Ala. Code 1975. He was also convicted of unlawfully possessing prohibited liquor, a violation of § 28-4-20, Ala. Code 1975. Altherr was sentenced to 6 years' imprisonment for the driving-under-the-influence-of-alcohol conviction and to 12 months in jail for the conviction of violating the prohibition law. The trial court ordered that the sentences were to run concurrently. This appeal followed.
Altherr contends that he received ineffective assistance of trial counsel because counsel failed to object to an officer's testimony concerning the horizontal gaze nystagmus ("HGN") field-sobriety test when the State failed to lay the proper predicate for the admission of the officer's testimony. Altherr did not present his ineffective-assistance-of-counsel claim to the trial court. "Such claims cannot be presented on direct appeal where they were not first presented to the trial court." Willingham v. State, 796 So.2d 440, 445 (Ala.Crim.App. 2001).
"'"[A]n ineffective-assistance-of-counsel claim must be presented in a new trial motion filed before the 30-day jurisdictional time limit set by Rule 24.1(b), Ala. R. Crim. P., expires, in order for that claim to be properly preserved for review upon direct appeal."' [Montgomery v. State, 781 So.2d 1007,] at 1010 [ (Ala.Crim.App. 2000)](quoting Ex parte Ingram, 675 So.2d 863, 865 (Ala. 1996))."
Id.
Because Altherr did not present his claim in a motion for a new trial, it was not preserved for appellate review.
Even if Altherr had preserved his claim for review, he would not be entitled to any relief. To prevail on an ineffective-assistance-of-counsel claim, Altherr must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Altherr must show that counsel's performance was deficient and that the deficient performance so prejudiced him that he was deprived of a fair trial. Id.
Without finding that counsel's performance was deficient, we find that Altherr has not shown that he has suffered prejudice. Any evidence regarding the HGN test was harmless. In Cumbie v. City of Montgomery, 703 So.2d 423 (Ala.Crim.App. 1997), this Court, in applying a harmless-error analysis, held that because the evidence of the defendant's intoxication was overwhelming, even without the evidence provided by the HGN test, any error in the admission of the results of the HGN test was harmless. Here, even without the evidence provided by the HGN test, the evidence of intoxication was overwhelming. Altherr was driving in an erratic manner, running off the right side of the road and crossing over the center line until finally pulling back into his traffic lane. When Altherr got out of his vehicle, he was unsteady on his feet. Altherr smelled of alcohol. Altherr could barely stand when he was asked to perform a series of field-sobriety tests. When the officer asked him to perform the "walk-and-turn test," Altherr declined to do so. The officer testified that Altherr's eyes were very red and that his pupils were very constricted. After placing Altherr under arrest, the officer found in Altherr's vehicle four unopened 12-ounce cans of beer and one opened can about three-fourths full. Moreover, Altherr refused to take a breathalyzer test. In addition, as was the case in Cumbie, the HGN evidence was not presented as scientific evidence, was not accorded undue weight, was part of several field-sobriety tests performed by the officer, and was treated as one of many pieces of evidence. Thus, Altherr has not proven that the outcome of his trial would have been different except for his counsel's allegedly deficient performance. Accordingly, even if Altherr had preserved his claim for appellate review, we would find it to be without merit.
However, based on the Alabama Supreme Court's recent decision in Ex parte Bertram, [Ms. 1010892, March 7, 2003] ___ So.2d ___ (Ala. 2003), we must reverse Altherr's conviction for felony driving under the influence. In Ex parte Bertram, the Court held that a prior Florida conviction for driving under the influence of alcohol was not a "conviction" within the meaning of the Alabama statute prohibiting driving while under the influence of alcohol; therefore, the out-of-state conviction could not be used as a prior conviction in a prosecution for felony driving under the influence of alcohol, a violation of § 32-5A-191(h), Ala. Code 1975.
In the instant case, the State proved four prior convictions for driving under the influence of alcohol. Two of those convictions were from Georgia, and according to the Alabama Supreme Court in Ex parte Bertram, should not have been used toward the total number of convictions necessary to constitute a felony offense under § 32-5A-191(h), Ala. Code 1975. Thus, the trial court erred in convicting Altherr on that basis. However, the State clearly proved each and every element of driving under the influence, § 32-5A-191(a) and (g), which is a lesser-included offense of the crime charged. Accordingly, we reverse Altherr's conviction for felony driving under the influence, but we remand the case with instructions that a judgment be entered for the lesser-included offense of driving under the influence and for proper resentencing. Due return should be filed with this Court within 60 days from the date of this opinion showing the action taken by the trial court.
In addition, the trial court's sentence of 12 months for Altherr's conviction of unlawfully selling, possessing, or exchanging prohibited beverages, a violation of § 28-4-20, Ala. Code 1975, is improper. Section 28-4-21, Ala. Code 1975, states that a violation of § 28-4-20, Ala. Code 1975, is a misdemeanor "punishable by a fine of not less than $50.00 nor more than $500.00, to which . . . may be added imprisonment in the county jail or at hard labor for the county for not more than six months for the first conviction." The record does not indicate that Altherr has previously been convicted for violating § 28-4-20, Ala. Code 1975. Thus, Altherr should not have been sentenced to more than six months in jail for violating § 28-4-20, Ala. Code 1975.
Accordingly, Altherr's conviction for felony driving under the influence is reversed, and this cause is remanded with directions to vacate that conviction and adjudge Altherr guilty of § 32-5A-191(a) and (g). The trial court is further directed to amend Altherr's sentence for possessing prohibited liquor and to resentence Altherr in compliance with § 28-4-20, Ala. Code 1975. Due return shall be made to this Court at the earliest possible time and within 60 days after the release of this opinion.
REMANDED WITH DIRECTIONS.
McMILLAN, P.J., and SHAW, J., concur. WISE, J., concurs specially, with opinion, joined by BASCHAB, J.
I reluctantly concur with the main opinion's reversal of Altherr's conviction for felony driving under the influence, based on the Alabama Supreme Court's holding in Ex parte Bertram, [Ms. 1010892, March 7, 2003] ___ So.2d ___ (Ala. 2003). However, I write to urge the Supreme Court to revisit its holding in Ex parte Bertram. I further write to express my agreement with the following language from Justice Stuart's dissent in that case:
"The Legislature's intent in creating the offense of driving under the influence of alcohol or a controlled substance is clear and unambiguous. This State has a valid interest in deterring conduct that risks the safety and lives of its citizens. Individuals who repeatedly drive on our roadways while under the influence of alcohol or a controlled substance endanger our citizens and shall be punished. The Legislature has determined that to deter the individual from repeatedly engaging in such dangerous conduct and to protect this State's citizens a defendant's punishment for driving under the influence of alcohol or a controlled substance must increase with each conviction.
"The majority's holding unnecessarily thwarts the objective of the Legislature. In my opinion the majority abandons a common-sense interpretation and practical application of the statute, inserts words into the statute that are not mandated, and construes the language of the statute directly opposite to the intent of the Legislature and to the common understanding of a reasonable person, even the accused.
". . . .
"The purpose of the language 'violating this section' in the independent clauses in subsections (e), (f), (g), and (h) is to identify the present offense for which a defendant is being charged — a violation of § 32-5A-191(a), Ala. Code 1975. The introductory phrases in those subsections determine the type of offense — misdemeanor or felony — and the defendant's punishment. Indeed, the introductory phrases in those subsections provide the sentence-enhancement provisions for a conviction for driving under the influence of alcohol or a controlled substance. Ex parte Parker, 740 So.2d 432, 434 (Ala. 1999). The Legislature in those introductory phrases did not limit to Alabama convictions the use for enhancement purposes of prior convictions for driving under the influence of alcohol or a controlled substance; neither did it prohibit the use of non-Alabama convictions. Cf. State v. Rea, 865 S.W.2d 923 (Tenn.Crim.App. 1992) (holding that the Tennessee DUI statute did not limit the use of prior convictions for enhancement purposes to Tennessee DUI convictions only).
". . . .
"The Legislature, in enacting § 32-5A-191, Ala. Code 1975, intended to prevent individuals from repeatedly driving their vehicles while under the influence of alcohol or a controlled substance. In this case, Bertram was convicted of driving under the influence of alcohol. The category of the offense and the level of punishment was determined by the number of prior convictions she had for driving under the influence of alcohol or a controlled substance. Whether the previous convictions for driving under the influence of alcohol were Alabama convictions or convictions from another state is a distinction without a difference. The language of our statute is broad enough to include the use of out-of-state convictions as sentence enhancements."
___ So.2d at ___ (emphasis added). Nonetheless, because this Court is bound by the decisions of the Alabama Supreme Court, see § 12-3-16, Ala. Code 1975, and "is without authority to overrule the decisions of [that] court," Ex parte Jones, 288 Ala. 242, 244, 259 So.2d 288, 290 (1972), we have no choice but to follow the holding of the majority in Ex parte Bertram and to reverse Altherr's conviction and remand this case for the trial court to vacate Altherr's conviction for felony DUI and adjudge him guilty pursuant to § 32-5A-191(a) and § 32-5A-191(g).