Opinion
No. CR-05-0422.
Decided June 30, 2006.
Appeal from Etowah Circuit Court (CC-00-1213.60).
On Return to Remand
The appellant, Carlous Cobb, was indicted for first-degree robbery. On April 9, 2001, pursuant to a negotiated agreement, he pled guilty to second-degree robbery. The trial court sentenced him, as a habitual offender, to serve a term of life in prison.See § 13A-5-9(c), Ala. Code 1975. He did not appeal his conviction. On May 6, 2005, the appellant filed a Rule 32 petition, challenging his conviction. Without requiring a response from the State, the circuit court summarily denied the petition, and the appellant appealed the denial to this court.
On March 24, 2006, we remanded this case to the circuit court with instructions that that court make specific, written findings as to whether the indictment against the appellant was amended to add the allegation that another person aided him in the robbery.See Cobb v. State, [Ms. CR-05-0422, March 24, 2006] ___ So. 2d ___ (Ala.Crim.App. 2006). On remand, the circuit court found as follows:
"IT APPEARS TO THIS COURT, AND IT IS SO FOUND, that a factual basis was established by the Defendant during his colloquy with this Court to substantiate a plea to Robbery, 2nd Degree, as a lesser included offense of Robbery, 1st Degree; and further that the Defendant agreed de facto to the same and concurred with amending the charge against him as contained in the indictment to such lesser included charge (Record, p. 14 line 25 through p. 15 line 25); and IT FURTHER APPEARS TO THIS COURT, AND IT IS SO FOUND that the same was agreed to by Defendant's counsel at the time of such plea (Record, p. 6 lines 13-14); and
"IT FURTHER APPEARS TO THIS COURT, AND IT IS SO FOUND, that the State set forth additional reasons as to such plea being made to a lesser included charge (Record, p. 16 line 24 through p. 17 line 4) and that this Court, thereafter, approved all of the foregoing and, in accordance with the provisions of Rule 13.5(a), A.R. Cr. P., proceeded to amend such charges orally (Record, p. 15 lines 18-25); and
"IT FURTHER APPEARS TO THIS COURT, AND IT IS SO FOUND, that, based on all of the foregoing, that the indictment against the Defendant was properly amended to add the allegation that another person aided him in the robbery in question and that such was done properly in accordance with the provisions of Rule 13.5(a), A.R. Cr. P."
(Order on Return to Remand.) The circuit court attached a transcript of the guilty plea proceedings to its return to remand. The transcript of the guilty plea proceedings indicates that the first-degree robbery charge was amended by agreement to second-degree robbery and that the appellant agreed that another person was involved in the robbery. However, the transcript does not indicate that the trial court specifically amended the indictment to include the allegation that the appellant was aided by another person who was actually present.
The Alabama Supreme Court has
"specifically required an indictment to be amended, whether formally or informally, by adding any facts necessary to bring the lesser charge within the scope of the indictment. Not only must the record support such a charge, but also more is required — the affirmative act of adding to the indictment a fact supporting the charge."
Wright v. State, 902 So. 2d 738, 741 (Ala. 2004) (emphasis added). See also Toliver v. State, 881 So. 2d 1070 (Ala.Crim.App. 2003).
"It is apparent from the record that the amendment referred to [during the guilty plea proceedings] was the amendment from first-degree robbery to second-degree robbery, not an amendment to add to the indictment charging first-degree robbery the fact that Toliver had been aided in the robbery by another person."
Toliver, 881 So. 2d at 1077. Because the indictment in this case was not amended to add the fact that the appellant was aided by another person who was actually present, the trial court did not have jurisdiction to accept his guilty plea to second-degree robbery. Therefore, we reverse the circuit court's judgment and remand this case for the circuit court to set aside the appellant's conviction and sentence for second-degree robbery. We note that
"the indictment . . . for first-degree robbery remain[s] valid. The State may still try [the appellant] on th[at] charge, or it may attempt to reindict [him] for another offense justified by the facts. As we explained in [Ex parte]Cole[, 842 So. 2d 605, 609 (Ala. 2002)], a conviction that has been held void does not raise double-jeopardy concerns, because jeopardy attaches only when the court obtains jurisdiction. Cole, 842 So. 2d at 609."
Wright, 902 So. 2d at 742.
REVERSED AND REMANDED.
McMillan, P.J., and Cobb and Shaw, JJ., concur; Wise, J., concurs specially, with opinion.
I reluctantly concur with the main opinion's conclusion that "[b]ecause the indictment in this case was not amended to add the fact that the appellant was aided by another person who was actually present, the trial court did not have jurisdiction to accept his guilty plea to second-degree robbery." ___ So. 2d at ___. When evaluating a circuit court's ruling on a postconviction petition this Court applies an abuse-of-discretion standard. "`If the circuit court is correct for any reason, even though it may not be the stated reason, we will not reverse its denial of the petition.'" DeBruce v. State, 890 So. 2d 1068, 1075 (Ala.Crim.App. 2003) (quoting Reed v. State, 748 So. 2d 231, 233 (Ala.Crim.App. 1999)).
Normally, in a postconviction proceeding such as this, this Court accords great deference to the trial court's factual findings. Our deference is premised on the fact that in most instances the judge reviewing the merits of a petitioner's postconviction claims is the same judge who presided over the petitioner's original trial or who accepted the petitioner's guilty plea. An examination of the record in this case indicates that Judge Donald Stewart accepted Cobb's guilty plea and sentenced him in accordance with that plea. However, the judge who reviewed the merits of Cobb's Rule 32, Ala.R.Crim.P., petition — Judge Shaun Malone — was not the same judge who accepted Cobb's guilty plea. Accordingly, Judge Malone's knowledge of the guilty-plea proceedings is based on his review of the transcript of the plea colloquy — as is this Court's. Although it appears to have been the intent of the parties to amend the indictment — with Cobb's express consent — there is no evidence indicating that the trial court specifically amended the indictment to include the allegation that Cobb was aided in the robbery by another person who was actually present. Thus, based on the holdings in Ex parte Cole, 842 So. 2d 605 (Ala. 2002),Childers v. State, 899 So. 2d 1025 (Ala. 2004), and Wright v. State, 902 So. 2d 738 (Ala. 2004), this Court is left with no option but to grant Cobb's petition for relief.
However, I write to urge the Supreme Court to revisit its holdings in the aforementioned cases. I further write to express my agreement with the dissents authored by Justice See and Justice Stuart in Childers v. State and Wright v. State; their dissents conclude that no formal factual amendment of the indictment should be necessary in cases where the record contains clear evidence establishing the lesser-included offense of second-degree robbery.
Here, where the record supports the lesser-included offense, the requirement of the affirmative act of adding a fact to the indictment elevates form over substance and is nonsensical. 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 Cole, Childers v. State, and Wright v. State, and to grant Cobb the relief sought in his Rule 32 petition.