Opinion
CR-19-0297
05-29-2020
P.C. v. STATE of Alabama
P.C., appellant, pro se. Steve Marshall, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
P.C., appellant, pro se.
Steve Marshall, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
WINDOM, Presiding Judge.
P.C. appeals the circuit court's dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P., in which he challenged his 2018 guilty-plea conviction for allowing a child to engage in the production of obscene matter, a violation of § 13A-12-196, Ala. Code 1975, and his resulting sentence, as a habitual felony offender, to life in prison. On June 28, 2019, P.C.’s conviction was affirmed on direct appeal by unpublished memorandum. P.C. v. State (No. CR-18-0304), 302 So. 3d 280 (Ala. Crim. App. 2019) (table). The certificate of judgment was issued on September 13, 2019.
This Court may take judicial notice of its own records, see Hull v. State, 607 So. 2d 369, 371 n.1 (Ala. Crim. App. 1992), and we do so in this case.
On October 28, 2019, P.C. timely filed the instant Rule 32 petition, his first. In his petition, P.C. argued that his guilty plea was not knowingly and voluntarily entered because, he said, he was not advised before entering his guilty plea that, due to the nature of his offense, § 15-22-27.3, Ala. Code 1975, made him ineligible for parole consideration. Instead, P.C. claimed, his counsel told him that probation was a possibility. P.C. also asserted that his counsel was ineffective for failing to inform him of the effects of § 15-22-27.3, which bars parole for defendants convicted of a Class A or Class B felony sex offense involving a child. P.C. contended that he should have been informed of his ineligibility for parole under § 15-22-27.3 before he pleaded guilty because its application increased the maximum sentence he could receive, as well as the actual sentence he did receive, from life in prison to life in prison without the possibility of parole.
P.C. also indicated as claims on his Rule 32 form that the State failed to disclose favorable evidence and that he failed to appeal through no fault of his own; however, P.C. did not make specific arguments in support of the claim that the State failed to disclose favorable evidence, and P.C. did, in fact, appeal his conviction.
On October 22, 2019, the State filed a response to P.C.’s Rule 32 petition, arguing that the claims asserted therein were precluded pursuant to Rules 32.2(a)(3), 32.2(a)(4), and 32.2(a)(5), Ala. R. Crim. P., because they either were raised on appeal or could have been, but were not, raised at trial or on appeal. The State also argued that P.C.’s guilty plea was knowingly and voluntarily made because, it said, P.C. was informed of his rights before he entered his guilty plea. The State attached to its response a copy of the transcript of the guilty-plea proceeding. The State further argued that P.C.’s ineffective-assistance-of-counsel claim was also precluded by Rule 32.2(d), Ala. R. Crim. P. On November 14, 2019, the circuit court dismissed P.C.’s Rule 32 petition, finding the claims precluded as argued by the State in its response. On appeal, P.C. reasserts the claim in his petition that his guilty plea was involuntary because he was not advised that he would be ineligible for parole and that his possible life sentence could, in effect, be a sentence of life without the possibility of parole. To the extent that P.C. raised other claims in his petition, because P.C. does not argue those claims in his appellate brief, they are deemed abandoned for purposes of appeal. See Slaton v. State, 902 So. 2d 102, 109 (Ala. Crim. App. 2003) (citing Brownlee v. State, 666 So. 2d 91, 93 (Ala. Crim. App. 1995) ).
Although P.C. claims that the circuit court erred in denying his motion to withdraw his guilty plea without an evidentiary hearing, the crux of his claim in his petition and on appeal is that his guilty plea was involuntary.
" ‘The standard of review on appeal in a postconviction proceeding is whether the trial judge abused his discretion when he denied the petition.’ Elliott v. State, 601 So. 2d 1118, 1119 (Ala. Crim. App. 1992). ‘ " ‘ "A judge abuses his discretion only when his decision is based on an erroneous conclusion of law or where the record contains no evidence on which he rationally could have based his decision." ’ " ’ Hodges v. State, 926 So. 2d 1060, 1072 (Ala. Crim. App. 2005) (quoting State v. Jude, 686 So. 2d 528, 530 (Ala. Crim. App. 1996), quoting in turn Dowdy v. Gilbert Eng'g Co., 372 So. 2d 11, 12 (Ala. 1979), quoting in turn Premium Serv. Corp. v. Sperry & Hutchinson Co., 511 F.2d 225 (9th Cir. 1975) ). However, ‘when the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo.’ Ex parte White, 792 So. 2d 1097, 1098 (Ala. 2001)."
J.F.C. v. State [Ms. CR-17-1120, Aug. 16, 2019), 293 So.3d 987, 990 (Ala. Crim. App. 2019).
Initially, this Court notes that none of the preclusions in Rule 32.2(a), Ala. R. Crim. P., are applicable to P.C.’s voluntariness claim. See Murray v. State, 922 So. 2d 961, 965 (Ala. Crim. App. 2005) ("[C]hallenges to the voluntariness of a guilty plea may be presented for the first time in a timely filed Rule 32 petition."). Although P.C. filed post-trial motions, one motion was untimely and neither motion raised the specific claim P.C. raises in this petition. Thus, the circuit court erred in finding this claim precluded under Rule 32.2, Ala. R. Crim. P. See Boykin v. State, 708 So. 2d 210, 213 (Ala. Crim. App. 1997) ("According to the Alabama Supreme Court's holding in Cantu v. State, 660 So. 2d 1026 (Ala. 1994), a defendant can challenge the voluntariness of a guilty plea in a timely filed Rule 32 petition, even though the claim could have been, but was not, raised in the trial court by a timely objection, a timely motion to withdraw the guilty plea, or a timely motion for new trial.").
Having found that this claim is not precluded under Rule 32.2, Ala. R. Crim. P., this Court turns to the merits of P.C.’s claim. This Court addressed this same issue in McCary v. State, 93 So. 3d 1002 (Ala. Crim. App. 2011). In McCary, this Court stated:
" ‘ "The accused's right to know the possible sentence he faces is absolute," ’ Bozeman v. State, 686 So. 2d 556, 559 (Ala. Crim. App. 1996) (quoting Henry v. State, 639 So. 2d 583, 584 (Ala. Crim. App. 1994) ), and ‘the trial court's failure to correctly advise a defendant of the minimum and maximum sentences before accepting his guilty plea renders that guilty plea involuntary.’ White v. State, 888 So. 2d 1288, 1290 (Ala. Crim. App. 2004).
" ‘The Alabama Supreme Court and this Court "have consistently held that
a defendant must be informed of the maximum and minimum possible sentences as an absolute constitutional prerequisite to the acceptance of a guilty plea." Ex parte Rivers, 597 So. 2d 1308, 1309 (Ala. 1991). It is well settled, moreover, that "if the appellant's sentence could be enhanced under any of the enhancement statutes, the appellant should be informed of the additional sentence he could receive under the applicable enhancement statute." Elrod v. State, 629 So. 2d 58, 59 (Ala. Cr. App. 1993), citing Rivers. Accord, White v. State, 616 So. 2d 399 (Ala. Cr. App. 1993) ; Looney v. State, 563 So. 2d 3, 4 (Ala. Cr. App. 1989) ; Smith v. State, 494 So. 2d 182 (Ala. Cr. App. 1986).’
" Aaron v. State, 673 So. 2d 849, 849-50 (Ala. Crim. App. 1995). See also Durr v. State, 29 So. 3d 922 (Ala. Crim. App. 2009) ; and Riley v. State, 892 So. 2d 471 (Ala. Crim. App. 2004).
"Although § 15-22-27.3 is not a sentence-enhancement statute but is a parole statute, its effect, in circumstances such as those in Frost [v. State, 76 So. 3d 862 (Ala. Crim. App. 2011),] and in this case, is to increase the maximum possible sentence from life imprisonment to life imprisonment without the possibility of parole; thus, parole ineligibility under § 15-22-27.3 must be considered a direct consequence of a guilty plea, of which a defendant is entitled to be informed. Therefore, we hold that when the effect of parole ineligibility under § 15-22-27.3 is to increase the maximum sentence a defendant faces upon pleading guilty, a trial court must inform a defendant of his or her parole ineligibility under § 15-22-27.3 and the effect of that ineligibility on the maximum sentence, and the failure to do so will render the plea involuntary."
McCary, 93 So. 3d at 1006-07. See also J.F.C., supra ; McBurnett v. State, 266 So. 3d 122 (Ala. Crim. App. 2018).
The ban on parole contained in § 15-22-27.3, Ala. Code 1975, applied to P.C. The offense for which P.C. was convicted -- allowing a child to engage in production of obscene matter, a violation of § 13A-12-196, Ala. Code 1975 -- is a Class A felony "sex offense involving a child" as that term is defined in § 15-20A-48(a). Thus, P.C. was not eligible for parole and, as a result, his sentence of life imprisonment imposed by the trial court was, in reality, a sentence of life imprisonment without the possibility of parole. Life in prison without the possibility of parole was a direct consequence of P.C.’s plea and he was entitled to be so advised before pleading guilty. The trial court's failure to do so rendered the plea involuntary. Although the State asserted in its response to the petition that P.C.’s claim was without merit because he was advised of his rights and understood the charge against him, it did not dispute P.C.’s specific claim. Further, none of the documents in the record of the direct appeal or the transcript of the guilty-plea colloquy refute P.C.’s claim that he was not informed that he was ineligible for parole under § 15-22-27.3, Ala. Code 1975, and that the effect of that ineligibility would be to increase the maximum sentence he could receive from life in prison to life in prison without the possibility of parole.
Section 15-20A-48(a), Ala. Code 1975, defines a "criminal sex offense involving a child" as "a conviction for any sex offense in which the victim was a child under the age of 12 or any offense involving child pornography." (Emphasis added.)
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P.C.’s claim was sufficiently pleaded, was presented in a timely filed petition, and was not subject to the preclusions in Rule 32.2(a), Ala. R. Crim. P. The facts underlying the claim were not disputed, and the truth of the factual allegations are supported by the Rule 32 and direct-appeal record. An application of the law to the undisputed facts clearly establishes that P.C. is entitled to relief. " ‘[W]hen the record is clear on its face that a Rule 32 petitioner is entitled to relief, we grant that relief, rather than waste scarce judicial resources to remand for [the petitioner] to present evidence.’ " McBurnett, 266 So. 3d at 129 (quoting Williams v. State, 104 So. 3d 254, 265 n.5 (Ala. Crim. App. 2012) ). Accordingly, the circuit court's judgment is reversed, and this case is remanded with instructions for the circuit court to grant P.C.’s Rule 32 petition and allow him to withdraw his guilty plea. "Upon withdrawal of a guilty plea, the charges against the defendant as they existed before any amendment, reduction, or dismissal made as part of a plea agreement shall be reinstated automatically." Rule 14.4(e), Ala. R. Crim. P.
REVERSED AND REMANDED.
Kellum, Cole, and Minor, JJ., concur. McCool, J., recuses himself.