Opinion
CR–17–0238
06-01-2018
Levi BEDELL v. STATE of Alabama
Levi Bedell, appellant, pro se. Steve Marshall, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
Levi Bedell, appellant, pro se.
Steve Marshall, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
WELCH, Judge.
Levi Bedell appeals the circuit court's summary dismissal of his Rule 32, Ala. R. Crim. P., petition for postconviction relief. The petition challenged his July 22, 2003, conviction for first-degree sexual abuse, a violation of § 13A–6–66(a)(3), Ala. Code 1975, and his sentence upon application of the Habitual Felony Offender Act ("the HFOA") to 16 years' imprisonment.
This Court affirmed Bedell's conviction and sentence on direct appeal in an unpublished memorandum issued on August 20, 2004. See Bedell v. State (No. CR-02-2288), 920 So.2d 608 (Ala. Crim. App. 2004) (table).
Bedell filed an in forma pauperis application, which was granted. The instant petition, Bedell's first, was deemed filed on October 29, 2017. He filed the standard Rule 32 form found in the appendix to Rule 32, Ala. R. Crim. P., and designated the grounds forming the basis for his petition by placing a checkmark in the spaces provided on the form, indicating that his petition sought relief under the provisions of Rule 32.1(b), i.e., that the trial court was without jurisdiction to render judgment or to impose sentence, and under Rule 32.1(c), i.e., that the sentence imposed exceeds the maximum authorized by law or is otherwise not authorized by law.
Petitioner's Claim
In his supplement to the petition, Bedell raised the following claim, which is quoted here verbatim:
"Bedell asserts that his sentence under the HFOA is illegal because his Georgia Prior [conviction] is not a conviction and it could not be used to enhance his sentence under the HFOA.
"On September 12, 2002, the Russell County Grand jury returned an indictment charging Bedell with one count[ ] of Sexual Abuse in the First Degree in violation of Section 13A–6–66, Code of Alabama 1975. He appeared before the court and pleaded not guilty.
"His trial was held on May 6, 2003, and the jury returned its verdict finding him guilty of Sexual Abuse in the First Degree as charged in the indictment.
"On July 22, 2003, Bedell was sentenced to 16 years in prison.
"As stated above, Bedell was indicted under Section 13A–6–66, Code of Alabama 1975. It provided in pertinent part:
" ‘....
" ‘(b) sexual abuse in the first degree is a Class C felony.’
" Section 13A–5–6(a)(3), Ala. Code 1975, provides that a person convicted of a class C felony shall be punished by ‘Not more than 10 years or less than 1 year and 1 day.’
"Here Bedell states that he could only be sentenced to no more than 10 years or less than 1 year and 1 day in prison. However, his sentence was enhanced under
the HFOA with a prior from the State of Georgia.
"In Columbus Georgia, Bedell was sentenced to 3 years probation for Theft. He was 17 years old at that time. He was sentenced under Georgia First Offender law and he completed his 3 years probation. Therefore, his Georgia prior is not a conviction and could not be used to enhance his sentence under the HFOA.
"See Ginn v. State, 894 So.2d 793 (Ala Crim. App. 2004).
"Bedell's sentence is illegal and unauthorized under the HFOA.
" ‘Matters concerning unauthorized sentences are jurisdictional.’ Hunt vs. State, 659 So.2d 998, 999 (Ala Crim. App. 1994).
"It is here that Bedell moves this court to set his Rule 32 Petition for a hearing and to order the State to file an answer to his petition.
"Done on this the 29 day of October 2017."
The case-action summary from Bedell's Alabama conviction shows that he was born in 1971. Therefore Bedell would have been placed on probation for his Georgia offense in 1988 or 1989. The Court of Criminal Appeals may take judicial notice of its own records. See Hull v. State, 607 So.2d 369, 371 (Ala. Crim. App. 1992) ; Ex parte Salter, 520 So.2d 213, 216 (Ala. Crim. App. 1987).
(C. 18–19.)
Circuit Court's Order
Without waiting for a response by the State, the circuit court issued an order dismissing the petition, stating:
"PETITION FOR RELIEF FROM CONVICTION OR SENTENCE filed by BEDELL LEVI is hereby DENIED."
(C. 20.)
Standard of Review
When reviewing a circuit court's summary dismissal of a postconviction petition " ‘[t]he standard of review this Court uses ... is whether the [circuit] court abused its discretion.’ " Lee v. State, 44 So.3d 1145, 1149 (Ala. Crim. App. 2009) (quoting Hunt v. State, 940 So.2d 1041, 1049 (Ala. Crim. App. 2005) ). 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. State v. Hill, 690 So.2d 1201, 1203 (Ala. 1996)." Ex parte White, 792 So.2d 1097, 1098 (Ala. 2001).
Moreover, except for utilizing on appeal a preclusionary bar under circumstances that are not present in this case, "when reviewing a circuit court's rulings made in a postconviction petition, we may affirm a ruling if it is correct for any reason." Bush v. State, 92 So.3d 121, 134 (Ala. Crim. App. 2009).
Appeal
On appeal, Bedell reasserts the claim raised in his petition.
In Ginn v. State, 894 So.2d 793 (Ala. Crim. App. 2004), this Court held that a guilty plea under Georgia's first-offender law is not considered a "conviction" if the terms of probation have been completed and the defendant is discharged. Such a plea cannot be used to enhance future sentences under the HFOA.
"Ginn next contends that his sentences were improperly enhanced under the HFOA. Specifically, he argues that two of the three prior convictions used to enhance his sentences were not valid for use under the HFOA.
"At the sentencing hearing, the State introduced into evidence documents relating to three prior convictions—a 1989 conviction in Alabama for burglary, a 1973 guilty-plea conviction in Georgia for burglary, and a 1973 guilty-plea conviction in Georgia for theft. Ginn does not challenge the 1989 Alabama conviction. With respect to the two Georgia convictions, Ginn makes two arguments.
"A.
"First, Ginn contends that the two prior Georgia convictions were not, in fact, convictions because, he says, they were entered under Georgia's first-offender law, and that, therefore, they were not valid for use under the HFOA.
"Although Ginn did not object to the use of these prior convictions at the sentencing hearing but instead raised this issue for the first time in his motion for a new trial, the use of an invalid prior conviction for sentence enhancement renders a sentence illegal, and a challenge to an illegal sentence is jurisdictional and can be raised at any time. See, e.g., Ex parte Casey, 852 So.2d 175 (Ala. 2002) (Rule 32, Ala. R. Crim. P., petitioner's claim, that he had received a full pardon on the six prior convictions used to enhance his sentence and that, therefore, the convictions were not valid for use as enhancement, was a jurisdictional issue regarding the legality of the sentence); Bell v. State, 845 So.2d 856 (Ala. Crim. App. 2002) (Rule 32 petitioner's claim, that one of the prior convictions used to enhance his sentence was a misdemeanor conviction, was a jurisdictional issue challenging the legality of the sentence); Carter v. State, 853 So.2d 1040 (Ala. Crim. App. 2002) (Rule 32 petitioner's claim, that one of the prior convictions from another jurisdiction used to enhance his sentence arose from conduct that was not a felony in Alabama, was a jurisdictional issue challenging the legality of the sentence); and Jones v. State, 585 So.2d 180 (Ala. Crim. App. 1991) (appellant's claim, that two prior convictions used to enhance his sentence were based on pleas of nolo contendere, was a jurisdictional issue that did not have to be preserved in the trial court).
"At the time of Ginn's guilty pleas in Georgia, in 1973, Ga. Code Ann. § 27–2727 (1972) (now Ga. Code Ann. § 42–8–60 (2003) ), provided:
" ‘Upon a verdict or plea of guilty or a plea of nolo contendere b[ut] before an adjudication of guilt, the court may, in the case of a defendant who has not been previously convicted of a felony, without entering a judgment of guilt and with the consent of the defendant, defer further proceeding and place the defendant on probation as provided by the Statewide Probation Act [§§ 27–2702 through 27–2726.1]. Upon violation of the terms of probation, or upon a conviction for another crime, the court may enter an adjudication of guilt and proceed as otherwise provided. No person may avail himself of the provisions of this law [§§ 27–2727 through 27–2732] on more than one occasion.’
"In addition, Ga. Code Ann. § 27–2728 (now Ga. Code Ann. § 42–8–62 ) provided:
" ‘Upon fulfillment of the terms of probation, or upon release by the court prior to the termination of the period thereof, the defendant shall be discharged without court adjudication of guilt. Such discharge shall completely exonerate the defendant of any criminal purpose, shall not effect any civil right or liberties, and he shall not be considered to have a criminal conviction. Should a person be placed under
probation under this law [§§ 27–2727 through 27–2732], a record of the same shall be forwarded to the office of the State Probation System and to the Identification Division of the Federal Bureau of Investigation.’
"(Emphasis added.) In Gunter v. State, 182 Ga. App. 548, 356 S.E.2d 276 (1987), the Georgia Court of Appeals explained the first-offender law as follows:
" ‘[S]ince [the appellant] was dealt with under the First Offender Act, there has been no adjudication on the plea; it has simply been tendered and accepted for the purpose of imposing punishment which, if successfully completed by defendant, will relieve him of any judgment of guilt and hence of any conviction. [Ga. Code. Ann.] § 42–8–62. That section expressly provides: "The discharge shall completely exonerate the defendant of any criminal purpose and shall not affect any of his civil rights or liberties; and the defendant shall not be considered to have a criminal conviction." The wording of [Ga. Code Ann.] §§ 42–8–63 and 42–8–64 also demonstrate that there is no conviction unless there is an adjudication following nonfulfillment of the court's terms.
" ‘As explained in State v. Wiley, 233 Ga. 316, 317, 210 S.E.2d 790 (1974) : "Any probationary sentence entered under this Act is preliminary only, and, if completed without violation, permits the offender complete rehabilitation without the stigma of a felony conviction." Again in Favors v. State, 234 Ga. 80, 86, 214 S.E.2d 645 (1975), the Supreme Court states: "under our law, the formal act of ‘conviction’ is not completed for a person who satisfactorily completes the probationary period." We recognized this in Hightower v. Gen. Motors Corp., 175 Ga. App. 112, 113(1), 332 S.E.2d 336 (1985). The point is that while there is an acceptance of the plea for the purpose of imposing a period of probation, there is no adjudication based on that plea. Rather, the court act of adjudicating is suspended and will never occur if probation is fulfilled.’
" 182 Ga. App. at 549, 356 S.E.2d at 277. See also Melton v. State, 216 Ga. App. 215, 454 S.E.2d 545 (1995). In other words, a guilty plea under Georgia's first-offender law is not considered a ‘conviction’ if the terms of probation are completed and the defendant is discharged. Such a plea cannot be used to enhance future sentences, see Williams v. State, 228 Ga. App. 62[2], 492 S.E.2d 290 (1997), nor can it be used for impeachment, see Matthews v. State, 268 Ga. 798, 493 S.E.2d 136 (1997). See also Priest v. State, 261 Ga. 651, 409 S.E.2d 657 (1991) (a defendant who pleads guilty to the unlawful possession of a controlled substance pursuant to the first-offender law has not been ‘convicted’ and, thus, mandatory driver's license suspension for persons convicted of the unlawful possession of a controlled substance, Ga.Code Ann., § 40–5–75, is not required).
"Thus, the question in this case is whether Ginn's guilty pleas in Georgia were, in fact, felony convictions that could be used for sentence enhancement under the HFOA or whether they were entered under Georgia's first-offender law. After thoroughly reviewing the record, we conclude that it does not support Ginn's claim that his Georgia pleas were entered under Georgia's first-offender law and were, therefore, not valid felony convictions under the HFOA.
"....
"In Alabama, the State bears the burden of proving the existence of prior felony convictions for enhancement under the HFOA. See Tyler v. State, 683 So.2d 1062 (Ala. Crim. App. 1995), aff'd, 683 So.2d 1065 (Ala. 1996) ; Reynolds v. State, 615 So.2d 94 (Ala. Crim. App. 1992) ; and Meadows v. State, 473 So.2d 582 (Ala. Crim. App. 1985). Rule 26.6(b)(3)(iii), Ala. R. Crim. P., provides:
" ‘At the [sentencing] hearing, the burden of proof shall be on the state to show that the defendant has been convicted of a previous felony or felonies. Evidence may be presented by both the state and the defendant as to any matter the court deems relevant to the application of the law. In determining disputed facts, the court shall use the standard of proof beyond a reasonable doubt. If at the hearing the defendant disputes any conviction presented by the state, the court may allow the state to present additional evidence of the disputed conviction, either by way of rebuttal or at a future time to be set by the court. If the state fails to meet its burden of proof to establish one or more prior felony convictions, then the defendant shall not be sentenced as an habitual offender.’
" ‘Certified case action summaries and other certified records from the clerk of the court are sufficient to prove prior convictions.’ Daughtry v. State, 587 So.2d 1286, 1286 (Ala. Crim. App. 1991). See also § 13A–5–10.1(a), Ala. Code 1975 (‘Certified copies of case action summary sheets, docket sheets or other records of the court are admissible for the purpose of proving prior convictions of a crime.’); and Ervin v. State, 630 So.2d 115, 119 (Ala. Crim. App. 1992) (holding that a prior conviction from another state ‘may be proved either as provided by Ala. Code 1975, § 12–21–70, or as provided by Rule 44(a)(1), A.R.Civ.P.’). Moreover, the documentation introduced by the State need not specifically state that there was an ‘adjudication of guilt’:
" ‘The requirement that there has been an "adjudication of guilt" does not require exact and specific terminology in order to satisfy the requirements of the HFOA. Giving this statute its practical application, where the record shows that the appellant pleaded guilty in court in the presence of his attorney and a sentencing order was then filed, as acknowledged by the circuit court, this must be construed as an adjudication of guilt in order "to prevent absurdity, hardship, or injustice, and to favor public convenience." Baker v. State, 483 N.E.2d 772, 774 (Ind. App. 1985).’
" Morgan v. State, 733 So.2d 940, 943 (Ala. Crim. App. 1999) (footnote omitted).
" ‘This court has held that, once the State has made proper proof of a prior conviction for the sentencing purposes and the defendant objects, the defendant bears the burden of presenting evidence in support of his objection.’ Campbell v. State, 709 So.2d 1329, 1335 (Ala. Crim. App. 1997). ‘The burden of showing that a prior conviction is invalid for enhancement purposes is on the appellant.’ Thigpen v. State, 825 So.2d 241, 245 (Ala. Crim. App. 2001) (opinion on return to remand) (Rule 32 petitioner's claim that his sentence was improperly enhanced was meritless because the petitioner failed to offer evidence proving that he was not represented by counsel and the case action summary introduced by the State affirmatively indicated that he was represented by counsel). See also
Tyler, 683 So.2d at 1064 (appellant's claim that his sentence was improperly enhanced was meritless because the appellant failed to offer evidence proving that he was not represented by counsel and the State's evidence reflected that he was represented by counsel), and Weeks v. State, 473 So.2d 589, 591 (Ala. Crim. App. 1985) (name on documentation of Louisiana convictions matched appellant's name, thus creating ‘a prima facie presumption of the sameness of the person’ and the appellant did not present any evidence to rebut that presumption).
"....
"Because Ginn's claim that the prior Georgia convictions were not valid for use under the HFOA is not supported by the record, he is entitled to no relief on this claim."
As noted above, Bedell was sentenced to three years' probation in 1988 or 1989. In 1988 the Georgia First Offender Act, codified at Ga. Code Ann., § 42–8–60 et seq. (1986), provided in § 42–8–60 :
"(a) Upon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt, in the case of a defendant who has not been previously convicted of a felony, the court may, without entering a judgment of guilt and with the consent of the defendant:
"(1) Defer further proceeding and place the defendant on probation as provided by law; or
"(2) Sentence the defendant to a term of confinement as provided by law.
"(b) Upon violation by the defendant of the terms of probation, upon a conviction for another crime during the period of probation, or upon the court determining that the defendant is or was not eligible for sentencing under this article, the court may enter an adjudication of guilt and proceed as otherwise provided by law. No person may avail himself of this article on more than one occasion.
"(c) The court shall not sentence a defendant under the provisions of this article and, if sentenced under the provisions of this article, shall not discharge the defendant upon completion of the sentence unless the court has reviewed the defendant's criminal record as such is on file with the Georgia Crime Information Center."
Conclusion
Bedell sufficiently pleaded a jurisdictional claim—that his sentence was illegal because his Georgia prior conviction was entered pursuant to Georgia's First Offender Act, and, upon completion of his probationary term under that Act, he was exonerated and discharged of guilt and discharged as a matter of law. Therefore, having sufficiently pleaded his claim, Bedell was entitled to an opportunity to prove his claim. See, e.g., Ford v. State, 831 So.2d 641, 644 (Ala. Crim. App. 2001) ("Once a petitioner has met his burden of pleading so as to avoid summary disposition pursuant to Rule 32.7(d), Ala. R. Crim. P., he is then entitled to an opportunity to present evidence in order to satisfy his burden of proof.").
Accordingly, this Court reverses the judgment dismissing Bedell's petition and the case is hereby remanded for the circuit court to allow Bedell an opportunity to present evidence to prove his claim that the Georgia theft offense was not a felony conviction because he was exonerated of guilt and discharged as a matter of law under the terms of Ga. Code Ann., § 42–8–60. The court shall either conduct an evidentiary hearing or accept evidence in the form of affidavits, written interrogatories, or depositions. See Rule 32.9(a), Ala. R. Crim. P. If necessary, the court may appoint counsel to represent Bedell. After receiving and considering the evidence presented, the circuit court shall issue specific written findings of fact regarding Bedell's claim, and may grant appropriate relief if necessary. Due return shall be filed within 90 days of the date of this order, and shall include the circuit court's written findings of fact, a transcript of the evidentiary hearing, if one is conducted, and any other evidence received and/or relied on by the court in making its findings.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Note from the reporter of decisions: On March 1, 2019, on return to remand, the Court of Criminal Appeals affirmed, without opinion.
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Windom, P.J., and Kellum, Burke, and Joiner, JJ., concur.