Opinion
No. CR-01-0013.
Decided January 3, 2002.
Appeal from Jefferson Circuit Court (CC-2000-3414).
On February 21, 2001, Robert Covington Connor was convicted of the unlawful sale of a controlled substance, a violation of § 13A-12-211, Ala. Code 1975. On April 23, 2001, the trial judge sentenced him to 20 years imprisonment, that sentence was split, and he was ordered to serve 3 years in prison. The trial judge enhanced the sentence, pursuant to §§ 13A-12-250, and -270, Ala. Code 1975, because the sale occurred within three miles of a school and within three miles of a housing project. Each 5-year enhancement was to run consecutively to the other and to the 20-year sentence for the underlying felony. Connor was ordered to pay $50 to the Victims Compensation Fund and was assessed a $1,000 fine pursuant to the Drug Demand Reduction Assessment Act. See § 13A-12-281(a), Ala. Code 1975.
Connor filed a motion for a new trial on May 22, 2001, and the trial judge denied his motion on June 18, 2001. Connor filed a written notice of appeal on August 23, 2001; that appeal was dismissed as being untimely filed. Connor filed a Rule 32, Ala.R.Crim.P., petition seeking to be allowed to file an out-of-time appeal. This Court, on September 17, 2001, granted an out of time appeal. This appeal followed.
Connor raises two issues on appeal, and we address each in turn.
First, Connor argues that the trial court erroneously allowed the State to amend the indictment to include the enhancements pursuant to §§ 13A-12-250 and -270, Ala. Code 1975. We disagree.
Connor was indicted for the unlawful distribution of a controlled substance under § 13A-12-211, Ala. Code 1975. On September 21, 2000, nearly five months before trial, the State filed a motion to amend the indictment to charge the enhancements under §§ 13A-12-250 and -270, Ala. Code 1975. Over Connor's objection, the trial judge granted the State's motion to amend the indictment.
Rule 13.5(a), Ala.R.Crim.P., allows the court to "permit a charge to be amended without the defendant's consent, at any time before verdict or finding, if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced." According toPoole v. State, [Ms. CR-99-1200, August 31, 2001] ___ So.2d ___ (Ala.Crim.App. 2001), location is not included in the definition of distribution of a controlled substance. Poole, citing Apprendi v. New Jersey, 530 U.S. 466, 484 (2000), states "location of the crime is relevant only to the sentence [the defendant] may receive and not to whether, in fact, [the defendant] committed the offense of distributing a controlled substance as charged in the indictment." Poole v. State, ___ at ___. In Poole, this Court also held it is not necessary to include enhancements under § 13A-12-250 and § 13A-12-270 in the indictment. Amending the indictment to include these enhancements amounts to mere surplusage, and "`[a]s long as the remaining portions of the indictment validly charge a crime, the existence of surplusage in the indictment will not [a]ffect the validity of a conviction.'" Rogers v. State, 539 So.2d 451, 453 (Ala.Crim.App. 1988) (quoting United States v. Hyde, 448 F.2d 815, 839 (5th Cir. 1971), cert. denied, 404 U.S. 1058 (1972)). See also Tucker v. State, [Ms. CR-00-2223, November 30, 2001] ___ So.2d ___, ___ (Ala.Crim.App. 2001) (amendment adding three-mile enhancements merely adding location was surplusage, did not have to be alleged at all, and did not add a material element to the crime charged).
The indictment in this case was amended before trial; no additional or different offenses were charged; and Connor has presented no evidence indicating that his substantive rights were affected. Therefore, this Court finds his claim to be without merit.
Next, Connor contends that the sentence imposed on him by the circuit court is improper. Specifically, he argues that "the trial judge could not use discretion because mandatory sentencing has overlapped his discretion." (Connor's brief, p. 20.) We disagree.
Section 15-18-8(a)(1), Ala. Code 1975, as amended, provides, in pertinent part:
"(a) When a defendant is convicted of an offense and receives a sentence of 20 years or less in any court having jurisdiction to try offenses against the State of Alabama and the judge presiding over the case is satisfied that the ends of justice and the best interests of the public as well as the defendant will be served thereby, he or she may order:
"(1) That the convicted defendant be confined in a prison, jail-type institution, or treatment institution for a period not exceeding three years in cases where the imposed sentence is not more than 15 years, and that the execution of the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary and that the defendant be placed on probation for such period and upon such terms as the court deems best. In cases involving an imposed sentence of greater than 15 years, but not more than 20 years, the sentencing judge may order that the convicted defendant be confined in a prison, jail-type institution, or treatment institution for a period not exceeding five years, but not less than three years. . . ."
In Soles v. State, [Ms. CR-00-1429, September 28, 2001] ___ So.2d ___ (Ala.Crim.App. 2001), this Court held that "the newly amended § 15-18-8(a)(1) allows a trial court to suspend a sentence imposed pursuant to § 13A-12-250 or § 13A-12-270." Soles v. State, ___ So.2d at ___.
Because the trial judge has the discretion, but is not required, to split or to suspend a sentence imposed upon application of the school and housing-project enhancements, we look to the record to ascertain whether the trial judge mistakenly believed he did not have authority to split or suspend the sentence. In both Soles and Tucker, the trial judge specifically stated that he would not have required the defendants to serve the entire portion of the sentence in prison.
In the present case, the State concedes that "[b]ased upon the record in this case, a remand would not be inconsistent with Tucker and Soles." (State's brief, p. 8.) The language used by the trial courts in those cases specifically indicated that they would have imposed a different sentence, but that they did not have the authority to do so. In the present case, the trial court stated, "[t]he best [the appellant] could hope for is the two-year sentence, which is the minimum. [The appellant] could be probated for that, but [the judge would] have to add the ten years because of the school and the housing project." (R. 143.) The trial judge said that he had "to add five years because the sale occurred within three miles of a school and five years because the sale occurred within three miles of a housing project." (R. 147-48.)
Though the trial judge's language is not as explicit as the language inTucker or Soles, we still find that a remand is necessary. As in those cases, we must allow the trial judge the opportunity to resentence Connor, should he so choose, in accordance with the appropriate statutory provisions and with this opinion. We note, however, that nothing in this opinion should be construed as requiring the trial court to sentence Connor differently. Section 15-18-8, as amended in May 2000, does not require the trial judge to split or suspend the imposition of the sentence enhancements. The amendment merely gives the trial judge the discretion to do so, if he finds it appropriate based on the facts of the case before him. The trial judge should resentence Connor only if the original sentence was imposed under the mistaken impression that the enhancements could not be split, and then only if the trial judge determines that splitting the sentence on the enhancements is appropriate in this case. Due return shall be made to this Court within 42 days of the release of this opinion.
AFFIRMED AS TO CONVICTION; REMANDED FOR RESENTENCING.
McMillan, P.J., and Baschab and Wise, JJ., concur. Cobb, J., dissents with opinion. Shaw, J., joins dissent.
Although I agree that the trial court should be allowed to resentence Connor in accordance with our opinion in Soles v. State, [Ms. CR-00-1429, September 28, 2001] ___ So.2d ___ (Ala.Crim.App. 2001), I believe a remand is unnecessary because I would reverse his convictions and sentences for unlawful distribution of a controlled substance. I believe that the trial court erred when it permitted the State to amend the indictment for distributing a controlled substance to include the enhancements under §§ 13A-12-250 and -270, Ala. Code 1975, because that amendment resulted in Connor's being charged with greater offenses than the original indictment charged. See Rule 13.5(a) Ala.R.Crim.P. Therefore, I would reverse Connor's convictions and sentences for distribution of a controlled substance. See my special writing in Poole v. State, [Ms. CR-99-1200, August 31, 2001] ___ So.2d ___, ___ (Ala.Crim.App. 2001), in which I concurred with Judge Shaw's special writing as to this point.
Therefore, I dissent.
Shaw, J., concurs.