Opinion
CR-18-0997
12-17-2021
Whitney Owens JONES v. STATE of Alabama
Joseph S. Dennis, Mobile, for appellant. Steve Marshall, att’y gen., and Stephen N. Dodd, asst. att’y gen., for appellee.
Joseph S. Dennis, Mobile, for appellant.
Steve Marshall, att’y gen., and Stephen N. Dodd, asst. att’y gen., for appellee.
MINOR, Judge.
A jury convicted Whitney Owens Jones of second-degree escape, see § 13A-10-32, Ala. Code 1975. The circuit court sentenced Jones, as a habitual offender, to 20 years’ imprisonment; the circuit court split that sentence and ordered Jones to serve 5 years’ imprisonment followed by 5 years’ probation. For the reasons below, we affirm Jones’s conviction but remand the case with instructions to correct Jones’s sentence.
In January 2018, Jones entered a work-release program while she was incarcerated in the Mobile County Metro Jail on a pending charge of fourth-degree theft of property, a misdemeanor. (C. 45, R. 93, 110-11, 116-17.) Jones’s participation in the work-release program allowed her to work the day shift at Filters Now, a business in Creola, Alabama. After a few weeks in the program, Jones and another inmate left Filters Now in a vehicle and did not return to the work-release barracks. (R. 90-92.) The "in-and-out sheet" includes a notation that Jones "left at 16:00 and did not return." The comment section includes the note " ‘escape.’ " (R. 92.)
Deputy Marvin Walker, a detective with the Mobile County Sheriff's Office, testified that the jail also "had a probation violation hold on [Jones]." (R. 117.)
Testimony described the work-release barracks as "a large … bay-type environment … across the street from the Mobile County Metro Jail." (R. 109-10.)
David Mercurio, the director of the work-release program with the Mobile County Sheriff's Office, testified that conditions apply to inmates in the work-release program. Jones signed and dated documents showing that she understood those conditions, including condition no. 14, which stated that "leav[ing] [her] place of employment without the prior approval or permission from the release record [would] be considered an escape." (R. 85.)
In October 2018, a Mobile County grand jury indicted Jones for third-degree escape, see § 13A-10-33, Ala. Code 1975. (C. 5.) In March 2019, the State moved to amend the indictment to charge Jones with second-degree escape, see § 13A-10-32, Ala. Code 1975. Both third-degree and second-degree escape are Class C felonies. The circuit court granted the State’s motion to amend. (C. 6.)
Jones moved to dismiss the amended indictment. (C. 31.) In the motion, Jones argued that she was a county inmate in the work-release program and that, under Webb v. State, 539 So. 2d 343 (Ala. Crim. App. 1987), she could be guilty of no more than a misdemeanor under § 14-8-42 and § 14-8-43, Ala. Code 1975. The circuit court denied the motion, and Jones’s case went to trial.
Jones moved for a judgment of acquittal at the close of the State’s evidence and again at the close of all the evidence. Jones argued in each motion that she could not be guilty of escape, a felony. The circuit court denied those motions. (C. 68, 72.) The circuit court also denied Jones’s requests for jury instructions related to her argument that she could not be guilty of felony escape. (C. 80-84.)
On appeal, Jones argues that the circuit court erred (1) by denying her motion to dismiss the indictment and motions for a judgment of acquittal, and (2) by giving two of the State’s requested instructions and by not giving some jury instructions she requested. We examine each argument in turn.
I.
[1] Jones’s challenges to the denial of her motion to dismiss and her motions for a judgment of acquittal turn on her argument that she could be guilty of no more than misdemeanor escape under § 14-8-42, Ala. Code 1975. In making those challenges, Jones concedes that she left the work-release program and that she did not return to the work-release barracks. She relies on Cork v. State, 603 So. 2d 1127 (Ala. Crim. App. 1992), and cases it cites holding that " ‘a county inmate or a state inmate in county custody who fails to return from work release is guilty of only a misdemeanor.' " She contends she was a "county inmate" under § 14-8-30, Ala. Code 1975.
The circuit court denied Jones’s motion to dismiss because Jones filed it after the deadline set by the circuit court. (R. 4.) Jones concedes she filed the motion after the circuit court’s deadline. Because she does not challenge the circuit court’s denial of the motion on procedural grounds, we will not separately review the denial of that motion. Even so, Jones’s motions for a judgment of acquittal raised the same issue she raised in her motion to dismiss.
Section 14-8-42 provides:
"The willful failure of an inmate to remain within the extended limits of his confinement or to return to the place of confinement within the time prescribed shall be deemed an escape from a state penal institution in the case of a state inmate and an escape from the custody of the sheriff in the case of a county inmate and shall be punishable accordingly."
Section 14-8-43 provides: "Anyone violating any of the provisions of this article shall be guilty of a misdemeanor."
In Cork, 603 So. 2d at 1128, this Court stated:
"This court has consistently held that a ‘county inmate or a state inmate in county custody who fails to return from work release is guilty of only a misdemeanor.’ Webb v. State, 539 So. 2d 343, 345 (Ala. Crim. App. 1987) (emphasis added)."
Section 14-8-30, defines a "county inmate" as "[a] person convicted of a crime and sentenced to a term of confinement of one year's duration or less." On appeal, Jones argues that the circuit court "determined" that she was a "county inmate" under § 14-8-30. But the record does not show that Jones was a county inmate.
Jones cites the circuit court’s statement, "So she’s a county inmate" (R. 121), in support of her assertion that the circuit court held as a matter of law that she was a "county inmate" under § 14-8-30, Ala. Code 1975. The circuit court made that statement during the attorneys’ arguments about Jones’s motion for a judgment of acquittal. The court did not hold as a matter of law that Jones was a "county inmate" under § 14-8-30. And, as we discuss, the evidence did not show that she was a "county inmate" under § 14-8-30.
In her motion to dismiss, Jones asserted that it was "undisputed that [Jones] was a county inmate of Mobile Metro Jail on a misdemeanor charge when she allegedly failed to return from the work release program." (C. 43.) The evidence at trial showed, at most, that Jones was in jail on a pending misdemeanor charge when she left work release and did not return. (R. 93, 110-11, 116-17.) But a "charge" is not a "conviction," and no evidence showed that Jones had been "convicted of a crime and sentenced to a term of confinement of one year’s duration or less." Thus, under the plain meaning of the language in § 14-8-30, Jones was not a "county inmate," and the authorities on which she relies do not support her argument. See, e.g., Pack v. State, 331 So. 3d 1179 (Ala. Crim. App. 2021) (" ' " 'Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect. … To apply a different policy would turn this Court into a legislative body, and doing that, of course, would be utterly inconsistent with the doctrine of separation of powers.’ " ’ " (quoting DeKalb Cnty. LP Gas Co. v. Suburban Gas, Inc., 729 So. 2d 270, 275-76 (Ala. 1998), quoting in turn other cases).
Jones argues that the evidence showed she was on "probation" and that she could not be on "probation" without her having been convicted. She cites "Exhibit A" that was attached her motion to dismiss. (C. 45.) That exhibit, however, does not show that Jones was in the Mobile County Metro Jail for a "conviction." Indeed, Jones used the exhibit in support of her statement in her motion to dismiss that "[i]t is undisputed that [she] was a county inmate of Mobile Metro Jail on a misdemeanor charge." (C. 43 (emphasis added).)
Jones also cites this testimony from Detective Walker at her trial:
"Q. Detective, she was a county inmate, correct?
"A. She was housed at the Mobile County Metro Jail. The status of which her underlying charges—what municipality or jurisdiction exercised the right for her confinement, I have no knowledge of, as I testified earlier. I just know she had a probation violation hold on her."
(R. 116-17 (emphasis added).) Detective Walker’s "earlier" testimony was as follows:
"[JONES’S COUNSEL]: And Ms. Jones over there was a county inmate there on a misdemeanor city charge, right?
"[DETECTIVE WALKER]: I don’t know what her underlying charges were. I know that there was a probation violation listed in her previous charges."
(C. 110-11 (emphasis added).) Contrary to Jones’s assertion, Detective Walker’s testimony did not show that she was in jail for a misdemeanor conviction."
Jones does not contend that, if she was not a county inmate, the State’s evidence could not support her conviction for second-degree escape.
II.
Jones argues that the circuit court erred in giving two instructions the State requested and in refusing to give instructions she requested regarding § 14-8-42. Jones’s objections to those instructions, however, hinge on her argument that she was a county inmate under § 14-8-30. As discussed above, she was not a county inmate. Thus, Jones has no right to relief on this issue.
III.
[2] Although the parties have not challenged Jones’s sentence, we may review it to see if it is legal. See, e.g., Jackson v. State, 317 So.3d 1018, 1024 (Ala. Crim. App. 2020) (addressing the legality of the sentence even though no party had raised the issue). Because Jones had 3 or more prior felony convictions, her base sentence of 20 years is legal. See § 13A-5-9(c)(1), Ala. Code 1975 (range of punishment for a Class C felony conviction when the defendant has three or more prior Class A, Class B, or Class C felony convictions is "not more than 99 years but not less than 15 years"). But the length of the split portion of Jones’s sentence—5 years—is not. Under § 15-18-8(a)(2), the length of the split portion must be three years. Thus, we remand this case for the circuit court to reconsider the execution of Jones’s sentence.
Section 15-18-8(a), Ala. Code 1975, provides:
"When a defendant is convicted of an offense … and receives a sentence of 20 years or less … 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:
"….
"(2) That a defendant convicted of a … Class C felony with an imposed sentence of greater than 15 years but not more than 20 years be confined in a prison, jail-type institution, or treatment institution … for a period of three years …, during which the offender shall not be eligible for parole or release because of deduction from sentence for good behavior under the Alabama Correctional Incentive Time Act, and that 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 the period upon the terms as the court deems best."
In so doing, we note that, because Jones’s 20-year sentence is valid, the circuit court may not change it. See generally Moore v. State, 871 So. 2d 106, 110 (Ala. Crim. App. 2003). If the circuit court elects on remand to again split Jones’s sentence, the split portion must be three years fol- lowed by a definite term of probation. § 15-18-8(a)(2).
We affirm Jones’s conviction, and we remand this case for the circuit court to resentence Jones in accordance with this opinion. On remand, the circuit court must take all necessary action to ensure that return is made to this Court within 42 days from the date of this opinion.
AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.
Note from the reporter of decisions: On September 3, 2021, on return to remand, the Court of Criminal Appeals affirmed, without opinion.
Kellum, McCool, and Cole, JJ., concur. Windom, P.J., dissents.