Opinion
CR-17-0632
09-07-2018
Samantha Johnson MALONE v. STATE of Alabama
Stephen F. Brown, Decatur, for appellant. Steve Marshall, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
Alabama Supreme Court 1180186
Stephen F. Brown, Decatur, for appellant.
Steve Marshall, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
WINDOM, Presiding Judge.
AFFIRMED BY UNPUBLISHED MEMORANDUM.
Welch, J., concurs. Kellum, J., concurs in the result. Joiner, J., dissents, with opinion. Burke, J., joins in dissent.
JOINER, Judge, dissenting.
Samantha Johnson Malone pleaded guilty on November 9, 2017, to third-degree burglary, see § 13A-7-7, Ala. Code 1975. The circuit court sentenced Malone to 24 months in prison and ordered her to pay $13,637 in restitution. On appeal, Malone challenges her sentence and the amount of restitution ordered.
The relevant question as to Malone's sentence is this: Which subsection of § 13A-7-7(a), Ala. Code 1975, did Malone plead guilty to? Malone and her attorney signed a form, as part of a plea agreement with the State, indicating that she was pleading guilty to third-degree burglary under § 13A-7-7. The form did not state which subsection of § 13A-7-7 applied. But the form asserts--in its title and its text--that the offense was subject to the presumptive sentencing standards. (C. 39-41.) Further, two sentencing worksheets were prepared as a part of the plea, and those worksheets reflect a score for only third-degree burglary under § 13A-7-7(a)(3), which is subject to the presumptive sentencing standards.
The circuit court, in its plea colloquy with Malone, referenced those forms and asked Malone if she understood them. The court then asked if Malone was pleading guilty to third-degree burglary as charged in the indictment. Malone responded that she was, but the indictment charged Malone with third-degree burglary of a dwelling, which is a violation of § 13A-7-7(a)(1), Ala. Code 1975. That particular offense is subject to the voluntary sentencing standards, and the circuit court sentenced Malone as if the offense to which she pleaded guilty were subject to the voluntary, not the presumptive, standards.
Malone stated in her motion to reconsider that she had pleaded guilty to third-degree burglary under subsection (a)(3), and she argued that the circuit court was therefore required to sentence her under the presumptive standards. She further asserted that the presumptive sentencing standards required a nonprison disposition and that, therefore, the circuit court did not have the authority to sentence her to prison. The circuit court denied that motion and stated that Malone had been "charged with burglary of a dwelling" and that made "the sentencing guidelines voluntary." (C. 60.)
The circuit court's statement of the charge is correct, but its position that the charge made the sentencing standards voluntary is erroneous. Malone's guilty-plea conviction--not the charge--determines whether the offense is subject to the presumptive or the voluntary sentencing standards.
Under the version of the sentencing standards in effect from October 1, 2013, until September 30, 2016, all forms of third-degree burglary under § 13A-7-7, Ala. Code 1975, were subject to the voluntary sentencing standards.
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That returns me to the original question: Which charge did Malone plead guilty to? Based on the filings and the forms they signed, Malone and her attorney thought she was pleading guilty to third-degree burglary under (a)(3). But the circuit court apparently thought--although it did not so state--that Malone pleaded guilty to third-degree burglary under (a)(1).
This Court, in its unpublished-memorandum affirmance, asserts that the plea agreement did not promise probation. The plea agreement, however, is titled "Explanation of Rights and Plea of Guilty (Presumptive Sentencing Standards -- Circuit or District Court" (emphasis added). (C. 39.) Under the heading "PENALTIES APPLICABLE TO YOUR CASE," that form says: "[T]his offense is a Presumptive Sentencing Standards Offense .... The court may depart from the presumptive sentence disposition or sentence range upon a finding of the existence of an aggravating factor." The form is blank following the statement: "The State has asserted the following aggravating factors." Further, as noted, the sentencing standards worksheets were prepared for only third-degree burglary under (a)(3)--a presumptive-standards offense. Those worksheets have a "presumptive" recommendation of nonprison, and the State did not seek a departure sentence. Thus, Malone was justified in her expectation that her sentence would not include a prison term.
This Court's unpublished memorandum further states that Malone should have filed a motion to withdraw her guilty plea if the circuit court's sentence affected the voluntariness of her plea. For all that I can determine, however, Malone did not see a need to withdraw her guilty plea to third-degree burglary under (a)(3). She simply wanted the circuit court to sentence her to what the presumptive standards required the circuit court to do.
I believe the record sufficiently indicates that the plea agreement pursuant to which Malone pleaded guilty was for third-degree burglary under § 13A-7-7(a)(3). At a minimum, I would remand this matter to the circuit court for it to clarify which subsection of § 13A-7-7, Ala. Code 1975, Malone and the State agreed she would plead guilty to. If the plea agreement was for subsection (a)(3), the circuit court should (1) accept the agreement and sentence Malone in accordance with the presumptive sentencing standards or (2) reject the agreement, indicate that it is doing so, and give Malone the opportunity to withdraw her guilty plea, see Rule 14.3(c), Ala. R. Crim. P.
I respectfully dissent.
Burke, J., concurs.