Opinion
CR-17-0550
08-10-2018
Kenneth Joe PRICE v. STATE of Alabama
Kenneth Joe Price, appellant, pro se. Steve Marshall, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
Alabama Supreme Court 1180100
Kenneth Joe Price, appellant, pro se.
Steve Marshall, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
JOINER, Judge. Kenneth Joe Price appeals the circuit court's summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P. Price's petition attacked his October 1988 guilty-plea conviction for first-degree receiving stolen properly, see § 13A-8-17, Ala. Code 1975, and his sentence, as a habitual offender, of life imprisonment. Price did not file a direct appeal of his guilty-plea conviction or sentence.
On October 27, 2017, Price filed this, his second, Rule 32 petition, along with an in forma pauperis declaration. In the petition, Price alleged that the Habitual Felony Offender Act, § 13A-5-9, Ala. Code 1975 ("the HFOA"), had been not invoked in his case. He argued that, without application of the HFOA, the maximum sentence he should have received for first-degree receiving stolen property was 20 years. Thus, he argued that his sentence of life imprisonment was illegal.
The circuit court granted Price's request for in forma pauperis status. (C. 30.) Price's in forma pauperis declaration shows, however, that $3,743.00 was deposited in his inmate account in the 12 months preceding the filing of his in forma pauperis application. This amount far exceeds the amount necessary to pay the fee associated with filing a petition for postconviction relief, and the circuit court would not have abused its discretion if it had denied Price's request to proceed in forma pauperis. See Ex parte Wyre, 74 So.3d 479, 482 (Ala. Crim. App. 2011) ("[A]n inmate who has appreciably more than the amount necessary to pay a filing fee deposited in his inmate account in the 12 months preceding the filing of an in forma pauperis request is not indigent as that term is defined in Rule 6.3(a), Ala. R. Crim. P. Wyre had $876.52 deposited to his account in that period--more than twice the amount necessary to pay the filing fee. Thus, he is not indigent.").
On January 10, 2018, the State filed an answer in which it argued that Price's petition was procedurally barred, insufficiently pleaded, and without merit. On January 24, 2018, the circuit court issued an order summarily dismissing Price's petition as being without merit. See Rule 32.7(d), Ala. R. Crim. P.
On appeal, Price argues that the circuit court erred in summarily dismissing his petition. Price (1) challenges the legality of his sentence and (2) argues that he was denied due process because, he says, he did not receive the State's answer and, therefore, did not have an opportunity to respond to it. (Price's brief, pp. 9-10.)
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) ). If, however, the circuit court bases its determination on a "'cold trial record,'" we apply a de novo standard of review. Ex parte Hinton, 172 So.3d 348, 353 (Ala. 2012). Moreover, "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).
Furthermore, a circuit court may summarily dismiss a Rule 32 petition pursuant to Rule 32.7(d), Ala. R. Crim. P.,
"[i]f the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition."
See also Hannon v. State, 861 So.2d 426, 427 (Ala. Crim. App. 2003) ; Cogman v. State, 852 So.2d 191, 193 (Ala. Crim. App. 2002) ; Tatum v. State, 607 So.2d 383, 384 (Ala. Crim. App. 1992).
Price's claim that the HFOA was not invoked in his case is not subject to the procedural bars of Rule 32.2, Ala. R. Crim. P. Adams v. State, 825 So.2d 239, 240-41 (Ala. Crim. App. 2001) ("[Price] is not claiming that he did not get notice of the State's intent to invoke the HFOA or that he did not get notice of the prior convictions upon which the State intended to rely; rather, [Price's] sole claim is that his sentence is illegal because he was not sentenced under the HFOA. There is no procedural bar to this claim."). Price's claim, however, is refuted by the record and is without merit.
In August 2006, Price filed in the Pickens Circuit Court a "Motion to Modify Sentence," pursuant to former § 13A-5-9.1, Ala. Code 1975. In that motion, Price admitted that the HFOA had been invoked to enhance his sentence in case no. CC-87-83. (C. 38 ("Defendant's sentence in case no. CC 1987-0083 was enhanced pursuant to Title § 13A-5-9(a)(2).").) Thus, Price's allegation in the instant petition is refuted by Price's allegation in his prior motion to reconsider his sentence under former § 13A-5-9.1, Ala. Code 1975. Price is not entitled to take inconsistent positions as to whether the HFOA was applied to his sentence, and he is not entitled to relief.
Former § 13A-5-9.1, Ala. Code 1975, was repealed effective March 13, 2014. See Act. No. 2014-165, Ala. Acts 2014.
--------
To the extent that Price now argues that he did not have an opportunity to respond to the State's answer, the claim is without merit. "Rule 32 does not require a circuit court to permit a Rule 32 petitioner to file a response to the State's answer or motion to dismiss." Mashburn v. State, 148 So.3d 1094, 1114 (Ala. Crim. App. 2013). Therefore, the circuit court did not err when it summarily dismissed Price's petition.
The judgment of the circuit court is affirmed.
AFFIRMED.
Windom, P.J., and Welch, Kellum, and Burke, JJ., concur.