Opinion
CR-19-0978
08-05-2022
Johnny Lee SELF v. STATE of Alabama
Johnny Lee Self, appellant, pro se. Steve Marshall, att’y gen., and Cecil G. Brendle, Jr., asst. att’y gen, for appellee.
Johnny Lee Self, appellant, pro se.
Steve Marshall, att’y gen., and Cecil G. Brendle, Jr., asst. att’y gen, for appellee.
On Remand from the Alabama Supreme Court
COLE, Judge.
Johnny Lee Self pleaded guilty to two counts of first-degree sexual abuse, violations of § 18A-6-66, Ala. Code 1975, in September 2003, and the circuit court sentenced him to 25 years’ imprisonment on each count. Self did not appeal his guilty-plea convictions or sentences. Over 16 years after he pleaded guilty, Self filed a Rule 32, Ala. R. Crim. P., petition for postconviction relief.
In his petition, Self alleged that the circuit court was without jurisdiction to render judgment or impose the 25-year sentences on him because, he said, he "was not sentenced as an Habitual Offender under the Habitual Felony Offender statute." (C. 42.) Self argued that, because first-degree sexual abuse is a class C felony offense, the circuit court should have sentenced him under § 13A-5-6(a)(3), Ala. Code 1975, "to a term of not more than 10 years" for each conviction. (C. 43.)
Self then filed an amended Rule 32 petition, adding to his petition the claim that newly discovered evidence exists -- namely, an affidavit ostensibly, from Self’s vic- tim, claiming that Self "did not fumble or touch [her] in any inappropriate manner, nor did he engage in any sexual contact with [her] at anytime during the year 2003." (C. 60-61, 63.) Self also alleged that he "failed to appeal within the prescribed time and that failure was without any fault of the petitioner." (C. 59.)
The State moved to dismiss Self’s petition, but it did not address the claim raised in Self’s amended petition. The circuit court issued an order summarily dismissing Self’s illegal-sentence claim; it did not address the claim raised in Self’s amended petition. (C. 27-28.)
[1] On appeal, Self argued, among other things, that the circuit court erred when it summarily dismissed his illegal-sentence claim. This Court rejected Self’s argument, holding that his claim, as presented to the circuit court, was nonjurisdictional and thus was properly dismissed as time-barred under Rule 32.2(c), Ala. R. Crim. P. Self v. State (No. CR-19-0978, Jan. 29, 2021) 352 So. 3d 264 (Ala. Crim. App. 2021) (table). This Court, in an unpublished memorandum, further explained that, even if Self’s claim is jurisdictional, Self did not sufficiently plead his claim:
Self also argued that the circuit court erred when it did not consider his amended petition and when it "failed to rule that [he] failed to appeal within the prescribed time and that failure was without any fault of the petitioner." (Self's brief, pp. 3, 11, 13.) This Court rejected those arguments on direct appeal. Because the Alabama Supreme Court did not grant certiorari review as to those arguments, we do not reconsider them now.
On original submission, Self also argued that the circuit court erred when it failed to consider his amended Rule 32 petition and when it failed to rule that the State did not refute his allegations. This Court rejected Self’s arguments, and those arguments are not a part this Court’s decision on return to remand.
"Here, Self’s allegation that he ‘was not sentenced as an Habitual Offender under the Habitual Offender statute § 13A-5-9 [, Ala. Code 1975 ("the HFOA")] and therefore could not be sentenced to a term of 25 years concurrently’ is a conclusion that, if true, would entitle him to relief. As set out above, however, it is the pleading of facts, not conclusions, that satisfy the burden of pleading in a Rule 32 petition. In his petition, the only fact Self alleged to support his conclusion that he was not sentenced under the HFOA is that the record does not show that he was sentenced under the HFOA. But that fact, if true, does not necessarily entitle him to relief. Notably, Self did not allege that he did not have any prior felony convictions, he did not allege that he was not subject to the HFOA, and he did not allege that the HFOA was not invoked or applied at his sentencing hearing."
Self v. State, (No. CR-19-0978, Jan. 29, 2021) 352 So. 3d 264 (Ala. Crim. App. 2021) (table).
On May 12, 2021, the Alabama Supreme Court granted Self’s petition for a writ of certiorari "to consider whether [this Court’s] decision is in conflict with Barnes v. State, 708 So. 2d 217 (Ala. Crim. App. 1997)." Ex parte Self, 385 So.3d 1, — (Ala. 2021). The Alabama Supreme Court explained this Court’s decision in Barnes as follows:
"In Barnes, a Rule 82 petitioner alleged ‘that he was improperly sentenced to serve fifteen years in prison, because the maximum sentence authorized [under the applicable statute] is 10 years … and he was not sentenced as a habitual offender.’ Barnes, 708 So. 2d at 218. The trial court summarily dismissed the petition, concluding that it Was precluded by operation of Rule 32.2(a), Ala. R. Crim. P. On appeal, the Rule 32 petitioner argued ‘that his sentences exceed the maximum authorized by law because he was not sentenced as a habitual felony offender.’ Barnes, 708 So. 2d at 218. The State argued that the Rule 82 petitioner’s sentence did not exceed the statuto
ry maximum because, it said, the Rule 32 petitioner had been sentenced as a habitual felony offender. The Court of Criminal Appeals noted, however, that there was ‘no indication in the record that the provisions of the Habitual Felony Offender Act applied in th[at] case’ or that the Rule 32 petitioner had been ‘sentenced as a habitual offender.’ Id. at 218 and 219. In addressing the Rule 32 petitioner’s argument on appeal, the Court of Criminal Appeals stated that the Rule 32 petitioner ‘essentially challenge[d] the legality of his sentence.’ Id. at 219. Noting that an illegal sentence may be challenged at any time, the Court of Criminal Appeals concluded that the Rule 32 petitioner ‘ha[d] alleged facts that, if true, entitle[d] him to relief.’ Id. The only fact that was in question in Barnes was whether the Rule 32 petitioner had been sentenced pursuant to the Habitual Felony Offender Act (‘HFOA’), § 13A-5-9, Ala. Code 1975. The Court of Criminal Appeals stated that, ‘[i]f the [Rule 32 petitioner’s] allegations [were] true, the sentences exceeded the jurisdiction of the court and [were] therefore void.’ Id."
Ex parte Self, 385 So.3d at 3. Then, applying Barnes to this case, the Alabama Supreme Court found that "[t]he present case appears to be identical to Barnes." Id. Thus, the Alabama Supreme Court concluded that Self’s claim is both jurisdictional and sufficiently pleaded, and the Alabama Supreme Court instructed this Court to "remand this cause to the circuit court for further proceedings consistent with Barnes." Id.
[2] In accordance with the Alabama Supreme Court’s instructions, this Court remands this case to the circuit court for that court to conduct further proceedings under Rule 32.9, Ala. R. Crim. P., giving Self the opportunity to prove his illegal-sentence claim, see Rule 32.3, Ala. R. Crim. P.
"If the circuit court determines that Self was not sentenced under the HFOA [Habitual Felony Offender Act] and, consequently, that his sentence exceeds the maximum authorized by law, that court is authorized to resentence Self within the parameters applicable to a conviction for a Class C felony. Conversely, if the circuit court determines that Self was properly sentenced under the HFOA, then Self is not entitled to any relief."
Ex parte Self, 385 So.3d at 6. Regardless of its findings, the circuit court shall make return to this Court within 56 days of this opinion.
If the circuit court chooses to conduct an evidentiary hearing under Rule 32.9(a), the circuit court’s return in this case shall include a transcript of that hearing. If the circuit court chooses, instead, to take evidence by means other than an evidentiary hearing under Rule 32.9(a), the circuit court’s return in this case shall include a copy of all evidence it relied on in reaching its decision.
The transcript of Self’s evidentiary hearing was attached to the circuit court's order denying Self’s petition and, thus, is part of the clerk’s record on appeal.
REMANDED WITH INSTRUCTIONS.
Windom, P.J., and Kellum, McCool, and Minor, JJ. concur.
On Return to Remand
COLE, Judge.
In 2003, Johnny Lee Self pleaded guilty to two counts of first-degree sexual abuse, violations of § 13A-6-66, Ala. Code 1975, and was sentenced to 25 years’ imprisonment for each conviction.
Over 16 years after he pleaded guilty, Self filed a Rule 32, Ala. R. Crim. P., petition alleging that the circuit court did not have jurisdiction to impose his 25-year sentences because, he said, he "was not sentenced as an Habitual Offender under the Habitual Felony Offender statute." (C. 42.) According to Self, "nothing in the record shows that his sentence was properly enhanced." (C. 43.) The circuit court summarily dismissed Self’s petition (C. 12-13, 27-28), and Self appealed to this Court.
On original submission, a majority of this Court affirmed by unpublished memorandum the circuit court’s summary dismissal of Self’s sentencing claim finding (1) that his "claim, as pleaded, is a nonjurisdictional claim"; and (2) that, even so, his claim was insufficiently pleaded because he pleaded a conclusory allegation that he was not sentenced under the Habitual Felony Offender Act ("HFOA") and he did not plead that the State failed to invoke the HFOA and that the circuit court did not apply the HFOA at his sentencing.1a Self then petitioned the Alabama Supreme Court for certiorari review. The Supreme Court granted his petition "to consider whether [this Court’s] decision is in conflict with Barnes v. State, 708 So. 2d 217 (Ala. Crim. App. 1997)." Ex parte Self, 385 So.3d 1,— (Ala. 2021).
The Alabama Supreme Court explained Barnes v. State, 708 So. 2d 217 (Ala. Crim. App. 1997), as follows:
"In Barnes, a Rule 32 petitioner alleged ‘that he was improperly sentenced to serve fifteen years in prison, because the maximum sentence authorized [under the applicable statute] is 10 years … and he was not sentenced as a habitual offender.’ Barnes, 708 So. 2d at 218. The trial court summarily dismissed the petition, concluding that it was precluded by operation of Rule 32.2(a), Ala. R. Crim. P. On appeal, the Rule 32 petitioner argued ‘that his sentences exceed the maximum authorized by law because he was not sentenced as a habitual felony offender.’ Barnes, 708 So. 2d at 218. The State argued that the Rule 32 petitioner’s sentence did not exceed the statutory maximum because, it said, the Rule 32 petitioner had been sentenced as a habitual felony offender. The Court of Criminal Appeals noted, however, that there was ‘no indication in the record that the provisions of the Habitual Felony Offender Act applied in th[at] case’ or that the Rule 32 petitioner had been ‘sentenced as a habitual offender.’ Id. at 218 and 219. In addressing the Rule 32 petitioner’s argument on appeal, the Court of Criminal Appeals stated that the Rule 32 petitioner ‘essentially challenge[d] the legality of his sentence.’ Id. at 219. Noting that an illegal sentence may be challenged at any time, the Court of Criminal Appeals concluded that the Rule 32 petitioner ‘ha[d] alleged facts that, if true, entitle[d] him to relief.’ Id. The only fact that was in question in Barnes was whether the Rule 32 petitioner had been sentenced pursuant to the Habitual Felony Offender Act (‘HFOA’), § 13A-5-9, Ala. Code 1975. The Court of Criminal Appeals stated that, ‘[i]f the [Rule 32 petitioner’s] allegations [were] true, the sentences exceeded the jurisdiction of the court and [were] therefore void.’ Id."
Ex parte Self, 385 So.3d at 3. The Alabama Supreme Court then found that Self’s case "appears to be identical to Barnes." Thus, it concluded that Self’s claim is both jurisdictional and sufficiently pleaded. Id. The Alabama Supreme Court instructed this Court to "remand this cause to the circuit court for further proceedings consistent with Barnes." Id.
In accordance with the Alabama Supreme Court’s opinion, this Court remanded Self’s case to the circuit court with instructions that it give Self an opportunity to prove his claim that he was not sentenced under the HFOA at an evidentiary hearing. Self v. State, 385 So.8d 7, — (Ala. Crim. App. 2022) (opinion on remand from the Alabama Supreme Court). On March 4, 2022, the circuit court conducted an evidentiary hearing on Self’s claim. (Record on Return to Remand, C. 14.)
At the evidentiary hearing, Self testified that he "was sentenced beyond the law." (Record on Return to Remand, C. 19.)2a Self said that he pleaded guilty to two class C felony offenses and that his 25-year sentences exceed the maximum sentence authorized for a class C felony. (Record on Return to Remand, C. 19-20.) Self made it clear that he was not claiming that he is not a habitual felony offender. He also conceded that, at the time he was sentenced, he had three prior felony convictions. (Record on Return to Remand, C. 20.) But Self claimed that his sentences were "not enhanced" and that the HFOA "was not applied" to his sentences. (Record on Return to Remand, C. 20-21.)
On cross-examination, Self again admitted that he had three prior felony convictions. (Record on Return to Remand, C. 22-23.) He also admitted that he, his trial counsel, and the circuit court judge all signed an "Explanation of Rights and Plea of Guilty" form. (Record on Return to Remand, C. 23-24.) The State, without any objection from Self, admitted that form into evidence. The form includes a hand-drawn circle around the heading "Three + Prior Felonies," signatures of the circuit judge, trial counsel, and Self, and a handwritten notation above Self’s signature that reads: "best interest plea." (C. 42-48.) The State also admitted into evidence the case-action-summary sheet in CC-08-1269, which Includes the circuit court’s sentencing order in that case. (C. 85.) The senfencing order, however, does not indicate whether the State invoked the HFOA or whether the circuit court applied the HFOA to Self’s sentence. (C. 85.)
At the close of the evidence, the following exchange occurred:
"The Court: All right. Mr. Self, I just need to explain to you that if you assert a claim, the burden is on you as it relates to showing you were not a habitual felony offender at the time. You stated that you were not. And I think you base your claim on the fact that the documents that you received from the clerk’s office did not indicate that; is that correct?
"[Self]: Yes.
"The Court: Well, we have a document. And sometimes in the clerk’s office, I guess, they did not send you a copy of this particular document. But clearly on this document, it shows that you acknowledge that you had three prior felony convictions at the time you were sentenced because your signature is on the document. Do you understand that?
"[Self]: Yes.
"….
"The Court: Anything else you want the Court to consider? Mr. Self, anything else?
"….. "[Self]: I'm not saying -- the sentence was reduced -- I mean, the charge was reduced to a Class C felony.
"The Court: And that's clearly reflected by the Explanation of Rights. And what you’re saying is exactly what is stated on the Explanation of Rights. And that is noted in State's Exhibit 2. You’re correct.
"[Self]: Right. And there was no indication in the records that I was sentenced as a habitual offender.
"The Court: Okay. What you’re asserting is not evidence based on the State’s exhibit that was produced. And this is accepted into evidence now to show that at the time you were fully informed and that it was invoked that you were a habitual felony offender. And that is based on your signature that you executed on this particular document. And you’ve seen the document, and you’ve also admitted that it’s your signature. And so I don’t understand where you’re going with that.
"Anything else?
"[Self]: (No response.)"
(Record on Return to Remand, C. 68-71.) After the hearing, the circuit court issued an order denying Self’s illegal-sentence claim, finding, in part:
"In this matter, there is very little for the Court to ponder as the evidence presented by the State is compelling. It is clear from State’s exhibit 2 that the defendant, at the time he was sentenced, executed his signature on the explanation of rights document, acknowledging his rights and that he had three [or more] prior felony convictions.
"This Court makes the following specific findings of fact: that at the time of the petitioner’s sentencing, the petitioner was a habitual felony offender, and the habitual felony offender act was properly invoked at the time of sentencing. The petitioner was properly and legally sentenced as a habitual felony offender; thus, his 25-year sentence is legal.
"Petitioner failed to present any evidence to support his claim at the evidentiary hearing."
(Record on Return to Remand, C. 12.) Thereafter, the circuit court made return to this Court.
[3–5] On remand, we address the question whether the circuit court properly denied Self’s illegal-sentence claim.
" In Wilkerson v. State, 70 So. 3d 442 (Ala. Crim. App. 2011), this Court explained:
" ‘ " ‘The burden of proof in a Rule 32 proceeding rests solely with the petitioner, not the State.’ Davis v. State, 9 So. 3d 514, 519 (Ala. Crim. App. 2006), rev’d on other grounds, 9 So. 3d 537 (Ala. 2007). ‘[I]n a Rule 32, Ala. R. Crim. P., proceeding, the burden of proof is upon the petitioner seeking post-conviction relief to establish his grounds for relief by a preponderance of the evidence.’ Wilson v. State, 644 So. 2d 1326, 1828 (Ala. Crim. App. 1994). Rule 82.3, Ala. R. Crim. P., specifically provides that ‘[t]he petitioner shall have the burden of … proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.’ "
" ‘70 So. 3d at 451.
" ‘ "[W]here there are disputed facts in a postconviction proceeding and the circuit court resolves those disputed facts, ‘[t]he standard of review on appeal … is whether the trial judge abused his discretion when he denied the petition.’ " Boyd v. State, 913 So. 2d 1113, 1122 (Ala. Crim. App. 2003) (quoting Elliott v. State, 601 So. 2d 1118, 1119 (Ala. Crim. App. 1992)). 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." Ex parte White, 792 So. 2d 1097, 1098 (Ala. 2001).’ "
Peraita v. State, [Ms. CR-17-1025, Aug. 6, 2021] — So. 3d —, —, 2021 WL 3464344 (Ala. Crim. App. 2021) (quoting Woodward v. State, 276 So. 3d 713, 728-29 (Ala. Crim. App. 2018)).
Here, as set out above, Self alleged that his 25-year sentences were illegal because, he said, he was not sentenced under the HFOA, and the Alabama Supreme Court, citing Barnes, supra, determined that Self’s pleading, if true, entitled him to relief. Thus, Self was entitled to prove his claim at an evidentiary hearing. But Self failed to provide sufficient evidence that he was not sentenced under the HFOA.
The circuit court explained that Self’s illegal-sentence claim was meritless because the State had provided "compelling" documentary evidence that the HFOA was invoked and applied to Self’s sentence. That documentary evidence was an Ireland form that was signed by Self, the circuit court, and Self’s counsel that showed that Self had three or more prior felony convictions. Although that document did not expressly indicate whether the trial court sentenced Self under the HFOA, the circuit court could properly rely on that document to conclude that Self’s testimony was not credible and that he was sentenced under the HFOA. See, e.g., Batts v. State, 342 So.3d 597, — (Ala. Crim. App. 2020) (holding that an explanation-of-rights plea-of-guilty form was sufficient to show that the State had waived two of Batts’s four prior felony convictions for HFOA purposes when Batts was sentenced to defeat his illegal-sentence claim). In short, Self failed to provide the circuit court with any evidence, other than his own assertions at the evidentiary hearing, to show that the HFOA was not applied to his sentences.
Ireland v. State, 47 Ala. App. 65, 250 So. 2d 602 (1971).
[6] Clearly, the circuit court did not find Self’s testimony that the trial court did not sentence him under the HFOA credible. It is well settled that "[t]he credibility of witnesses is for the trier of fact, whose finding is conclusive on appeal," and that "[t]his Court cannot pass judgment on the truthfulness or falsity of testimony or on the credibility of witnesses." Hope v. State, 521 So. 2d 1383, 1387 (Ala. Crim. App. 1988). To be entitled to postconviction relief, a "petitioner must convince the trial judge of the truth of his allegation and the judge must ‘believe’ the testimony." Summers v. State, 366 So. 2d 336, 343 (Ala. Crim. App. 1978).
Based upon evidence presented by the State, and the lack of evidence presented by Self, the circuit court found that Self was a habitual offender; that the HFOA had been properly invoked; that Self was sentenced as a habitual offender; and that his sentences were legal. Because the circuit court "determine[d] that Self was properly sentenced under the HFOA, … Self is not entitled to relief." Ex parte Self, 385 So.3d at 6.
Accordingly, the circuit court did not err when it denied Self’s petition. Therefore, the judgment of the circuit court is affirmed.
AFFIRMED.
Windom, P.J., and Kellum, McCool, and Minor, JJ., concur.