Opinion
No. CR-04-1213.
Decided June 24, 2005.
Appeal from Jefferson Circuit Court (CC-98-6436.62), James H. Hard IV, Judge.
Matthew Tubbs, pro se.
Troy King, Atty. Gen., and Andy Scott Poole, Asst. Atty. Gen., for Appellee.
Matthew Wayne Tubbs was convicted in the Jefferson County Circuit Court on August 31, 1999, of first-degree robbery and was sentenced, as a habitual offender with three prior convictions, to life imprisonment without parole. This Court affirmed the conviction and sentence by an unpublished memorandum. Tubbs v. State, (No. CR-98-2409, January 28, 2000) 805 So.2d 790 (Ala.Crim.App. 2000) (table). The Alabama Supreme Court affirmed, Ex parte Tubbs, 787 So.2d 728 (Ala. 2000) (table), and this court issued the certificate of judgment on June 30, 2000.
Tubbs has filed two previous unsuccessful Rule 32, Ala. R. Crim. P., challenges to his conviction. Tubbs raised one issue in his present Rule 32, Ala. R. Crim. P., petition: whether the trial court lacked jurisdiction to impose sentence because, Tubbs claims, he was without counsel at sentencing. In support of this claim Tubbs asserts that the record does not affirmatively show that his attorney was present at sentencing because the case action summary sheet does not reflect that his attorney was present. The circuit court summarily dismissed the petition before the State responded.
Tubbs appeals, arguing that summary dismissal was error because his claim, if true, entitled him to relief.
Rule 32.7(d), Ala. R. Crim. P., permits the trial court to dismiss the petition.
"[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."
"`"Where a simple reading of the petition for post-conviction relief shows that, assuming every allegation of the petition to be true, it is obviously without merit or is precluded, the circuit court [may] summarily dismiss that petition. . . ." Bishop v. State, 608 So.2d 345 (Ala. 1992) (quoting Bishop v. State, 592 So.2d 664, 667 (Ala.Cr.App. 1991) (Bowen, J., dissenting)).' Tatum v. State, 607 So.2d 383, 384 (Ala.Cr.App. 1992). Rule 32.7(d), [Ala.] R. Crim. P., permits the trial court to dismiss the petition `[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.'"
Patty v. State, 652 So.2d 337, 338-39 (Ala.Crim.App. 1994).
Tubbs cites Burgett v. Texas, 389 U.S. 109 (1967), in which the United States Supreme Court held that a silent record will not support a presumption that a defendant is represented by counsel. 389 U.S. at 114-15.
Burgett is distinguishable from Tubbs's case in that the record in Burgett revealed that Burgett was not represented by counsel at the sentencing stage, and it was silent as to whether he had waived his right to counsel during the sentencing stage of the trial. In Tubbs's case, the case action summary sheet reflects that attorney Timothy A. Hughes was initially appointed to represent Tubbs and that Hughes subsequently withdrew and the trial court appointed Charles Salvagio to represent Tubbs. (R. 7-8.)
This Court has held:
"There does not appear to be any law which requires that the name of the attorney appear at any particular place in the record so long as it properly appears that the defendant on trial was represented by an attorney."
Minor v. State, 437 So.2d 651, 656-657 (Ala.Crim.App. 1983).
Although Tubbs argues that subsequent entries on the case action summary sheet do not affirmatively reflect that he was represented or accompanied by counsel when appearing in court for sentencing, § 13A-5-10.1(c), Ala. Code 1975, provides that where a court record "indicates that the defendant was represented by an attorney, it is presumed that the attorney was present in court with the defendant at all critical stages of the proceeding."
By relying merely on the lack of specific affirmations of counsel's presence at the sentencing phase [on the case action summary sheet], Tubbs has failed to meet his burden of overcoming the presumption that counsel was present at all critical stages of the proceedings. SeeTate v. State, 435 So.2d 190, 195 (Ala.Crim.App. 1983) (when a defendant contends that a prior conviction is invalid for enhancement purposes because of lack of counsel, the defendant bears the burden of presenting evidence in support of that contention). See alsoJackson v. State, 502 So.2d 858, 865 (Ala.Crim.App. 1986) ("`"[I]n view of the fact that the record is not `silent' as to [petitioner's] representation by counsel, he would have the burden of proving otherwise."Wesley v. Alabama, 488 F. 2d 30 (5th Cir. 1974).' Ladd v. State, [ 431 So.2d 579, 581 (Ala.Crim.App. 1983)]."). Thus, Tubbs's pleadings fail to sufficiently state a claim entitling him to relief.
Moreover, the record from direct appeal reflects that Tubbs's counsel, Charles Salvagio, was present at sentencing. Thus, there is no merit to this claim.
This Court may take judicial notice of its own records. Ex parte Salter, 520 So.2d 213, 216 (Ala.Crim.App. 1987).
Because Tubbs's Rule 32 petition was insufficiently pleaded and was meritless, the trial court did not abuse its discretion by summarily dismissing the petition. For the reasons stated above, the trial court properly denied the Tubbs's petition. Accordingly, the judgment of the trial court is affirmed.
We note that Tubbs's verification under penalty of perjury that the claims in his petition were true was, in fact, blatantly false. Inmates who file false claims in their post-conviction petitions waste the resources of the district attorneys' offices that must respond to those false claims; the circuit courts that must review and dispose of them; the attorney general's office, which must answer any appeal filed; and the appellate courts that must review the claims on appeal. We note that inmates filing blatantly false claims are subject to prosecution for perjury. See § 13A-10-101, Ala. Code 1975.
AFFIRMED.
McMillan, P.J., and Baschab, Shaw, and Wise, JJ., concur.