Opinion
CR-20-0612
02-10-2023
Kendarvis L. WELLS v. STATE of Alabama
Wesley Walterscheid of The Law Office of Adam E. Parker, Dothan, for appellant. Steve Marshall, att’y gen., and Sara Rogan, asst. att’y gen., for appellee.
Wesley Walterscheid of The Law Office of Adam E. Parker, Dothan, for appellant.
Steve Marshall, att’y gen., and Sara Rogan, asst. att’y gen., for appellee.
McCOOL, Judge.
In January 2021, Kendarvis L. Wells pleaded guilty to one count of second- degree assault. See § 13A-6-21, Ala. Code 1975. Wells also pleaded guilty to one count of first-degree possession of marijuana based on the fact that he had unlawfully possessed marijuana for personal use after having been previously convicted of unlawfully possessing marijuana for personal use. See § 13A-12-213(a)(2), Ala. Code 1975. The plea agreements indicated that the State had agreed to recommend that Wells be sentenced to 24 months’ imprisonment for each conviction and that the sentences run concurrently. (C. 33, 121.) The plea agreements also indicated that Wells had stipulated to the fact that he has "at least [two] prior adult felony convictions which are valid convictions for enhancement purposes under the Alabama Habitual Offender Act." (Id.) See § 13A-5-9, Ala. Code 1975 ("the HFOA").
On April 27, 2021, the circuit court conducted the sentencing hearing. At the beginning of the hearing, the circuit court "grant[ed] the State’s motion to prosecute [Wells] under the [HFOA]" (R. 11), and the court proceeded to sentence Wells to 24 months’ imprisonment for each of his convictions and ordered that the sentences would run concurrently. Wells did not reserve any issues for appeal but nevertheless filed a notice of appeal on May 10, 2021. On May 27, 2021, Wells filed a motion to withdraw his guilty pleas, arguing that he "is not guilty of the offenses that he’s been charged with." (C. 58.) This Court stayed Wells’s appeal pending the circuit court’s disposition of that motion. (C. 85.)
The circuit court scheduled the hearing on Wells’s motion to withdraw his guilty pleas for August 16, 2021. Wells subsequently informed the circuit court that his motion would be denied by operation of law before that date unless the motion was "continued to a date certain," and Wells noted that the State had "stipulate[d] to continuing this matter to August 16, 2021." (C. 62.) Thus, on May 30, 2021 – before Wells’s motion was denied by operation of law – the circuit court issued an order stating that, "with the consent of all parties, Wells’s motion to withdraw his guilty plea[s] is carried over to a date certain: August 16, 2021." (C. 64.) However, there is no indication in the record that the circuit court held the August 16, 2021, hearing, and the court did not issue a ruling on Wells’s motion.
In December 2021, Wells filed the brief for his appeal. The only relief Wells seeks in that brief is for this Court to remand the case to the circuit court for that court "to hold a hearing and rule on [his] motion to withdraw his guilty plea[s]." (Wells’s brief, p. 4.) According to Wells, "[w]ithout the [circuit] court’s disposition on the motion, there is nothing to appeal." (Id.) However, Wells’s motion to withdraw his guilty pleas has already been denied.
[1] A motion to withdraw a guilty plea is the functional equivalent of a motion for a new trial. P.B. v. State, 366 So. 3d 989, 991 n.3 (Aa. Crim. App. 2022), Rule 24.4, Ala. R. Crim. P., states:
"No motion for new trial or motion in arrest of judgment shall remain pending in the trial court for more than sixty (60) days after the pronouncement of sentence, except as provided in this section. A failure by the trial court to rule on such a motion within the sixty (60) days allowed by this section shall constitute a denial of the motion as of the sixtieth day; provided, however, that with the express consent of the prosecutor and the defendant or the defendant’s attorney, which consent shall appear in the record, the motion may be carried past the sixtieth day to a date certain; if not ruled upon by the trial court as of the date to which the motion is continued,
the motion is deemed denied as of that date, unless it has been continued again as provided in this section. The motion may be continued from time to time as provided in this section."
(Emphasis added.)
[2, 3] In this case, the circuit court, with the consent of the parties, extended the time for ruling on Wells’s motion to withdraw his guilty pleas to August 16, 2021. However, because the circuit court did not rule on the motion by that date and did not again extend the time for ruling on the motion, the motion was denied by operation of law on August 16, 2021. Rule 24.4. Thus, contrary to Wells’s contention, there is a ruling to appeal – the denial of his motion to withdraw his guilty pleas – but Wells has not presented this Court with any arguments regarding that denial. That is to say, Wells has not argued that his motion to withdraw his guilty pleas had merit, that the circuit court erred by allowing the motion to be denied by operation of law, or that the court erred by allowing the motion to be denied by operation of law without first holding a hearing. In other words. Wells has presented this Court with nothing to review. Accordingly, we affirm the circuit court’s denial of Wells’s motion to withdraw his guilty pleas.
[4] However, we note that Wells’s sentence for his second-degree-assault conviction is illegal. Although neither Wells nor the State has raised that issue,
"[i]t is well settled that ‘[m]atters concerning unauthorized sentences are jurisdictional.’ Hunt v. State, 659 So. 2d 998, 999 (Ala. Crim. App. 1994). Therefore, this Court may take notice of an illegal sentence ‘at any time and may do so even ex mero motu.’ Moore v. State, 40 So. 3d 750, 753 (Ala. Crim. App. 2009)."
Towns v. State, 293 So. 3d 975, 985 (Ala. Crim. App. 2019).
[5] Assault in the second degree is a Class C felony, see § 13A-6-21(b), but Wells was sentenced under the HFOA based on his admission that he has two prior felony convictions. The HFOA states, in relevant part:
"In all cases when it is shown that a criminal defendant has been previously convicted of any two felonies that are Class A, Class B, or Class C felonies and after such convictions has committed another Class A, Class B, or Class C felony, he or she must be punished as follows:
"(1) On conviction of a Class C felony, he or she must be punished for a Class A felony."
[6, 7] Thus, pursuant to the HFOA, Wells must be punished for a Class A felony for his second-degree-assault conviction. On conviction for a Class A felony, a defendant must be sentenced to a term of imprisonment "for life or not more than 99 years or less than 10 years." § 13A-5-6(a)(1), Ala Code 1975. Wells’s sentence of 24 months’ imprisonment for his second-degree-assault conviction is therefore illegal because it is less than the statutory minimum for a Class A felony. See Henson v. State, 100 So. 3d 1129, 1134 (Ala. Crim. Ap. 2011) (holding that a sentence that was "not within the statutorily prescribed range" was illegal). Although the State and Wells agreed that Wells would be sentenced to 24 months’ Imprisonment for that conviction, "a [circuit] court cannot accept a plea agreement that calls for an illegal sentence." Calloway v. State, 860 So. 2d 900, 906 (Ala. Crim. App. 2002). Accordingly, we reverse Wells’s sentence for his second-degree-assault conviction and remand the case for the circuit court to resentence Wells for that conviction. Because Wells’s illegal sentence was part of the second-degree-assault plea agreement, "[r]esentencing [will] be a rejection of the plea agreement." Pate v. State, 884 So. 2d 1, 3 (Ala. Crim. App. 2003). Thus, the circuit court must allow Wells to withdraw his second-degree-assault guilty plea if he timely moves to withdraw the plea after he is resentenced. See Williams v. State, 203 So. 3d 888, 894 (Ala. Crim. App. 2015) ("When an illegal sentence is imposed in accordance with a plea agreement the appellant is entitled to withdraw his plea. … [Thus,] ‘if the appellant moves to withdraw his guilty plea, the circuit court should grant the motion.’ " (quoting Morris v. State, 876 So. 2d 1176, 1178 (Ala. Crim. App. 2003))). Of course, Wells is not required to withdraw that guilty plea if he no longer desires to do so after he is resentenced. Henderson v. State, 308 So. 3d 934, 940 (Ala. Crim. App. 2020).
AFFIRMED AS TO CONVICTIONS; REVERSED IN PART AS TO SENTENCES; AND REMANDED.
Windom, P.J., and Kellum and Minor, JJ., concur. Cole, J., concurs in part and dissents in part, with opinion.
COLE, Judge, concurring in part and dissenting in part.
I agree with the majority that this Court should affirm the circuit court’s denial of Kendarvis L. Wells’s motion to withdraw his guilty pleas. Because, however, I do not think that Wells’s 24-month sentence is illegal, I respectfully dissent from this Court’s decision reversing Wells’s sentence for his second-degree-assault case.
The majority is correct that second-degree assault is a Class C felony. The range of punishment for a Class C felony is "not more than 10 years or less than 1 year and 1 day." § 13A-5-6, Ala. Code 1975. For a defendant who is convicted of a Class C felony, and who has two prior felony convictions for Class A, B, or C felonies, the Habitual Felony Offender Act ("HFOA") calls for a sentence in the range of "life or not more than 99 years or less than 10 years." §§ 13A-5-6(a)(1) and 13A-5-9, Ala. Code 1975. Yet trial courts are not required to sentence individuals charged with second-degree assault who have prior felony convictions pursuant to the HFOA. Second-degree assault is not a presumptive-sentencing-standards offense but is an offense eligible for sentencing pursuant to the voluntary sentencing standards of the Alabama Sentencing Guidelines. This is true regardless of the number of prior felony convictions an individual may have. Therefore, to determine whether Wells’s sentence is legal, the sentencing guidelines should also be considered. The majority’s opinion concludes that Wells’s sentence is "illegal" without considering whether Wells’s sentence would be legal under the sentencing guidelines.
I concede that the majority’s decision to consider only the HFOA is logical based upon the record before this Court. First, the trial court expressly stated that it was "going to grant the State’s motion to prosecute [Wells] under the Habitual Felony Offender Act." (R. 12.) In addition to making this statement in open court, the trial court also indicated in its sentencing order that the State’s motion to sentence Wells pursuant to the HFOA was "granted." (C. 41.) Yet I am of the opinion that this Court should reverse a sentence ex mero motu only if the sentence is clearly an illegal sentence. Although I agree that Wells’s sentence for second-degree assault would not be legal under the HFOA, the sentence is not clearly an illegal sentence.
The sentencing-guidelines worksheets for Wells’s two offenses, second-degree assault and first-degree possession of marijuana, were not included in the record on appeal. The "Explanation of Rights" form for Wells’s first-degree-unlawful-possession-of-marijuana case did include the guideline range for that offense, but the guideline range for the second-degree-assault conviction is not included in the record on appeal. A review of the sentencing guidelines for an individual convicted of second-degree assault with two prior felony convictions, which appears to reflect Wells’s criminal history as stated by the parties at the trial level, would result in a sentencing range of 13 to 80 months. Therefore, based upon the limited information provided to this Court, it appears that Wells’s 24-month sentence is a "legal" sentence if the voluntary sentencing standards had been applied at the trial level.
The majority acknowledges that neither party raised the illegal-sentence issue on appeal. Therefore, the trial court and the parties were satisfied that the sentences imposed in both cases were appropriate sentences. With the exception of jurisdictional arguments, it is well established that " ‘[t]his Court will not consider an argument raised for the first time on appeal; its review is limited to evidence and arguments considered by the trial court.’ Abbott v. Hurst, 643 So. 2d 589 (Ala. 1994)." Eastland v. State, 677 So.2d 1275, 1276 (Ala. Crim. App. 1996). This preservation requirement is equally true of issues not raised by either party on appeal. Although this Court is obligated to correct an illegal sentence, see Towns v. State, 293 So. 3d 975, 985 (Ala. Crim. App. 2019), I believe we should do so cautiously and that we should remand for resentencing without input from the parties only when it is clear that the sentence imposed could not have been a legal sentence. Because the parties agreed to a sentence that appears to fall within the recommended sentencing-guideline range, I am not convinced that the sentence imposed in Wells’s second-degree-assault case is an illegal sentence. Although a "sentence unauthorized by statute exceeds the jurisdiction of the trial court and is void," see Ex parte McGowan, 346 So. 3d 10, 15, the sentence imposed in this case was authorized by the sentencing guidelines. Therefore, this sentence was a legal sentence, and I do not believe that a remand for resentencing is required.
As previously noted, although the State "invoked" the HFOA, the State also agreed to the sentences imposed in both of Wells’s cases. This Court has held that
"the State may waive ‘the application of any mandatory fines and other enhancements -- including the Habitual Felony Offender Act’ -- and, if such fines or enhancements are waived in a plea agreement, ‘this Court may not order the trial court to impose th[o]se fines [or enhancements].’ Durr [v. State], 29 So. 3d [922,] 922 n.1 [(Ala. Crim. App. 2009)] … (citing Ex parte Johnson, 669 So. 2d 205 (Ala. 1995)). …
"….
"[Furthermore,] this Court has long held that waivable issues are not jurisdictional."
Hall v. State, 223 So. 3d 977, 981-82 (Ala. Crim. App. 2016) (emphasis omitted). The State’s decision to recommend a 24-month sentence for Wells’s convictions for second-degree assault and first-degree unlawful possession of marijuana, with knowledge that Wells had two prior felony convictions, could be regarded as a waiver of application of the HFOA. At the very least, the trial court should be given an opportunity to determine, based upon testimony or the argument of counsel, whether there was such a waiver by the State. Without further information, this Court should not require the trial court to sentence Wells to a minimum of 10 years’ imprisonment pursuant to the HFOA, or, in the event Wells withdraws his guilty plea, make Wells take his second-degree-assault case to trial.
This Court’s opinion also affirms Wells’s conviction and sentence for first-degree unlawful possession of marijuana while reversing and remanding Wells’s conviction for second-degree assault. The majority’s disposition of this case gives Wells the option to withdraw his guilty plea for second-degree assault while his other conviction will remain intact. It appears that this result is reached, without the majority expressly stating so, because the plea agreement in each case was written on a different plea-agreement form with different circuit-court case numbers. Yet, without input from the parties and the trial court, it is impossible for this Court to determine whether this case involved two separate plea agreements or one plea agreement that was written on separate pages. It is clear that the "Motion to Allow Plea Agreement Pursuant to Agreement" in both cases included an identical 24-month sentence and that both documents indicated that the State had no objection to the sentences running concurrently with each other. (C. 33, 121.) Furthermore, both plea-agreement forms were signed on the same date, the guilty pleas were entered on the same date, and the trial court imposed a sentence in both cases on the same date. It should also be noted that, at the trial level and on appeal, the parties interchangeably refer to the singular "plea agreement" (C. 57; State’s brief, p. 1) and to the plural "plea agreements" (C. 61; Wells’s brief, p. 1). Although the record is not clear, it is likely that this was intended by Wells and the prosecution as one plea agreement. My reading of this Court’s opinion would allow Wells to withdraw his guilty plea to the charge of second-degree assault but require him to continue to serve his 24-month sentence on the marijuana case. If this matter is reversed and the case remanded, as the main opinion does here, I believe the trial court should be given an opportunity to determine if the guilty pleas were entered as part of a single plea agreement. If this was intended as a "package deal" or as a single plea agreement on two forms, Wells should also be allowed to withdraw his guilty plea in the first-degree-unlawful-possession-of-marijuana case.
Finally, this Court’s opinion indicates that the trial court, on remand, will be required to sentence Wells pursuant to the HFOA. As noted above, in the event of a remand I would hold that the trial court and the parties should have an opportunity to again agree to a 24-month sentence, but that, if such a sentence is imposed, the State should expressly waive application of the HFOA or the trial court should specifically state that the sentence is imposed pursuant to the voluntary sentencing guidelines and include the sentencing worksheet as part of the record.
For the foregoing reasons, I respectfully dissent from this Court’s decision reversing the sentence imposed on Wells for his second-degree-assault conviction and remanding the case. Because Wells has not argued that his motion to withdraw his guilty pleas is meritorious, I would affirm the circuit court’s judgment.