200 So. 3d 677
Ala. Crim. App.2015Background
- Defendant Jason Dewane Green pleaded guilty to manslaughter and was sentenced to 19 years imprisonment; the court also ordered a $50 assessment, $7,698 restitution, and costs.
- Green did not challenge his conviction on appeal; his appellate claims were limited to sentencing procedures.
- Record shows Green was not afforded an opportunity to make a statement on his own behalf (allocution) before sentence was imposed.
- The State argued Green failed to preserve the allocution claim because he did not move to withdraw his plea or object at sentencing.
- The majority held the allocution requirement is an exception to preservation rules and remanded for resentencing with a proper allocution pursuant to Rule 26.9(b), Ala. R.Crim. P.
- A dissent argued Green failed to invoke the limited right to appeal a guilty plea (no reservation or motion to withdraw), and that lack of allocution is not jurisdictional; the dissent would dismiss the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to afford allocution requires remand | Green: absence of opportunity to speak at sentencing violated Rule 26.9(b) and requires resentencing | State: claim not preserved—no motion to withdraw plea or contemporaneous objection | Majority: remand for resentencing with proper allocution (preservation exception applies) |
| Whether failure to preserve forfeits appellate review | Green: allocution is a minimal due-process requirement and exception to preservation rule | State: must preserve via plea-withdrawal motion or reservation; otherwise appeal bars review | Majority: allocution exception to preservation permits review on direct appeal |
| Whether lack of allocution is jurisdictional | Green: procedural due-process error requiring correction on direct appeal | State: not raised explicitly; dissent: not jurisdictional so appeal may be dismissed | Majority: treated as remediable error requiring remand; dissent disagrees (would dismiss) |
| Whether other sentencing complaints need addressing | Green raised additional sentencing errors (recusal, denial to rebut court allegations) | State: unnecessary if remand ordered for allocution | Court: declined to address remaining claims because remand for allocution is dispositive |
Key Cases Cited
- Banks v. State, 51 So.3d 386 (Ala. Crim. App. 2010) (allocution is an exception to preservation and required for due process)
- Ex parte Anderson, 434 So.2d 737 (Ala. 1983) (lack of allocution or waiver on record requires remand)
- Shaw v. State, 949 So.2d 184 (Ala. Crim. App. 2006) (on direct appeal, lack of allocution warrants remand)
- Thompson v. State, 92 So.3d 801 (Ala. Crim. App. 2011) (discussing Rule 26.9(b) and right to allocution)
- Ingram v. State, 882 So.2d 374 (Ala. Crim. App. 2003) (limits on appeals after guilty pleas and need to reserve issues or move to withdraw)
- Robey v. State, 950 So.2d 1235 (Ala. Crim. App. 2006) (failure to afford allocution is not jurisdictional)