958 So. 2d 339 | Ala. | 2006
This Court issued the writ of certiorari to review George Randall Batey's claim asserted in his Rule 32, Ala. R.Crim. P., petition that the trial court used more prior felony convictions than he actually has to enhance his sentence under the Habitual Felony Offender Act, §
In January 2005, Batey filed a Rule 32 petition in the Winston Circuit Court, which he amended in February 2005. In the amendment he argued for the first time that the State had failed to prove the prior felony convictions used to enhance his sentence under the HFOA. The trial court denied the petition, and the Court of Criminal Appeals, in an unpublished memorandum, affirmed its decision. Batey v. State (No. CR-04-2534, March 17, 2006), ___ So.2d ___ (Ala.Crim.App. 2006) (table). Batey petitioned this Court for the writ of certiorari, and we issued the writ to address one ground raised by Batey's petition. We address Batey's argument that the State failed to prove the prior felony convictions the trial court used in sentencing him under the HFOA. He argued that the holding in the Court of Criminal Appeals' unpublished memorandum that his argument was procedurally barred by Rule 32, Ala. R.Crim. P., conflicted with that court's decisions in McClintock v.State,
With one exception, postconviction relief is precluded for a claim that could have been, but was not, raised at trial or on appeal. The exception is that a petition alleging that the trial court lacked jurisdiction to render judgment or to impose sentence may be brought at any time, regardless of whether the jurisdiction issue was raised during trial or on direct appeal. Rule 32.2, Ala. R.Crim. P. Alabama courts have applied this exception to allegations of illegal sentencing, holding that "a challenge to an illegal sentence is jurisdictional and can be raised at any time." Ginn v. State,
In his petition for the writ of certiorari, Batey argues that the Court of Criminal Appeals' unpublished memorandum affirming the trial court's summary denial of his Rule 32 petition conflicts with that court's decisions in McClintock andKing. Those cases addressed the use of a felony conviction that had been set aside to enhance a defendant's sentence under the HFOA. As noted, Batey's argument is not that his sentence was enhanced by the use of a vacated conviction. As McClintock and King demonstrate, such an argument implicates the legality of the sentence imposed under the HFOA. His argument is that the State failed to adequately prove the prior convictions used to enhance his sentence under the HFOA. In response to this argument, the Court of Criminal Appeals' unpublished memorandum states that the State's "alleged failure to adequately prove prior felony convictions used for sentence enhancement is not a jurisdictional issue and is, therefore, subject to the procedural bars in Rule 32.2." The Court of Criminal Appeals cited several cases for this holding, including Franks v. State,
On certiorari review, the State asserts that cases such asMcClintock and King are "occasional anomalous decisional" that result from the courts' "broad definition of `jurisdiction.'" State's brief at 7. The State further argues that, even if it failed to prove Batey's prior convictions, the issue is not in fact a jurisdictional issue and that the sentence Batey is challenging is not an "illegal sentence." We agree.
The State is correct that the failure to prove a prior conviction is not a jurisdictional matter; therefore, consideration of that issue in a Rule 32 petition is precluded.See Hale v. State,
A challenge to an illegal sentence, however, is a jurisdictional matter that can be raised at any time.Ginn, *342
In McClintock, the trial court had considered three prior felony convictions in enhancing McClintock's sentence under the HFOA. However, one of McClintock's prior convictions had been set aside. Therefore, the Court of Criminal Appeals held that McClintock was "entitled to be resentenced" using "only two prior felony convictions . . . for enhancement purposes" instead of three.
In King, King argued that his sentence had been improperly enhanced on the basis of three prior felony convictions, when the State had been able to produce evidence of only two prior convictions. The Court of Criminal Appeals remanded the case to the trial court to determine whether King had been properly sentenced and directed the trial court to resentence him if the sentence were incorrect. In remanding the case for a factual finding regarding the number of prior felony convictions King had, the Court of Criminal Appeals citedMcClintock, describing the holding in that case in the following parenthetical: "(claim of illegal sentence due to improper number of prior convictions considered for Habitual Felony Offender Act was not procedurally barred)."
The defendant in McClintock had argued that his sentence exceeded the statutory maximum and was therefore illegal. It appears, however, that the defendant in *343 King had argued, at least in part, that the State had failed to prove one of his prior convictions.
As we have noted previously, Alabama courts have held that the State's failure to prove a prior conviction is not a jurisdictional matter, and therefore a claim to that effect in a Rule 32 petition is procedurally barred if it is not raised at trial or on appeal. An illegal sentence, on the other hand, is a jurisdictional matter that can be raised at any time. AlthoughKing appears to apply the "illegal sentence" exception to waiver of the preclusion of Rule 32.2 where the defendant argues, at least in part, the adequacy of the State's proof, we do not understand the King court to be abandoning the well-settled rule that an argument as to the State's proof of prior convictions is not jurisdictional. King is unclear as to the reason the Court of Criminal Appeals remanded the case to the trial court. The Court of Criminal Appeals stated that the trial court had "ordered King to amend his petition to include this ground, and that the trial court would then rule on the petition. . . . Accordingly, this case is remanded. . . ."
Alabama courts have repeatedly held that an argument about the adequacy of the State's evidence is not jurisdictional and is therefore barred by Rule 32.2. Thus, we hold that Batey's argument concerning the "sufficiency . . . of the State's evidence" of his prior felony convictions for enhancement purposes is procedurally barred.
Batey argues that the State failed to prove one of his prior convictions.3 The trial court's order and the Court of Criminal Appeals' unpublished memorandum indicate that a prior conviction in the Franklin Circuit Court for second-degree sodomy was set aside and that Batey then pleaded guilty to first-degree sexual abuse. But Batey does not argue that his sentence is illegal because the prior felony conviction was vacated. In his brief to this Court, Batey quotes language concerning an illegal sentence and cites both McClintock and King as conflicting with the Court of Criminal Appeals' unpublished memorandum, but he does not even mention in his petition or his brief that one of the prior felony convictions used to enhance his sentence under the HFOA has been set aside. Instead, he argues that he "only has one or possibly two" prior convictions instead of "three or four" and claims that he "is due the same treatment as King if he proves the State[']s evidence actually proves he has less than three prior felony convictions." Batey's brief at 3 and 5. He explicitly states that he "is challenging the sufficiency of the contents or the substance of the State['s] evidence that [is] suppose[d] to represent that he has four prior felony convictions." Batey's brief at 5. Under Alabama case-law, such a challenge to the sufficiency of the State's evidence is procedurally barred because Batey did not raise it at trial or on appeal.
Because the issue Batey raises is not a jurisdictional issue, such as an illegal sentence, his argument is procedurally barred by Rule 32.2.
AFFIRMED.
NABERS, C.J., and HARWOOD, STUART, and BOLIN, JJ., concur.