Burton v. StateBurton v. State
The appellant, Terry G. Burton, appeals from the circuit court‘s denial of his
As one of the allegations in his petition, Burton contends that his failure to appeal within the prescribed time was without fault on his part. In support of this ground, Burton asserts in his petition that he was “[n]ot aware or advised of an appeal“; that “[t]he court or petitioner‘s court appointed attorney fail to reserve his rights to a first appeal“; and “that he was not given a counsel or appointed a counsel by the court to secure his First Appeal as a matter of right, nor did his court appointed attorney at trial secure his right to appeal his conviction and sentence thereafter.” These assertions are also the basis of Burton‘s claim of ineffective assistance of counsel. They are undisputed because the state filed no response to Burton‘s petition. The circuit court made the following finding in regard to the ground that failure to appeal was through no fault on the part of Burton: “The claim is without merit, and any err or that could have been presented by direct appeal is procedurally barred.” The circuit court further found that “the specific allegations of ineffective assistance of counsel are without merit.”
On the face of Burton‘s petition, his claims relating to the failure to appeal are meritorious. Moreover, we find no factual support in the record for the circuit court‘s findings that these claims are without merit. It is beyond question that a defendant has a
Thus, we must remand this case for further findings by the circuit court. See
“[T]he court may properly dispose of those allegations [that are meritorious on their face] without an evidentiary hearing under one of two sets of circumstances. First, if has before it `facts supporting the position of each party [that] are fully set out in . . . supporting affidavits’ Johnson v. State, 564 So.2d 1019, 1021 (Ala.Cr.App. 1989) (relying on
Temp. Rule 20.9(a), Ala.R.Cr.P. , nowRule 32.9 (a) , which states, in part that `[t]he court in its discretion may take evidence by affidavits, written interrogatories, or depositions, in lieu of an evidentiary hearing‘). Second, if the events that serve as the basis of the . . . allegation were observed by the same judge who rules on the Rule 32 petition. Ex parte Hill, 591 So.2d 462, 463 (Ala. 1991) (wherein the court held that `a judge who presided over the conduct of the attorneys at the trial or other proceeding need not hold a hearing on the effectiveness of those attorneys passed upon the conduct that conduct that he observed‘). See also Benefield v. State, 583 So.2d 1370, 1370 (Ala.Cr.App. 1991) (wherein the court noted that meritorious allegations `warrant either an evidentiary hearing or an adequate explanation for their denial‘). In the event that the circuit judge has personal knowledge of the actual facts underlying any of Harper‘s allegations, he may deny the allegations without further proceedings on those allegations so long as he states the specific reasons for the denial in his written order. See Sheats v. States, 566 So.2d 1094 (Ala.Cr.App. 1989).”
In addition to making finding of fact on the issues relating to the failure to appeal, the circuit court is further directed to make more specific findings in regard to the other issues raised in Burton‘s petition. For example, the court found that some of the issues were precluded, but did not specify which provision of
Accordingly, this case is remanded. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 63 days of the release of this opinion. If any hearing is held, the return to remand shall include a transcript of the remand proceedings.
The foregoing opinion was prepared by Retired Appellate Judge John Patterson while serving on active duty status as a judge of this court under the provisions of
REMANDED WITH INSTRUCTIONS.
ALL JUDGES CONCUR.
On Return to Remand
The appellant, Terry G. Burton, was arrested on August 3, 1995, for possession of cocaine and possession of a pistol after having been convicted of a crime of violence. He was subsequently indicted on February 9, 1996 in a two-count indictment for unlawful possession of a controlled substance, cocaine, a violation of
At trial, that state‘s evidence showed that as a result of undercover “buys” of cocaine by the police from the appellant at his apartment, which were taped-recorded, the police obtained a search warrant for his apartment and his automobile. The appellant had leased the apartment and was the sole occupant. In searching the apartment pursuant to the search warrant, the police found, interalia, 17 small “ziplock” plastic bags, each containing “cocaine in the base form” or what is known on the street as “crack” cocaine, a controlled substance. They found $553 under the appellant‘s mattress in his bedroom and $97 on his person. He was unemployed at the time. They also found a loaded, 9 mm. Jennings automatic pistol in the appellant‘s automobile. After his arrest and after he was properly advised of his Miranda1 rights by the police, and after waiving those rights, the appellant made a written statement in which he denied any knowledge of the cocaine found in his apartment, and denied selling any cocaine, but admitted that the pistol belonged to him.
The appellant did not testify at trial, and called only one witness in his defense, his girlfriend, Jennifer Kelly, who testified on direct examination that the pistol found in the appellant‘s automobile belonged to her, and that numerous people from time to time visited the appellant‘s apartment. She further testified that even though she rented an apartment nearby in the same apartment project, she “stayed” with the appellant in his apartment and had never seen any cocaine in the apartment when the appellant was present. On cross-examination, she admitted that she had previously given the officers a different statement in which she stated that she had seen the appellant selling cocaine to “lots” of people in the apartment and had seen him “cutting some up” in the kitchen of the apartment, and that the appellant knew that the pistol was in his automobile. She testified that she had lied to the officers in making the statement that the appellant was involved in selling or having cocaine in his apartment, but that she was telling the truth at trial. The jury, with good reason, did not believe her testimony, nor the appellant‘s denial in his pretrial statement to the police of any knowledge of the cocaine. When the case was submitted to the jury, it returned the verdicts of guilty in 11 minutes.
The appellant did not appeal his convictions.
On November 12, 1996, the appellant filed a post-conviction petition pursuant to
In complying with our order of remand, the trial court appointed counsel to represent the appellant, ordered a transcript of the appellant‘s original trial to be prepared and delivered to the appellant and his counsel, gave the appellant and his counsel time to
In his petition, as amended, the appellant claims that the judgments of the trial court pursuant to which he was convicted of the crimes of possession of a controlled substance and possession of a pistol after having been convicted of a crime of violence should be set aside on the following grounds: (1) because, he says, his convictions were obtained by use of evidence obtained pursuant to an unlawful arrest; (2) because, he says, his convictions constituted a violation of the double jeopardy, clauses of the state and federal constitutions; (3) because, he says, his convictions were obtained by action of grand and petit juries that were unconstitutionally selected and empaneled; (4) because, he says, he was denied effective assistance of counsel; (5) because, he says, the trial court was without jurisdiction to render a judgment or impose sentence; (6) because, he says, the sentence imposed for unlawful possession of cocaine exceeded the maximum authorized by law or was not authorized by law; (7) because, he says, newly discovered evidence exists; (8) because, he says, he was denied the right to appeal through no fault of his own; (9) because, he says, his conviction of the offense of possession of a pistol after having been convicted of a crime of violence was based on evidence obtained pursuant to an invalid search of his automobile; (10) because, he says, his convictions were obtained by the state‘s being permitted to introduce into evidence unrelated and prejudicial photographs of him with money and of him gambling; (11) because, he says, the state violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by suppressing his girlfriend‘s statement that the pistol seized in his automobile belonged to her; and (12) because, he says, the Habitual felony Offender Act,
Grounds 1, 2, 3, 9, 10, 11, and 12 were precluded; the appellant was not entitled to relief on those grounds because they could have been, but were not, raised at trial,
In reference to ground 6 — that the sentence imposed for that conviction for cocaine possession exceeded the maximum authorized by law or was otherwise not legally authorized — the appellant contends in his petition that it was improper for the trial court to to enhance his sentence pursuant to the Alabama Habitual Felony Offender Act (
As to ground 7 — that newly discovered evidence of material facts exists which requires that the conviction or sentence be vacated — the appellant alleged no facts to support his allegation and he failed to plead or otherwise meet the requirements of
As to allegation 8 — that the appellant was denied the right to appeal through no fault of his own — we note that the trial court considered this allegation on its merits. “Every criminal defendant has a right to appeal his conviction to this court. If the filing of a direct appeal to this court is not timely filed and that untimeliness is the fault of counsel, then counsel‘s performance has been ineffective.” Cunningham v. State, 611 So.2d 510, 511 (Ala.Cr.App. 1992). The appellant and his trial counsel testified at the hearings on the petition. After the hearings, the trial court found that the appellant and his counsel discussed the possibility of an appeal shortly after his conviction, that the
In reference to ground 4 — that the appellant was denied effective assistance of counsel at his trial — we note that the trial court found that counsel was not constitutionally ineffective, as alleged, and supported this holding in its order with written finding so fact and conclusions of law. The appellant claimed that his trial counsel was ineffective for the following reasons; he failed to file a notion to suppress the evidence seized by the police in the search of his apartment and automobile; he failed to move for severance of two “unrelated” photographs of the appellant and “sandwich baggies” that contained a “white substance“; he failed to allow the appellant to participate in the making of tactical decisions during his trial; and he failed to preserve the appellant‘s right to appeal and failed to appeal his convictions.
The appellant‘s trial counsel, in his testimony at the hearing, gave his reasons for the tactical decisions he made during the trial. In reference to his failure to file a motion to suppress the evidence seized during the search of the appellant‘s apartment and automobile, he stated that he believed that the search warrant authorizing the search and the search were valid. He testified that, had he attacked the legality of the search warrant and the search, he would have had to call Jennifer Kelley as a witness and this would have disclosed his defense strategy before trial, which he chose not to do at the time. He testified that he chose not to move for a severance of the charges because he and the appellant believed that they had a good chance to win an acquittal for the pistol possession charge with the testimony of Kelley, and that if the jury could be convinced that the pistol did not belong to the appellant, it would be easier and possible to convince the jury that the cocaine in the appellant‘s apartment belonged to someone other than the appellant because there was evidence that other people who used cocaine visited the apartment on a regular basis. He testified that he did not object to the admission of the “unrelated” photographs because they were not related to the defense strategy and he did not think they were damaging or prejudicial. This evidence consisted of two photographs that had been seized by the police during the search of the appellant‘s apartment and was admitted into evidence at trial. These photographs were apparently two or three years old. One showed the appellant sitting on a couch holding “some money,” and the other showed him playing cards or gambling. Defense counsel testified that the photographs could be viewed as favorable to the appellant because they could explain how he acquired the money found on his person and under his mattress. Counsel testified, “[H]e [the appellant] said that he won money playing cards and I think that would have been a proper explanation as to where money had come from, instead of drug sales.” In reference to counsel‘s failure to object to the admission into evidence of the “sandwich baggies” containing an unidentified “white substance,” defense counsel testified that he did not object because the other 17 “ziplock” plastic bags, which had been seized in the appellant‘s apartment and were introduced in evidence, clearly contained crack cocaine, and even though the white substance in the baggies had not been identified, he did not believe that their introduction into evidence “made any difference in the case.” In reference to the appellant‘s claims that his counsel did not allow him to participate in the making
The trial court further found that the appellant failed to prove by a preponderance of the evidence any facts that would entitled him to the post-conviction relief sought in his petition.
The foregoing opinion was prepared by Retired Appellate Judge Patterson while serving on active duty status as a judge of this court under the provisions of
AFFIRMED.
ALL JUDGES CONCUR.