Calloway v. StateCalloway v. State
PER CURIAM.
The unpublished memorandum issued April 19, 2002, is withdrawn and the following opinion is substitutеd therefor.
Paul Michael Calloway appeals the circuit court‘s summary denial of his
On Novеmber 2, 2001, Calloway filed the present Rule 32 petition. In his petition, Calloway alleged that the trial court lacked jurisdiction to enhance his sentence under
However, this Court has held that Apprendi does not require that the enhancement provisions in
Although we find that summary denial of Calloway‘s Rule 32 claims was proper, we also find that Calloway‘s sentence was illegal. “Matters concerning unauthorized sentences are jurisdictional,” Hunt v. State, 659 So.2d 998, 999 (Ala. Crim.App.1994); therefore, we may take notice of an illegal sentence at any time. See, e.g., Pender v. State, 740 So.2d 482 (Ala.Crim.App.1999). As noted abоve, Calloway was sentenced to 20 years’ imprisonment, enhanced by an additional 5 years’ imprisonment pursuant to
Based on thе foregoing, the circuit court did not err in summarily denying Calloway‘s Rule 32 claims; however, this case is remanded to the circuit court for resentencing. Due return should be filed with this Court no later than 42 days from the date of this opinion.
UNPUBLISHED MEMORANDUM OF APRIL 19, 2002, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING OVERRULED; REMANDED WITH DIRECTIONS.
McMILLAN, P.J., and BASCHAB and WISE, JJ., concur. SHAW, J., dissents, with opinion, which COBB, J., joins.
SHAW, Judge, dissenting.
Although I agree with the general proposition that a trial court lacks jurisdiction, under
On Return to Remand and On Second Application for Rehearing
PER CURIAM.
This Court‘s unpublished memorandum issued on return to remand on September 20, 2002, is withdrawn and the following opinion is substituted therefor.
On November 2, 2001, Paul Michael Calloway filed a
In his petition, Calloway alleged that the trial court lacked jurisdiction to enhance his sentence under
Calloway filed an application for rehearing, and this Court withdrew its unpublished memorandum and issued a published opinion, on May 31, 2002, again affirming the circuit court‘s summary denial of Calloway‘s petition, but holding that Calloway‘s sentence was illegal and remanding the case for resentencing. See Calloway v. State, 860 So.2d 900 (Ala.Crim.App.2002). Specifically, we stated:
“Callowаy was sentenced to 20 years’ imprisonment, enhanced by an additional 5 years’ imprisonment pursuant to
§ 13A-12-250 , and an additional 5 years’ imprisonment pursuant to§ 13A-12-270 . The trial court then split the 20-year base sentence and ordered Calloway to serve 3 years’ imprisonment on the base sentence plus the 10-year enhanced portion of his sentenсe. However, the trial court did not have jurisdiction to split Calloway‘s sentence pursuant to the Split Sentence Act,§ 15-18-8, Ala.Code 1975 . `This Court has consistently treated sentences imposed pursuant to§§ 13A-12-250 and13A-12-270, Ala.Code 1975 , as enhancements to a base sentence and, thus, as part of a single aggregate sentence fоr an offense.’ State v. Corley, 831 So.2d 59, 61 (Ala.Crim.App.2001). Calloway‘s sentence was a single sentence of 30 years’ imprisonment and, thus, could not be split pursuant to§ 15-18-8 . See Kirkland v. State, 850 So.2d 1259 (Ala.Crim.App.2002). Therefore, we must remand this case to the circuit court for it to conduct another sentencing hearing and to resentence Calloway.”
860 So.2d at 902-03 (footnote omitted).
The circuit court comрlied with our instructions, appointed an attorney to represent Calloway, and conducted another sentencing hearing on August 7, 2002. The circuit court again sentenced Calloway to 20 years’ imprisonment, enhanced by an additional 10 years’ imprisonment pursuant to
However, Calloway has now filed an application for rehearing of our action on return to remand requesting that we аgain remand this case to allow him to withdraw what he says has become, based on this Court‘s original opinion remanding the case for resentencing, an involuntary guilty plea. Calloway argues, as he did at the second sentencing hearing, that he was never informed during the guilty-plea colloquy that the minimum sentеnce he could receive was 30 years’ imprisonment and that his plea agreement with the State had called for the 20-year base sentence to be split under
Initially, we point out that Calloway did not plead in his Rule 32 petitiоn
However, Calloway‘s application for rehearing squarely presents the issue whether his resentencing rendered his guilty plea involuntary, an issue that was properly raised and preserved for appellate review at the second sentencing hearing. We recognize the general rule that issues not raised on appeal originally cannot be considеred on application for rehearing. See, e.g., Ex parte Howell, 431 So.2d 1328 (Ala.1983). However, in this case, the issue presented for the first time on rehearing — whether the circuit court‘s resentencing rendered Calloway‘s guilty plea involuntary — could not have been raised on the initial appeal because the issue was not created until after the initial appeal had been decided, i.e., after this Court remanded the case for resentencing. Therefore, we believe that, under the particular circumstances in this case, we should address Calloway‘s claim.
At the time Calloway pleaded guilty,
“(a) Colloquy With Defendant. In all minor misdemeanоr cases, the execution of a form similar to Form 68 will be sufficient and no colloquy shall be required. In all other cases, except where the defendant is a corporation or an association, the court shall not accept a plea of guilty without first addressing the defendant personally in the presence of counsel in open court for the purposes of:
“(1) Ascertaining that the defendant has a full understanding of what a plea of guilty means and its consequences, by informing the defendant of and determining that the defendant understands:
“....
“(ii) The mandatory minimum penalty, if any, and the maximum рossible penalty provided by law, including any enhanced sentencing provisions;
“....
“(e) Withdrawal of Guilty Plea. The court shall allow withdrawal of a plea of guilty when necessary to correct a manifest injustice. Upon withdrawal of a guilty plea, the charges against the defendant as they existed before any amendment, reduction, or dismissal made as part of a plea agreement shall be reinstated automatically.”1
(Emphasis added.)
“Alabama courts `have consistently held that a defendant must be informed of the maximum and minimum possible sentences as an absolute constitutional prerequisite to the acceptance of a guilty plea.‘” Carter v. State, 812 So.2d 391, 394 (Ala.Crim.App.2001), quoting Ex parte Rivers, 597 So.2d 1308, 1309 (Ala. 1991). “It is well settled, moreover, that
The record submitted to this Court on return to remand includes a transcript of the guilty-plea colloquy. During the colloquy, the trial court informed Calloway that, as a habituаl offender with three prior felony convictions, the minimum sentence he could receive for the offense of unlawful distribution of a controlled substance, a Class B felony, was 20 years’ imprisonment, and that the sentence could be enhanced by an additional 10 years’ imprisonment under
However, the colloquy also affirmatively shows that the sentence Calloway originally received — 20 years plus 10 years, with the 20-year base sentence split to serve 3 years in confinement — was, in fact, part of a plea agreement with the State.
In this case, the trial court actually accepted the plea agreement and sentenced Calloway in accordance with that agreement. However, the sentence was illegal under
Based on the foregoing, we remand this case to the circuit court to allow Calloway to withdraw his guilty plea.
APPLICATION GRANTED; UNPUBLISHED MEMORANDUM OF SEPTEMBER 20, 2002, WITHDRAWN;
McMILLAN, P.J., and COBB, BASCHAB, SHAW, and WISE, JJ., concur.