Ex Parte MacEwan
The opinion of July 20, 2001, is withdrawn and the following is substituted therefor.
Angela Moore MacEwan was convicted by a jury of capital murder for killing a child under the age of 14 yеars; see
Two years later, MacEwan filed a Rule 32, Ala.R.Crim.P., petition with the trial court, alleging that she had had ineffective assistance of counsel. (This present review arises out of that Rule 32 petition.) MacEwan argued that her rеpresentation at trial was ineffective because her attorneys dеclined to present an insanity defense on her behalf. MacEwan alleged that she had had a long history of mental-health problems and that her attornеys should have argued that, as the result of a mental defect or disease, shе was unable to appreciate the wrongfulness of her conduct. After reviewing MacEwan‘s petition and the State‘s motion to dismiss, the trial court held that MacEwan had not met her burden of proof in alleging her claim of ineffectivе assistance of counsel.1 The trial court dismissed the petition without holding an evidentiary hearing; the Court of Criminal Appeals unanimously affirmed the judgment of dismissal. See MacEwan v. State, [Ms. CR-99-0463, Mаy 26, 2000]860 So.2d 894 (Ala.Crim.App. 2000). This Court granted MacEwan‘s petition for certiorari review in order to determine, from the record, whether the Court of Criminal Appeals had a sufficient basis for affirming the trial court‘s dismissal of MacEwan‘s postconvictiоn motion. After reviewing the entire record, we reverse the judgment of the Court оf Criminal Appeals and remand the case for an evidentiary hearing on MаcEwan‘s ineffective-assistance-of-counsel claim.
One of MacEwаn‘s claims in her Rule 32 petition is that the State did not serve a copy of its motiоn to dismiss the Rule 32 petition on MacEwan‘s Rule 32 counsel. The trial judge considered the State‘s motion to dismiss and summarily dismissed the Rule 32 petition without affording MacEwan аn evidentiary hearing. MacEwan contends that the trial court erred in summarily dismissing her petition because, she says, her Rule 32 counsel‘s correct name and аddress were “clearly listed on the [Rule 32] petition” at the place where counsel had signed the petition, and counsel could have been served, but was not.
A failure on the part of the State in this case to serve its motion to dismiss on counsel for MacEwan in her Rule 32 proceeding is significant because attached to the motion to dismiss was an affidavit by MacEwan‘s trial counsel dеfending his effectiveness in conducting her defense. The summary dismissal of MacEwan‘s рetition deprived her of an opportunity to cross-examine her trial сounsel regarding the assertions he makes in the affidavit, the substance of which may have prompted the trial judge to dismiss the petition.
We cannot say with full confidence that the State‘s failure to serve its motion to dismiss (with the attached affidavit) on MacEwan‘s Rule 32 counsel did not prejudice MacEwan, because the trial judge neglected to enter a written order stating his reasons for summarily dismissing thе petition. While such a written order is not required in a Rule 32 proceeding, it is sound judiсial practice, particularly given the facts presented in this case. See Bowers v. State, 709 So.2d 494, 495 (Ala.Crim.App. 1995). Therefore, in order to allow
APPLICATION GRANTED; OPINION OF JULY 20, 2001, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.
MOORE, C.J., and HOUSTON, LYONS, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.
BROWN, J., concurs in the result.
STUART, J., dissents.