Gay v. State

Jun 12, 1992
CR-91-242
Versions:624 So. 2d 1389
1992 Ala. Crim. App. LEXIS 386
1992 WL 136205

Dissenting Opinion

BOWEN, Judge,

dissenting.

Ex parte Rice, 565 So.2d 606 (Ala.1990), does not require the remand of every petition unanswered by the State. As I have stated before, “neither Rice nor the Rules of Criminal Procedure prevent the circuit court, in an appropriate ease, from dismissing a petition for post-conviction relief without first having a response from the prosecutor.” Bishop v. State, 592 So.2d 664, 665 (Ala.Cr.App.1991) (Bowen, J., dissenting).

Rule 32.7(d) provides for summary disposition by the trial court of a petition for post-conviction relief if

“the court determines that the petition is not sufficiently specific, or is precluded, or *1390fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings.... ”

In this case, the petitioner challenges his 1988 conviction for robbery. That conviction was affirmed on direct appeal. See Gay v. State, 562 So.2d 283 (Ala.Cr.App.1990). The petitioner presents the following grounds for relief: (1) his conviction was based on evidence obtained pursuant to an unlawful arrest; (2) ^the prosecution failed to disclose exculpatory evidence; (3) the court had no jurisdiction to impose a sentence of life without parole because his prior convictions used to enhance punishment under the Alabama Habitual Felony Offender Act either were not properly proved, or (4) were based on Youthful Offender adjudications, or were the result of “illegal guilty pleas”; and (5) his trial and appellate counsel were ineffective.

The first three grounds could or should have been raised on direct appeal. See Rule 32.2(a)(3) and (5). The fourth ground is not cognizable in a petition attacking the petitioner’s robbery conviction. See Lochli v. State, 565 So.2d 294, 296 (Ala.Cr.App.1990) (validity of underlying prior convictions should be challenged by filing a separate Rule 32 petition attacking each underlying conviction).

Regarding the fifth ground, ineffectiveness of counsel, petitioner alleges that

“his court appointed counsel was grossly ineffective at trial and his court appointed counsel was also grossly ineffective on the appellate level, such as was to render the petitioner’s trial unconstitutional and also his sentence hearing, was such as to render the petitioner’s fundamental overall litigation by his trial counsel and his appellate counsel, to the fact that this petitioner’s trial was a sheer mockery of this honorable court’s intelligence.”

These allegations are unsupported by any facts and warrant dismissal of the petition for “fail[ure] to state a claim” under Rule 32.7(d).

When it is clear that the petitioner is not entitled to relief under any circumstances, the trial court is authorized to dismiss the petition without requiring a response from the State. See Bishop v. State, supra.





Lead Opinion

MONTIEL, Judge.

Phillip Gay filed a post-conviction petition with the Coffee Circuit Court, attacking his first degree robbery conviction. In his petition, the appellant raises numerous grounds. The trial judge denied the petition without a hearing.

This cause must be remanded to the circuit court because of the State’s failure to respond, as required by Rule 32.7(a), A.R.Crim. P., to the allegations raised by the appellant in his petition. See Ex parte Rice, 565 So.2d 606 (Ala.1990); Smith v. State, 581 So.2d 1283 (Ala.Crim.App.1991), Rivers v. State, 583 So.2d 1368 (Ala.Crim.App.1991); Hughley v. State, 597 So.2d 764 (Ala.Crim.App.1992). But see Young v. State, 600 So.2d 1073 (Ala.Crim.App.1992) (prosecutor’s failure to file a statement of specific grounds of preclusion in response to Rule 32 petition may be harmless error). This cause is remanded to the trial court with directions that the State respond to the allegations raised in the appellant’s petition. The trial court is authorized to hold an evidentiary hearing if it deems a hearing is necessary. A return to remand will be filed with this court in 60 days.

REMANDED WITH DIRECTIONS.

PATTERSON, P.J., and McMILLAN, J., concur. BOWEN, J., dissents with opinion in which TAYLOR, J., joins.