Lead Opinion
Kevin Brent Hall appeals the circuit court’s summary dismissal of his Rule 32, Ala. R.Crim. P., petition for postconviction relief. We affirm.
Facts and Procedural History
In February 1991, Hall was indicted by a Houston County grand jury for unlawful distribution of a controlled substance, see § 13A-12-211, Ala.Code 1975. The indictment alleged that, on December 2, 1990, Hall “did unlawfully sell, furnish, give away, manufacture, deliver, or distribute a controlled substance, to-wit: cocaine.” (C. 21.) Thereafter, on March 10, 1992, Hall, pursuant to a negotiated plea agreement, pleaded guilty to the lesser-included offense of unlawful possession of a controlled substance, see § 13A-12-212, Ala.Code 1975, and, in accordance with that agreement, was sentenced to 10 years’ imprisonment.
Over 23 years later, Hall, on April 25, 2015, filed his first Rule 32 petition challenging his guilty-plea conviction and sentence, In that petition, Hall alleged, among other things, that his sentence was “illegal” because, he said, the circuit court failed to impose on him a $1,000 fine under the Demand Reduction Assessment Act, see § 13A-12-281, Ala.Code 1975. The circuit court summarily dismissed Hall’s petition, and Hall appealed that decision to this Court. See Hall v. State (No. CR-14-1279, Oct. 9, 2015)
In that appeal, a three-member panel of this Court issued an unpublished memorandum affirming the circuit court’s decision
“As for Hall’s second claim—that his sentence was illegal because, he said, the trial court failed to impose the mandatory $1000 fine under the Demand Reduction Assessment Act, see § 13A-12-281, Ala.Code 1975—Hall alleged in his petition and attachments the following facts: that he was arrested on December 4, 1990, for the unlawful distribution of a controlled substance, that he was indicted for the unlawful distribution of a controlled substance on March 1, 1991, that he was arraigned on April 10, 1991, that he pleaded guilty to the lesser-included offense of unlawful possession of a controlled substance on March 12, 1992, and that the trial court failed to impose the $1000 fine pursuant to § 13A-12-281.
“It is well settled that the fine in § 13A-12-281 is ‘mandatory and jurisdictional, and [that] the failure to impose [it] renders a sentence illegal.’ Siercks v. State,154 So.3d 1085 , 1094 (Ala.Crim.App.2013). However, it is also well settled that ‘ “[a] defendant’s sentence is determined by the law in effect at the time of the commission of the offense.” ’ Moore v. State,40 So.3d 750 , 753 (Ala.Crim.App.2009). See also Minnifield v. State,941 So.2d 1000 , 1001 (Ala.Crim.App.2005) (‘It is well settled that the law in effect at the time of the commission of the offense controls the prosecution.’). Section 13A-12-281 was enacted during the 1990 Legislative Session. Hall alleged in his petition and attachments the date he was arrested for the crime, but he failed to allege the date he committed the crime. Unless Hall committed his crime after the effective date of § 13A-12-281, that statute would not be applicable to him. Because Hall failed to allege the date he committed the crime, he failed to plead sufficient facts indicating that § 13A-12-281 was applicable to him and that, therefore, his sentence was illegal.”
Hall v. State (No. CR-14-1279, Oct. 9, 2015)
On October 21, 2015, Hall filed his second Rule 32 petition challenging his 1992 guilty-plea conviction and sentence. In that petition, Hall again alleged that his 10-year sentence was “illegal” because, he said, the circuit court failed to impose on him the demand-reduction assessment. Additionally, relying on this Court’s critique of his first petition, Hall added to his second petition those facts this Court, in its unpublished memorandum, noted that Hall had failed to plead in his first petition.
Specifically, Hall alleged that the Demand Reduction Assessment Act became effective on April 24, 1990, and that he committed the offense of unlawful distribution of a controlled substance after the effective date of that Act—specifically, on December 2, 1990. (C. 16.) Additionally, Hall alleged that, in February 1991, he was indicted for unlawful distribution of a controlled substance and that, on March 10, 1992, he “was offered a ‘plea deal,’ plead[ed] guilty [and] thereafter adjudge[d] guilty/sentenced to (10) years imprisonment for ‘unlawful possession of a control [sic] substance.’” (C. 17.) Hall further alleged that, “[b]efore entering the plea of guilt, the trial judge never informed [him] of [and] never imposed the ‘mandatory fine’ of $1,000 required by the ‘demand reduction assessment act.’” (C. 17.)
On November 2, 2015, the State filed a motion to dismiss Hall’s petition, alleging that Hall’s claim was precluded under Rule 32.2(a), Ala. R.Crim. P., because it was “either raised at trial or could have been, but [was] not raised at trial” or it was “either raised on appeal or could have been, but [was] not raised on appeal”; that Hall’s claim was successive under Rule 32.2(b), Ala. R.Crim. P.; that Hall’s claim was insufficiently pleaded; and that Hall “was granted parole iii this case in 1996, and thus, there is no relief the Court could grant in this case.” (C. 31.)
Thereafter,- the circuit court issued' an order summarily dismissing Hall’s petition, and Hall filed a timely notice of appeal.
Standard of Review
When reviewing a circuit court’s summary dismissal of a postconviction petition “ ‘[t]he standard of review this Court uses ... is whether the [circuit] court abused its discretion.’” Lee v. State,
Furthermore, a circuit court may summarily dismiss a Rule 32 petition pursuant to Rule 32.7(d), Ala. R.Crim. P.,
“[i]f the court determines that the petition is not sufficiently specific, or is precluded, or fails 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.”
Discussion
On appeal, Hall contends that the circuit court erred when it summarily dismissed his second Rule 32 petition because, he says, “it was shown that the trial court failed to impose a mandatory fíne as required by § 13A-12-281, Ala.Code 1975.” (Hall’s brief, p. 6 (emphasis in original).) According to Hall, the circuit court’s failure to impose on him the demand-reduction assessment is a “jurisdictional” claim; is not subject to the grounds of preclusion set forth in Rule 32.2, Ala. R.Crim. P.; and, if true, entitles him to relief.
To support his claim, Hall relies on this Court’s recent decision in Siercks v. State,
In Siercks, this Court, on direct appeal from. Siercks’s conviction for unlawful possession of a controlled substancé, affirmed Siercks’s - conviction but sua sponte recognized that, “[a]t the sentencing hearing, and in its sentencing order, the trial court stated that all fines associated with Siercks’s conviction were waived on the basis of Siercks’s indigency.”
“Section 13A-12-281 (the Demand Reduction Assessment Act) mandates that every person convicted of a.violation.of any offense defined in §§ 13A-12-202, -203, -204, -211, -212, -213, -215, or -231, Ala.Code 1975, ‘shall be assessed for each such offense an additional penalty fixed at $1,000 for first offenders and $2,000 for second and subsequent offenders.’ (Emphasis added.) ... The fine[ ] in § [ ] 13A-12-281 ... [is] not waivable. [It is] mandatory and jurisdictional, and the failure to impose [it] renders a sentence illegal. ‘Matters 'concerning unauthorized sentences are jurisdictional,’ Hunt v. State,659 So.2d 998 , 999 (Ala.Crim.App.1994), and we may take notice of an illegal sentence at any time. See, e.g., Pender v. State,740 So.2d 482 , 484 (Ala.Crim.App.1999).”
It appears that our holding in Siercks is premised on the following logic: The imposition of the demand-reduction assessment is “mandatory,” see Pierson v. State,
Specifically, in Ex parte Clemons,
“We begin by noting that the Court of Criminal Appeals in Davis never characterized the Rule 32.2(a) procedural bars as jurisdictional. Instead, it described them as ‘mandatory but treated them as jurisdictional, holding that they may be applied sua sponte. In support of this conclusion, the Court of Criminal Appeals quoted State v. Osborne,329 Mont. 95 , 98,124 P.3d 1085 , 1087 (2005), which in turn quoted Peña v. State,323 Mont. 347 , 361,100 P.3d 154 , 163 (2004), and noted that ““the statutory rules which circumscribe the postconviction process are jurisdictional in nature.’ ” ’ Davis,9 So.3d at 533 (emphasis added). After noting its ability to ‘sua sponte apply the limitations provision contained in Rule 32.2(c) ... because it is a mandatory provision,’ the Court of Criminal Appeals then concluded that the Rule 32.2(a) procedural bars are likewise mandatory. Although the Court of Criminal Appeals characterized the procedural bars of Rule 32.2(a) as mandatory, its holding in Davis eliminates any meaningful distinction between a mandatory rule of preclusion and one that is jurisdictional.”
In its analysis, Siercks resolves the “waiver” question by stating, without any authority, that the demand-reduction assessment is, quite simply, “not waivable.”
Accordingly, the circuit court did not err when it summarily dismissed Hall’s claim because that claim could have been raised, but was not, either at trial or on appeal. See Rule 32.2(a)(3) and (5), Ala. R.Crim. P.
Based on the foregoing reasons, the judgment of the circuit court is affirmed.
AFFIRMED.
Notes
. Rule 16(d), Ala. R.App. P., provides, in part, that "[t]he courts of appeals may sit in ... panels. ... Every ... panel shall be constituted by at least a majority of the membership of each court of appeals.”
. The State may, of course, waive other issues that do not implicate the jurisdiction of the circuit court. For example, when an incarcerated inmate files a petition for a writ of habeas corpus in the wrong venue, the State may waive any objection to the improper venue by not raising the issue in a timely manner. See Ex parte Culbreth,
. Even if we were inclined to interpret Hall’s claim as "jurisdictional,” his claim was insufficiently pleaded. See Hyde v. State,
Concurrence Opinion
concurring specially.
I concur in this Court’s judgment affirming the circuit court’s summary dismissal of Kevin Brent. Hall’s Rule 32, Ala. R.Crim. P., petition for postconviction relief. I write specially to explain my basis for doing so as well as to address certain aspects of the dissenting opinion. .
Stated simply, the Court’s decision today overrules our recent decisions in Siercks v. State,
As this Court’s opinion explains, Hall’s Rule 32 petition challenged his 1992 guilty-plea conviction for unlawful possession of a controlled substance,. see § 13A-12-212, Ala.Code 1975, and his resulting sentence of 10 years’ imprisonment. In his petition, which was filed nearly 24 years after his 10-year sentence was imposed, Hall alleged that his 10-year sentence was “illegal” because, he said, the circuit court
Under the text of Rule 32, resolution of Hall’s claim is not complicated. First, it simply is not “relief’ to obtain the “remedy” of an additional fine. See Rule 32.1, Ala. R.Crim. P. (“Subject to the limitations of Rule 32.2, any defendant who has been convicted of a criminal offense may institute a proceeding in the court of original conviction to secure appropriate relief. ...” (emphasis added)). Further, however, Rule 32, Ala. R.Crim. P., provides only six limited categories under which a “defendant who has been convicted of a criminal offense” may seek post-conviction relief. Of these six categories, only two are potentially at issue in this case. Specifically, with regard to claims challenging a sentence, Rule 32.1—titled “Scope of Remedy”—provides the following possible avenues under which a petitioner may seek postconviction relief:
(1) “(b) The court was without jurisdiction to render judgment or to impose sentence.”
(2) “(c) The sentence imposed exceeds the maximum authorized by law or is otherwise not authorized by law.”
Rule 32.1(b) and (c), Ala. R.Crim. P. (emphasis added). Thus, Hall’s claim could be either a Rule 32.1(b) claim alleging that the circuit court did not have jurisdiction to impose a sentence or a Rule 32.1(c) claim alleging that the sentence imposed is, in some way, not authorized by law.
Although both categories of claims involve a circuit court’s sentencing error, each category is treated differently under Rule 32. Indeed, as Rule 32.1 explains, the grounds for relief are “[sjubject to the limitations of Rule 32.2,” which limitations provide, in relevant part:
“(a) Preclusion of Grounds. A petitioner will not be given relief under this rule based upon any ground:
a
“(3) Which could have been but was not raised at trial, unless the ground for relief arises under Rule 32.1(b); or
u
“(5) Which could have been but was not raised on appeal, unless the ground for relief arises under Rule 32.1(b).
“(b) Successive Petitions. If a petitioner has previously filed a petition that challenges any judgment, all subsequent petitions by that petitioner challenging any judgment arising out of that same trial or guilty-plea proceeding shall be treated as successive petitions under this rule. The court shall not grant relief on a successive petition on the same or similar grounds on behalf of the same petitioner. A successive petition on different grounds shall be denied unless (1) the petitioner is entitled to relief on the ground that the court was without jurisdiction to render a judgment or to impose sentence or (2) the petitioner shows both that good cause exists why the new ground or grounds were not known or could not have been ascertained through reasonable diligence when the first petition was heard, and that failure to entertain the petition will result in a miscarriage of justice.
“(c) Limitations Period. Subject to the further provisions hereinafter set out in this section, the court shall not entertain any petition for relief from a conviction or sentence on the grounds specified in Rule 32.1(a) and (f), unless the petition is filed: (1) In the case of aconviction appealed to the Court of Criminal Appeals, within one (1) year after the issuance of the certifícate of judgment by the Court of Criminal Ap-peáls under Rule 41, Ala. R.App. P.; or (2) in the case of a conviction not appealed to the Court of Criminal Appeals, within one (1) year after the time for filing an appeal lapses.... ”
Rule 32.2, Ala. R.Crim. P. (emphasis added). Thus, claims under Rule 32.1(b) are not subject to any of the limitations set forth in Rule 32.2, but claims under Rule 32.1(c) are subject to the limitations set forth in Rule 32.2(a) and Rule 32.2(b).
Here, the claim in Hall’s Rule 32 petition, although couched in jurisdictional terms, does not truly implicate the jurisdiction of the circuit court. Indeed, Hall did not allege that the circuit court had no power or authority to impose a demand-reduction assessment; rather, Hall’s claim is premised on his allegation that the circuit court had both the power and the authority to impose a demand-reduction asséssment but did not do so. In other words, Hall’s claim concedes that the circuit court had jurisdiction to impose a sentence. See Ex parte Seymour,
Because Hall’s claim falls under Rule 32.1(c), and he could have, but did not, raise his demand-reduction-assessment claim either at trial or on appeal, and because the State asserted Rule 32.2(a) as an affirmative defense in its motion to dismiss Hall’s petition, the circuit court properly dismissed Hall’s claim under Rule 32.2(a).
Thus, under a plain reading of the text of Rule 32, the resolution of Hall’s claim is straightforward. Our caselaw interpreting illegal-sentence claims under Rule 32—as exemplified in Siercks and Hawk—has muddied the waters, however, and made resolution of a claim like Hall’s less clear than it should be. Indeed, as explained in this Court’s opinion, under the principle articulated in Siercks, which was extended to Rule 32 proceedings in Hawk, Hall would be entitled to the “relief’ he seeks. Those cases, however, incorrectly concluded that' the demand-reduction assessment is “jurisdictional” because it is “mandatory.”
This rule of law—that “unauthorized sentences are jurisdictional”—has been, at
In Ex parte Brannon,
After the Supreme Court decided Ex parte Brannon, our Court extended the not-subject-to-waiver-and-preservation rule articulated in that case to an unauthorized-sentence claim in a Rule 32 petition. Specifically, in Ferguson v. State,
“The sentence imposed following conviction of a crime must conform to the statute and cannot exceed the term prescribed by law.. Howard v. State,390 So.2d 32 (Ala.Cr.App.1980); Opinion of the Clerk No. 4,347 So.2d 524 , (Ala. 1977). When the court imposes sentence in excess of that authorized by statute, it .exceeds its jurisdiction, and the sentence is consequently void. Ex parte McKivett,55 Ala. 236 (1876); City of Birmingham v. Perry,41 Ala.App. 173 ,125 So.2d 279 (1960); 21 Am.Jur.2d Criminal Law § 537 (1981). See also Ex parte Brannon,547 So.2d 68 (Ala.1989).”
Thereafter, our Court continued to apply the not-subject-to-waiver-and-preservation rule to unauthorized-sentence claims in' Rule 32 petitions to ñnd those claims to be “jurisdictional.” In J.N.J. v. State, 690
“An illegal sentence may be challenged at any time. ‘The holding in [Ex parte Brannon,547 So.2d 68 (Ala.1989)] appears to equate an invalid sentence with a “jurisdictional” defect, cf. Rule 16.2(d), A.R.Crim. P. Temp. (“The lack of subject matter jurisdiction ... may be raised ... at any time”).’ Falkner v. State,586 So.2d 39 , 47-48 (Ala.Cr.App.1991); Hunt v. State,659 So.2d 998 (Ala.Cr.App.1994) (‘Matters concerning unauthorized sentences are jurisdictional and, therefore, can be reviewed even if they have not been preserved.’).”
(Emphasis added.) In Calloway v. State,
By using the not-subject-to-waiver-and-preservation rule in the context of Rule 32 proceedings, this Court has, “for over two decades,”
In Hulsey, this Court, on direct appeal from Hulsey’s conviction, addressed Hul-sey’s claim that his indictment was not brought within . the statutory limitations period. The State, in its brief in that appeal, contended that Hulsey’s statute-of-limitations' claim had not been preserved for appellate review because, the State said, Hulsey failed to object to his indictment at trial.
The State, in its application for rehearing, argued that the Alabama Supreme Court, in Ex parte Seymour,
“Ex parte Seymour[,946 So.2d 536 (Ala.2006),] and subsequent decisions have clarified that an indictment that fails to charge an essential element of an offense is not ‘void’ in the sense of affecting the subject-matter jurisdiction of the circuit court. In Ex parte Seymour, the Alabama Supreme Court stated:
“‘Jurisdiction is “[a] court’s power to decide a case or issue a decree.” Black’s Law Dictionary 867 (8th ed.2004). Subject-matter jurisdiction concerns a court’s power to decide certain types of cases.... That power is derived from the Alabama Constitution and the Alabama Code.... In deciding whether ' Seymour’s claim properly challenges the trial court’s subject-matter jurisdiction, we ask only whether the trial court had the constitutional and statutory authority to try the offense with which Seymour was charged and as to which he has filed his petition for certiorari review.
“ ‘Under the Alabama Constitution, a circuit court “shall exercise general jurisdiction in all cases except as maybe otherwise provided by law.” Amend. No. 328, § 6.04(b), Ala. Const.1901. The Alabama Code provides that “[t]he circuit court shall have exclusive original jurisdiction of all felony prosecutions.... ” § 12-11-30, Ala.Code 1975. The offense of shooting into an occupied dwelling is a Class B felony. § 13A-ll-61(b), Ala. Code 1975. As a result, the State’s prosecution of Seymour for that offense was within the circuit court’s subject-matter jurisdiction, and a defect in the indictment could not divest the circuit court of its power to hear the case.
“ ‘The United States Supreme Court has long held that “defects in an indictment do not deprive a court of its power to adjudicate a case.” [United States v.] Cotton, 535 U.S. [625] at 630,122 S.Ct. 1781 [152 L.Ed.2d 860 (2002)]....’
“946 So.2d at 538 .
“Thus, Ex parte Seymour stands for the proposition that a defective indictment may nevertheless invoke the subject-matter jurisdiction of the circuit court, and, if the particular defect is not objected to in a timely manner, the defect will be waived and will not provide a basis for setting aside the conviction based on that indictment.
“Even after Ex parte Seymour, however, this Court and the Alabama Supreme Court have continued to refer to statutes of limitations as a ‘jurisdictional’ matter. In Ex parte Ward,46 So.3d 888 (Ala.2007), the Alabama Supreme Court noted that this Court had ‘conflated statutes of limitations with procedural limitations periods such as the one in Rule 32.2(c)[, Ala. R.Crim. P.]’ The Alabama Supreme Court in Ex parte Ward clearly distinguished procedural limitations periods from statutory limitations peri-, ods on criminal prosecution. Procedural limitations are affirmative defenses subject to the ordinary rules regarding waiver. Statutory limitations periods in a criminal prosecution, however, are ‘jurisdictional’—not in the sense of affecting the subject-matter jurisdiction of the circuit court but in the sense of not being subject to the ordinary rules of preservation and waiver.”
Hulsey,
The dissenting opinion “question[s] whether the majority’s holding today conflicts with the Alabama Supreme Court’s opinion in Pierson v. State,
“In Pierson, the’ defendant was convicted of the unlawful distribution of a controlled substance and was sentenced to 12 years’ imprisonment. The trial court did not impose the fíne in § 13A-12-281, and the State did not object or otherwise raise in the trial court any issue relating to the fine. Therefore, under the general rules of preservation and' waiver, the State waived imposition of the fine. See, e.g., Ex parte Coulliette,857 So.2d 793 , 794 (Ala.2003) (noting that the rules of preservation and waiver restrict appellate review to questions and issues properly and timely raised at the trial level); and Ex parte Knox,201 So.3d 1213 (Ala.2015) (applying the rules of preservation and waiver to the State). Nonetheless, when the defendant appealed her conviction and sentence, the State argued for the first time in this Court that the fine in § 13A-12-281 was mandatory and that the trial court had erred in not imposing it, and the State requested that this Court remand the case for imposition of the fine. This Court first noted that the State had not raised any issue relating to the fine at the trial level and then held that § 13A-12-281, although written in mandatory terms, was permissive. Pierson v. State,677 So.2d 242 (Ala.Crim.App.1994). We declined the State’s requestto remand the cause for imposition of the fine, and we affirmed the trial court’s judgment.
“The State sought. certiorari review, and the Alabama Supreme Court concluded that this Court had erred in holding that § 13A-12-281 was permissive and it held ‘that the provisions of the Demand Reduction Assessment Act are mandatory.’ Pierson,677 So.2d at 247 . However, instead of affirming this Court’s judgment on the ground that the State, had waived application of the fine in § 13Á-12-281 by not raising the issue at the trial level, the Supreme Court reversed this Court’s judgment and directed this Court to remand the case for imposition of the fine. At no point in its opinion in Pierson did the Alabama Supreme Court use the term ‘jurisdictional’ or state that the failure to impose the fíne in § 13A-12-281 rendered the defendant’s sentence illegal. Nor did the Supreme Court state at any point in its opinion that the''failure to impose the fine was nothing more than an exception to preservation that could be raised for the first time on appeal but was not jurisdictional. The Supreme Court simply did not explain in its opinion why it was ordering imposition of the fine when the issue had been waived by the State. Therefore, because I cannot say with any degree of certainty whether Pierson stands for the proposition that the fine in § 13A-12-281 is jurisdictional and not waivable by the State, as this Court has interpreted that opinion for over two decades, or for the proposition that the failure to impose the fine is nothing more than an exception to preservation, I must question whether the majority’s holding today conflicts with Pierson.”
When it reads Pierson this broadly, the dissenting opinion finds a subject-matter-jurisdiction defect to exist by implication. This broad reading suffers from the same logical fallacy as Siercks and Hawk: post hoc, ergo propter hoc. Simply because a statute is written in mandatory terms does not mean that the failure to follow that statute is a defect in the proceeding that implicates subject-matter jurisdiction.
Additionally, the rule that “[mjatters concerning unauthorized sentences are jurisdictional” is inconsistent with the text of Rule 32. Indeed, as explained above, claims challenging a sentence under Rule 32 fall under the purview of either Rule 32.1(b) or Rule 32.1(c). Holding that, in a Rule 32 proceeding, “[mjatters concerning unauthorized sentences are jurisdictional” ignores the text of Rule 32.1 and puts all unauthorized-sentence claims under the purview of both Rule 32.1(b) and Rule 32.1(c),, thus eliminating any meaningful distinction between claims' arising under Rule 32.1(b) and claims arising under Rule 32.1(c).
Although eliminating this distinction may seem trivial, improperly classifying a claim under Rule 32.1 greatly impacts how
Because sentencing claims brought under Rule 32.1(c) are subject to preclusion and sentencing claims brought under Rule 32.1(b) are not, we should not ignore the text of Rule 32 and apply a not-subject-to-waiver-on-direct-appeal rule to a Rule 32 proceeding that eliminates any meaningful distinction between Rule 32.1(b) and Rule 32.1(c); rather, this Court should properly move toward categorizing sentencing claims as being either “jurisdictional” (Rule 32.1(b)) or “unauthorized” (Rule 32.1(c)).
Continuing to apply to Rule 32 proceedings the rule that all “[mjatters concerning unauthorized sentences are jurisdictional” creates absurd sentencing-claim scenarios that are deemed “jurisdictional,” that entitle a petitioner to “relief,” and that are not subject to the grounds of preclusion set forth in Rule 32.2. This case is an example of such an absurd scenario.
Specifically, as set out above, Hall has alleged'that his sentence was “illegal” because the circuit court failed to impose on him a $1,000 demand-reduction assessment. To “cure” this error, Hall contends that he is entitled to the postconviction “relief’ of being resentenced by the circuit court so that court could'impose on him the demand-reduction assessment. In other words, Hall seeks to use Rule 32 to receive additional punishment from the circuit court. This is nonsense.
It is not difficult to imagine other ridiculous scenarios. For example, imagine a Rule 32 petitioner who alleges that he was sentenced to 10 years’ imprisonment for a conviction for a Class C felony, imagine further that he claims that his 10-year sentence is “illegal” because, he says, he has three prior felony offenses for purposes of the Habitual Felony Offender Act (“the HFOA”); that the State invoked the HFOA and properly proved all three prior felony offenses at his sentencing hearing; and that the circuit court, although acknowledging the existence of the three prior felony offenses, did not sentence him under the HFOA. Because, he says, his sentence is “unauthorized” under the HFOA, and because “[mjatters concerning unauthorized sentences are jurisdictional,” the circuit court must.“grant” him postcon-viction “relief’ and resentence him to a harsher sentence under the HFOA—up to, and including, life imprisonment. This simply is not “relief.”
Like the writ of habeas corpus, Rule 32 exists as a possible key to “unlock the prison doors,” see- Barton v. City of Bessemer,
. To be clear, this Court, has not overruled Siercks with regard to claims on direct appeal alleging that the circuit court failed to impose ' a demand-reduction assessment.
. Judge Kellum, in her dissenting opinion, says that the holding in Siercks was not based on the fact that the demand-reduction assessment was written in mandatory terms. Siercks unequivocally states, however, that the demand-reduction assessment "mandates that every person convicted of [certain drug offenses] 'shall be assessed ... $1,000 for first offenders and $2,000 for second and subsequent offenders.’ (Emphasis added.) The fines- in §§ 13A-12-281 and 36-18-7(a) are not waivable. They are mandatory and jurisdictional, and the failure to impose them renders a sentence illegal."
. As explained more thoroughly below, at root, my critique of this Court’s jurisprudence is that our. use of the term “jurisdictional” is not consistent with the language of Rule 32 or the concept of subject-matter jurisdiction the Alabama Supreme Court delineated in Ex parte Seymour, 946 So,2d 536 (Ala.2006). In short, l am arguing that there is a difference in Rule 32.1(b) and Rule 32.1(c). Rather than randomly ignoring it, our caselaw should reflect that difference,
. “Rule 32 was first adopted by the Alabama Supreme Court as Rule 20, Temporary Rules of Criminal Procedure, on January 20, 1987, ' with an effective date of April 1, 1987." Hugh Maddox, Alabama' Rules of Criminal Procedure, § 32,0 (5th ed.2011).
. The dissenting opinion cites Ex parte Batey,
This distinction, although nuanced, is important. Indeed, as explained below, requiring a circuit court to recognize the failure to impose a demand-reduction assessment as a "jurisdictional” defect results in that court having to grant a Rule 32 petitioner "relief” in the form of receiving additional and harsher punishment.
. I have authored or voted in support of many of those decisions. To that charge, I plead: “None but a fool is always right.”
. In a footnote, the dissenting opinion asserts that the Court’s decision "implicitly overrules” 51 cases. Notably, however, not a single one of those cases involves a Rule 32 proceeding; they all involve this Court’s review of sentences on direct appeal. The Court’s decision today does not hold that the Demand Reduction Assessment is subject to the ordinary rules of preservation and wavier for purposes of direct appeal; rather, the Court’s decision holds that a claim alleging that the circuit court failed to impose a Demand Reduction Assessment is a nonjurisdic-tional claim for purposes of Rule 32. Thus, the report of the overruling of those 51 decisions is greatly exaggerated.
. The dissenting opinion would remand this case to the circuit court to allow Hall an opportunity to prove his claim. If he proves his claim, the dissenting opinion says, the circuit court should impose on Hall the additional punishment he requests. This position, however, converts Rule 32 from a mechanism by which a defendant can obtain "relief” to a mechanism by which additional punishment can be imposed.
Dissenting Opinion
dissenting.
I cannot agree to overrule Siercks v. State,
The holding in Siercks, an opinion that I authored, and subsequently in Hawk was not based on the fact that § 13A-12-281, Ala.Code 1975, is written in mandatory terms
In his dissenting opinion in Steele v. State,
“Although Bradley Neal Steele pleaded guilty in this case to trafficking in marijuana, a violation of § 13A-12-231(1), Ala.Code 1975, pursuant to a plea agreement with the State, the mandatory fines in § 13A-12-281, Ala.Code 1975, and § 36-18-7(a), Ala.Code 1975, were not part of that agreement and were not imposed as part of his sentence. Ex parte Johnson,669 So.2d 205 (Ala.1995), and Scott v. State,742 So.2d 799 (Ala.Crim.App.1998), relied on by the majority in reaching its conclusion that this case should not be remanded for the imposition of the mandatory fines,[14] deal solely with the specific enforcement of a valid plea agreenient calling for a legal sentence. In both of those cases, the enhancements that were not part of the plea agreements— §§ 13A-12-250 and 13A-12-270, Ala.Code 1975, in Ex parte Johnson, and § 13A-5-9, Ala.Code 1975 (the Habitual Felony Offender Act OHFOA’)), in Scott—are not self-exeeut-ing enhancements. The HFOA must be invoked before it is legally applicable to sentence, see, e.g., Ex parte Williams,510 So.2d 135 ,136 (Ala.1987) (([I]n order to sentence a criminal defendant under the Habitual Felony Offender Act, the Act must be invoked prior to the defendant’s original sentencing.’), and the State must not only assert, but must •properly prove the enhancements in §§ 13A-12-250 and 13A-12-270 before they are legally applicable to a sentence,see, e.g,, White v. State, 4 So.3d 1208 (Ala.Crim.App.2008) (refusing to remand for imposition of the sentence enhancements in §§ 13A-12-250 and 13A-12-270 where, although .the enhancements were charged in the indictment, the State did not include any facts in the factual basis for the pleas to support imposition of the enhancements). In Ex parte Johnson and Scott, the enhancements in §§ 13A-12-250 and 13A-12-270 and the HFOA were not included by the State in the plea agreements and, thus, were waived by the State and were not applicable to the sentences in those cases.1
“However, the fines in § 13A-12-281, Ala.Code 1975, and § 36-18-7(a), Ala. Code 1975, are self-executing, i.e., the State does not have to assert them before they are legally applicable to a sentence, and they have been treated by this Court as not only mandatory, but also jurisdictional, rendering a sentence illegal if they are not imposed. The Alabama Supreme Court did not hold in Ex parte Johnson, and this Court did not hold in Scott, that a defendant is entitled to specific enforcement of a plea agreement calling for an illegal sentence. Indeed, it appears that that particular issue has never been specifically addressed by the Alabama Supreme Court. However, this Court has held that ‘[a] trial court cannot accept a plea agreement that calls for an illegal sentence.’ Calloway v. State,860 So.2d 900 , 906 (Ala.Crim.App.2002) (opinion on return to remand and on second application for rehearing). See Moore v. State,871 So.2d 106 (Ala.Crim.App.2003), and Austin v. State,864 So.2d 1115 (Ala.Crim.App.2003). See also State v. Cortner,893 So.2d 1264 , 1273 (Ala.Crim.App.2004) (‘[W]e cannot uphold [a trial court’s] decision to order the specific performance of what is clearly an illegal agreement.’), and Warren v. State,706 So.2d 1316 , 1317 n. 3 (Ala.Crim.App.1997) (‘[A] defendant cannot consent to a sentence that is. beyond the authority of the court.’). Although there is a split in authority in other jurisdictions as to whether specific performance of a plea agreement is the proper remedy for a defendant who pleads guilty pursuant to an agreement that calls for an illegal sentence, see, e.g., People v. Caban,318 Ill.App.3d 1082 ,252 Ill.Dec. 732 ,743 N.E.2d 600 (2001), and State v. Parker,334 Md. 576 ,640 A.2d 1104 (1994), and the cases cited therein, it appears to me that the remedy in Alabama in a case in which the plea agreement is invalid because it calls for an illegal sentence is not specific performance, but to allow the defendant to withdraw his or her plea.
“Because the fines in § 13A-12-281 and § 36-18-7(a) are mandatory and jurisdictional, thé sentence in this case is illegal, and this Court must take notice of that and remand the case for imposition of the fines. By not doing so—and instead holding that Steele is entitled to specific enforcement of the plea agreement—the majority is implicitly holding [in the present case, explicitly holding] that the failure to impose the fines in § 13A-12-281 and § 36-18-7(a) does not render a sentence illegal, i.e., that the fines are not jurisdictional and, thus, that this Court cannot, from this point forward, take notice of the failure of a trial court to impose them in any cas.e. I cannot agree with that holding in light of this Court’s previous treatment of the fines as jurisdictional. This Court should be consistent in its treatment of the fines. The fines are either jurisdictional or they are not. This Court has consistently treated the fines as jurisdictional in the past; thus, they must betreated as jurisdictional in this case. I would remand this case to the trial court for it to impose the fines and then to allow Steele an opportunity to withdraw his plea if he so chooses. Therefore, I respectfully dissent.
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I agree with Judge Shaw’s dissent in Steele.
I also question whether the majority’s holding today conflicts with the Alabama Supreme Court’s opinion in Pierson v. State,
The State sought certiorari review, and the Alabama Supreme .Court concluded that this Court had erred in holding that § 13A-12-281 was permissive and held “that the provisions of the Demand Reduction- Assessment Act are mandatory.” Pierson,
In any event, since Pierson, the Alabama Supreme Court “has held that ‘“a challenge to an illegal sentence is jurisdictional and can be raised at any time.”’” Ex parte Jarrett,
Judge Joiner also appears to question whether the caselaw holding that a challenge to an illegal sentence is jurisdictional survived the Alabama Supreme Court’s decision in Ex parte Seymour,
“This Court recently narrowed the scope of the jurisdictional exception to Rulé 32 in Ex parte Seymour,946 So.2d 536 (Ala.2006), overruling a line of cases that had held that a defect in an indictment is a jurisdictional matter that is not procedurally barred. In Seymour, we held that a defective indictment does not deprive the trial court of jurisdiction to hear the case, and that, therefore, a claim that an indictment is defective is not exempt from the Rule 32[, Ala. R.Crim. P.,] bar. An illegal sentence, however, differs from a defective indictment. As we- explained in Seymour, ⅛ trial court derives its jurisdiction from the Alabama Constitution and the Alabama Code.’946 So.2d at 538 . The HFOA [Habitual Felony Offender Act], which is a provision of the Alabama Code, specifically vests a court with the authority to enhance a sentence; therefore, the court does not have the authority to impose a sentence that exceeds the scope of the HFOA. In doing so the court would be exceeding its jurisdiction.”
In this case, Kevin Brent Hall pleaded sufficient facts in his Rule 32, Ala. R.Crim. P., petition for postcoiiviction relief indicating that the sentence imposed for his 1992 guilty-plea conviction for unlawful possession of a controlled substance was outside the applicable statutory range of punishment and, therefore, was illegal because the trial court did not impose the fine in § 13A-12-281. “It is well settled that a facially valid challenge to the legality of a sentence presents1 a jurisdictional issue that can be raised at any time and that is not subject to the procedural bars of Rule 32.2, Ala. R.Crim. P.” Brand v. State,
WELCH, J., concurs.
. This Court held in Siercks that § 13A-12-281 was both mandatory and jurisdictional, not that § 13A-12-281 was jurisdictional because it was mandatory.'
. Although the majority today expressly overrules only Siercks and Hawk, it also is implicitly overruling the following cases, in which this Court treated the fine in § 13A-12-281 as jurisdictional either by sua sponte taking notice of the trial court’s failure to impose the fine in § 13A-12-281 or of the trial court's improper imposition of the fine in § 13A-12-281, or by being alerted to the trial court’s failure to impose the fine in § 13A-12-281 by the State, and remanding for the imposition, correction, or setting aside of the fine regardless of whether the issue of the fine had been raised by the State or by the defendant at the trial level: Sistrunk v. State,
14. I recognize that the majority in this case does not rely on Scott v. State,
"1 Of course, once the HFOA is invoked and it is clear from the record that the defendant has one or more pri- or convictions, the HFOA then becomes jurisdictional and this Court must take notice of-the trial court’s failure to apply it. See, e.g., Ingram v. State,
. Of note, however, is the fact that the Supreme Court’s opinion in Pierson was released only a month after the Court's opinion in Ex parte Johnson, supra, in which the Court held that the sentencing enhancements in §§ 13A-12-250 and 13A-12-270 were waivable by the State. When it decided Pier-son, then, the Supreme Court was keenly aware of the State’s ability to waive the applicability of certain sentencing statutes, but it chose in Pierson to order imposition of the fine in § 13A-12-281 despite the State’s waiver, which suggests to me that, contrary to the majority’s holding today, the State cannot waive application of the fine in § 13A-12-281.
. An unauthorized sentence and an illegal sentence are synonymous. See Black's Law Dictionary 864, 1771 (10th ed.2014) (defining “illegal” as "[fjorbidden by law” or "unlawful” and, in turn, defining "unlawful," in relevant part, as "[n]ot authorized by law”).
. Because the 10-year incarceration portion of Hall's sentence, which Hall does not challenge in his petition, was legal, it may not be changed. See Wood v. State,