Pearson v. State, 777 So. 2d 308

Lead Opinion

McMILLAN, Judge.

This appeal arises from the summary dismissal of the Rule 32, Ala.R.Crim. P., petition for posteonviction relief filed by the appellant, Billy Jerome Pearson. On August 13, 1997, the appellant pleaded guilty to two counts of unlawful distribution of a controlled substance. He was sentenced as a habitual felon to two concurrent 25-year terms of imprisonment. Each sentence included a 15-year base sentence, a 5-year enhancement pursuant to § 13A-12-250, Ala.Code 1975, because the sales occurred within three miles of an educational institution, and a 5-year enhancement pursuant to § 13A-12-270, Ala. Code 1975, because the sales occurred within three miles of a public housing project. The appellant did not appeal, but filed the petition at issue in this appeal, his third Rule 32 petition, on September 7, 1999. In this petition he argued that his trial counsel was ineffective for (1) failing to object to the State’s evidence that the sales occurred within three miles of a public school and a housing project; (2) failing to object to the lack of evidence that “Pine-crest School” was an educational institution and that the alleged housing project was owned by the housing authority; (3) and failing to object to the State’s failure to provide notice to the appellant that it intended to proceed under the enhancement provisions. The circuit court denied the appellant’s petition without an eviden-tiary hearing, stating in a detailed written order that the appellant’s allegations were without merit because the appellant stipulated at his guilty plea hearing that the enhancement provisions would apply.

The circuit court’s finding that the appellant’s allegations were without merit was correct. The appellant conceded in his Rule 32 petition that he stipulated at his guilty plea hearing that the unlawful sales occurred within three miles of an educational facility and within three miles of a housing project. Therefore, the appellant, in effect, argues that his counsel was ineffective for failing to object to his own testimony at his guilty plea hearing. Furthermore, the appellant has failed to allege that any alleged ineffectiveness of counsel prejudiced his case as required under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). He has not alleged, or presented any evidence indicating that Pine-crest School is not an educational institution, or that the alleged housing project was not owned by the housing authority. Therefore, the appellant has failed to show how his case would have been affected in any manner. The circuit court correctly held that the appellant’s allegations were without merit.

The appellant claims that the trial court erred by failing to grant his motion to supplement the record. The appellant requested that the circuit clerk include a copy of the transcript of his guilty plea and sentencing proceeding in the record. However, the appellant’s stipulation that the requirements for the enhancements had been met is included in the appellant’s petition and the appellant has failed to show how a transcript of the guilty plea and sentencing hearing would change the circuit court’s decision. Therefore, the circuit court’s denial of the appellant’s motion to supplement the record was not error.

Although the circuit court’s summary denial of the appellant’s Rule 32 petition is due to be affirmed, the appellant’s sentences do not conform to the requirements of § 13A-12-250 and -270, Ala.Code 1975. In Fletcher v. State, 675 So.2d 55, 56 (Ala.Cr.App.1995), this Court held that the 5-year enhancements provided for in § 13A-12-250 and § 13A-12-270 must be served consecutively with every other penalty imposed upon the defendant, including sentences involved in separate counts. Quoting Scott v. State, 627 So.2d 1131, 1133 (Ala.Cr.App.1993), this Court stated:

“The legislative intent is that the five-year penalties shall not run concurrently with each other or any other sentence imposed. The enhancement terms provided for by these statutes must be ‘added to’ any other penalty pronounced by the court.”

Fletcher had been convicted of two counts of unlawful distribution of a controlled substance and had been sentenced to 10 years and 1 day on each count with 5-year enhancements under § 13A-12-250 and § 13A-12-270 added to each count. Fletcher, 675 So.2d at 56. The two sentences, which each totalled 20 years and a day, were to be served concurrently. Id. However, this Court remanded Fletcher’s case to the trial court for resentencing because the enhancements in one count were improperly allowed to be served concurrently with the enhancements in the other count.

In the instant case, the appellant pleaded guilty to two counts of unlawful distribution of controlled substances and was given two separate sentences, each sentence containing enhancements pursuant to § 13A-12-250 and § 13A-12-270. As was the case in Fletcher, the trial court in the present case improperly ordered each sentence to be served concurrently with the other sentence, resulting in the enhancements in one count being served concurrently with the enhancements in the other count. Although it was permissible to order that the 15-year base sentences be served concurrently with each other, the enhancements were to be served consecutively with every other penalty involved. Therefore, the sentences imposed upon the appellant did not comply with the statutory requirements and are due to be reversed. This case is remanded to the circuit court with instructions to resen-tence the appellant in a manner consistent with this opinion. Due return shall be made to this court within 42 days of the date of this opinion.

REMANDED WITH INSTRUCTIONS.

LONG, P.J., and COBB, BASCHAB, and FRY, JJ., concur.

On Return to Remand

McMILLAN, Judge.

On February 25, 2000, this Court remanded this case to the trial court with instructions to resentence the appellant, Billy Jerome Pearson, in accordance with Fletcher v. State, 675 So.2d 55 (Ala.Cr.App.1995). See Pearson v. State, 777 So.2d 308 (Ala.Cr.App.2000). In Pearson, the appellant had pleaded guilty to two counts of the unlawful distribution of a controlled substance, and the trial court sentenced the appellant as a habitual felon to two sentences of 25 years’ imprisonment, to be served concurrently. Each sentence included a 15-year base sentence and a 5-year enhancement pursuant to § 13A-12-250, Ala.Code 1975, because the sales occurred within 3 miles of an educational institution, and a 5-year enhancement pursuant to § 18A-12-270, Ala.Code 1975, because the sales occurred within 3 miles of a public housing project. During the appellant’s appeal of the denial of a Rule 32 petition, this Court held that the concurrent sentences did not conform to the requirements of § 13A-12-250, -270, Ala.Code 1975, as expressed in Fletcher. In Fletcher, this Court held that the five-year enhancements provided for in § 13A-12-250 and § 13A-12-270 must be served consecutively with every other penalty imposed upon the defendant, including sentences involved in separate counts. Because the trial court had ordered the sentences in separate counts, including the enhancement portions of the sentences, to be served concurrently, this Court remanded the case, directing the trial court to order the enhancement provisions to be served consecutively with all other sentences.

Although the trial court has fully complied with our directions and has filed a return to our remand order, on March 10, 2000, the Alabama Supreme Court in Ex parte Garner, [Ms. 1981307, Mar. 10, 2000 (Ala.2000)], — So.2d —, overruled Fletcher, holding that a trial court may order enhanced sentences imposed as the result of separate offenses to be served concurrently. Because the trial court’s original order complies with the Alabama Supreme Court’s interpretation of § 13A-12-250 and -270, Ala.Code 1975, the trial court’s order resentencing the appellant is vacated, and that court is directed to reinstate its original order sentencing the appellant to concurrent terms. This case is remanded to the trial court with instructions to enter an order consistent with this opinion. Due return should be made to this Court within 42 days of the release of this opinion.

ORDER VACATED; REMANDED WITH INSTRUCTIONS.^*

LONG, P.J., and COBB, BASCHAB, and FRY, JJ., concur.

* Note from the reporter of decisions: On June 23, 2000, on return to remand, the Court of Criminal Appeals affirmed, without opinion.

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Lead Opinion

This appeal arises from the summary dismissal of the Rule 32, Ala.R.Crim.P., petition for postconviction relief filed by the appellant, Billy Jerome Pearson. On August 13, 1997, the appellant pleaded guilty to two counts of unlawful distribution of a controlled substance. He was sentenced as a habitual felon to two concurrent 25-year terms of imprisonment. Each sentence included a 15-year base sentence, a 5-year enhancement pursuant to § 13A-12-250, Ala. Code 1975, because the sales occurred within three miles of an educational institution, and a 5-year enhancement pursuant to § 13A-12-270, Ala. Code 1975, because the sales occurred within three miles of a public housing project. The appellant did not appeal, but filed the petition at issue in this appeal, his third Rule 32 petition, on September 7, 1999. In this petition he argued that his trial counsel was ineffective for (1) failing to object to the State's evidence that the sales occurred within three miles of a public school and a housing project; (2) failing to object to the lack of evidence that "Pinecrest School" was an educational institution and that the alleged housing project was owned by the housing authority; (3) and failing to object to the State's failure to provide notice to the appellant that it intended to proceed under the enhancement provisions. The circuit court denied the appellant's petition without an evidentiary hearing, stating in a detailed written order that the appellant's allegations were without merit because the appellant stipulated at his guilty plea hearing that the enhancement provisions would apply.

The circuit court's finding that the appellant's allegations were without merit was correct. The appellant conceded in his Rule 32 petition that he stipulated at his guilty plea hearing that the unlawful sales occurred within three miles of an educational facility and within three miles of a housing project. Therefore, the appellant, in effect, argues that his counsel was ineffective for failing to object to his own testimony at his guilty plea hearing. Furthermore, the appellant has failed to allege that any alleged ineffectiveness of counsel prejudiced his case as required under Strickland v. Washington, 466 U.S. 668,687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). He has not alleged, or presented any evidence indicating that Pinecrest School is not an educational institution, or that the alleged housing project was not owned by the housing authority. Therefore, the appellant has failed to show how his case would have been affected in any manner. The circuit court correctly held that the appellant's allegations were without merit.

The appellant claims that the trial court erred by failing to grant his motion to supplement the record. The appellant requested that the circuit clerk include a copy of the transcript of his guilty plea and sentencing proceeding in the record. However, the appellant's stipulation that the requirements for the enhancements had been met is included in the appellant's petition and the appellant has failed to show how a transcript of the guilty plea and sentencing hearing would change the circuit court's decision. Therefore, the circuit court's denial of the appellant's motion to supplement the record was not error.

Although the circuit court's summary denial of the appellant's Rule 32 petition is due to be affirmed, the appellant's sentences do not conform to the requirements of §§ 13A-12-250 and -270, Ala. Code 1975. In Fletcher v. State,675 So.2d 55, 56 (Ala.Cr.App. 1995), this Court held that the 5-year enhancements provided for in § 13A-12-250 and § 13A-12-270 must be served consecutively with every other penalty imposed upon the defendant, including sentences involved in separate counts. Quoting Scott v. State, 627 So.2d 1131, 1133 (Ala.Cr.App. 1993), this Court stated:

"The legislative intent is that the five-year penalties shall not run concurrently with each other or any other sentence imposed. The enhancement terms provided for by these statutes must be `added to' any other penalty pronounced by the court."

Fletcher had been convicted of two counts of unlawful distribution of a controlled substance and had been sentenced to 10 years and 1 day on each count with 5-year enhancements under § 13A-12-250 and § 13A-12-270 added to each count. Fletcher, 675 So.2d at 56. The two sentences, which each totaled 20 years and a day, were to be served concurrently. Id. However, this Court remanded Fletcher's case to the trial court for resentencing because the enhancements in one count were improperly allowed to be served concurrently with the enhancements in the other count.

In the instant case, the appellant pleaded guilty to two counts of unlawful distribution of controlled substances and was given two separate sentences, each sentence containing enhancements pursuant to § 13A-12-250 and § 13A-12-270. As was the case in Fletcher, the trial court in the present case improperly ordered each sentence to be served concurrently with the other sentence, resulting in the enhancements in one count being served concurrently with the enhancements in the other count. Although it was permissible to order that the 15-year base sentences be served concurrently with each other, the enhancements were to be served consecutively with every other penalty involved. Therefore, the sentences imposed upon the appellant did not comply with the statutory requirements and are due to be reversed. This case is remanded to the circuit court with instructions to resentence the appellant in a manner consistent with this opinion. Due return shall be made to this court within 42 days of the date of this opinion.

REMANDED WITH INSTRUCTIONS.

LONG, P.J., and COBB, BASCHAB, and FRY, JJ., concur.

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Addendum

On Return to Remand

On February 25, 2000, this Court remanded this case to the trial court with instructions to resentence the appellant, Billy Jerome Pearson, in accordance with Fletcher v. State, 675 So.2d 55 (Ala.Cr.App. 1995). See Pearson v. State, 777 So.2d 308 (Ala.Cr.App. 2000). In Pearson, the appellant had pleaded guilty to two counts of the unlawful distribution of a controlled substance, and the trial court sentenced the appellant as a habitual felon to two sentences of 25 years' imprisonment, to be served concurrently. Each sentence included a 15-year base sentence and a 5-year enhancement pursuant to § 13A-12-250, Ala. Code 1975, because the sales occurred within 3 miles of an educational institution, and a 5-year enhancement pursuant to §13A-12-270, Ala. Code 1975, because the sales occurred within 3 miles of a public housing project. During the appellant's appeal of the denial of a Rule 32 petition, this Court held that the concurrent sentences did not conform to the requirements of §13A-12-250, -270, Ala. Code 1975, as expressed in Fletcher. In Fletcher, this Court held that the five-year enhancements provided for in § 13A-12-250 and § 13A-12-270 must be served consecutively with every other penalty imposed upon the defendant, including sentences involved in separate counts. Because the trial court had

ordered the sentences in separate counts, including the enhancement portions of the sentences, to be served concurrently, this Court remanded the case, directing the trial court to order the enhancement provisions to be served consecutively with all other sentences.

Although the trial court has fully complied with our directions and has filed a return to our remand order, on March 10, 2000, the Alabama Supreme Court in Ex parte Garner, [Ms. 1981307, Mar. 10, 2000 (Ala. 2000)], overruled Fletcher, holding that a trial court may order enhanced sentences imposed as the result of separate offenses to be served concurrently. Because the trial court's original order complies with the Alabama Supreme Court's interpretation of § 13A-12-250 and -270, Ala. Code 1975, the trial court's order resentencing the appellant is vacated, and that court is directed to reinstate its original order sentencing the appellant to concurrent terms. This case is remanded to the trial court with instructions to enter an order consistent with this opinion. Due return should be made to this Court within 42 days of the release of this opinion.

ORDER VACATED; REMANDED WITH INSTRUCTIONS.^*

Long, P.J., and Cobb, Baschab, and Fry, JJ., concur.

Notes

^* Note from the reporter of decisions: On June 23, 2000, on return to remand, the Court of Criminal Appeals affirmed, without opinion.

Case Details

Case Name: Pearson v. State

Court Name: Court of Criminal Appeals of Alabama

Date Published: Feb 25, 2000

Citations: 777 So. 2d 308; 2000 Ala. Crim. App. LEXIS 30; 2000 WL 218159; CR-98-2503

Docket Number: CR-98-2503

Court Abbreviation: Ala. Crim. App.