Lead Opinion
Pаtricia Williams appeals the circuit court’s summary dismissal of her petition for postconviction relief, filed pursuant to Rule 32, Ala. R.Crim. P.
In 2007, Williams was convicted of one count of first-degree unlawful manufacture of a controlled substance, specifically methamphetamine, one count of trafficking in methamphetamine, and one count of unlawful possession of a controlled substance, specifically methamphetamine. She was sentenced, as a habitual offender, to life imprisonment for the manufacturing conviction, to life imprisonment for the trafficking conviction, and to 15 years’ imprisonment for the possession conviction. This Court affirmed Williams’s convictions and sentences on appeal in an opinion issued on May 30, 2008. Williams v. State,
The convictions resulted from a search of Williams’s mobile home and a shed located approximately five feet behind the mobile home.
Williams filed this, her second, Rule 82 petition on January 18, 2011. In her petition, Williams alleged (1) that she was actually innocent of the crimes, and (2) that the trial court lacked jurisdiction to render the judgments or to impose the sentences because, she said, her three convictions violated principles of double jeopardy. The State filed a response and a motion for summary disposition on July 5, 2011, arguing that Williams’s claims were precluded by Rules 32.2(a), (b), and (c), and were meritless.
On appeal, Williams reasserts the claims raised in her petition. We address each in turn.
I.
Williams contends that she is actually innocent of the crimes. This claim is, as argued by the State in its response, time-barred by Rule 32.2(c) because Williams’s petition was filed after the limitations period had expired. Contrary to Williams’s assertion, claims of actual innocence are subject to the preclusions in Rule 32.2. See Russell v. State,
II.
Williams also contends that her three convictions violate principles of double jеopardy. Specifically, she argues, as she did in her petition, that her convictions for manufacturing and trafficking violate double-jeopardy principles because, she says, they were both based on the same evidence — a methamphetamine laboratory found in a shed on her property. She also argues, as she did in her petition, that her trafficking and possession convictions violate double-jeopardy principles because, she says, possession of methamphetamine is a lesser-included offense of trafficking in methamphetamine. Both of these claims are jurisdictional and neither were raised in her previous petition.
In Blockburger v. United States,
Second, if the offenses did arise from the same act or transaction, then it must be determined whether each offense requires proof of an additional fact which the other does not, i.e., whether the two offenses are the “same” for double-jeopardy purposes. “[Ajpplication of the test focuses on the statutory elements of the offense,” Iannelli v. United States,
Manufacturing and Trafficking
With respect to Williams’s challenge to her manufacturing and trafficking convictions, it is clear that both convictions did arise, as Williams argues, from the same act or transaction, i.e., both convictions were based on the vase of “meth oil” found in the shed. However, this Court has previously addressed and rejected a similar double-jeopardy argument. In Snowden v. State,
Williams’s challenge to her trafficking and possession convictions is more problematic. The State argues that the trafficking conviction and the possession conviction were not based on the same act or transaction and, thus, that the threshold inquiry under Blockburger is not satisfied and the second prong of the Blockburger test is not triggered. Specifically, the State argues that “the evidence shows that the powdered methamphetamine which formed the basis for the unlawful possession charge was in a different location than the liquid methamphetamine (albeit nearby), it was intended for a different purpose than the liquid methamphetamine, and perhaps most significantly, it was in a different form than the liquid methamphetamine” and, thus, that Williams’s possession of the powder methamphetamine in the mobile home was a separate act or transaction from her possession of the liquid “meth oil” in the shed. (State’s brief, p. 23.)
In Townsend v. State,
In addressing the issue, this Court first quoted the following from Commonwealth v. Ortiz,
“We recently stated in Commonwealth v. Rabb,431 Mass. 123 , 130,725 N.E.2d 1036 (2000), that separate prosecutions for possession of a controlled substance under [Mass. Gen. Laws] c. 94C, § 32E, do not offend double jeopardy principles, as long as the amount of the specific controlled substance supporting each conviction constitutes a ‘separate item’ that is sufficiently differentiated by time, location, or intended purpose.... ”
This Court then quoted from Hite v. State,
“Appellant argues that the two seizures cannot be combined and that ... his indictment for trafficking should have been dismissed and he should have been charged with separate violations of possession of cocaine. We disagree. Appellant’s argument would enable persons to escape prosecution for trafficking by dividing cocaine into smaller quantities and storing the smaller quantities in different locations. ‘[E]ither actual or constructive possession would suffice to establish the element of possession necessary to support a conviction of trafficking.... [Cits.]’ Williams v. State,199 Ga.App. 566 , 570(4),405 S.E.2d 716 (1991). Despite the fact that the quantities were discovered in two different locations, immediately prior to his arrest, appellant had ‘direct physical control’ over the cocaine in the truck and was therefore in actual possession of it. Shropshire v. State, 201 Ga.App. 421 , 422,411 S.E.2d 339 (1991). At the same time, he ‘knowingly [had] both the power and intention ... to exercise dominion or control over the [cocaine discovered in his jacket pocket]’ (id. at 422,411 S.E.2d 339 ) and was thus in constructive possession of the latter quantity. In our view, this constitutes sufficient evidence of possession to support the charge of trafficking in cocaine, and the trial court did not err in denying appellant’s motion to dismiss the indictment.”
This Court then explained:
“Under the particular facts and law before us, we first note that § 13A-12-212 has no language prohibiting a prosecutor from aggregating separate supplies of the specific controlled substance possessed by a defendant. Clearly, Townsend simultaneously possessed both quantities seized: the officers in pursuit of him observed him in actual possession of the 22.4-gram quantity he discarded while fleeing, and he admitted ownership of the 17.91-gram quantity seized from his bedroom. The evidence clearly supported the submission of the trafficking charge to the jury, and the jury could have reasonably found beyond a reasonable doubt that Townsend possessed 28 grams or more of cocaine. We emphasize that, as with all sufficienсy-of-the-evidence questions, this holding is limited to the particular facts of this case.
“Townsend’s contention that he should have been convicted of two violations of § 13A-12-212(a)(l) for possession raises the question whether doing so would have violated his right not to be placed in double jeopardy. ‘A single crime cannot be divided into two or more offenses and thereby subject the perpetrator to multiple convictions for the same offense. Const, of 1901, Art. I, § 9; U.S. Const. Amend. V.’ Ex parte Darby,516 So.2d 786 , 787 (Ala.1987). Such a question of double jeopardy is determined by the following principles:
“ ‘[I]t has been aptly noted that “the Blockburger test is insufficient where ... the concern is not multiple charges under separate statutes, but rather successive prosecutions for conduct that may constitute the same act or trаnsaction.” Rashad v. Burt,108 F.3d 677 (6th Cir.1997). This is because when “a defendant is convicted for violating one statute multiple times, the same evidence test will never be satisfied.” State v. Adel,136 Wash.2d 629 ,965 P.2d 1072 (1998). The “appropriate inquiry” in such a case “asks what ‘unit of prosecution’ was intended by the Legislature as the punishable act.... The inquiry requires us to look to the language and purpose of the statutes, to see whether they speak directly to the issue of the appropriate unit of prosecution, and if they do not, to ascertain that unit, keeping in mind that any ambiguity that arises in the process must be resolved, under the rule of lenity, in the defendant’s favor.” Commonwealth v. Rabb,431 Mass. 123 ,725 N.E.2d 1036 (2000) (concluding that allegedly multiple drug possessions justify multiple charges if the possessions are sufficiently differentiated by time, placе or intended purpose, the case here regarding defendant’s possession of drugs at his residence for immediate sale and his possession of drugs at motel for future sales).’
“4 Wayne R. LaFave et al., Criminal Procedure § 17.4(b), 2001 Pocket Part n. 66 (2d ed.1999). See also Project, ‘Twenty-Ninth Annual Review of Criminal Procedure,’ 88 Geo. L.J. 879, 1293 (2000) (‘when the government seeks to prove that a single act or occurrence results in multiple violations of the same statute, the rule of lenity requires only one punishment unless legislative intent to impose multiple punishments is shown’).
“The question then is whether Townsend’s possession of cocaine in two places constitutes one ‘unit of prosecution’ or two. The question is what act or course of conduct has the Legislature defined as the punishable act for possession of a controlled substancе under § 13A-12-212? We find the following pertinent:
“ ‘The first step in the unit of prosecution inquiry is to analyze the criminal statute. The rélevant portion of the possession statute states, “any person found guilty of possession of forty grams or less of marihuana shall be guilty of a misdemeanor.” ■ [Wash. Rev.Code] 69.50.401(e). Possession has been defined as personal custody or dominion and control. State v. Staley,123 Wash.2d 794 , 798,872 P.2d 502 (1994). If the State establishes the nature of the substance and the defendant’s possession of it, then the elements of unlawful possession have been met. Id.
“ ‘RCW 69.50.401(e) fails to indicate whether the Legislature intended to punish a person multiple times for simple possession based upon the drug being stashed in multiple places. This lack of statutory clarity favors applying the rule of lenity аnd finding [the defendant] guilty on only one count of simple possession. Further analysis supports this finding.
“ ‘The Legislature’s intent is obviously relevant when construing an ambiguous statute. One way of construing legislative intent regarding the unit of prosecution for a simple possession crime is to refer to the 40 gram cutoff between a misdemeanor and a felony. See RCW 69.50.401(e). The Legislature has indicated the desire to punish possession of over 40 grams of marijuana as a more serious crime. In doing so, the Legislature focused solely on the quantity of the drug, and did not reference the spatial or temporal aspects of possession. Indeed, if officers had found 21 grams in [the defendant’s] store, and 21 grams in his car, prosecutors most certainly would have attempted to aggregate the two stashes and charge [the defendant] with felony possession. Cf. Rashad [v. Burt ], 108 F.3d [677,] 682 [(6th Cir.1997)] (applying same reasoning in finding just one count arose from defendant’s possessing drugs in his house and more in his car); State v. Lopez,79 Wash.App. 755 , 762,904 P.2d 1179 (1995) (“If the source of the drug or the manner in which it was possessed was a determining factor, a careful defendant could avoid the heightened penalty simply by making sure he acquired them in or divided them into amounts of less that two kilograms.”).
“ ‘... All of the drugs found in this case were within [the defendant’s] dominion and control at the same time. The possession statute does not authorize multiple convictions based upon a drug being stashed in multiple places within a defendant’s actual or constructive possession.
“ ‘... The Legislature declared it a misdemeanor to possess 40 grams or less of marijuana. A person is equally guilty of possession whether that person has the drug stashed in one place, or hidden in several places under the person’s dominion and control. There is no statutory indication the Legislature intended to punish a person multiple times merely because the person separates and keeps small amounts of marijuana in different locations. We find the unit of prosecution in RCW 69.50.401(e) is possessing 40 grams of marijuana or less, regardless of where or in how many locations the drug is kept.’
“State v. Adel,186 Wash.2d 629 , 635-87,965 P.2d 1072 , 1075-76 (1998) (first emphasis added; second emphasis original; citation omitted) (double jeopardy barred multiple convictions for simple possession of marijuana based on marijuana seized in the defendant’s store and in his car parked outside his store). Compare In re Davis,142 Wash.2d 165 ,12 P.3d 603 (2000) (convictions for two counts of possession with intent to manufacture or deliver, based on separate self-contained ‘marijuana grow operations’ housed in separate single-family dwellings located in different cities did not punish the defendant twice for the same statutory ‘unit of prosecution’ in violation of double jeopardy; the facts of the case revealed more than one ‘unit of possession’).
“Considering Alabama’s statutory scheme, we find no indication that the Legislature intended to punish a person multiple times for possession merely because that person separated and kept amounts of cocaine smaller than 28 grams in different locations at the same time. Rather, in punishing possession of over 28 grams as a more serious crime, the Legislature has focused solely on the quantity of the drug. The facts of this case were not such that more than one ‘unit of prosecution’ was present. The cocaine found in Townsend’s bedroom and the cocaine he dropped while fleeing were properly treated as a single unit of possession because the circumstances involved his possession of cocaine at the same time, i.e., the two quantities were within Townsend’s dominion and control at the same time. Under these particular facts, had the prosecution brought multiple charges under § 13A-12-212(a)(l), it would have impermissibly divided his conduct and viоlated the constitutional prohibition against subdividing a single criminal act and imposing multiple punishments for it.
“Finally, we note that, in Sears v. State,479 So.2d 1308 , 1312 n. 2 (Ala.Crim.App.1985), the court stated, ‘[I]f the offenses of possession and trafficking stem from possession of the same controlled substance, the two offenses are not separate offenses, but rather the offense of possession is a lesser offense included in the offense of trafficking.’ If we adopted Townsend’s argument— that simultaneous possession of two stashes, one by actual possession and the other by constructive possession, constituted two offenses — the above observation would not be true. For example, under Townsend’s theory, had one of his stashes been more than 28 grams, but the other stash less than 28 grams, he could have been prosecuted for both trafficking and possession — a result rejected by Alabama caselaw.... ”
Townsend,
Although Townsend involved the proper “unit of prosecution” under a single statute, it is nonetheless instructive here in our analysis of whether Williams’s conduct in possessing a small quantity of powder methamphetamine, giving rise to the possession conviction under § 13A-12-212,
“[S]ome factors to be considered in determining if conduct is unitary, in other words if it is the ‘same conduct,’ include: (1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.”
In considering these factors here, we cannot agree with the State that Williams’s possession of the powder methamphetamine and her possession of the liquid methamphetamine or “meth oil” were separate acts of possession. Both “stashes” were found at essentially the same location. Although the powder methamphetamine was found inside Williams’s mobile home and the “meth oil” was found inside a shed just behind Williams’s mobile home, the mobile home and the shed were in close proximity to each other and located on the same property, property belonging to Williams. Both “stashes” were also found at the same time, and Williams, who was not present at the time of the search, clearly had constructive possession of both “stashes” simultaneously. See Townsend, supra. See also State v. Quick,
In addition, many of the ingredients necessary for the methamphetamine laboratory found in the shed were discovered inside the mobile home in the same padlocked bedroom as was the powder methamphetamine, thus indicating that Williams’s possession of both “stashes” was not motivated by a different purpose, but was part of a single operation. Finally, although the two stashes were in different forms — one liquid and the other powder — they were still the same controlled substance — methamphetamine. Neither the trafficking statute nor the possession statute differentiates between the form of the controlled substance. Section 13A-12-
“(d) Stimulants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system:
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“2. Methamphetamine, its salts, isomer, and salts of its isomers.”
Regulation 420-7-2, Ala. Admin. Code (Department of Public Health) (emphasis added). See also Lane v. Commonwealth,
Therefore, under the circumstances in this case, we find that Williams’s possession of the “meth oil” in the shed and her possession of the powder methamphetamine in the mobile home constituted the same act or transaction for double-jeopardy purposes. As in Townsend, however, we caution that whether a defendant’s conduct constitutes the same act or transaction under Blockburger is dependent on the particular facts in each case, and our holding today is limited to the facts in this case.
Having determined that both “stashes” ‘were part of the same act or transaction, we must now determine whether each offense in this case — trafficking in methamphetamine under § 13A-12-231(11) and possession of methamphetamine under § 13A-12-212 — requires proof of a fact that the other does not. Section 13A-l-8(b)(l), Ala.Code 1975, provides that “[w]hen the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if ... [o]ne offense is included in the other, as defined in Section 13A-1-9.” Section 13A-l-9(a), Ala.Code 1975, provides:
“(a) A defendant may be convicted of an offense included in an offense charged. An offense is an included one if:
“(1) It is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged; or
“(2) It consists of an attempt or solicitation to commit the offense charged or to commit a lesser included offense; or
“(3) It is specifically designated by statute as a lesser degree of the offense charged; or
“(4) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission.”
In Ford v. State,
“ ‘ “[T]o be a lesser included offense of one charged in an indictment, the lesser offense must be one that is necessarily included, in all of its essential elements, in the greater offense charged[,]” Payne v. State,391 So.2d 140 , 143 (Ala.Cr.App.), writ denied,391 So.2d 146 (Ala.1980), ... unless it is so declared by statute.’
“James v. State,549 So.2d 562 , 564 (Ala.Cr.App.1989). ‘Whether a crime constitutes a lesser-included offense is to be determined on a case-by-case basis.’ Aucoin v. State,548 So.2d 1053 , 1057 (Ala.Cr.App.1989). ‘In determining whether one offense is a lesser included offense of the charged offense, the potential relationship of the two offenses must be considered not only in the abstract terms of the defining statutes but must also ... in light of the particular facts of each case.’ Ingram v. State,570 So.2d 835 , 837 (Ala.Cr.App.1990) (citing Ex parte Jordan,486 So.2d 485 , 488 (Ala.1986); emphasis in original). See also Farmer v. State,565 So.2d 1238 (Ala.Cr.App.1990).”
“Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of methamphetamine or any mixture containing methamphetamine, its salts, optical isomers, or salt of its optical isomers thereof, is guilty of a felony, which felony shall be known as ‘trafficking in methamphetamine.’ ” § 13A-12-231(11), Ala.Code 1975. The indictment charged that Williams “did knowingly have in actual or constructive possession 28 grams or more but less than 500 grams of methamphetamine or a mixture containing methamphetamine, a controlled substance, and that such actual or constructive possession took place subsequent to September 30, 1988, in violation of 13A-12-231 of the Code of Alabama, against the peace and dignity of the State of Alabama.” (Record on Direct Appeal, “RDA,” C. 20.)
Section 13A-12-212(a)(l), Ala.Code 1975, provides that “[a] person commits the crime of unlawful possession of a controlled substance if ... [ejxcept as otherwise authorized, he possesses a controlled substance enumerated in Schedules I through V.” As noted above, methamphetamine is a Schedule II controlled substance. See Regulation 420-7-2, Ala. Admin. Code (Department of Public Health). The indictment charged that Williams “did unlawfully possess METHAMPHETAMINE, a controlled substance contrary to and in violation of Section 13A-12-212 of the Code of Alabama, against the peace and dignity of the State of Alabama.” (RDA, C. 16.)
Based on the statutory elements of the offenses and the facts as alleged in the indictments, possession of methamphetamine is a lesser-included offense of trafficking in methamphetamine in this case.
Because Williams was convicted of both a greater offense and a lesser offense included within the greater offense, her convictions for both trafficking in methamphetamine and possession of methamphetamine violate double-jeopardy principles. Therefore, the circuit court erred in denying Williams’s Rule 32 petition as to this claim. The proper remedy when a defendant is convicted of both a greater and a lesser-included offense is to vacate the conviction and the sentence for the lesser-includеd offense. See, e.g., Gholston v. State,
REMANDED WITH DIRECTIONS.
Notes
. This Court may take judicial notice of its own records, and wе do so in this case. See Hull v. State,
. The State did not dispute the facts alleged in Williams's petition; it argued only that her claims were meritless because the jury had returned verdicts of guilty on all three counts.
. In her previous petition, Williams challenged the effectiveness of her trial and appellate counsel for not challenging her convictions on double-jeopardy grounds. However, she did not raise the underlying substantive double-jeopardy claims she now raises in her second petition.
. Section 20-2-20(a), Ala.Code 1975, provides that "[t]he State Board of Health, unless otherwise specified, shall administer this chapter and may add substances to or delete or reschedule all substances enumerated in the schedules in Section 20-2-23, 20-2-25, 20-2-27, 20-2-29, or 20-2-31 pursuant to the prоcedures of the State Board of Health.”
. We note that Judge Welch’s dissent in Patrick v. State,
Concurrence in Part
concurring in part and dissenting in part.
I agree with the majority’s disposition of Patricia Williams’s actual-innocence claim. However, for the reasons stated in Judge Welch’s dissent in Patrick v. State,
Because Williams’s cause is before this Court to review the circuit court’s action on her pleadings and because she has not presented any evidence in support of her