Willingham v. StateWillingham v. State
Thе appellant, John William Riley Willingham, appeals from his conviction for possession of a controlled substance (a Class C felony) pursuant to his plea of guilty.
I.
Willingham first contends that the trial court had no jurisdiction to render the judgment or to impose the sentence because, he argues, the charge to whiсh he pleaded guilty could not have been a lesser included offense of the offense for which he was indicted. See Johnson v. State, 675 So.2d 85, 86 (Ala.Crim.App. 1995) (“[a] trial court lacks jurisdiction to accept a plea of guilty to an offense not encompassed by the charge in the indictment“). The indictment charged that Willingham “did unlawfully and knowingly have in actual or constructive possession in excess of 28 grams of methamphetamine, in violation of Section
Willingham relies on Insley v. State, 591 So.2d 589 (Ala.Crim.App. 1991). In Insley, the court held that the trial court properly refusеd the appellant‘s request, in his trial for trafficking in marijuana, that the jury be instructed on the offense of first-degree possession of marijuana as a lesser offense of trafficking. The court found that the offense of first-degreе possession of marijuana was not a lesser included offense of trafficking, under the facts of that case, because the appellant had admitted possession of the marijuana and because there wаs no evidence indicating that the appellant had possessed 2.2 or fewer pounds of marijuana. (The offense of trafficking of marijuana under
“In Ex parte Caver, 512 So.2d 1314 (Ala. 1987), the defendant was entitled to a jury instruction on misdemeanor possession of marihuana as a lesser included offense of trafficking because the defendant admitted possession of a small amount of marihuаna found in his residence but denied knowing about the presence of the larger amount found in his backyard. Accord, Dees v. State, 575 So.2d 1225 (Ala.Cr.App. 1990). Here, in contrast, the appellant admitted possession of all the marihuana involved and claimed that it was for his personal use only.”
591 So.2d at 591. See also Ex parte Darby, 516 So.2d 786, 788 (Ala. 1987) (where a defendant is in actual possession of a small quantity and in constructive possession of a quantity large enough to be charged with trafficking, but denies knowledge of the presencе or contents of the larger quantity, the offense of possession is a lesser included offense of trafficking); Atwell v. State, 594 So.2d 202, 212-14 (Ala.Crim.App. 1991) (where the evidence did not establish the defendants’ possession of a container of marijuana found on thе side of the road, but did establish possession of a container found in the defendants’ truck, the evidence did not support a trafficking conviction, but could support a conviction for one of the lesser offenses of possession). In the case before us, unlike the defendant in Insley, Willingham pleaded guilty to the charge of possession of less than the amount required for trafficking, thereby admitting to having possessed an amount not in excess of 28 grams. When entering his plea to the charge of unlawful possession, Willingham answered affirmatively the court‘s question, “Are you pleading guilty because you are, in fact, guilty?” Willingham‘s assertion on appeal that the evidence established that he wаs in possession of 32.546 grams must be based on the certificate of analysis of the controlled substance associated with Willingham‘s case, which is included in the record as an attachment to the prosecution‘s respоnse to Willingham‘s discovery motion. Although it shows that the total weight of the powder containing amphetamine and methamphetamine was 32.546 grams, it also shows that the powder was packaged in 11 plastic zip-lock bags. For аll we know, Willingham might have been in possession of only some of the bags, the aggregate contents of which weighed 28 grams or less, and thus guilty of the lesser offense. We find Insley unpersuasive under the limited facts here.
Willingham also relies on the holding in Sears v. State, 479 So.2d 1308, 1311-12 (Ala.Crim.App. 1985), that “the offenses of possession and trafficking were intended by thе legislature to be separate offenses warranting cumulative punishments.” However, Willingham neglects the caveat to this general holding: “if the offenses of possession and trafficking stem from possession of the same сontrolled substance, the two offenses are not separate offenses, but rather the offense of possession is a lesser offense included in the offense of trafficking.” Id. at 1312 n. 2.
Nothing in the record raises any question whatsoever regarding the trial court‘s jurisdiction to accept Willingham‘s guilty plea to the offense of possession: the limited facts of the offense in this case do not suggest that possession was not a lesser offense included in trafficking. Compare Scott v. State, 742 So.2d 799 (Ala.Crim.App. 1998) (the defendant‘s admission in his guilty plea colloquy suggested that the indicted offense of conspiracy to distribute a controlled substance did not encompass the offense of unlawful distribution of a controlled substance, to which the defendant had pleaded guilty, and
“A court of general jurisdiction proceeding within the scope of its powers will be presumed to have jurisdiction to give the judgments and decrees it renders until the contrary appears. So, a court of general jurisdiction is presumed tо have acted within its powers, and the burden is on the accused affirmatively to show that it had no jurisdiction, unless facts showing want of jurisdiction affirmatively appear on the record.”
22 C.J.S. Criminal Law § 174 (1989). “[A] court conducting a criminal proceeding is presumed to have jurisdiction, whether or not there are recitals in its record to show it.” 22A C.J.S. Criminal Law § 702 (1989).
Moreover, as noted above, when the statutory elements of each offense are compared, the offensе of possession is a lesser offense of trafficking of the same
II.
Willingham also asserts that he did not enter his guilty plea voluntarily and intelligently, with a full understanding of the charge, in compliance with
III.
Willingham next contends that the trial court failed to establish a factual basis before accepting his plea, as required by Rule 14.4(b). This issue was likewise not preserved for our review. See Moore v. State, 668 So.2d 100, 102 (Ala.Crim.App. 1995) (“[e]stablishing a factual basis for a guilty plea is a separate component of the plea process and the failure to do so must be raised in the trial court in ordеr for the issue to be preserved for appellate review“).
IV.
Finally, Willingham asserts that his trial counsel was ineffective for the following reasons: (1) counsel, he says, should have requested an independent analysis of the evidence seized; (2) no records were produced to show the ownership of the vehicle the appellant was driving at the time of his arrest so as ultimately to show that the vehicle‘s owner had framed Willingham because, he says, the owner had been arrested for possession of drugs and he was attempting to perform “substantial assistance” to receive a lighter sentence; (3) counsel did not question the chain of custody of the contraband; (4) counsel did
The trial court accepted Willingham‘s guilty plea on April 21, 2000. Appellate counsel (who was different from trial counsel) was appointed on May 11, 2000. These сlaims of ineffective counsel were not presented to the trial court. Such claims cannot be presented on direct appeal where they were not first presented to the trial court. Montgomery v. State, 781 So.2d 1007 (Ala.Crim.App. 2000). “`[A]n ineffective-аssistance-of-counsel claim must be presented in a new trial motion filed before the 30-day jurisdictional time limit set by Rule 24.1(b), Ala.R.Crim.P., expires, in order for that claim to be properly preserved for review upon direct aрpeal.‘” Id. at 1010 (quoting Ex parte Ingram, 675 So.2d 863, 865 (Ala. 1996)). We thus have no issue before us: none was preserved in the trial court.
Accordingly, the judgment of the trial court is affirmed.
The foregoing opinion was prepared by Retired Appellate Judge John Patterson while serving on active duty status as a judge of this cоurt under the provisions of
AFFIRMED.
McMillan, P.J., and Cobb, Baschab, Shaw, and Wise, JJ., concur.