Opinion
No. CR-01-0056.
Decided March 1, 2002. Rehearing Denied April 19, 2002. Certiorari Denied August 9, 2002. Alabama Supreme Court 1011515.
Appeal from Madison Circuit Court (CV-00-1844 and CV-00-1845), Bruce E. Williams, J.
James C. McInturff, Birmingham, for appellant.
William H. Pryor, Jr., atty. gen., and Joseph G.L. Marston III, asst. atty. gen., for appellee.
In Case CC-80-594, the appellant, Anthony T. Heulett, pled guilty, on November 13, 1980, to third-degree burglary and second-degree theft of property, and the trial court sentenced him, on January 9, 1981, to serve two years in prison. In Case CC-83-667, the appellant pled guilty, on August 9, 1983, to possession of a short-barreled shotgun, and the trial court sentenced him, on September 16, 1983, to serve a term of one year and one day in prison. In Case CC-87-280, on May 11, 1987, the appellant pled guilty to third-degree burglary, and the trial court sentenced him to serve a term of ten years in prison. On October 4, 2000, the appellant filed petitions for a writ of habeas corpus, challenging his convictions. After the State responded, the circuit court treated the petitions as Rule 32 petitions, conducted an evidentiary hearing, and denied the petitions. This appeal followed.
The appellant argues that the trial court did not comply with the requirements of Rule 14.4, Ala.R.Crim.P., and did not advise him of his right to appeal when he entered his guilty pleas. These claims are precluded because they are time-barred. See Rule 32.2(c), Ala.R.Crim.P.
The appellant also argues that, in each case, the trial court did not allow him to make a statement on his own behalf before he was sentenced. However, Defendant's Exhibits 2 and 5, which are the sentencing orders in Cases CC-80-594 and CC-87-280, indicate that the appellant had an opportunity to make a statement before sentence was pronounced in each case. (C.R. 215, 221.) Furthermore, with regard to Case CC-83-667, the appellant simply alleged that he did not have an opportunity to "make a statement . . . immediately prior to or subsequent to any plea." (R. 19.) In that case, he entered his plea on August 9, 1983, and the trial court sentenced him on September 16, 1983. Although he stated that he did not have an opportunity to make a statement when he entered his plea, he did not even allege, much less prove, that the trial court did not allow him to make a statement before it sentenced him. Therefore, he has not satisfied his burden of pleading and proof pursuant to Rules 32.3 and 32.6(b), Ala.R.Crim.P. For these reasons, the appellant is not entitled to post-conviction relief on this claim.
In his brief to this court, the appellant asserts that the State conceded that the trial court did not allow him to make a statement on his behalf before he was sentenced in each case. However, the State actually conceded only that the Explanation of Rights forms and the State's exhibits did not show that the appellant was afforded an allocution in each case.
We recognize that the Appendix to Rule 32, Ala.R.Crim.P., states: "Only the judgments entered in a single trial may be challenged in a particular petition. If you seek to challenge judgments entered in different trials, either in the same county or in different counties, you must file separate petitions." We further note that the appellant filed petitions for a writ of habeas corpus rather than Rule 32 petitions. Therefore, we could reverse the circuit court's judgment and order that court to return the petitions for the appellant to file three separate petitions in the form required by Rule 32, Ala.R.Crim.P. However, inLockett v. State, 644 So.2d 34, 34 (Ala. 1994), a procedurally similar case, the Alabama Supreme Court stated:
"The claims raised in Lockett's petition for a writ of habeas corpus could have been raised on direct appeal; therefore, those claims are clearly precluded under Rule 32, A. R. Crim. P., and the trial court did not err in summarily dismissing the petition. Because Lockett's claims are clearly precluded under Rule 32, there is no need to remand for an opportunity to file a proper Rule 32 petition."
Also, in Maddox v. State, 662 So.2d 915, 916 (Ala. 1995), the Alabama Supreme Court quoted with approval the following:
"'Rule 32.7(d)[, Ala.R.Crim.P.,] also takes precedence, in some cases, over the Rule 32.6(a)[, Ala.R.Crim.P.,] requirement that the petition be filed on the proper "form." Our blind adherence to the holding of Drayton v. State, 600 So.2d 1088 (Ala.Cr.App. 1992), is a literal exaltation of form over substance.
"'It is ridiculous to remand this cause so that the appellant will have the opportunity to file a petition in the proper form that will be promptly dismissed. I dissent.'
"662 So.2d at 915."
Similarly, we conclude that Rule 32.7(d), Ala.R.Crim.P., is dispositive in this case. It would be an exaltation of form over substance to remand this case to the circuit court so that court could return the petitions to the appellant and so the appellant could refile three separate petitions that, for the reasons set forth above, will be promptly dismissed.
For the above-stated reasons, the circuit court properly denied the appellant's petitions. Accordingly, we affirm the circuit court's judgment.
AFFIRMED.
McMILLAN, P.J., and COBB and WISE, JJ., concur; SHAW, J., concurs specially, with opinion.
This Court has taken different approaches when presented with rulings on a Rule 32, Ala.R.Crim.P., petition that challenges convictions and sentences arising out of multiple proceedings. One approach, which finds support in cases such as LaBlanc v. State, 609 So.2d 9 (Ala.Crim.App. 1992), and Johnson v. State, 755 So.2d 74 (Ala.Crim.App. 1999), focuses on strict adherence to the procedure outlined in Rule 32.6 and the accompanying appendix to Rule 32, with little or no discussion of this Court's ability to discern the issues and arguments from the briefs and record. Under this approach, the circuit court's judgment with respect to all claims is reversed and the case is remanded with instructions for the circuit court to return the petition to the appellant so that separate petitions may then be filed.
Another approach, which finds support in cases such as Bryant v. State, 565 So.2d 290 (Ala.Crim.App. 1990), focuses on whether the petitioner's failure to comply with the "one proceeding/one petition" rule has generated such confusion that it is difficult or impossible for this Court to adequately review the circuit court's judgment. Under this approach, the case is remanded to afford the petitioner an opportunity to file separate petitions.
Under another approach, which finds support in cases such as Knight v. State, 727 So.2d 900 (Ala.Crim.App. 1999), and this Court's recent decision in Reese v. State, 796 So.2d 436 (Ala.Crim.App. 2001) (in which I concurred), this Court addresses the judgment entered in one of the proceedings (assuming that we can adequately isolate the issues and arguments with respect to one of the proceedings) and vacates the judgment or judgments arising out of the remaining proceedings. The petitioner is then free to file additional petitions in the remaining proceedings if he so chooses.
However, for the sake of judicial economy (both in the circuit court and in this Court), I prefer the approach taken in the present case. Here, in one petition the petitioner has challenged three convictions, based on three guilty pleas. The correctness of the circuit court's rulings as to each of the petitioner's claims is clearly discernible from the record. Based on this record, I agree with former Presiding Judge Bowen's dissent in Maddox v. State, 662 So.2d 914 (Ala.Crim.App. 1993), which the Alabama Supreme Court adopted in Ex parte Maddox, 662 So.2d 915 (Ala. 1995): "It is ridiculous to remand this cause so that the appellant will have the opportunity to file a petition [or petitions] in the proper form that will be promptly dismissed." 662 So.2d at 915. I recognize that Rule 32.6 contemplates that the circuit courts will act as "gatekeepers," in the sense that they are charged with the responsibility of ensuring adherence to proper form and of denying review of petitions that fail to comply substantially with the form set out in the appendix to Rule 32. However, in cases such as this one, where we know that the circuit court has correctly ruled on a facially meritless petition, albeit in contravention of the procedure set out in Rule 32.6, the Supreme Court clearly signaled in Maddox that this Court can proceed to address the issues and dispose of the case.