Opinion
1200431
01-06-2023
EX PARTE Johnny Lee SELF In re: Johnny Lee Self v. State of Alabama
Johnny Lee Self, petitioner, pro se. Steve Marshall, att’y gen., and Edmund G. LaCour, Jr., solicitor gen., A. Barrett Bowdre, deputy solicitor gen., and Cecil G. Brendle, Jr., asst. att’y gen., for respondent.
Johnny Lee Self, petitioner, pro se.
Steve Marshall, att’y gen., and Edmund G. LaCour, Jr., solicitor gen., A. Barrett Bowdre, deputy solicitor gen., and Cecil G. Brendle, Jr., asst. att’y gen., for respondent.
MENDHEIM, Justice.
Johnny Lee Self petitioned this Court for a writ of certiorari to review the Court of Criminal Appeals’ decision in Self v. State (No. CR-19-0978, Jan. 29, 2021), 352 So.3d 264 (Ala. Crim. App. 2021) (table), a 3-2 decision affirming the Jefferson Circuit Court’s summary dismissal of Self’s Rule 32, Ala. R. Crim. P., petition for postconviction relief. We granted certiorari review to consider whether the Court of Criminal Appeals’ decision is in conflict with Barnes v. State, 708 So. 2d 217 (Ala. Crim. App. 1997). We conclude that the Court of Criminal Appeals’ decision is in conflict with Barnes, and we reverse the Court of Criminal Appeals’ judgment.
Facts and Procedural History
In September 2003, Self pleaded guilty to two counts of first-degree sexual abuse, violations of § 13A-6-66, Ala. Code 1975, and was sentenced to 25 years’ imprisonment; the crime of sexual abuse in the first degree is a Class C felony. Self did not appeal his guilty-plea convictions or sentences.
On November 7, 2019, Self filed a Rule 32, Ala. R. Crim. P., petition challenging his convictions and sentences. In his petition, Self alleged that he had been improperly sentenced to serve 25 years in prison because the maximum sentence authorized for a Class C felony is 10 years, see § 13A-5-6(a)(3), Ala. Code 1975, and, Self asserted, he "was not sentenced as a [h]abitual [o]ffender." Self also alleged "that nothing in the record shows that his sentence was properly enhanced." Self argued that the trial court had lacked "jurisdiction to sentence [him] or render his sentence because [the sentence] exceeds the maximum required by law." On April 3, 2020, the State filed a response, arguing that Self’s claim is not a jurisdictional claim and is barred by the limitations period set forth in Rule 32.2(c), Ala. R. Crim. P.
On June 9, 2020, the circuit court summarily dismissed Self’s Rule 32 petition. The circuit court interpreted Self’s claims in his Rule 32 petition as (1) a claim "that the State failed to adequately prove [Self’s] prior felony convictions that were used to enhance his sentence" and (2) a claim "that the record does not reflect application of the Habitual Felony Offender Act." Based on that interpretation of Self’s claims, the circuit court determined that Self’s claims are not jurisdictional and, thus, are barred by the limitations period set forth in Rule 32.2(c). On June 25, 2020, Self filed a motion to alter, amend, or vacate the circuit court’s judgment, which the circuit court denied. Self appealed.
Before the Court of Criminal Appeals, Self argued that the circuit court had erred when it summarily dismissed his illegal-sentence claim. The Court of Criminal Appeals, in its unpublished memorandum decision, stated:
"Self’s claim, as pleaded, is a nonjurisdictional claim that is subject to. the grounds of preclusion set out in Rule 32.2, Ala. R. Crim. P. To be sure, an allegation that a sentence exceeds the maximum authorized by law is a jurisdictional claim. See, e.g., Brand v. State, 93 So. 3d 985, 987-88 (Ala. Crim. App. 2011) (holding that a claim that a sentence exceeds the maximum authorized by law is jurisdictional and, thus, not subject to the grounds of preclusion set out in Rule 32.2, Ala. R. Crim. P.). Similarly, a claim that a defendant is not subject to the Habitual Felony Offender Act (‘HFOA’) and a claim that the HFOA was never invoked and applied are jurisdictional claims. See, e.g., Mosley v. State, 986 So. 2d 476, 477 (Ala. Crim. App. 2007) (holding that a claim that a conviction for child abuse is not subject to the HFOA is a jurisdictional ' claim); and Horn v. State, 912 So. 2d 539, 543 (Ala. Crim. App. 2004) (Shaw, J., concurring specially) (‘The jurisdictional issue in Martin[ v. State, 687 So. 2d 1253 (Ala. Crim. App. 1996)], as in this case, was whether the HFOA had been invoked and applied to enhance the appellant’s sentence.’).
"But Self did not allege that he is not subject to the HFOA or that the HFOA was not invoked and applied in his case. Rather, Self alleged that he was not sentenced as a habitual felony offender
because ‘nothing in the record shows that his sentence was properly enhanced.’ (C. 43.) Self’s claim, as properly characterized by the circuit court in its order summarily dismissing Self’s petition, is nothing more than a claim that his sentence is ‘unlawful’ because the record does not affirmatively show that he was sentenced under the HFOA. (See C. 13.) It is well settled that such claims are nonjurisdictional. See, e.g., Murray v. State, 922 So. 2d 961, 963 (Ala. Crim. App. 2005) (‘[T]o the extent that Murray is arguing that the record does not affirmatively reflect that he was sentenced under the HFOA, that claim also does not have jurisdictional implications and, thus, is also procedurally barred by Rule 32.2(a)(5).’).
"Because Self’s HFOA claim is nonjurisdictional and subject to the grounds of preclusion set out in Rule 32.2, Ala. R. Crim. P., and because he filed his Rule 32 petition well outside the limitations period set out in Rule 32.2(c), Ala. R. Crim. P., the circuit court did not err when it found Self’s claim to be time-barred."
Standard of Review
This Court has stated that, "when the facts are undisputed and an appellate court is presented with pure questions of law, that court’s review in a Rule 32[, Ala. R. Crim. P.,] proceeding is de novo." Ex parte White, 792 So. 2d 1097, 1098 (Ala. 2001).
Discussion
[1] As noted above, this Court granted certiorari review to consider whether the above-quoted portion of the Court of Criminal Appeals’ unpublished memorandum decision is in conflict with Barnes, supra. In Barnes, a Rule 32 petitioner alleged "that he was improperly sentenced to serve fifteen years in prison, because the maximum sentence authorized [under the applicable statute] is 10 years … and he was not sentenced as a habitual offender." Barnes, 708 So. 2d at 218. The trial court summarily dismissed the petition, concluding that it was precluded by operation of Rule 32.2(a), Ala. R. Crim. P. On appeal, the Rule 32 petitioner argued "that his sentences exceed the maximum authorized by law because he was not sentenced as a habitual felony offender." Barnes, 708 So. 2d at 218. The State argued that the Rule 32 petitioner’s sentence did not exceed the statutory maximum because, it said, the Rule 32 petitioner had been sentenced as a habitual felony offender. The Court of Criminal Appeals noted, however, that there was "no indication in the record that the provisions of the Habitual Felony Offender Act applied in th[at] case" or that the Rule 32 petitioner had been "sentenced as a habitual offender." Id. at 218 and 219. In addressing the Rule 32 petitioner’s argument on appeal, the Court of Criminal Appeals stated that the Rule 32 petitioner "essentially challenge[d] the legality of his sentence." Id. at 219. Noting that an illegal sentence may be challenged at any time, the Court of Criminal Appeals concluded that the Rule 32 petitioner "ha[d] alleged facts that, if true, entitle[d] him to relief." Id. The only fact that was in question in Barnes was whether the Rule 32 petitioner had been sentenced pursuant to the Habitual Felony Offender Act ("HFOA"), § 13A-5-9, Ala. Code 1975. The Court of Criminal Appeals stated that, "[i]f the [Rule 32 petitioner’s] allegations [were] true, the sentences exceeded the jurisdiction of the court and [were] therefore void." Id.
The present case appears to be identical to Barnes. Self argued in his Rule 32 petition that the trial court had lacked jurisdiction to render judgment or to impose the 25-year sentence on him because, he said, he "was not sentenced as an [h]a- bitual [o]ffender under the [HFOA]." Self specifically alleged, as did the Rule 32 petitioner in Barnes, that "nothing in the record shows that his sentence was properly enhanced." The Court of Criminal Appeals appears to have isolated that last portion of Self’s argument -- that the record does not include any indication that he was sentenced as a habitual felony offender -- to characterize his entire argument as "nothing more than a claim that his sentence is ‘unlawful’ because the record does not affirmatively show that he was sentenced under the HFOA." In so characterizing his argument, the Court of Criminal Appeals relied upon Murray v. State, 922 So. 2d 961 (Ala. Crim. App. 2005), to conclude that such an argument does not raise a jurisdictional issue. However, Murray is distinguishable from the present case.
In Murray, a Rule 32 petitioner argued that "his sentence of life imprisonment for [his] trafficking conviction was illegal because, he [said], the sentencing order and the case action summary [did] not show that he was sentenced under the Habitual Felony Offender Act … and the State did not present ‘certified court documents’ to prove his prior convictions." Murray, 922 So. 2d at 963. The Court of Criminal Appeals stated that, "to the extent that [the Rule 32 petitioner was] arguing that the record does not affirmatively reflect that he was sentenced under the HFOA, that claim … [did] not have jurisdictional implications and, thus, [was] … procedurally barred by Rule 32.2(a)(5)." Murray, 922 So. 2d at 963. The argument raised by the Rule 32 petitioner in Murray was related solely to whether the record indicated that the Rule 32 petitioner had been sentenced as a habitual felony offender; the Rule 82 petitioner in Murray did not specifically allege that he had not been sentenced as a habitual felony offender.
In the present case, however, Self specifically alleged, just as the. Rule 32 petitioner in Barnes did, that he had not been sentenced as a habitual felony offender. His further assertion that nothing in the record indicates that he had been sentenced as a habitual felony offender simply supports his main assertion. A nearly identical argument was raised and was considered to be jurisdictional in Coleman v. State, 927 So. 2d 883 (Ala. Crim. App. 2005), another case cited by Self. In Coleman, a Rule 32 petitioner asserted that the sentence imposed against him exceeded the maximum authorized by law. "More specifically, [the Rule 32 petitioner] alleged that he was sentenced without any enhancements being applied, and, therefore, that his life sentence exceed[ed] the range of punishment for attempted rape in the first degree." Coleman, 927 So. 2d at 884. The State filed a motion to dismiss the petition, arguing, among other things, that the Rule 32 petitioner was a habitual felony offender. The Rule 32 petitioner filed a response to the State’s motion, stating " ‘that there [was] nothing in the record to indicate hi[s] being sentenced as a habitual offender,’" Coleman, 927 So. 2d at 884. Ultimately, the circuit court in Coleman dismissed the Rule 32 petition.
On appeal, the Court of Criminal Appeals stated:
"[The Rule 32 petitioner] asserted a facially meritorious claim, i.e., that his sentence of life imprisonment exceeded the maximum authorized by law for his conviction of attempted first-degree rape -- a Class B felony -- and that he was sentenced without the application of any enhancements. Further, in response to the State’s assertions that he was sentenced pursuant to the Habitual Felony Offender Act (‘HFOA’), [the Rule 32 petitioner] stated that the record did not contain any indications that he was sentenced pursuant to the HFOA and at
tached documents to that response which he contended] supported] his assertion."
Coleman, 927 So. 2d at 887. The Court of Criminal Appeals remanded the cause to the circuit court in that case for further proceedings, stating:
"If the circuit court determines that [the Rule 32 petitioner] was not sentenced under the HFOA and, consequently, that his sentence exceeds the maximum authorized by law, that court is authorized to resentence [the Rule 32 petitioner] within the parameters of a conviction for a Class B felony. Conversely, if the circuit court determines that [the Rule 32 petitioner] was properly sentenced under the HFOA, then [the Rule 32 petitioner] is not entitled to any relief."
Coleman, 927 So. 2d at 888.
In the present case, as in Coleman and Barnes, and unlike in Murray, Self asserted that he had not been sentenced as a habitual felony offender. The Court of Criminal Appeals mischaracterized Self’s argument as one asserting only that the record did not indicate that he had been sentenced as a habitual felony offender. However, in addition to asserting that the record did not indicate that Self had been sentenced as a habitual felony offender, Self specifically asserted that he had not been sentenced as a habitual felony offender. Under Coleman and Barnes, such an argument is jurisdictional, and Self made specific assertions to support his argument. See also Adams v. State, 825 So. 2d 239 (Ala. Crim. App, 2001) (stating that a claim in a Rule 32 petition that a sentence is illegal because it was not entered under the HFOA is jurisdictional and, thus, not subject to the procedural bars of Rule 32.2). If Self is able to demonstrate that he was not sentenced as a habitual felony offender, then he will be entitled to the relief he seeks. Accordingly, Self has demonstrated that the Court of Criminal Appeals’ decision is in conflict with Barnes.
[2] Notably, the State offers no argument concerning whether the Court of Criminal Appeals’ decision is in conflict with Barnes; in fact, the State does not even cite Barnes in its brief to this Court. Instead, the State urges this Court to "take this opportunity to correct its jurisprudence and hold that an unlawful sentence does not deprive the sentencing court of subject-matter jurisdiction." The State’s brief at p. 14. This is the first time in these proceedings that the State has raised the argument that an illegal sentence does not raise a jurisdictional issue; we did not grant certiorari review to consider that issue. Because of the limited scope of our certiorari review, see Ex parte Cooper, 43 So. 3d 547, 551 (Ala. 2009) (citing Ex parte Franklin, 502 So. 2d 828 (Ala.1987), for the principle that this court can address only those issues that are pleaded in the petition as grounds for certiorari review), we decline to consider at this time the well-established principle that an allegation that a sentence exceeds the maximum authorized by law is a jurisdictional claim. See, e.g., Rogers v. State, 728 So. 2d 690, 690-91 (Ala. Crim. App. 1998) (stating that a claim that a sentence exceeds the maximum authorized by law is jurisdictional and, thus, not subject to the grounds of preclusion set out in Rule 32.2). The issue was not raised until the State did so in its respondent’s brief, and this Court has not received adversarial briefing on the issue.
Conclusion
Based on the forgoing, we conclude that the Court of Criminal Appeals’ decision affirming the circuit court’s summary denial of Self’s Rule 32 petition is in conflict with Barnes. Accordingly, the judgment of the Court of Criminal Appeals is reversed; the summary denial of Self’s Rule 32 petition was improper. On remand, the Court of Criminal Appeals shall remand this cause to the circuit court for further proceedings consistent with Barnes. If the circuit court determines that Self was not sentenced under the HFOA and, consequently, that his sentence exceeds the maximum authorized by law, that court is authorized to resentence Self within the parameters applicable to a conviction for a Class C felony. Conversely, if the circuit court determines that Self was properly sentenced under the HFOA, then Self is not entitled to any relief.
REVERSED AND REMANDED.
Bolin, Shaw, Wise, Bryan, Sellers, Stewart, and Mitchell, JJ., concur.
Parker, C.J., concurs specially.
PARKER, Chief Justice (concurring specially).
Although the main opinion remands this case "for further proceedings consistent with Barnes [v. State, 708 So. 2d 217 (Ala. Crim. App, 1997)]," I do not read the opinion as expressly approving the holding of Barnes. Rather, I read the opinion as resolving the present conflict of decisions in favor of Barnes, for purposes of this case only, solely because Barnes is a published decision and the decision below is not.
This Court may review by certiorari a decision of one of the courts of appeals that conflicts with one of that court’s own prior decisions. Rule 39(a)(1)(D), Ala. R. App. P. In such a case of intra-appealscourt conflict, we, as the higher court, are not bound by either of the conflicting decisions. Moreover, even under the doctrine of horizontal stare decisis, the appeals court is not bound by its prior decision; the court may overrule its prior decision, see Wells v. State, 93 So. 3d 155, 166-67 (Ala. Crim. App. 2011); Bittick v. Bittick, 297 So. 3d 397, 405 n.1 (Ala. Civ. App. 2019), either expressly or sub silentio. So, on certiorari review, nothing entitles either conflicting decision to a presumption of correctness vis-à-vis the other.
In addition, within the structure of the Alabama Unified Judicial System, an important function of this Court is to "say what the law is," Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803), for the benefit of lower courts, attorneys, and the public. This duty derives from our constitutional role, as "the highest court of the state," of exercising "general supervision and control of courts of inferior jurisdiction," Art. VI, § 140(a) and (b), Ala. Const. 1901 (Off. Recomp.). And certiorari review based on an intra-appeals-court conflict affords us a key opportunity to fulfill this role by resolving an issue on which a lower court’s decisions conflict.
For these reasons, when we grant certiorari review based on an intra-appealscourt conflict, the matter before us for resolution is the issue on which the decisions conflict. We may resolve the issue in favor of one decision or the other, or we may determine that neither decision is correct and opt for a third solution. What we may not do, in my view, is merely determine that a conflict indeed exists and then reverse solely on that basis without deciding the issue itself. To do so would be to avoid our duty to say what the law is.
I acknowledge that there are exceptions to this obligation. First, in some cases, the parties present no argument on the issue in conflict; they are content to merely focus on the fact of the conflict. Without argument from the parties, it may be prudent for this Court to simply confirm that a conflict exists and reverse and remand for the appeals court to resolve it upon proper argument. Second, in some cases, the appeals court’s prior decision is published but its conflicting decision is unpublished. A court of appeals may not overrule a published decision in an unpublished one. This is because a court of appeals may issue an unpublished decision only when "an opinion in the case would serve no significant precedential purpose," Rules 53(a)(1) and 54(a), and because an unpublished decision has "no precedential value," Rules 53(d) and 54(d). Thus, when an unpublished decision conflicts with a prior published one, this Court may reverse the unpublished decision based solely on this principle of "publication stare decisis" rather than on the merits of the published decision.
The present case comes within the second exception. Barnes was a published decision, whereas the decision below was unpublished. So this Court properly reverses the decision below based solely on its conflict with Barnes. This means that this Court is neither resolving the issue raised by the conflict nor approving Barnes. Accordingly, the Court of Criminal Appeals remains free to reconsider Barnes in a future case.