Opinion
CR-19-0043
12-16-2020
Christopher SHROVE v. STATE of Alabama
Christopher L. Davis, Bessemer, for appellant. Steve Marshall, atty. gen., and Laura I. Cuthbert, asst. atty. gen., for appellee.
Christopher L. Davis, Bessemer, for appellant.
Steve Marshall, atty. gen., and Laura I. Cuthbert, asst. atty. gen., for appellee.
COLE, Judge. Christopher Shrove appeals the circuit court's denial of his third Rule 32, Ala. R. Crim. P., petition for postconviction relief, challenging his October 11, 2006, guilty-plea conviction for soliciting a child by computer, a violation of § 13A-6-110, Ala. Code 1975, and his resulting sentence of 15 years’ imprisonment.
Section 13A-6-110 was repealed effective May 22, 2009, see Act No. 2009-745, § 9, Ala. Acts 2009, and discussion infra.
Facts and Procedural History
The facts underlying Shrove's guilty-plea conviction and sentence are undisputed. The circuit court summarized those facts in its order denying Shrove's petition as follows:
"According to the ‘Affidavit and Felony Warrant of Arrest’ and information contained in a report filed by the Prattville Police Department, Shrove's conduct and the relevant conduct giving rise to the charge occurred on March 30, 2006. According to the affidavit and felony warrant of arrest, Shrove communicated, by means of a computer, with a confidential informant that ‘he believed to be a 14-year-old child.’ For weeks prior to March 30, 2006, Shrove messaged or solicited, via computer, an adult, ‘undercover operative that he believed to be a fourteen-year-old girl.’ Shrove attempted to meet the adult, undercover operative on March 30, 2006, at Spinners Park located in Autauga County, Alabama. According to the presentence report, investigator Angela Allen sat on playground equipment in the park when Shrove walked ‘within hearing distance’ of Investigator Allen and attempted to greet her. The only witnesses, whether via computer instant messaging or in-person, to Shrove's conduct giving rise to the charge and conviction were adults and members of law enforcement; no children under the age of sixteen years were involved or present. At no point was Shrove's conduct directed to a person under the age of sixteen years of age."
(C. 182.)
At the time Shrove pleaded guilty to soliciting a child by computer, § 13A-6-110, Ala. Code 1975, provided as follows:
"[A] person is guilty of solicitation of a child by a computer if the person is 19 years of age or older and the person knowingly, with the intent to commit an unlawful sex act, entices, induces, persuades, seduces, prevails, advises, coerces, or orders, by means of a computer, a child who is less than 16 years of age and at least three years younger than the defendant, to meet with the defendant or any other person for the purpose of engaging in sexual intercourse, sodomy, or to engage in a sexual performance, obscene sexual performance, or sexual conduct for his or her benefit."
Shrove did not argue that his specific conduct--using a computer to communicate with an adult posing as a child under the age of 16--was not a violation of § 13A-6-110, Ala. Code 1975. And Shrove did not appeal his guilty-plea conviction or sentence.
Three years after Shrove pleaded guilty, the legislature repealed § 13A-6-110 and replaced it with § 13A-6-122. See Act No. 2009-745, Ala. Acts 2009. The new computer-solicitation-of-a-child statute altered the old statute by adding language that made communicating with "another person believed by the defendant to be a child at least three years younger than the defendant" a crime. § 13A-6-122, Ala. Code 1975 (emphasis added). At the same time it enacted § 13A-6-122, the legislature also enacted § 13A-6-127, Ala. Code 1975, which provides that it is no defense to computer solicitation of a child "[t]hat an undercover operative or law enforcement officer was involved in the detection and investigation."
In 2012, six years after Shrove pleaded guilty, this Court addressed the question "whether a person could be convicted of violating § 13A-6-110, Ala. Code 1975, as it provided prior to May 22, 2009, when an actual child was never solicited even though that person believed that he was soliciting an actual child." Tennyson v. State, 101 So. 3d 1256, 1257 (Ala. Crim. App. 2012). This Court unanimously held "that the plain language of § 13A–6–110, Ala. Code 1975, as it existed at the time of the relevant conduct, required that a defendant solicit an actual child and not an undercover officer whom he believed to be a child." Tennyson, 101 So. 3d at 1262 (emphasis added). Put differently, before May 22, 2009, using a computer to communicate with an adult who is posing as a child was not criminal conduct punishable under § 13A-6-110, Ala. Code 1975.
On January 3, 2019, Shrove filed the instant Rule 32 petition. (C. 6.) Relying on Tennyson, Shrove alleged that the trial court did not have jurisdiction to render a judgment or to impose a sentence in his case because his conduct--communicating, "at all times, with an adult, undercover operative posing as a child less than sixteen (16) years of age"--was not a crime under § 13A-6-110. (C. 15.) Shrove acknowledged that his petition was successive, but he alleged that the grounds of preclusion set out in Rule 32.2, Ala. R. Crim. P., did not bar his petition because his claim is "jurisdictional." Shrove argued:
"Because the indictment did not state an offense and an indictment or complaint invokes the Court's subject-matter jurisdiction, the Court was without jurisdiction to render a judgment or impose sentence. The indictment alleged a violation of Alabama Code § 13A-6-110, but the specific facts alleged in the indictment did not invoke the Court's jurisdiction. For the Court to render judgment and maintain subject-matter jurisdiction the indictment must allege an offense. For the Court to render judgment, the facts giving rise to the indictment must allege an offense. Shrove committed no offense. The Court was without subject-matter jurisdiction to render judgment. Therefore, Shrove's successive petition is not precluded."
(C. 25 (citations omitted).)
On March 6, 2019, the State moved to dismiss Shrove's petition. (C. 161-66.) The State argued that Shrove's claim was not jurisdictional and that it was precluded by Rule 32.2(a)(5), Ala. R. Crim. P., that it was successive under Rule 32.2(b), Ala. R. Crim. P., and that it was time-barred under Rule 32.2(c), Ala. R. Crim. P. (C. 162.) The State also argued that Shrove's claim was meritless because, it said, Tennyson "has no retroactive application" to Shrove's case. (C. 164.)
In response, Shrove again noted that his petition was successive but argued that none of the grounds of preclusion set out in Rule 32.2, Ala. R. Crim. P., apply to his claim because, he said, his claim is jurisdictional. Shrove explained that his
"indictment did not allege a crime. Shrove did not solicit or communicate with a child under the age of sixteen years old. He communicated at all times with an undercover operative posing as a child. Under Tennyson and
Section 13A-6-110 at the time of Shrove's conduct giving rise to the indictment, communicating or soliciting an undercover operative posing as a child was not a crime. A valid indictment confers jurisdiction. A valid indictment must allege a crime. Otherwise, the court is without jurisdiction to render a judgment and/or impose sentence. The petition asserts a jurisdictional claim for relief."
(C. 171.) Shrove also argued that Tennyson was retroactive because it announced a "substantive rule that narrows the scope of a criminal statute by interpreting its terms and places particular conduct or persons covered by the statute beyond the State's power to punish." (C. 172.) Shrove continued:
"The Tennyson holding was a new and substantive rule, not a procedural rule. Tennyson, therefore, is retroactive to Shrove. In Tennyson, the court narrowed the scope of section 13A-6-110 by interpreting the plain language of the statute to permit only the prosecution of defendants that solicited or communicated a child, not an adult posing as a child. According to Tennyson, the relevant conduct, the solicitation and communication, had to involve a person under the age of sixteen years. It, quite obviously, narrowed the particular conduct or persons covered by the statute that the State had the power to punish under 13A-6-11. The State, thus, could no longer prosecute individuals that merely solicited or communicated with adults posing as children. Hence, proposed and enacted legislation after Tennyson, stated that its purpose was, among other things, ‘to specify that the crime may be committed if the person the defendant believed to be a child was a law enforcement officer ...’ Tennyson at 1258,. Also see §§ 13A-6-122 and 13A-6-127, Code of Alabama, 1975. To disallow Tennyson from applying retroactively would ‘carry a significant risk’ that Shrove, and others similarly situated that solicited or communicated only with an adult, would stand ‘convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him.’ Schiro [Schriro v. Summerlin, 542 U.S. 348, 352 (2004).] ... Refusal to apply Tennyson retroactively would produce the exact results and constitutional violations that the Schiro [Schriro] court warned against. Tennyson involves the applicability of a new, substantive rule, not a procedural rule. Tennyson ... applies retroactively to Shrove."
(C. 173.)
On August 14, 2019, the circuit court held a hearing on Shrove's petition. At the hearing, the parties reiterated the arguments raised in their respective motions. After the hearing, the circuit court issued an order granting the State's motion to dismiss. In its order, the circuit court found that Tennyson applied retroactively to Shrove's case (C. 182-85) but concluded that Shrove's claim was nonjurisdictional and thus precluded under Rule 32.2(a)(5), Ala. R. Crim. P., successive under Rule 32.2(b), Ala. R. Crim. P., and time-barred under Rule 32.2(c), Ala. R. Crim. P. (C. 185-86). This appeal follows.
Standard of Review
" ‘ "The standard of review on appeal in a postconviction proceeding is whether the [circuit court] abused [its] discretion when [it] denied the petition. Ex parte Heaton, 542 So. 2d 931 (Ala. 1989)." ’ Strickland v. State, 771 So. 2d 1123, 1125 (Ala. Crim. App. 1999) (quoting Elliott v. State, 601 So. 2d 1118, 1119 (Ala. Crim. App. 1992) ). However, ‘when the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo.’
Ex parte White, 792 So. 2d 1097, 1098 (Ala. 2001). In either instance, this Court may affirm the judgment of the circuit court for any reason, even if not for the reason stated by the circuit court. See Reed v. State, 748 So. 2d 231 (Ala. Crim. App. 1999) (‘If the circuit court is correct for any reason, even though it may not be the stated reason, we will not reverse its denial of the petition.’)."
Acra v. State, 105 So. 3d 460, 464 (Ala. Crim. App. 2012) (footnote omitted).
Discussion
On appeal, Shrove argues that the circuit court erred when it denied his Rule 32 petition, and he reiterates the arguments that he raised in the circuit court, including his argument that his claim is "jurisdictional" and that Tennyson applies retroactively to his case. The State, on the other hand, argues that Shrove's claim is "nonjurisdictional" and that it was properly dismissed because it was "untimely, successive, ... precluded[,] and meritless." (State's brief, pp. 2-3.) The State recognizes our decision in Tennyson, but it argues that Tennyson "is distinguishable" from Shrove's case because "Tennyson was convicted after a jury trial" and "Shrove pleaded guilty." (State's brief, p. 5.)
At the outset, we note that both Shrove and the State argue over whether Shrove's claim should be categorized as "jurisdictional" or "nonjurisdictional"--as those words are used in the context of a Rule 32 proceeding. But if Tennyson applies retroactively to cases on collateral review, whether Shrove's claim is jurisdictional or nonjurisdictional is of no consequence. This Court explained as much in Acra v. State, 105 So. 3d 460 (Ala. Crim. App. 2012).
In Acra, David Wayne Acra, " ‘a homeless[ ] [and] indigent [sex] offender,’ " pleaded guilty to violating the Community Notification Act ("CNA") when he " ‘could not supply his prison custodian a true address in which he would reside due to his homelessness.’ " Acra, 105 So. 3d at 463. A year after he pleaded guilty, this Court, in State v. Adams, 91 So. 3d 724 (Ala. Crim. App. 2010), held that the provision of the CNA that requires homeless sex offenders to provide an "actual address at which he or she will reside" was unconstitutional. After this Court decided Adams, Acra filed a Rule 32 petition alleging that, under Adams, the trial court did not have jurisdiction to " ‘prosecute him or impose sentence upon him’ " because the CNA was unconstitutional as it relates to homeless sex offenders. Acra, 105 So. 3d at 463. This Court held that Acra's claim was a constitutional claim (i.e., that the statute to which he pleaded guilty of violating was unconstitutional), that constitutional claims are generally nonjurisdictional, and that Acra's "claim appears to be untimely" under Rule 32.2(c), Ala. R. Crim. P. But this Court explained that, because "our holding in Adams is retroactive[,] ... Acra's Adams claim is not subject to the preclusions found in Rule 32.2, Ala. R. Crim. P." Acra, 105 So. 3d at 467. Thus, under Acra, when a claim is retroactive to cases on collateral review, a petitioner may raise that claim in a Rule 32 petition and the grounds of preclusion set out in Rule 32.2, Ala. R. Crim. P., do not apply to that claim. See Acra, 105 So. 3d at 465 (holding that because Adams, 91 So. 3d 724, applies retroactively to cases on collateral review, Acra's Adams claim was not precluded under Rule 32.2, Ala. R. Crim. P.).
This, of course, makes sense because if the grounds of preclusion still applied to claims that are retroactive on collateral review, then most claims that are "nonjurisdictional" and retroactive would be precluded under Rule 32.2 and retroactivity would be rendered meaningless.
So, here, it does not matter whether we classify Shrove's claim as a "nonjurisdictional" claim (for example, a claim challenging the factual basis of his guilty plea, see Whitman v. State, 903 So. 2d 152, 155-56 (Ala. Crim. App. 2004), or a claim challenging the validity of his indictment, see Ex parte Seymour, 946 So. 2d 536, 539 (Ala. 2006) ) or as a "jurisdictional" claim (for example, a claim that he pleaded guilty to an offense that does not exist, see Watkins v. State, 941 So. 2d 343 (Ala. Crim. App. 2006) ) if Tennyson applies retroactively to cases on collateral review. Thus, the question we must first answer is whether Tennyson applies retroactively to cases on collateral review.
To determine whether a decision of this Court applies retroactively to cases on collateral review, this Court has used the same "retroactivity" framework implemented by the Supreme Court of the United States.
"Using this framework, we first ask whether the rule announced in an opinion is a new rule or whether it is an old rule. ‘[A]n old rule applies both on direct and collateral review, but a new rule is generally applicable only to cases that are still on direct review.’ Id. (emphasis added)."
Acra, 105 So. 3d at 466. Shrove, of course, does not argue that Tennyson announced an "old rule"; rather, he argues that Tennyson announced a "new substantive rule"--that is, " ‘ "a rule that ... was not ‘dictated by precedent existing at the time the defendant's conviction became final.’ " ’ " Ex parte Williams, 183 So. 3d 220, 224 (Ala. 2015) (quoting Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007), quoting in turn Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990), quoting in turn Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) ). In the retroactivity framework, after asking whether a rule is "new" or "old," courts must ask whether the rule is "substantive" or "procedural." "A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes." Schriro v. Summerlin, 542 U.S. 348, 353, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). A rule is procedural, on the other hand, if it "regulate[s] only the manner of determining the defendant's culpability." Id. Because Tennyson did not regulate "the manner of determining" Shrove's culpability under § 13A-6-110, Ala. Code 1975, but, instead, set out the "range of conduct" that § 13A-6-110 criminalizes, Tennyson involves a substantive rule so that we must focus only on whether that new substantive rule applies retroactively to cases on collateral review.
The Alabama Supreme Court's decision in Ex parte Williams, 183 So. 3d 220 (Ala. 2015), was vacated on other grounds by the Supreme Court of the United States in Williams v. Alabama, 577 U.S. 1188, 136 S. Ct. 1365, 194 L.Ed.2d 347 (2016).
Under the retroactivity framework, a new substantive rule applies to criminal cases on collateral review when that new rule " ‘carr[ies] a significant risk that a defendant stands convicted of "an act that the law does not make criminal" ’ or faces a punishment that the law cannot impose upon him." Schriro v. Summerlin, 542 U.S. 348, 352, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). The United States Court of Appeals for the Eleventh Circuit explained that two types of constitutional rules fall under this retroactivity rule.
"First, we apply retroactively on collateral review a new rule that prohibits the punishment of certain primary conduct. Examples of this type of new rule include
Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L.Ed. 2d 508 (2003), in which the Supreme Court held that the Fourteenth Amendment forbids states from making illegal private, homosexual sodomy between consenting adults, id. at 578, 123 S. Ct. at 2484, and Texas v. Johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L.Ed. 2d 342 (1989), in which the Supreme Court held that the First Amendment forbids states from punishing an individual for burning the American flag in protest, id. at 414, 109 S. Ct. at 2545. Those rules operate retroactively on collateral review because they ‘place particular conduct or persons covered by [a] statute beyond the State's power to punish.’ Schriro, 542 U.S. at 352, 124 S. Ct. at 2522. Second, we apply retroactively on collateral review a new rule that prohibits a category of punishment for certain offenders or offenses. Examples of this type of new rule include Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L.Ed. 2d 335 (2002), in which the Supreme Court held that the Eighth Amendment forbids states from ‘tak[ing] the life of a mentally retarded offender,’ id. at 321, 122 S. Ct. at 2252 (internal quotation marks and citation omitted), and Kennedy v. Louisiana, 554 U.S. 407, 128 S. Ct. 2641, 171 L.Ed. 2d 525 (2008), in which the Supreme Court held that the Eighth Amendment forbids states from executing a child rapist unless his crime ‘t[ook] the life of the victim,’ id. at 447, 128 S. Ct. at 2665. Those rules operate retroactively on collateral review because they prevent a defendant from ‘fac[ing] a punishment that the law cannot impose upon him.’ Schriro, 542 U.S. at 352, 124 S. Ct. at 2523 ; see also In re Holladay, 331 F.3d 1169, 1173 (11th Cir. 2003) (holding that ‘there is no question that the new constitutional rule ... articulated in Atkins is retroactively applicable to cases on collateral review’)."
In re Rivero, 797 F.3d 986, 990 (11th Cir. 2015).
But the holding in Tennyson is not rooted in any constitutional principle (unlike the holding in Adams, which was made retroactive to cases on collateral review in Acra ), it did not categorically prohibit the legislature from criminalizing Shrove's conduct (as evidenced by the fact that the legislature enacted § 13A-6-122, Ala. Code 1975, which specifically criminalizes that conduct), and it did not prohibit punishment for a certain class of offenders. Instead, Tennyson merely interpreted § 13A-6-110, Ala. Code 1975, and provided "an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction." Rivers v. Roadway Exp., Inc., 511 U.S. 298, 312-13, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994). In other words, Tennyson "did not overrule any prior decision of this Court; rather, it held and therefore established that" any prior different interpretations of § 13A-6-110 by lower courts "were incorrect." Rivers, 511 U.S. at 312, 114 S.Ct. 1510. Tennyson's interpretation of § 13A-6-110 to exclude from its purview conduct that has always been excluded from that statute, however, does not mean that Tennyson is not retroactive to cases on collateral review.
Indeed, the Supreme Court of the United States has held that included within the new substantive rules that typically apply retroactively are "decisions that narrow the scope of a criminal statute by interpreting its terms." Schriro v. Summerlin, 542 U.S. 348, 351-52, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). "As an example of a ‘decision that narrow[s] the scope of a criminal statute by interpreting its terms,’ the Supreme Court cited Bousley v. United States, 523 U.S. 614, 118 S. Ct. 1604, 140 L.Ed. 2d 828 (1998), in which the Supreme Court explained that a new substantive rule that narrowed the definition of the word ‘use’ [in 18 U.S.C. § 924(c)(1) ] applied retroactively on collateral review." In re Rivero, 797 F.3d at 991.
Here, although Tennyson interpreted § 13A-6-110, Ala. Code 1975, to mean what it always meant, that decision nonetheless "narrowed the scope" of that statute by interpreting the phrase "a child who is less than 16 years of age and at least three years younger than the defendant" in § 13A-6-110 to mean that the only conduct prohibited by the statute was soliciting an actual child--not someone posing as a child. See Tennyson, 101 So. 3d at 1261. Tennyson's narrowing of § 13A-6-110, Ala. Code 1975, " ‘carr[ies] a significant risk that a defendant stands convicted of "an act that the law does not make criminal[.]" ’ " Schriro v. Summerlin, 542 U.S. 348, 352, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). Thus, as the circuit court correctly found, Tennyson applies retroactively to cases on collateral review.
Having found that Tennyson applies retroactively to cases on collateral review, we must now decide what impact Tennyson has on Shrove's case. First, although the circuit court concluded that Shrove's claim was precluded under Rule 32.2, Ala. R. Crim. P., because Tennyson applies retroactively to Shrove's case, to allow this retroactivity to have any effect the grounds of preclusion cannot bar Shrove's claim. See Acra, 105 So. 3d at 465. Thus, the circuit court erred when it found Shrove's claim was precluded under Rule 32.2(a)(5), Ala. R. Crim. P., was successive under Rule 32.2(b), Ala. R. Crim. P., and was time-barred under Rule 32.2(c), Ala. R. Crim. P. (C. 185-86).
Second, the holding in Tennyson clearly applies to the facts presented to the trial court in Shrove's case. As explained above, Shrove was arrested, indicted, and pleaded guilty to violating § 13A-6-110, Ala. Code 1975, based on his communication with an adult undercover police officer posing as a child. In Tennyson, this Court held that such conduct does not violate § 13A-6-110, Ala. Code 1975. Quite simply, as the circuit court noted, "the facts of Tennyson and Shrove ... are factually identical and [d]o not support the crime charged in the indictment because neither Shrove nor Tennyson solicited or communicated with an underage person." (C. 185.)
Conclusion
Because Shrove did not solicit an actual child, he did not violate § 13A-6-110, Ala. Code 1975, which was in effect at the time of the alleged offense. Furthermore, because Tennyson applies retroactively to cases on collateral review, and because the grounds of preclusion in Rule 32.2, Ala. R. Crim. P., do not apply to claims that operate retroactively, the circuit court erred when it found that Shrove's claim was precluded under Rule 32.2, Ala. R. Crim. P. Therefore, Shrove is entitled to postconviction relief and to have his guilty-plea conviction and sentence set aside. Accordingly, the judgment of the circuit court is reversed and this case is remanded to that court for proceedings consistent with this opinion.
REVERSED AND REMANDED.
Kellum, McCool, and Minor, JJ., concur. Windom, P.J., dissents.