Opinion
CR-20-0687
02-11-2022
Joseph Allen Tice v. State of Alabama
Appeal from Houston Circuit Court (CC-19-1363; CC-19-1364; and CC-19-1365)
McCOOL, Judge.
Joseph Allen Tice appeals his convictions for two counts of unlawful possession of a controlled substance, a violation of § 13A-12-212, Ala. Code 1975, and one count of promoting prison contraband in the second degree, a violation of § 13A-10-37, Ala. Code 1975. Tice was sentenced to seven years' imprisonment for each of his unlawful-possession-of-a-controlled-substance convictions, and the trial court ordered that those sentences were to run concurrently. Tice was sentenced to 15 years' imprisonment for his promoting-prison-contraband conviction, and the trial court ordered that that sentence was to run consecutively to Tice's sentences for his unlawful-possession-of-a-controlled-substance convictions.
Facts and Procedural History
While on patrol on January 10, 2019, Deputy Anthony Hall of the Houston County Sheriff's Office stopped a Dodge Ram truck for a traffic violation. Tice was driving the truck, and Tice's girlfriend, Emily Bridges, was a passenger in the truck. Upon smelling alcohol in the vehicle, Deputy Hall asked Tice to step out of the truck. When Tice complied, Deputy Hall "observed two oval blue tablets sitting on the [driver's] seat" (R. 50), which were later determined to be clonazepam, a controlled substance. Deputy Hall then arrested Tice and transported him to the Houston County jail. When they arrived at the jail, Deputy Hall removed Tice from the backseat of his patrol car, at which point Deputy Hall noticed more pills in the backseat of the patrol car, which were not identified at trial. Deputy Hall then took Tice to a holding room, where he conducted a pat-down search of Tice "because [he] had discovered more contraband, and [he] figured there was more on him or in him," but Deputy Hall found no other contraband. (R. 58.) Both Deputy Hall and Deputy Lester Grimsley testified that Tice was then warned to be forthcoming about any other contraband in his possession before he was taken into the jail to be strip-searched because, if other contraband was found during the search, he would be charged with an additional offense or offenses. However, Tice denied having possession of any other contraband. Deputy Hall and Deputy Grimsley then took Tice into the jail to conduct the strip search, and, regarding what occurred during the search, Deputy Grimsley testified:
"We had gotten down to Mr. Tice's underwear. As he was taking them off, he reached down -- well, from his butt and grabbed a red package.
"I told him to ... go ahead and drop that -- which he did.
"He threw it on the counter, actually, and said, 'Well, you can go ahead and charge me now.' "(R. 83.) That red package contained "two cellophane plastic bags [of] methamphetamine." (R. 60.)
Tice was convicted of one count of unlawful possession of a controlled substance based on the clonazepam found in the truck (case no. CC-19-1364), one count of unlawful possession of a controlled substance based on the methamphetamine found during the strip search in the Houston County jail (case no. CC-19-1363), and one count of promoting prison contraband in the second degree based on the methamphetamine found during that search (case no. CC-19-1365). Following the sentencing hearing, Tice filed a motion for a new trial with the assistance of new counsel. The trial court denied that motion at the conclusion of a brief hearing, and Tice provided oral notice of appeal at that time.
Discussion
On appeal, Tice argues that his convictions for unlawful possession of methamphetamine and promoting prison contraband in the second degree violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. Specifically, Tice argues that, under the specific facts of this case, unlawful possession of methamphetamine is a lesser-included offense of promoting prison contraband in the second degree. Thus, Tice argues that double-jeopardy principles mandate that his conviction for unlawful possession of methamphetamine be vacated.We agree with Tice's argument, as does the State.
Tice did not raise this claim in the trial court. However, the Alabama Supreme Court has held that a claim "concern[ing] simultaneous convictions involving greater and lesser-included offenses ... implicates the jurisdiction of the trial court and ... [thus] can [be] raise[d] ... at any time." Heard v. State, 999 So.2d 992, 1006 (Ala. 2007).
Among other protections, the Double Jeopardy Clause" 'protects against multiple punishments for the same offense.'" Gholston v. State, 57 So.3d 178, 184 (Ala.Crim.App.2010) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969))." 'For double jeopardy purposes, a lesser-included and a greater offense are the "same offense" under the Fifth Amendment because the lesser offense requires no proof beyond that which is required for the conviction of the greater offense.'" Id. (quoting Perkinson v. State, 273 Ga. 491, 494, 542 S.E.2d 92, 95 (2001)). Thus, the Double Jeopardy Clause prohibits convictions for "both a greater offense and a lesser offense included within the greater offense." Williams v. State, 104 So.3d 254, 265 (Ala.Crim.App.2012).
"This Court has previously used the two-pronged test announced by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to determine whether two offenses are the same for double-jeopardy purposes:
" 'In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the United States Supreme Court held that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not." The Blockburger test is a two-pronged test. First, "the threshold inquiry under Blockburger is whether the alleged statutory violations arise from 'the same act or transaction.'" State v. Watkins, 362 S.W.3d 530, 545 (Tenn. 2012). See also State v. Armendariz, 140 N.M. 182, 188, 141 P.3d 526, 532 (2006) ("The first part of the test requires the determination of whether the conduct underlying the offenses is unitary."); R.L.G., Jr. v. State, 712 So.2d 348, 359 (Ala.Crim.App.1997) ("Before the double jeopardy prohibition is triggered ... it must appear ... that the crimes arose out of the same act or transaction." (citations omitted)), aff'd, 712 So.2d 372 (Ala. 1998); and State v. Thompson, 197 Conn. 67, 72, 495 A.2d 1054, 1058 (1985)
("An analysis of the Blockburger test involves a threshold determination of whether the offenses arose out of the 'same act or transaction,' and a substantive analysis of whether they contain distinct elements."). The Double Jeopardy Clause does not operate to prohibit prosecution, conviction, and punishment in a single trial for discrete acts of the same offense. See Swafford v. State, 112 N.M. 3, 810 P.2d 1223 (1991). Thus, whether a defendant's conduct constitutes the same act or transaction "does not determine whether there is a double jeopardy violation; rather it determines if there could be a violation." State v. Schoonover, 281 Kan. 453, 467, 133 P.3d 48, 62 (2006).
" '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. "[A]pplication of the test focuses on the statutory elements of the offense," Iannelli v. United States, 420 U.S. 770, 785 n.17, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975), and is a rule of statutory construction based on the assumption that a legislature "ordinarily does not intend to punish the same offense under two different statutes." Whalen v. United States, 445 U.S. 684, 692, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). See also Rutledge v. United States, 517 U.S. 292, 297, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996) ("[W]e presume that 'where two statutory provisions proscribe the "same offense,"' a legislature does not intend to impose two punishments for that offense.")
(quoting Whalen, 445 U.S. at 692, 100 S.Ct. 1432). It is well settled "that a lesser included and a greater offense are the same under Blockburger." Brown v. Ohio, 432 U.S. 161, 166 n.6, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). See also ... Lewis v. State, 57 So.3d 807 (Ala.Crim.App.2009).'
"Williams v. State, 104 So.3d 254, 256-57 (Ala.Crim.App.2012)."Harris v. State, 274 So.3d 304, 306-07 (Ala.Crim.App.2018).
We agree with both Tice and the State that Tice's convictions for unlawful possession of methamphetamine and promoting prison contraband in the second degree arose from the same act or transaction -- namely, the methamphetamine found during the strip search of Tice in the Houston County jail. Thus, having established that the first prong of the Blockburger test is satisfied, we must next determine whether Tice's unlawful possession of that methamphetamine is a lesser-included offense of promoting prison contraband in the second degree.
"In Williams v. State, 104 So.3d 254 (Ala.Crim.App.2012), this Court explained that,
" '"' "to 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 [be considered] 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)."
" 'Ford v. State, 612 So.2d [1317, ] 1318 [(Ala.Crim.App.1992)]. The "particular facts" of each case are those facts alleged in the indictment. Thus, "the statutory elements of the offenses and facts alleged in an indictment -- not the evidence presented at
trial or the factual basis provided at the guilty-plea colloquy -- are the factors that determine whether one offense is included in another." Johnson v. State, 922 So.2d 137, 143 (Ala.Crim.App.2005).'
"Williams, 104 So.3d at 264."Harris, 274 So.3d at 308.
The indictment charging Tice with unlawful possession of methamphetamine alleged that Tice "did knowingly, unlawfully possess a controlled substance enumerated in Schedules I through V of Title 20, Chapter 2 of the Code of Alabama, to-wit: METHAMPHETAMINE, in violation of § 13A-12-212." (C. 17.) Section 13A-12-212(a)(1) provides that "[a] person commits the crime of unlawful possession of controlled substance if[, ] ... [e]xcept as otherwise authorized, he or she possesses a controlled substance enumerated in Schedules I through V." "Methamphetamine is a Schedule II controlled substance." Adams v. State, 124 So.3d 750, 752 (Ala.Crim.App.2013).
The indictment charging Tice with promoting prison contraband in the second degree alleged that Tice "did intentionally and unlawfully introduce within a detention facility, to-wit: HOUSTON COUNTY JAIL, or provide an inmate with a narcotic, dangerous drug, or other controlled substance, to-wit: METHAMPHETAMINE, in violation of § 13A-10-37." (C. 21.) Section 13A-10-37(a)(1) provides that "[a] person is guilty of promoting prison contraband in the second degree if ... [h]e intentionally and unlawfully introduces within a detention facility, or provides an inmate with, any narcotic, dangerous drug or controlled substance as defined in the 'Alabama Controlled Substances Act,' or any amendments thereto[.]"
As we have already concluded, the indictments charging Tice with unlawful possession of methamphetamine and promoting prison contraband in the second degree were both based on the methamphetamine found during the strip search of Tice in the Houston County jail. However, Tice could not have intentionally and unlawfully introduced that methamphetamine into the jail by concealing it in his anus unless he also knowingly and unlawfully possessed the methamphetamine. Thus, under the specific facts of this case, unlawful possession of methamphetamine is a lesser-included offense of promoting prison contraband in the second degree because the latter offense "necessarily include[s] all the elements of" the former offense. Harris, 274 So.3d at 309. See Harris, 274 So.3d at 309-10 (holding that unlawful possession of cocaine and marijuana were lesser-included offenses of the offense of attempted distribution of those substances because the defendant "could not have committed the attempted-distribution offenses without also having committed the possession offenses"); and State v. Nunn, 250 Ariz. 366, 480 P.3d 109 (2020) (holding that possession of a dangerous drug was a lesser-included offense of promoting prison contraband because the defendant's charges for those offenses were both based on his possession of marijuana in a state prison). Therefore, convicting Tice of both of those offenses violated the Double Jeopardy Clause. Williams, supra.
"[T]he 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-included offense." Hopson v. State, 292 So.3d 407, 418 (Ala.Crim.App.2019) (citing Young v. State, 892 So.2d 988 (Ala.Crim.App.2004)). Accordingly, we remand this case to the trial court and instruct that court to vacate Tice's conviction and sentence for unlawful possession of methamphetamine.
Tice also argues that, on remand, the trial court must hold an evidentiary hearing on ineffective-assistance-of-counsel claims that, he says, he raised in his motion for a new trial. Specifically, Tice argues that his trial counsel's performance was deficient in that, he says, counsel "failed to ensure that the crucial evidence of Bridges's clonazepam prescription was admitted," "neglect[ed] to subpoena the records" reflecting Bridges's prescription, "neglect[ed] to ask the prosecutor for the records," and "neglect[ed] to object to a Brady violation when the State failed to produce the records." (Tice's brief, p. 14.) However, Tice did not raise these ineffective-assistance-of-counsel claims, or any others, in his motion for a new trial. (C. 107-09.) In fact, Tice's new counsel twice stated at the hearing on that motion that Tice was not raising ineffective-assistance-of-counsel claims at that time (R. 199, 201) and that, if counsel discovered any viable ineffective-assistance-of-counsel claims after reviewing the record, he would inform Tice that he could raise those claims in a Rule 32, Ala. R. Crim. P., petition for postconviction relief. (R. 197-98, 201.) Accordingly, there are no ineffective-assistance-of-counsel claims for the trial court to address at this time. To the extent Tice is attempting to raise ineffective-assistance-of-counsel claims on appeal, it is well settled that"' "[c]laims of ineffective assistance of counsel may not be considered for the first time on direct appeal." '" Acklin v. State, 790 So.2d 975, 1010 n.4 (Ala.Crim.App.2000) (quoting Bibby v. State, 628 So.2d 1073, 1074 (Ala.Crim.App.1993), quoting in turn Ex parte Jackson, 598 So.2d 895, 897 (Ala. 1992)). As Tice's new counsel noted below, if Tice believes he has viable ineffective-assistance-of-counsel claims, he can raise those claims in a timely filed Rule 32 petition.
Brady v. Maryland, 373 U.S. 83 (1963).
Conclusion
Given the specific facts of this case, Tice's convictions for unlawful possession of methamphetamine and promoting prison contraband in the second degree violate the Double Jeopardy Clause of the Fifth Amendment. Thus, we remand this case to the trial court and instruct that court to vacate Tice's conviction and sentence for unlawful possession of methamphetamine (case no. CC-19-1363). We affirm Tice's convictions and sentences for unlawful possession of clonazepam (case no. CC-19-1364) and promoting prison contraband in the second degree (case no. CC-19-1365). Due return shall be made to this Court within 42 days of the date of this opinion.
AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.
Windom, P.J., and Cole and Minor, JJ., concur. Kellum, J., concurs in the result.