Alexander v. State, 8 Div. 81

• Decision Date: 08 May 1984
• Docket Number: 8 Div. 81
• Citation: 462 So.2d 955
• Parties: J.T. ALEXANDER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 955

462 So.2d 955

J.T. ALEXANDER v. STATE.

8 Div. 81.

Court of Criminal Appeals of Alabama.

May 8, 1984.

On Return to Remand Nov. 27, 1984.

Rehearing Denied Jan. 22, 1985.

J.T. Alexander, pro se.

Wesley M. Lavender and J. Leslie Doss, Decatur, and Rod M. Alexander, Moulton, for appellant.

Charles A. Graddick, Atty. Gen. and Patricia E. Guthrie, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

Alexander appeals the trial court's summary dismissal of his pro se petition for writ of error coram nobis. In attacking his 1982 conviction for escape, Alexander alleged that (1) the trial court and his court-appointed attorney used mental coercion to force him into pleading guilty; (2) his counsel was ineffective by applying such mental coercion and acquiescing to the trial judge's use of coercion; and (3) his two prior felony convictions were improperly used to enhance his punishment because they occurred prior to the enactment of the Habitual Felony Offender Act. In support of his first two allegations, Alexander claimed that his attorney conveyed to him the trial judge's message that he had better change his plea to guilty or he would get the maximum sentence. He further alleged that the trial judge expressed the same warning in his presence and that, if his attorney and the trial judge had not applied this coercion, he would not have changed his plea to guilty.

In dismissing Alexander's petition, the trial court granted the State's motion to strike the petition on the ground that the claims were res judicata. The court made the factual finding that the allegations in the present petition are the same as those raised in a 1982 petition for writ of error coram nobis. This 1982 pro se petition attacked the same conviction on various grounds, including the allegations that (1) the Habitual Felony Offender Act was unconstitutionally applied and (2) his guilty plea was the result of coercion. The claim of ineffective counsel was not raised. This first petition was summarily denied on the State's motion to strike. The motion set forth four grounds, as follows: (1) Alexander's allegations fail to set forth particular facts; (2) the petition contains no allegation and proof of a valid defense; (3) Alexander was represented by his attorney; and (4) Alexander did not appeal his conviction and coram nobis is not intended as a substitute for appeal. The trial court's denial of this first petition was affirmed by this court without opinion. Alexander v. State, 434 So.2d 869 (Ala.Cr.App.1983).

It is a well-settled rule that matters adjudicated in a hearing on a petition for writ of error coram nobis are considered "quasi res judicata;" in other words, repeated applications or petitions merely resting on the same allegations which have been previously adjudicated should not be entertained. See McCray v. State, 282 Ala. 315, 211 So.2d 450 (1968); Bies v. State, 418 So.2d 940 (Ala.Cr.App.1982); Allen v. State, 42 Ala.App. 9, 150 So.2d 399, cert. denied, 275 Ala. 691, 152 So.2d 439, cert. denied, 374 U.S. 854, 83 S.Ct. 1922, 10 L.Ed.2d 1074 (1963). The doctrine of res judicata bars reconsideration of an issue if four elements are present: (1) a prior judgment rendered by a court of competent jurisdiction; (2) substantial identity of the parties; (3) identity of the issues; and (4) prior judgment rendered on the merits. See Ozley v. Guthrie, 372 So.2d 860 (Ala.1979). Hence, the provision that the trial court need not entertain a second or successive petition presupposes adequate consideration of the merits of the first petition; if the judgment rendered is not on the merits, the defense of res judicata fails.

This adjudication on the merits is a consideration delineated in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), in determining whether an issue in a federal post-conviction relief petition should be barred as successive. There, the United States Supreme Court stated:

"Controlling weight may be given to denial of a prior application for federal habeas corpus or § 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application." Id. at 15, 83 S.Ct. at 1077.

The Sanders Court recognized two instances in which the denial of a prior application raising factual issues may be considered to have been "on the merits" within the meaning of the second guideline: (1) if the court in the earlier proceedings denied relief after finding that the files and records conclusively resolved the issues, or (2) if relief was denied after an evidentiary hearing. Id. at 16, 83 S.Ct. at 1077. The Court ruled that a petitioner cannot be denied an evidentiary hearing on his second or successive petition unless the petition is shown to be conclusively without merit on the basis of the application, files, and records of the case or unless the three conditions are present to deny the petition on "res judicata" principles. Id. at 15, 83 S.Ct. at 1077.

In view of the foregoing principles, we find that the trial court erroneously denied Alexander's petition on the basis that it was a second and successive petition asserting the same grounds. We do not look upon the denial of Alexander's first petition without a hearing as such a consideration as would relieve the court of its duty to entertain the second petition. The court's denial of the first petition was certainly not a determination on the merits; rather it was merely a refusal to entertain the petition because of its deficiencies. Accordingly, the refusal to consider the second petition on this ground cannot be sustained. Furthermore, Alexander is entitled to a hearing on his second petition because the second petition made factual allegations which, if true, would entitle him to relief and which are not shown by the petition, files, and records to be conclusively without merit.

The Attorney General argues that we cannot review a conviction based upon a guilty plea on a collateral attack after the time for direct appeal has lapsed and no appeal was taken. The opinion of Kilgore v. State, 342 So.2d 947 (Ala.Cr.App.), cert. denied, 342 So.2d 949 (Ala.1977), is cited as authority for this proposition. We believe that this case stands for the proposition that only those coram nobis petitions asserting issues which could have been raised on appeal are barred from collateral consideration.

Accordingly, we remand this cause to the trial court with directions that an evidentiary hearing be held at which Alexander is present and represented by counsel.

REMANDED WITH DIRECTIONS.

All the Judges concur.

On Return to Remand

PATTERSON, Judge.

Appellant was appointed counsel and an evidentiary hearing was held in this cause as instructed by this court and appellant was given an opportunity to substantiate the claims he asserted in his petition for writ of error coram nobis. The only claim made by appellant which can be properly reviewed on writ of error coram nobis is his claimed ineffective assistance of counsel due to his appointed counsel's applying mental coercion and the trial judge's use of coercion in obtaining appellant's plea of guilty to escape in 1982. Appellant's claim of his prior felony convictions being improperly used to enhance his punishment because they occurred prior to the enactment of the Habitual Felony Offender Act, is an issue properly raised on appeal, which appellant failed to do. The writ of error coram nobis does not provide a review by appeal where the complaining party has not sought an appeal and the time for an appeal has long since expired. Corley v. State, 397 So.2d 223 (Ala.Crim.App.1981); Kilgore v. State, 342 So.2d 947 (Ala.Crim.App.1977). Regardless of this well known rule, appellant's contention is without merit, being foreclosed by James v. State, 405 So.2d 71, 74 (Ala.Crim.App.1981), wherein we held that "the Habitual Felony Offender Act was to authorize the infliction of a more severe penalty on one who is a persistent offender regardless of when the prior convictions occurred and even if they occurred before the enactment of the act."

The transcript of the proceeding wherein appellant entered his guilty plea to escape, which was introduced at the coram nobis hearing, and is before us, indicates that appellant was facing two charges of escape in the first degree. On one charge, appellant pleaded guilty to escape in the second degree and the second charge was reduced to resisting arrest, a misdemeanor, to which appellant also pleaded guilty. Appellant was informed of his Boykin rights by the trial judge and further told he was to be sentenced in accordance with the Habitual Felony Offender Act. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Appellant admitted his guilt, stating, "I don't remember what I done it for, but I got a hacksaw blade and sawed the...