Allen v. State

• Decision Date: 25 May 2001
• Citation: 825 So.2d 264
• Parties: Bobby Joe ALLEN v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

825 So.2d 264

Bobby Joe ALLEN v. STATE of Alabama.

CR-00-0647.

Court of Criminal Appeals of Alabama.

May 25, 2001.

Rehearing Denied August 10, 2001.

Bobby Joe Allen, appellant, pro se.

Bill Pryor, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.

SHAW, Judge.

Bobby Joe Allen appeals the circuit court's summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his April 21, 1998, guilty-plea conviction for unlawful breaking and entering a vehicle and his resulting sentence, as a habitual offender, of 15 years' imprisonment.¹ Allen did not appeal his conviction.

On October 20, 2000, Allen filed the present Rule 32 petition. In his petition, Allen alleged that his sentence of 15 years' imprisonment exceeded the maximum authorized by law because, he said, the trial court improperly sentenced him as a habitual felony offender. In this regard, Allen specifically claimed: (1) that the State failed to give him notice of its intent to invoke the Habitual Felony Offender Act; (2) that although the case action summary reflects that he stipulated at the sentencing hearing to having one prior felony conviction, he in fact did not stipulate to the prior conviction; and (3) that the State failed to prove his prior conviction for purposes of sentence enhancement. The State filed a motion to dismiss Allen's petition on October 31, 2000.

On November 13, 2000, at 1:24 p.m., the circuit court issued the following order summarily denying Allen's petition:

"The above-styled matter came before this Court upon the [p]etitioner, Bobby Joe Allen's Rule 32 [p]etition, and upon the State's Response and Motion to Dismiss. Petitioner alleges that his sentence was improperly enhanced. Petitioner waived this complaint by failing to raise said issue on direct appeal.

". . . .

"If the trial judge has personal knowledge of the facts underlying any allegation in the Rule 32 Petition, the judge may deny those claims without further proceedings so long as the specific reason[s] for denial are stated in the written order. Petitioner plead[ed] guilty before this judge to Breaking & Entering a Motor Vehicle to commit [a] felony or theft, a Class `C' felony, and petitioner further stipulated to having a prior felony conviction. The Court sentenced the petitioner to 15 years in the State Penitentiary and suspended the entire sentence and placed the petitioner on supervised probation for 2 years. Thereafter, this judge revoked petitioner's probation and petitioner was ordered to serve his 15-year sentence....

"The petitioner was properly sentenced within the range authorized by the Alabama Habitual Felony Offender Act; it is, therefore,

"ORDERED, ADJUDGED and DECREED BY THE COURT that [p]etitioner's Rule 32 petition is dismissed."

(C. 18.)

On the same day at 1:50 p.m., Allen's response to the State's motion to dismiss and a motion to amend his Rule 32 petition (presenting two additional claims) were stamped as filed by the circuit clerk. The certificate of service for these two documents was dated November 7, 2000, six days before the circuit court issued its order. The record reflects that the circuit court did not rule on Allen's motion to amend. On November 29, 2000, Allen filed a motion entitled "Motion to Amend Court's Finding and Judgment," in which Allen alleged that the circuit court had erred in not ruling on the motion to amend his petition. (C. 23.) The circuit court denied the motion.

On appeal, Allen does not pursue the three claims presented in his petition; therefore, those claims are deemed to be abandoned. See, e.g., Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App.1995) (holding that "[w]e will not review issues not listed and argued in brief"). Instead, Allen challenges the circuit court's failure to consider the amendment to his petition and to rule on a motion to obtain a transcript of his guilty-plea proceedings.

Allen contends that the circuit court erred in not ruling on his motion to amend his petition and in not considering in its ruling the two additional claims he presented in the amendment. Allen maintains that the circuit court should have considered his amendment as having been timely filed, even though it was not received by the court until after the court had issued its order summarily denying his petition because, he says, he gave the motion to amend to prison officials for mailing on the day he signed the certificate of service—November 7, 2000. Therefore, Allen argues, his amendment should be deemed to have been "filed" on November 7, six days before the circuit court denied his petition, and the circuit court should have ruled on his amended claims. We disagree.

We recognize that a Rule 32 petitioner is considered to have "filed" his petition when he gives the petition to prison officials for mailing, not when the circuit court receives the petition. See Ex parte Powell, 674 So.2d 1258, 1259 (Ala. 1995); Lucas v. State, 722 So.2d 822, 823 (Ala.Crim.App.1998); and Holland v. State, 621 So.2d 373, 375 (Ala.Crim.App. 1993). We likewise recognize that a Rule 32 petitioner's notice of appeal to this court and a petition for a writ of certiorari in the Alabama Supreme Court are also deemed to have been "filed" when the petitioner hands those documents over to prison officials for mailing and not when the appellate court receives them. See Rule 4(c), Ala.R.App.P.; Ex parte Jones, 773 So.2d 989, 990 (Ala.1998); and Ex parte Williams, 651 So.2d 569, 570-71 (Ala.1992). However, we do not believe that these rules are applicable to the present case.

The reason for considering pro se Rule 32 petitions, notices of appeal, and petitions for a writ of certiorari to be "filed" on the day those documents are given to prison officials for mailing and not when they are received by the appropriate court is because of the filing deadlines associated with those documents. See Rule 32.2(c), Ala.R.Crim.P.; Rule 4(a)(1), Ala.R.App.P.; and Rule 39(c)(2), Ala. R.App.P. In Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), the United States Supreme Court recognized the unique situation that pro se petitioners are placed in when facing the filing deadlines associated with notices of appeal:

"The situation of prisoners seeking to appeal without the aid of counsel is unique. Such prisoners cannot take the steps other litigants can take to monitor the processing of their notices of appeal and to ensure that the court clerk receives and stamps their notices of appeal before the 30-day deadline. Unlike other litigants, pro se prisoners cannot personally travel to the courthouse to see that the notice is stamped `filed' or to establish the date on which the court received the notice. Other litigants may choose to entrust their appeals to the vagaries of the mail and the clerk's process for stamping incoming papers, but only the pro se prisoner is forced to do so by his situation. And if other litigants do choose to use the mail, they can at least place the notice directly into the hands of the United States Postal Service (or a private express carrier); and they can follow its progress by calling the court to determine whether the notice has been received and stamped, knowing that if the mail goes awry they can personally deliver notice at the last moment or that their monitoring will provide them with evidence to demonstrate either excusable neglect or that the notice was not stamped on the date that the court received it. Pro se prisoners cannot take any of these precautions; nor, by definition, do they have lawyers who can take these precautions for them. Worse, the pro se prisoner has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay. No matter how far in advance the pro se prisoner delivers his notice to the prison authorities, he can never be sure that it will ultimately get stamped `filed' on time. And if there is a delay the prisoner suspects is attributable to the prison authorities, he is unlikely to have any means of proving it, for his confinement prevents him from monitoring the process sufficiently to distinguish delay on the part of prison authorities from slow mail service or the court clerk's failure to stamp the notice on the date received. Unskilled in law, unaided by counsel, and unable to leave the prison, his control over the processing of his notice necessarily ceases as soon as he hands it over to the only public officials to whom he has access— the prison authorities—and the only information he will likely have is the date he delivered the notice to those prison authorities and the date ultimately stamped on his notice."

487 U.S. at 270-72, 108 S.Ct. 2379.

This quotation appears in, and was the foundation for, the Alabama Supreme Court's holding in Ex parte Williams, supra, that a pro se petitioner's petition for a writ of certiorari, although received by the Supreme Court four days after the deadline for filing had lapsed, was nevertheless timely filed because, the Court said, the petitioner had delivered the petition to prison officials for mailing before the time deadline. The Court reasoned:

"We are not persuaded that Rule 25, [Ala.R.App.P.,] is to be rigidly interpreted in the situation of a pro se prisoner who, by the circumstances of his incarceration, has a particular lack of control over papers to be mailed to the clerk of this Court. The Committee Comments to Ala.R.App.P. 1, which defines the scope of our appellate rules, state that `it is the policy of these rules to disregard technicality and form in order that a just, speedy and inexpensive determination of every appellate proceeding on its merits may be obtained.' To rigidly interpret Rule 25 in this instance would be unjust and, therefore, would not foster this policy.

". . . .

"We agree with the reasoning in Houston v. Lack and hold that under

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