Andersch v. State

• Decision Date: 19 December 1997
• Docket Number: CR-96-2057
• Citation: 716 So.2d 242
• Parties: Kenneth ANDERSCH v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 242

716 So.2d 242

Kenneth ANDERSCH v. STATE.

CR-96-2057.

Court of Criminal Appeals of Alabama.

Dec. 19, 1997.

Kenneth Andersch, pro se.

Bill Pryor, atty. gen., and Robin Blevins, asst. atty. gen., for appellee.

BROWN, Judge.

The appellant, Kenneth Andersch, appeals from the trial court's denial of his petition for post-conviction relief filed pursuant to Rule 32, Ala.R.Crim.P., in which he challenged his guilty-plea convictions for first-degree sodomy and first-degree sexual abuse.

The appellant originally pleaded guilty to two counts of sodomy in the first-degree and four counts of sexual abuse in the first degree. He was sentenced to 15 years' imprisonment for each of the sodomy convictions and to 5 years' imprisonment for each of the sexual abuse convictions. The sentences were to run concurrently. The appellant's convictions were reversed on direct appeal because of the trial court's failure to comply with Rule 14.4(a)(1), Ala.R.Crim.P. See Andersch v. State, 668 So.2d 917 (Ala.Cr.App.1995).

Although it is not clear from the record before this Court, the appellant apparently pleaded guilty to the same charges for a second time on or after September 8, 1995. ¹ The appellant did not appeal from the convictions.

On June 20, 1997, the appellant filed the Rule 32 petition that is the subject of this appeal. On the portion of the printed form entitled, "Grounds of Petition," the appellant checked that he was entitled to relief because (1) his guilty pleas were involuntarily entered; (2) his convictions were obtained by the unconstitutional failure of the prosecution to disclose evidence favorable to him; (3) his convictions were obtained by violating the protection against double jeopardy; and (4) he was denied the effective assistance of counsel. The appellant also checked that the trial court was without jurisdiction to render the judgment or to impose the sentence, that the sentences exceeded the maximum authorized by law, and that he failed to appeal through no fault of his own. The facts presented in support of the above allegations are, for the most part, vague, confusing, and repetitive.

In regard to his claim that his pleas were involuntary, the appellant argued that his trial counsel coerced him into pleading guilty. The appellant maintained that his counsel told him that he had no choice but to plead guilty, and that if he insisted on proceeding to trial, he would receive a sentence of life imprisonment without parole for the sodomy convictions. (C.R.16.) As best we can discern, the appellant also claimed that he should not have pleaded guilty because, he alleged, he could have successfully defended the charges against him on the ground that he was suffering from a mental disease or defect at the time of the offenses. (C.R.16.) He argued that his pleas were involuntary because, he said, his counsel did not explain all of his rights to him and because he did not understand the rights that he would be waiving by pleading guilty. (C.R.16.) The appellant also intimated that his counsel did not adequately investigate the facts and that, therefore, the appellant had no choice but to plead guilty. (C.R.17.)

In a related argument, the appellant alleged that he received the ineffective assistance of counsel. ² Specifically, the appellant claimed:

1. "Counsel refused to hold the prosecution to its burden of proving my guilt beyond a reasonable doubt, and my mental defects, insanity at the time of the offense and trial."

2. "Counsel did not make sure that the State's evidence underwent the testing provided by the adversarial system."

3. "Although I professed my mental defects and incompetent conditions at the time of the offenses as charged, counsel believed that [the] matter was cut and dried as to my guilt and did not believe my mental defects and insanity conditions, when records prove my mental conditions."

4. "Counsel failed to properly investigate the charge alleged in the affidavits to issue a warrant, the indictment, and this failure led to my convictions."

5. "Counsel failed to insure that my rights to the mentally incompetent, and mental defects was upheld [sic]."

6. "Counsel failed to make sure that a mental examination hearing was held on the mental defects and insanity plea."

7. "Counsel failed to file a motion for discovery, even though the state did furnish some material but withheld others."

8. "Counsel failed to make sure that my rights to appeal on the second plea hearing was given and upheld."

9. "Counsel failed to make sure that the trial court informed the petitioner of his rights to counsel and transcripts on appeal."

10. "Counsel failed to challenge the State's evidence."

11. "Counsel failed to make sure that the trial court was made aware that the petitioner should not have been sentenced under the HFOA, when the priors used had been dismissed in the state of Washington before he was sentenced."

12. "My counsel accepted a plea agreement that was improper and contrary to the laws."

13. "Counsel failed to file a motion to withdraw my plea or file a motion for new trial after the second plea of guilty hearing and sentencing hearing."

14. "Counsel failed to appeal my conviction and sentencing which were in violation of my Constitutional rights."

15. "Counsel failed to object to the illegal sentence that I received, because of being misinformed of the correct minimum and maximum sentences I could receive on the offenses."

(C.R.17-19.) (See, also, C.R.27.) The appellant argued that but for his counsel's performance, the result of the proceedings would have been different. (C.R.19-21.)

As support for his claim that the trial court did not have jurisdiction to render the judgment or to impose the sentence, the appellant argued that he was improperly sentenced as a habitual felony offender because, he claimed, the prior convictions that were used to enhance his sentence had been dismissed before he was sentenced. (C.R.22, 27.) The appellant also maintained that he was never informed of the correct minimum and maximum sentences that he could receive for the sodomy and sexual abuse convictions. The appellant additionally averred that the trial court lacked jurisdiction to render the judgment or to impose the sentence because, he asserted, he was never given a hearing to determine his mental state at the time of the offenses. (C.R.23.) Last, he claimed that the indictment was defective because his wife testified against him in the grand jury proceedings. (C.R.24.)

The state moved to dismiss the petition, arguing that the claims were precluded from review because the claims could have been, but were not, raised at trial and on direct appeal. Rule 32.2(a)(3) and (5), Ala.R.Crim.P. The trial court granted the state's motion to dismiss, finding that the claims were precluded because they should have been raised on direct appeal.

The appellant argues on appeal that the trial court erred in denying his petition without an evidentiary hearing. The attorney general maintains that the trial court correctly found that the allegations presented in the petition were precluded pursuant to the provisions of Rule 32.2(a)(5), Ala.R.Crim.P.

The appellant was not entitled to relief on his allegation that his convictions were obtained by the unconstitutional failure of the prosecution to disclose evidence favorable to him or on his allegation that his convictions were obtained by a violation against the protection against double jeopardy, because he failed to present any facts in support of these claims. Rule 32.3 and 32.6(b), Ala.R.Crim.P. The appellant's allegations that he was not given a hearing to determine his mental status at the time of the offenses and that the indictment was invalid because his wife testified against him at the grand jury proceedings do not implicate the jurisdiction of the trial court. Accordingly, the appellant is due no relief on those claims, because the claims could have been, but were not, raised at trial and on appeal. Rule 32.2(a)(3) and (5), Ala.R.Crim.P.

From the record before this Court, we are unable to determine whether the appellant's claims of ineffective assistance of trial counsel are precluded, because it is unclear whether the appellant was convicted before or after the Supreme Court of Alabama's decision in Ex parte Ingram, 675 So.2d 863 (Ala.1996). ³ If the appellant was convicted before the Alabama Supreme Court's decision in Ingram, newly appointed appellate counsel could have presented claims of ineffective assistance of trial counsel in a motion for new trial filed pursuant to Ex parte Jackson, 598 So.2d 895 (Ala.1992). Those same claims of ineffective assistance of trial counsel could have then been presented on direct appeal. Accordingly, if the appellant was convicted before the decision in Ingram, and the appellant was, in fact, represented by separate appellate counsel, then the allegations of ineffective assistance of trial counsel presented in the Rule 32 petition are precluded from review, because the claims could have been, but were not, raised at trial and on appeal. Rule 32.2(a)(3) and (5), Ala.R.Crim.P. If, however, the appellant was convicted after Ingram, the appellant is not necessarily precluded from raising allegations of ineffective assistance of trial counsel in a Rule 32 petition. If the appellant can establish that appellate counsel could not have reasonably asserted all the allegations of ineffective assistance of trial counsel in a timely filed motion for new trial--thereby preserving the claims for review on direct appeal--then the appellant is not precluded from raising ineffective assistance of trial counsel claims in a Rule 32 petition. See Ingram, supra.

Contrary to the trial court's findings, the appellant's allegations of ineffective assistance of appellate counsel are not precluded. "The Rule 32 petition represents the appellant's first opportunity to present that claim to the circuit court."...