Anderson v. State

• Decision Date: 01 December 2000
• Citation: 796 So.2d 1151
• Parties: Alan Lee ANDERSON v. STATE.
• Court: Alabama Court of Criminal Appeals

796 So.2d 1151

Alan Lee ANDERSON v. STATE.

CR-99-1964.

Court of Criminal Appeals of Alabama.

December 1, 2000.

Opinion on Return to Remand April 27, 2001.

Susan Graham James, Montgomery, for appellant.

Bill Pryor, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.

FRY, Judge.

The appellant, Alan Lee Anderson, appeals from the circuit court's summary dismissal of his postconviction petition, filed pursuant to Rule 32, Ala.R.Crim.P., challenging his 1998 conviction for kidnapping in the first degree, a violation of § 13A-6-43, Ala.Code 1975, and his sentence to life imprisonment.

In his petition, Anderson alleges:

1. That his constitutional right to protection against double jeopardy was violated when the trial court accepted his plea of guilty to second-degree kidnapping, then rejected his guilty plea and conducted a jury trial on the charge of first-degree kidnapping;

2. That the trial court lacked jurisdiction to hear his case because "the indictment was constitutionally defective ... because he was convicted of first-degree kidnapping, when his indictment was amended to charge second-degree kidnapping"; and

3. That his trial counsel and appellate counsel were ineffective for failing to raise the double-jeopardy argument, for failing to object to the indictment, for failing to request instructions on various lesser-included offenses, and for failing to object to the admission of "improper" testimony.

In support of his claims, Anderson submitted an affidavit averring that trial counsel negotiated a plea agreement pursuant to which Anderson agreed to plead guilty to second-degree kidnapping and to serve a "15 split three year sentence," that he pleaded guilty to second-degree kidnapping on June 9, 1997, that he was subsequently informed that the trial court had rejected the plea and that the case would have to go to trial, and that he did not withdraw his guilty plea to second-degree kidnapping. Anderson also submitted a copy of the case action summary indicating that on June 9, 1997, he pleaded guilty to second-degree kidnapping and on June 11, 1997, the trial court granted the state's motion to amend the indictment to charge second-degree kidnapping. Both of these entries are initialed by the trial court.

The state in its response stated, in pertinent part:

"Petitioner first alleges that his constitutional right to protection against double jeopardy was violated when the court accepted a guilty plea for second degree kidnapping and then he was tried and convicted of first degree kidnapping. The state has spoken to both the prosecutor and the petitioner's attorney and it is clear their understanding of the situation is far different from that of the petitioner. At no time were they under the impression the Court was going to accept the plea agreement.... In fact, the Court on its own motion requested a pre-sentence investigation and deferred sentencing until August 15, 1997. On that date the Court informed the parties in open court that it was unwilling to accept the plea agreement and at that time the defendant made known to the court of his intent and desire to withdraw his previously entered guilty plea.¹

". . . .

"Petitioner's second allegation regarding a defective indictment is likewise without merit. The amendment is predicated on the plea of guilty being entered by the Defendant and then being accepted by the court. Here, the court never accepted the guilty plea. In addition, the Petitioner withdrew his plea of guilty on August 15, 1997, thereby reinstating the first-degree kidnapping charge."

(C.R.39-40.) The state further argued that because Anderson's double-jeopardy claim and his jurisdictional claim were not meritorious, trial counsel and appellate counsel could not be considered ineffective for failing to raise these claims.

The circuit judge, who also presided over Anderson's trial, denied the petition, finding:

"1. The petition fails to state a claim upon which relief could be granted.

"2. No material issue of fact or law exists which would entitle Petitioner to relief.

"3. The petition is without merit.

"4. Petitioner has failed to meet the burden of proof in his petition.

"5. No purpose would be served by any further proceedings."

(C.R.53-4.)

On appeal, Anderson contends that the circuit court erred in dismissing his petition without an evidentiary hearing and without making detailed factual findings. The state, in its brief to this Court, concedes that Anderson makes allegations in his petition that are meritorious on their face and that the circuit court, in order to support its summary dismissal, should have stated specific reasons for denying Anderson's petition. The state, citing Hardy v. State, 709 So.2d 490 (Ala.Crim. App.1996), recognizes that under one of two circumstances a circuit court may dispose of allegations in a Rule 32 petition that are meritorious on their face without conducting an evidentiary hearing:

"First, if it has before it `facts supporting the position of each party [that] are fully set out in ... supporting affidavits.' Johnson v. State, 564 So.2d 1019, 1021 (Ala.Crim.App.1989)(relying on Temp. Rule 20.9(a), Ala.R.Crim.P., now Rule 32.9(a), which states, in part, that `[t]he court in its discretion may take evidence by affidavits, written interrogatories, or depositions, in lieu of an evidentiary hearing'). Second, if the events that serve as the basis of the allegation were observed by the same judge who rules on the Rule 32 petition. Ex parte Hill, 591 So.2d 462, 463 (Ala.1991)(wherein the court held that `a judge who presided over the trial or other proceedings and observed the conduct of the attorneys at the trial or other proceedings need not hold a hearing on the effectiveness of those attorneys based upon the conduct that he observed'). See also Benefield v. State, 583 So.2d 1370, 1370 (Ala.Crim.App.1991)(wherein the court noted that meritorious allegations `warrant either an evidentiary hearing or an adequate explanation for their denial'). However, in any case, the circuit court should make `specific findings of fact relating to the issues raised by the appellant.' Johnson, 564 So.2d at 1021. In the event that the circuit court has personal knowledge of the actual facts underlying [the petitioner's] allegation, it may deny the allegations without further proceedings so long as it states the specific reasons for the denial in a written order. See Sheats v. State, 556 So.2d 1094 (Ala.Crim.App.1989)."

709 So.2d at 492.

We agree with the state that Anderson has presented claims that are meritorious on their face. The record contains a copy of a plea agreement between Anderson and the state. The record also contains a notation initialled by the trial court granting the state's motion to amend the indictment to charge second-degree kidnapping and adjudging Anderson guilty of second-degree kidnapping. We recognize that the trial court is not bound to accept an agreement between the defense and prosecution. Ex parte Yarber, 437 So.2d 1330 (Ala.1983). Additionally, a defendant has no absolute right to have a guilty plea accepted. Swann v. City of Huntsville, 455 So.2d 944 (Ala.Crim.App.1984). However, nothing in the record before us indicates that the trial court rejected the plea agreement or that Anderson withdrew his plea of guilty to second-degree kidnapping and that the original indictment was reinstated.² Additionally, nothing in the record indicates that the state's motion to amend the indictment and the trial court's granting that motion were conditioned upon the trial court's acceptance of the plea agreement. We simply cannot conclude from such a vague pretrial record that the trial court conditioned its granting of the motion to amend the indictment and its acceptance of Anderson's plea of guilty to second-degree kidnapping on the results of a sentencing report. Furthermore, in light of the record before us, Anderson's claims of ineffective assistance of counsel may be meritorious. Faulkner v. State, 741 So.2d 462 (Ala.Crim.App.1999). Therefore, we must remand this cause for the circuit court to make specific findings of fact.

Accordingly, we remand this cause. The circuit court is to make written findings of fact with regard to each of Anderson's claims, and, if necessary, to hold an evidentiary hearing on this matter. Bones v. State, 708 So.2d 214 (Ala.Crim. App.1997). On remand, the circuit court may conduct such further proceedings or take such evidence as it deems necessary to make its determination and specific findings of fact. A return to remand shall be filed with this Court within 42 days of the date of this opinion. The return to remand shall include a transcript of the remand proceedings, if conducted, and the evidence submitted, as well as the circuit court's findings of fact.

REMANDED WITH DIRECTIONS.

LONG, P.J., and McMILLAN, COBB, and BASCHAB, JJ., concur.

On Return to Remand

SHAW, Judge.³

The appellant, Alan Lee Anderson, appealed from the circuit court's summary dismissal of his postconviction petition, filed pursuant to Rule 32, Ala.R.Crim.P., in which he challenged his 1998 conviction for kidnapping in the first degree, a violation of § 13A-6-43, Ala.Code 1975, and his sentence of life imprisonment. In our original opinion in this case, 796 So.2d at 1153, we summarized Anderson's allegations as follows:

"1. That his constitutional right to protection against double jeopardy was violated when the trial court accepted his plea of guilty to second-degree kidnapping, then rejected his guilty plea and conducted a jury trial on the charge of first-degree kidnapping;

"2. That the trial court lacked jurisdiction to hear his case because `the indictment was constitutionally defective ... because he was convicted of first-degree kidnaping, when his indictment was amended to charge second-degree kidnapping'; and "3. That his trial counsel and appellate counsel were ineffective for failing to raise the

...