Ash v. State

• Decision Date: 08 February 2002
• Citation: 843 So.2d 213
• Parties: Ex parte State. (In re Andre Levon ASH v. STATE).
• Court: Alabama Supreme Court

843 So.2d 213

Ex parte State.

(In re Andre Levon ASH v. STATE).

1991018.

Supreme Court of Alabama.

February 8, 2002.

William H. Pryor, Jr., atty. gen., and Robin Blevins and Sandra J. Stewart, asst. attys. gen., for petitioner.

Submitted on petitioner's brief only.

JOHNSTONE, Justice.

This Court granted the petition of the State seeking certiorari review of the decision of the Court of Criminal Appeals reversing the trial court's summary denial of a Rule 32, Ala. R.Crim. P., petition filed by Andre Levon Ash. We reverse the decision of the Court of Criminal Appeals and remand this cause with the instruction that the summary denial of the petition be reinstated. Ash was convicted of one count of first-degree robbery and was sentenced to 25 years' imprisonment. He appealed on grounds different from the ground asserted in the Rule 32 petition now before us. On that direct appeal, the Court of Criminal Appeals affirmed the conviction in an unpublished memorandum. Ash v. State, (No. CR-95-1037, October 11, 1996) 698 So.2d 799 (Ala.Crim.App.1996) (table).

More than two years after that affirmance became final, Ash filed the instant Rule 32 petition claiming that the trial court lacked jurisdiction to render judgment or to impose sentence because the trial court, in its instructions to the jury, over Ash's objections, amended the indictment. The trial court summarily denied the Rule 32 petition. That summary denial, however, was reversed by the Court of Criminal Appeals on the rationale that "the trial court's instruction created a fatal variance and the trial court was without jurisdiction to render judgment or to impose sentence...." Ash v. State, 843 So.2d 210, 213 (Ala.Crim.App.1999). In footnote 3 to that opinion, the Court of Criminal Appeals cited Rule 15.2(d), Ala. R.Crim. P. ("[t]he lack of subject matter jurisdiction... may be raised ... at any time during the pendency of the proceeding"), and Rule 32.2(c), Ala. R.Crim. P. (excepting from its two-year limitation period the Rule 32.1(b), Ala. R.Crim. P., ground of lack of jurisdiction to render judgment or to impose sentence).

Unless the jury instruction Ash challenges as an amendment to the indictment did, as a matter of law, deprive the trial court of jurisdiction to render judgment or to impose sentence, this Rule 32 petition is subject not only to the Rule 32.2(c) preclusion of grounds not raised within the two-year time limit but also to the Rule 32.2(a)(5), Ala. R.Crim. P., preclusion of grounds "[w]hich could have but [were] not raised on [direct] appeal...." We hold that the jury instruction did not deprive the trial court of jurisdiction to render judgment or to impose sentence and that, therefore, Rule 32.2(c) and Rule 32.2(a)(5) did indeed preclude this Rule 32 petition.

The operative facts are simple. The indictment, containing only a single count, charged conjunctively that Ash robbed both Christopher Rashon Love and Eric Lashun Alexander. Over Ash's objections, however, the trial court instructed the jury that it could convict Ash if the evidence proved beyond a reasonable doubt that Ash robbed either Love or Alexander or both. This instruction permitted a conviction on proof that Ash had robbed only one of the victims even though the single-count indictment conjunctively charged him with robbing both victims.

Ash's co-defendant, Fredrick Eugene Williams, tried and convicted like Ash in the same proceedings, duly challenged this jury instruction in his direct appeal and won a reversal. Williams v. State, 701 So.2d 832 (Ala.Crim.App.1997). Ash did not. The Williams court followed the analogous case of Styles v. State, 474 So.2d 185 (Ala.Crim.App.1985), which reversed the conviction of the defendant Styles, who, like Williams, had properly challenged a like jury instruction on direct appeal. The Styles court held that the jury instruction constituted an amendment to the indictment and that the amendment prejudiced the substantial rights of the defendant.

Neither Williams nor Styles addressed any issue of whether the instruction deprived the trial court of jurisdiction to render judgment or to impose sentence. Likewise, the case of Biddie v. State, 516 So.2d 846 (Ala.1987), cited by the State in its petition and brief to us, contains no analysis of, or holding on, any issue of the jurisdiction of the trial court. Indeed Biddie does not contain any analysis of, or holding on, any issue of an amendment to the indictment. In the case now before us, however, we must and will address the issues of whether the jury instruction constituted an amendment to the indictment and, if so, whether the amendment deprived the trial court of jurisdiction.

A caveat about both the majority opinion of the Court of Criminal Appeals now on review and the dissent to that opinion is appropriate. Both the majority and the dissenters mistakenly analyze the issue as a variance. The term variance, for purposes of an objection in a trial, means a variance between pleadings and proof, not a variance between pleadings and instructions. See, e.g., House v. State, 380 So.2d 940, 941 (Ala.1979)

. See also Turner v. State, 610 So.2d 1198, 1199 (Ala. Crim.App.1992); Daniels v. State, 523 So.2d 517, 518 (Ala.Crim.App.1987); and Tyson v. State, 361 So.2d 1182, 1188 (Ala. Crim.App.1978). The Rule 32 petition now before us does not claim or challenge any variance between the pleadings and the proof. Therefore, the variance cases such as House, cited in the majority opinion of the Court of Criminal Appeals, and Daniels, cited in the dissent there, are not applicable. The issues before us are whether the jury instruction constituted an amendment to the indictment and, if so, whether the amendment deprived the trial court of jurisdiction.

The jury instruction at issue before us, like those in Williams, supra, and Styles, supra, effectively amended the indictment to change the conjunction and to the conjunctions either-or and thus to charge the acts disjunctively instead of conjunctively. Therefore, the jury instruction constituted an amendment to the indictment, as Williams and Styles expressly hold. But did the amendment deprive the trial court of jurisdiction?

Rule 13.5(a), Ala. R.Crim. P., forbids amending an indictment "to change the offense or to charge a new offense not contemplated by the original indictment." This rule preserves the implementation of Article I, § 6, Alabama Constitution of 1901, guaranteeing "[t]hat in all criminal prosecutions, the accused has a right ... to demand the nature and cause of the accusation; and to have a copy thereof..." and Article I, § 8, as amended by Amendment 37, Alabama Constitution of 1901, guaranteeing that contested felonies will be charged by grand jury indictment, State ex rel. Baxley v. Strawbridge, 52 Ala.App. 685, 687, 296 So.2d 779, 781 (1974); and Thorn v. State, 39 Ala.App. 227, 227, 98 So.2d 859, 860 (1957); see also Kennedy v. State, 39 Ala.App. 676, 690, 107 So.2d 913, 926 (1958)

. The fundamental constitutionally guaranteed benefits of an indictment to an accused are "`that he may prepare his defence, and plead the judgment as a bar to any subsequent prosecution for the same offence.'" Gayden v. State, 262 Ala. 468, 477, 80 So.2d 501, 504 (1955)(quoting United States v. Simmons, 96 U.S. 360, 371, 24 L.Ed. 819 (1877)).

A valid indictment is the source of the subject matter jurisdiction to try a contested criminal case. Batey v. State, 755 So.2d 593, 595 (Ala.Crim.App.1999); see also Strawbridge, supra, Thorn, supra,

and Kennedy, supra. Absent a valid indictment, a trial court would lack subject matter jurisdiction to try, to convict, or to sentence a defendant in a contested criminal case. Batey, supra, and Hall v. State, 655 So.2d 51, 52 (Ala.Crim.App.1995). See also Crews v. State, 40 Ala.App. 306, 308, 112 So.2d 805, 807 (1959). Therefore, an amendment which changes the offense or charges a new offense not contemplated by the original indictment would deprive the trial court of jurisdiction over the different or new offense. See Batey, supra,

Hall, supra, and Crews, supra.

In the case before us, however, the amendment did not materially change the allegations of a robbery committed against Love and likewise did not materially change the allegations of a robbery committed against Alexander. The amendment changed only the conjunction between the two alleged robberies. The amended indictment, like the original, still notified Ash to prepare to defend against each robbery, even though the amendment did change the effect of any reasonable doubt entertained by the jury and directed to only one of the robberies. Moreover, the amendment did not impair Ash's ability to plead the judgment in bar to a second prosecution for either robbery, for the trial on the indictment even as amended placed Ash in jeopardy for both alleged robberies. Thus, to this extent, the indictment, even as amended, served both of its fundamental constitutionally guaranteed functions. Gayden, supra.

Likewise, to this extent, the amendment did not violate the Rule 13.5(a) prohibition against "chang[ing] the offense or [ ] charg[ing] new offenses not contemplated by the original indictment." These considerations, together, support the conclusion that the amendment did not deprive the trial court of subject matter jurisdiction over either of the two robberies and therefore did not deprive the trial court of subject matter jurisdiction over both tried together.

Our holding to this effect is independent of any prejudice analysis. We do not hold that the amendment did not prejudice Ash. On the contrary, as we have recounted, the Williams, supra, court specifically held that this very same jury-instruction-indictment-amendment constituted prejudicial error requiring reversal for Ash's co-defendant, who duly challenged the instruction on appeal. We hold only that the instruction-amendment did not deprive the trial court of jurisdiction to render...