Bishop v. State, CR-19-0726

CourtAlabama Court of Criminal Appeals
Writing for the CourtKELLUM, Judge.
PartiesDonald Bishop v. State of Alabama
Decision Date09 July 2021
Docket NumberCR-19-0726

Donald Bishop
v.
State of Alabama

CR-19-0726

Alabama Court of Criminal Appeals

OCTOBER TERM, 2020-2021
July 9, 2021


Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from Pickens Circuit Court
(CC-08-11.66)

KELLUM, Judge.1

Donald Bishop appeals the circuit court's summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim.

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P., in which he attacked his 2009 guilty-plea conviction for first-degree sodomy of a victim less than 12 years old and his resulting sentence of 30 years' imprisonment. This Court affirmed Bishop's conviction and sentence on direct appeal in an unpublished memorandum issued on June 24, 2011. Bishop v. State (No. CR-10-0560), 107 So. 3d 236 (Ala. Crim. App. 2011) (table).2 This Court issued a certificate of judgment on July 13, 2011.

On March 23, 2020, Bishop filed this, his seventh, Rule 32 petition.3

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In the petition, Bishop alleged: (1) that the trial court did not sentence him in accordance with his plea agreement with the State and that, therefore, he was entitled to withdraw his guilty plea; (2) that his sentence was illegal because, he said, it did not include a period of post-release supervision as required by § 13A-5-6(c), Ala. Code 1975; (3) that he was denied counsel at a critical stage of the proceedings because, he said, his trial counsel did not object when the trial court did not sentence him in accordance with the plea agreement; and (4) that his guilty plea was involuntary because, he said, he was not informed that he would not receive good-time or be eligible for parole on his sentence.

The State filed an answer to Bishop's petition on April 9, 2020, arguing that his claims were precluded by Rules 32.2(a)(3), (a)(5), (b) and/or (c), Ala. R. Crim. P. That same day, Bishop filed a motion to amend his petition, in which he reasserted claims (1) and (2), as set out above. On April 14, 2020, the circuit court summarily dismissed Bishop's petition on the grounds asserted by the State, and on April 16, 2020, the circuit court denied Bishop's motion to amend. On April 29, 2020, Bishop

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filed a postjudgment motion to reconsider, which the circuit court denied the same day. Bishop timely filed a notice of appeal.

I.

Bishop contends, as he did in his postjudgment motion, that he was denied due process when, he says, the State did not serve him with a copy of its answer to the petition.

In Ex parte MacEwan, 860 So. 2d 896 (Ala. 2002), the Alabama Supreme Court held that the petitioner's right to due process was violated when neither the petitioner nor her counsel was served with the State's response to the Rule 32 petition. The Court explained:

"One of MacEwan's claims in her Rule 32 petition is that the State did not serve a copy of its motion to dismiss the Rule 32 petition on MacEwan's Rule 32 counsel. The trial judge considered the State's motion to dismiss and summarily dismissed the Rule 32 petition without affording MacEwan an evidentiary hearing. MacEwan contends that the trial court erred in summarily dismissing her petition because, she says, her Rule 32 counsel's correct name and address were 'clearly listed on the [Rule 32] petition' at the place where counsel had signed the petition, and counsel could have been served, but was not.

"A failure on the part of the State in this case to serve its motion to dismiss on counsel for MacEwan in her Rule 32 proceeding is significant because attached to the motion to

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dismiss was an affidavit by MacEwan's trial counsel defending his effectiveness in conducting her defense. The summary dismissal of MacEwan's petition deprived her of an opportunity to cross-examine her trial counsel regarding the assertions he makes in the affidavit, the substance of which may have prompted the trial judge to dismiss the petition.

"We cannot say with full confidence that the State's failure to serve its motion to dismiss (with the attached affidavit) on MacEwan's Rule 32 counsel did not prejudice MacEwan, because the trial judge neglected to enter a written order stating his reasons for summarily dismissing the petition. While such a written order is not required in a Rule 32 proceeding, it is sound judicial practice, particularly given the facts presented in this case. See Bowers v. State, 709 So. 2d 494, 495 (Ala. Crim. App. 1995). Therefore, in order to allow the trial court to properly inquire into the merits of MacEwan's ineffective-assistance-of-counsel claim, we reverse the judgment of the Court of Criminal Appeals and remand the case for that court to remand it for the trial court to hold an evidentiary hearing."

860 So. 2d at 897-98.

Similarly, in Abdeldayem v. State, 988 So. 2d 608 (Ala. Crim. App. 2007), this Court held that the petitioner's right to due process was violated when the State's response to the Rule 32 petition was not served on the petitioner's counsel in accordance with Rule 34.4, Ala. R. Crim. P., and we reversed the circuit court's summary dismissal of the Rule 32 petition, noting:

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"We recognize that, unlike in Ex parte MacEwan, in this case the State did not file an affidavit with its response, and this Court has held that, in some instances, there may be no prejudice when a Rule 32 petitioner is not notified of the State's response. See, e.g., Madison v. State, [999 So. 2d 561] (Ala. Crim. App. 2006). However, we cannot say that that is the case here. Although the record contains only the Rule 32 form with no attachment containing Abdeldayem's specific allegations, counsel alleges in his motion to remand/motion to correct the record, and the State's response to Abdeldayem's petition suggests, that there was, in fact, an attachment to the form that was, for whatever reason, not properly filed. Had Abdeldayem's counsel been properly notified of the court's order directing the State to respond, of the State's response, or of the court's order denying Abdeldayem's petition, he may have been able to rectify the apparent error in the filing of the attachment at the circuit court level, and we have no way of knowing what the circuit court would have done had it been informed of the apparent filing error either in a reply to the State's response or in a motion to reconsider. In addition, the circuit court denied Abdeldayem's petition on the grounds asserted by the State in its response, including the ground that Abdeldayem's petition was barred by Rule 32.2(a)(5), Ala. R. Crim. P., because his claims could have been, but were not, raised and addressed on appeal. However, Abdeldayem's counsel attached to his motion to remand/motion to correct the record, a copy of the attachment that was supposed to have been filed with the Rule 32 form. The attachment reflects that Abdeldayem raised claims of ineffective assistance of counsel, and our records reflect that Abdeldayem was represented by the same counsel at trial and on appeal. In addition, this is Abdeldayem's first Rule 32 petition, and his petition was timely filed. Therefore, Abdeldayem's ineffective-assistance-of-counsel allegations would not be barred by Rule 32.2(a)(5), Ala. R. Crim. P. See, e.g., Murray v.

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State, 922 So. 2d 961 (Ala. Crim. App. 2005) (claims of ineffective assistance of counsel may be raised for the first time in a timely filed Rule 32 petition). Had Abdeldayem's Rule 32 counsel been properly served with the State's response, he would have had the opportunity to meet his burden under Rule 32.3, Ala. R. Crim. P., of disproving by a preponderance of the evidence the existence of the procedural bar asserted by the State."

988 So. 2d at 614 (footnote omitted).

This case is factually distinguishable from both Ex parte MacEwan and Abdeldayem. Here, there was no affidavit attached to the State's answer as was the case in Ex parte MacEwan, and there were no filing errors as was the case in Abdeldayem. Although the State did assert preclusion grounds in its answer and the circuit court applied those preclusions in dismissing Bishop's petition, in this case, unlike in Abdeldayem, Bishop received notice of the circuit court's order, was aware of the preclusion grounds, and filed a postjudgment motion challenging the application of those preclusion grounds. In addition, the record indicates that the circuit court summarily dismissed Bishop's petition only five days after the State filed its answer. As a result, even if Bishop had received a copy the State's answer, he would not have had time to file a

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reply, and, indeed, "Rule 32 does not require a circuit court to permit a Rule 32 petitioner to file a response to the State's answer or motion to dismiss." Mashburn v. State, 148 So. 3d 1094, 1114 (Ala. Crim. App. 2013). Therefore, after thoroughly reviewing the record, we conclude that, even if the State did not serve Bishop with a copy of its answer, that error was harmless in this case. See, e.g., Jenkins v. State, 105 So. 3d 1234, 1244- 45 (Ala. Crim. App. 2011), aff'd in part, 105 So. 3d 1250 (Ala. 2012); and Madison v. State, 999 So. 2d 561, 567 (Ala. Crim. App. 2006).

II.

Bishop also contends that, even if he had received a copy of the State's answer, that answer violated his right to due process and the Alabama Supreme Court's holding in Ex parte Rice, 565 So. 2d 606 (Ala. 1990), because, he says, the State asserted only a "broad Rule 32.2 allegation," without alleging specific grounds of preclusion. (Bishop's brief, p. 13.) Bishop did not raise this issue in the circuit court, and it is well settled that the "[t]he general rules of preservation apply to Rule 32 proceedings." Boyd v. State, 913 So. 2d 1113, 1123 (Ala. Crim. App. 2003)...

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