Bracknell v. State

• Decision Date: 25 April 2003
• Citation: 883 So.2d 724
• Parties: John Stephen BRACKNELL v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

883 So.2d 724

John Stephen BRACKNELL v. STATE of Alabama.

CR-02-0093.

Court of Criminal Appeals of Alabama.

April 25, 2003.

Rehearing Applications Denied June 13, 2003.

Thomas M. Goggans, Montgomery, for appellant.

William H. Pryor, Jr., atty. gen., and G. Ward Beeson III, asst. atty. gen., for appellee.

SHAW, Judge.

John Stephen Bracknell appeals the circuit court's summary denial of his Rule 32, Ala.R.Crim.P., petition for post-conviction relief, in which he attacked his convictions in 2000 for two counts of sodomy in the first degree and six counts of sexual abuse in the first degree. He was sentenced to 25 years' imprisonment for each of the sodomy convictions and to 10 years' imprisonment for each of the sexual-abuse convictions; those sentences were to run concurrently. This Court affirmed Bracknell's convictions and sentences on direct appeal in an unpublished memorandum issued on February 23, 2001. See Bracknell v. State (No. CR-99-1875), 821 So.2d 1032 (Ala.Crim.App.2001)(table). The Alabama Supreme Court denied certiorari review, and this Court issued a certificate of judgment on July 6, 2001.

Bracknell filed the present petition on July 10, 2002. In his petition, Bracknell alleged that his trial and appellate counsel were ineffective for various reasons. After receiving a response from the State, the circuit court summarily denied Bracknell's petition on September 23, 2002.

I.

Bracknell contends that his appellate counsel was ineffective for not raising claims of ineffective assistance of trial counsel in a motion for a new trial and then on appeal.

Bracknell was convicted on May 4, 2000; he was sentenced on June 8, 2000. On June 22, 2000, Bracknell contacted Lindsay Davis to discuss the possibility of Davis's representing him on appeal. In a letter sent to Bracknell following the meeting, Davis advised Bracknell that she was willing to represent him on appeal, but that she would not pursue any claims of ineffective assistance of trial counsel. She also advised Bracknell that if he wished to pursue claims of ineffective assistance of trial counsel, he should retain other counsel to represent him on appeal. On June 30, 2002, Bracknell signed a written employment agreement in which he agreed that Davis would not raise any claims of ineffective assistance of trial counsel in a motion for a new trial or on direct appeal. Davis then filed a motion for a new trial on Bracknell's behalf; the motion did not include any claims of ineffective assistance of trial counsel.

After expressly agreeing that appellate counsel would not raise any claims of ineffective assistance of trial counsel in a motion for a new trial and on appeal, Bracknell cannot now complain that his appellate counsel was ineffective for not doing so. Therefore, the circuit court properly denied Bracknell's ineffective-assistance-of-appellate-counsel claim.

II.

Bracknell also contends that his trial counsel was ineffective for various reasons.

Initially, we note that these claims are not precluded by Rules 32.2(a)(3) and (a)(5), Ala.R.Crim.P., despite the employment agreement in which Bracknell agreed that Davis would not raise any ineffective-assistance-of-trial-counsel claims in a motion for a new trial and on direct appeal. The record from Bracknell's direct appeal reflects that the trial transcript was not prepared until over four months after Bracknell had been sentenced. Although ineffective-assistance-of-trial-counsel claims cannot be raised for the first time in a Rule 32 petition if they could have reasonably been raised in a timely filed motion for a new trial, in V.R. v. State, 852 So.2d 194 (Ala.Crim.App.2002)(opinion on rehearing), this Court unanimously held:

"[A] defendant is not precluded by Rules 32.2(a)(3) and (5) from raising an ineffective-assistance-of-trial-counsel claim for the first time in a Rule 32 petition if the trial transcript was not prepared in time for appellate counsel to have reviewed the transcript to ascertain whether such a claim was viable and to present the claim in a timely filed motion for a new trial. It is neither reasonable nor practical to expect newly appointed appellate counsel to raise an ineffective-assistance-of-trial-counsel claim without the benefit of a trial transcript to document and support a defendant's allegations as to what occurred during trial."

852 So.2d at 202-03 (emphasis added). The language used in V.R. was clear and not limited to the particular facts of that case. As a matter of law, it is not reasonable for appellate counsel to file a motion for a new trial raising ineffective-assistance-of-trial-counsel claims without the benefit of the trial transcript. To hold otherwise would encourage the filing of motions for a new trial based solely on a defendant's bare and self-serving allegations that may or may not be supported by facts reflected in the trial transcript. Appellate counsel cannot make an informed decision about the merits of possible ineffective-assistance-of-trial-counsel claims without knowing what actually occurred during trial,¹ and this Court will not encourage the filing of motions that may turn out to be frivolous because they are not based on fact, but, rather, on a defendant's self-serving allegations.

Therefore, based on this Court's holding in V.R., Bracknell, as a matter of law, "is not precluded by Rule 32.2(a)(3) and (5) from raising an ineffective-assistance-of-trial-counsel claim for the first time in a Rule 32 petition." V.R., 852 So.2d at 202. Although Bracknell and Davis discussed the possibility of raising ineffective-assistance-of-trial-counsel claims, at least to the extent that they agreed that no such claims would be raised, newly-retained appellate counsel could not have reasonably raised claims of ineffective assistance of trial counsel in a timely filed motion for a new trial because the trial transcript was not prepared in time for her to make an informed decision as to the merit of any such claims.

Although Bracknell's claims of ineffective assistance of trial counsel are not precluded, after carefully reviewing Bracknell's petition, we conclude that he failed to plead sufficient facts with respect to any of the claims to warrant any further proceedings.

In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court articulated two criteria that must be satisfied to show ineffective assistance of counsel. A defendant has the burden of showing (1) that his counsel's performance was deficient and (2) that the deficient performance actually prejudiced the defense. To...