Brand v. State

• Decision Date: 16 December 2011
• Docket Number: CR-10-0376
• Parties: James Edward Brand v. State of Alabama
• Court: Alabama Court of Criminal Appeals

James Edward Brand

v.State of Alabama

CR-10-0376

ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 2011-2012

Dated: December 16, 2011

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 Fayette Circuit Court

(CC-2005-127.60)

JOINER, Judge.

James Edward Brand appeals from the Fayette Circuit Court's summary dismissal of his petition for postconviction relief under Rule 32, Ala. R. Crim. P. Brand's petition challenged his 2006 convictions for two counts of first-degreesexual abuse, see § 13A-6-66, Ala. Code 1975, and his resulting 20-year sentence on each conviction. We affirm.

Facts and Procedural History

Brand pleaded guilty on May 6, 2006, to two counts of first-degree sexual abuse. The trial court sentenced Brand to 20 years' imprisonment for each conviction. The trial court split each sentence under § 15-18-8, Ala. Code 1975 ("the Split Sentence Act"), and ordered Brand to serve 5 years in prison and 10 years of supervised probation on each sentence.¹

Brand did not appeal his convictions. The instant petition, Brand's first, was deemed filed on July 8, 2010.Brand filed the standard Rule 32 form found in the appendix to Rule 32. He attached a supplement setting out his detailed claims.

In his supplement to the petition, Brand raised three claims.² The State's motion to dismiss asserted that Brand's claims were not jurisdictional and were precluded under Rule 32.2(a) and untimely under Rule 32.2(c). The circuit court agreed with the State and summarily dismissed the petition in a written order on November 12, 2010. Brand appealed to this Court.

In his brief on appeal, Brand argues only his claim that the court was without jurisdiction to render judgment or to impose sentence because, he says, the sentences imposed exceedthe maximum authorized by law or are otherwise not authorized by law. Because Brand's other claims were not pursued in his brief on appeal, those claims are deemed abandoned. See, e.g., Brownlee v. State, 666 So. 2d 91, 93 (Ala. Crim. App. 1995) ("We will not review issues not listed and argued in brief.").

Discussion

Initially, we note that Brand's challenge to the legality of his sentences is, on its face, a jurisdictional claim and is therefore not subject to the procedural bars of Rule 32.2, Ala. R. Crim. P. See Barnes v. State, 708 So. 2d 217, 219 (Ala. Crim. App. 1997). Thus, the trial court's stated reasons for dismissing Brand's petition were incorrect. Even so, we may affirm the judgment of the circuit court denying the Rule 32 petition if it is correct for any reason.³ See Reed v. State, 748 So. 2d 231 (Ala. Crim. App. 1999) ("If the circuit court is correct for any reason, even though it may not be the stated reason, we will not reverse its denial of the petition.").

In Brand's case, the sentencing court did not specify whether the two split sentences were to be served concurrently or consecutively. Brand contends, however, that the confinement portions of the two sentences must run consecutively under § 14-3-38, Ala. Code 1975. See also Rule 26.12, Ala. R. Crim. P. Section 14-3-38(a), Ala. Code 1975, provides:

"(a) When a convict is sentenced to imprisonment in the penitentiary on two or more convictions, unless it is specifically ordered in the judgment entry that such sentences be served concurrently, such sentences shall be cumulative and shall be served consecutively, the first term thereof beginning to run from the date on which such prisoner is received at the penitentiary, reformatory or jail for service of the sentence or at some place of detention to await transportation to the place where his sentences are to be served and his second and subsequent terms, each, beginning on the expiration of the preceding term. When the judgment sentence contains a fixed order that the term shall run concurrently, such sentences shall run concurrently from the date on which such convict is received for serving of the sentences as prescribed above."⁴

The Split Sentence Act does not address whether, in the absence of an indication by the sentencing court, the confinement portions of multiple split sentences must beserved consecutively or concurrently, and nothing in the Split Sentence Act indicates that § 14-3-38, Ala. Code 1975, does not apply to multiple split sentences. Accordingly, we hold that § 14-3-38, Ala. Code 1975, requires that the confinement portions of Brand's split sentences be served consecutively.

Brand argues that the trial court's ordering that he serve two consecutive periods of confinement under the Split Sentence Act resulted in an illegal sentence in his case. Specifically, he argues that two consecutive five-year periods of confinement exceed the five-year maximum term of confinement for a 20-year sentence provided for in § 15-18-8(a)(1), Ala. Code 1975. We disagree.

The issue presented in this case--involving the propriety of consecutive split sentences--has not been addressed directly in Alabama.⁵ Brand primarily relies on this Court'sdecision in Minshew v. State, 975 So. 2d 395 (Ala. Crim. App. 2007), and the Alabama Supreme Court's decision in Ex parte Jackson, 415 So. 2d 1169 (Ala. 1982).

In Jackson, the Alabama Supreme Court held that, in the case of a youthful offender, § 15-19-6(a)(2), Ala. Code 1975,⁶ did not permit a sentencing court to order consecutive periods of probation in excess of the maximum probationary period of three years as stated in that subsection. The Jackson Court, in a footnote in which it expressly acknowledged the question was not before it, stated that its "discussion of consecutive probationary periods" applied equally to § 15-22-54(a), Ala. Code 1975.⁷ Jackson, 415 So. 2d at 1170 n.2.

Relying on this dictum from note 2 in Jackson, this Court in Minshew held that, in the case of an adult felony offender, § 15-22-54(a) prohibited consecutive periods of probation in excess of the maximum probationary period of five years as stated in that subsection. Ultimately, however, the entire discussion in Minshew regarding § 15-22-54 was obiter dictum, because, as Minshew recognized, even if the appellant in Minshew had been correct in his claim that his consecutive probationary periods were illegal, his claim was moot because he was serving a sentence of life imprisonment without the possibility of parole. Minshew, 975 So. 2d at 397-98.

Jackson and Minshew--and the principles upon which they were decided--are distinguishable from the present case. Jackson involved construction of the unique legislative scheme established in the Youthful Offender Act. In Jackson, the Supreme Court noted:

"It is our judicial obligation to construe statutes in such a way as to carry out the will of the legislative branch of the government. That is, we are to ascertain and effectuate the intent of the legislature as expressed in the statute. By the enactment of the Youthful Offender Act, the legislature not only sought to provide analternative method of sentencing minors, but, in fact, created a procedure separate and apart from the criminal procedure dealing with adults accused of the same offense. Raines v. State, 294 Ala. 360, 317 So. 2d 559 (1975). Code of 1975, § 15-19-6(a)(2) establishes the maximum probationary sentence or period allowable for a youthful offender, i.e., three years. That limitation on a sentence of probation is obviously one of the intended advantages of the Act. By comparison, the maximum probationary period for 'adult' defendants found guilty of a felony is five years. Code of 1975, § 15-22-54(a). Hence, consecutive sentences of probation would thwart the intention of the legislature. Although the Youthful Offender Act does not prohibit the imposition of separate or multiple sentences of probation, clearly each probationary sentence must run from the time of sentencing rather than from the end of the preceding probationary period.

"If the defendant had been convicted simultaneously of two separate felonies and placed under sentences of probation, the probationary time could not have exceeded three years. The sentences would have had to be served concurrently rather than consecutively. Occasionally, as here, a case will arise where a defendant currently under probation is sentenced under a subsequent conviction and placed on probation. That new term of probation must commence with sentencing, even though the first period of probation has not yet expired. Otherwise, the maximum time limitation set forth by the legislature would be nullified."

415 So. 2d at 1170-71 (emphasis added). This Court expressed a similar concern about upholding a legislative limitation on the length of probation in Minshew, which construed the five-year limit on a probationary period as set out in § 15-22-54(a), Ala. Code 1975. Minshew, 975 So. 2d at 397-98. Neither the Youthful Offender Act nor § 15-22-54(a) applies to the Split Sentence Act, which is at issue in Brand's case. Indeed, the Split Sentence Act authorizes sentencing courts to impose probationary periods much longer than three or five years. See, e.g., Hatcher v. State, 547 So. 2d 905, 906 (Ala. Crim. App. 1989) ("It is clear to this Court that the legislature, in enacting the provisions of § 15-18-8, intended to provide that a defendant could be sentenced to mandatory confinement for a period not exceeding three [now five] years, after which the defendant would be placed on probation for the remainder of his sentence, even if that sentence were 15 [now 20] years."⁸ ). Thus, Jackson and Minshew are not determinative of the issue in Brand's case.

Likewise not controlling here are cases in which this Court has held that a sentence imposed under the Split Sentence...