Brand v. State
Decision Date | 27 April 2012 |
Docket Number | CR–10–0376. |
Citation | 93 So.3d 985 |
Parties | James Edward BRAND v. STATE of Alabama. |
Court | Alabama Court of Criminal Appeals |
OPINION TEXT STARTS HERE
James Edward Brand, pro se.
Luther Strange, atty. gen., and John J. Davis, asst. atty. gen., for appellee.
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-degree sexual abuse, see§ 13A–6–66, Ala.Code 1975, and his resulting 20–year sentence on each conviction. We affirm.
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 exceed the 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) ().
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.3See Reed v. State, 748 So.2d 231 (Ala.Crim.App.1999) ().
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 alsoRule 26.12, Ala. R.Crim. P. Section 14–3–38(a), Ala.Code 1975, provides:
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 be served 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's decision 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. 7Jackson, 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:
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) (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 Act that results in a total period of confinement exceeding the maximum as stated in § 15–18–8(a)(1) is illegal. See, e.g., Gray v. State, 939 So.2d 962 (Ala.Crim.App.2006); Phillips v. State, 932 So.2d 165 (Ala.Crim.App.2005); Dixon v. State, 912 So.2d 292 (Ala.Crim.App.2005); Moore v. State, 871 So.2d 106 (Ala.Crim.App.2003); Austin v....
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