Brown v. State

• Decision Date: 30 April 2004
• Citation: 903 So.2d 159
• Parties: Tavares Ravon BROWN v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

903 So.2d 159

Tavares Ravon BROWN v. STATE of Alabama.

CR-03-0309.

Court of Criminal Appeals of Alabama.

April 30, 2004.

Tavares Ravon Brown, pro se.

William H. Pryor, Jr., and Troy King, attys. gen., and Bettie J. Carmack, asst. atty. gen., for appellee.

SHAW, Judge.

Tavares Ravon Brown appeals the circuit court's summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his guilty-plea conviction in 2001 for trafficking in cocaine and his resulting sentence of life imprisonment. This Court affirmed Brown's conviction and sentence on direct appeal in an unpublished memorandum issued on January 25, 2002. See Brown v. State (No. CR-00-2586), 854 So.2d 1121 (Ala.Crim.App.2002)(table). This Court issued a certificate of judgment on February 12, 2002.

Brown filed the present petition on November 9, 2002, claiming (1) that his trial counsel was ineffective for not challenging what he claims was an invalid search warrant and for not moving to suppress the cocaine evidence seized pursuant to that search warrant, and (2) that his appellate counsel was ineffective for not challenging trial counsel's effectiveness in a motion for a new trial and then on direct appeal. After receiving a response from the State, the circuit court summarily denied Brown's petition, finding, as the State argued in its response, that his claims were procedurally barred by Rule 32.2(a)(5), Ala.R.Crim.P., because they could have been, but were not, raised and addressed on direct appeal.

I.

The circuit court erred in concluding that Brown's ineffective-assistance-of-appellate-counsel claim was barred by Rule 32.2(a)(5). A Rule 32 petition is the first opportunity Brown had to challenge his appellate counsel's effectiveness. See, e.g., Russell v. State, 886 So.2d 123, 126 (Ala.Crim.App.2003)(claim of ineffective assistance of appellate counsel was not procedurally barred because "[t]his Rule 32 petition was Russell's first opportunity to allege that [appellate counsel] was ineffective"); Sunday v. State, 857 So.2d 166, 169 (Ala.Crim.App.2002)(claim of ineffective assistance of appellate counsel was not procedurally barred because "this [Rule 32] petition represents Sunday's first opportunity to challenge appellate counsel's representation"); and Harville v. State, 772 So.2d 1199, 1199 (Ala.Crim.App. 1999)(claim of ineffective assistance of appellate counsel was not procedurally barred because "the present Rule 32 petition was Harville's first opportunity to raise the issue of the ineffectiveness of his appellate counsel").

We note that, in support of the proposition that this claim is barred by Rule 32.2(a)(5), the State relies on Jones v. State, 816 So.2d 1067 (Ala.Crim.App.2000), in which this Court stated the following regarding a similar issue:

"Jones's claims of ineffective assistance as to appellate counsel are procedurally precluded for the following reasons. Pursuant to Anders [v. California, 386 U.S. 738 (1967)], upon receipt of appellate counsel's no-merit brief, this Court gave Jones the opportunity to raise any points or issues that he chose to raise on appeal. Jones did not present this court with any potential issues.

"`Because the Anders procedure gave [appellant] the opportunity to make any argument that he believed his attorney should have raised, he cannot now seek relief by alleging ineffective assistance. Such allegations cannot be used to obtain additional appeals of issues that could have been raised on direct appeal.'

"Johnson v. Moore, 744 So.2d 1042, 1043 (Fla.Dist.Ct.App.1999)(habeas corpus petitioner).

"Having had the opportunity to present all his claims on direct appeal, Jones cannot now claim that his appellate counsel (i.e., himself) was ineffective. Thus, the claims Jones now asserts as ineffective assistance of appellate counsel could have been raised on direct appeal but were not; thus, they are precluded by Rule 32.2(a)(5), Ala. R.Crim.P. Rule 32 is no substitute for direct appeal. Siebert v. State, 778 So.2d 842, 850 (Ala.Crim.App.1999)."

816 So.2d at 1071. According to the State, Brown's ineffective-assistance-of-appellate-counsel claim could have been raised as a pro se issue on direct appeal and, therefore, it is now barred by Rule 32.2(a)(5). We disagree.

Although on direct appeal Brown's appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the scope of this Court's review under Anders is limited. This Court has repeatedly refused to review pro se issues in Anders cases that were not preserved for review at trial. See Powell v. State, 854 So.2d 1206 (Ala.Crim.App.2002); O.T. v. State, 837 So.2d 327 (Ala.Crim.App.2002); Phillips v. State, 755 So.2d 63 (Ala.Crim.App. 1999). When reviewing a record in a case in which an Anders brief has been filed, this Court does not conduct a plain-error type of review, but rather, conducts a preserved-error review. Our review is limited to examining the record to determine whether there was any error at trial that was properly preserved for review. If a claim is not preserved for review, it will not be reviewed by this Court under Anders. Because no claim of ineffective assistance of appellate counsel could possibly be preserved at trial (before appellate counsel has performed), even had Brown challenged appellate counsel's effectiveness on direct appeal, this Court would not have reviewed the claim.

After reviewing the opinion in Jones, we believe the point of the above-quoted language was to emphasize that the substantive claims underlying Jones's in effective-assistance-of-appellate-counsel claim, i.e., those claims that Jones alleged should have been raised on appeal by his appellate counsel, would be barred by Rule 32.2(a)(5) because they could have been, but were not, raised by Jones as pro se issues. The holding in Jones was not that Jones's ineffective-assistance-of-appellate-counsel claim was barred by Rule 32.2(a)(5); instead, the intent in Jones was to hold that Jones's ineffective-assistance-of-appellate-counsel claim was meritless because prejudice could not be established under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To the extent, however, that certain language in Jones suggests that whenever an Anders brief is filed on direct appeal and the appellant does not challenge appellate counsel's effectiveness as a pro se issue, then any claim of ineffective assistance of appellate counsel raised in a subsequent Rule 32 petition is barred by Rule 32.2(a)(5), it is hereby overruled.

Although the circuit court's reason for denying this claim was erroneous, "`where the judgment of the circuit court denying a petition for post-conviction relief is correct for any reason, it will be affirmed by this Court, even if the circuit court stated an incorrect reason for its denial.'" Long v. State, 675 So.2d 532, 533 (Ala.Crim.App.1996), quoting Swicegood v. State, 646 So.2d 159, 160 (Ala.Crim.App. 1994). In this case, Brown's claim that his appellate counsel was ineffective is meritless because his appellate counsel could not have reasonably challenged trial counsel's effectiveness in a motion for a new trial and then on appeal.

The record from Brown's direct appeal reveals that Brown was sentenced on August 20, 2001. However, the record was not certified as complete until October 1, 2001-42 days after Brown's sentencing hearing — and was not served on each party until October 2, 2001-43 days after Brown's sentencing hearing.¹ A motion for a new trial must be filed within 30 days of sentencing. See Rule 24.1, Ala. R.Crim.P. "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." V.R. v. State, 852 So.2d 194, 202-03 (Ala.Crim.App.2002) (opinion on application for rehearing). Because the record of Brown's guilty-plea proceedings was not prepared in time for Brown's appellate counsel to have reviewed it and to have presented any claims of ineffective assistance of trial counsel he deemed viable in a timely filed motion for a new trial, Brown's appellate counsel was not ineffective for not challenging trial counsel's effectiveness in a motion for a new trial and then on direct appeal.

II.

The circuit court also erred in concluding that Brown's ineffective-assistance-of-trial-counsel claim was barred by Rule 32.2(a)(5). As this Court held in V.R., "a defendant 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 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." 852 So.2d at 202. As noted above, the trial transcript was not prepared in time for Brown's appellate counsel to have reviewed it and to have determined whether any claim of ineffective assistance of trial counsel was viable.

We note that the State argues on appeal that Brown's ineffective-assistance-of-trial-counsel claim is barred by Rule 32.2(a)(4) because, it says, "this Court has already reviewed the record, in response to an Anders brief, and determined that Brown's trial counsel was not ineffective." (State's brief at p. 9.) The State again relies on Jones to support its argument in this regard; specifically, the State relies on the following language in Jones:

"Pursuant to Anders, this Court has examined all of the proceedings and has found no issue of merit regarding trial counsel's performance. Therefore, these claims are precluded by Rule 32.2(a)(4), Ala.R.Crim.P., as claims that were addressed on appeal."

816 So.2d at 1071. After reviewing the opinion in Jones, it is clear...