Bryant v. State

• Decision Date: 28 August 2009
• Docket Number: CR-08-0211.
• Parties: Corey Demekus BRYANT v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

29 So.3d 928

Corey Demekus BRYANT v. STATE of Alabama.

CR-08-0211.

Court of Criminal Appeals of Alabama.

August 28, 2009.

Corey Demekus Bryant, pro se.

Troy King, atty. gen., and Kristi O. Wilkerson, asst. atty. gen., for appellee.

WELCH, Judge.

Corey Demekus Bryant appeals the circuit court's summary denial of his Rule 32, Ala. R.Crim. P., petition for postconviction relief and reinstatement of his original 60-year sentence.

The record reflects that Bryant pleaded guilty to murder on December 12, 1990; he was sentenced to 60 years' imprisonment on February 1, 1991. On February 5, 1991, Bryant filed a timely motion for sentence reduction. After several continuances, the trial court conducted a hearing on the motion on May 16, 1991, after which it entered an order reducing Bryant's sentence to 40 years' imprisonment.¹ Bryant filed a notice of appeal from that order, but this Court dismissed the appeal on May 28, 1991, as being from a non-appealable order (case no. CR-90-1221). Bryant subsequently filed three Rule 32 petitions attacking his conviction and sentence, all of which were denied by the circuit court; the denials were affirmed by this Court on appeal. See Bryant v. State (No. CR-01-2636), 876 So.2d 1196 (Ala. Crim.App.2003) (table); Bryant v. State (No. CR-95-0305), 683 So.2d 1075 (Ala. Crim.App.1996) (table); and Bryant v. State (No. CR-92-1598), 639 So.2d 586 (Ala.Crim.App.1993) (table).

Bryant filed this, his fourth, Rule 32 petition, on September 3, 2008. In his petition, Bryant alleged: (1) that the trial court lacked jurisdiction to accept his plea because, he said, the arrest warrant was invalid; and (2) that the trial court lacked jurisdiction to reduce his sentence and that his reduced sentence was therefore illegal because, he said, he was not present at the hearing on May 16, 1991, when his sentence was reduced. On October 6, 2008, the State filed a "Response, Motion for Summary Dismissal of Defendant's Rule 32 Petition, and Motion to Reinstate Original 60-year Sentence," in which it argued, among other things, that Bryant's claims were barred by Rules 32.2(a), (b), and (c), Ala. R.Crim. P., and were insufficiently pleaded. (C. 42.) With respect to Bryant's challenge to his reduced 40-year sentence, however, the State nonetheless agreed with Bryant that the trial court lacked jurisdiction to reduce his sentence on May 16, 1991, and that the reduced sentence was illegal, but on a different ground than alleged by Bryant. The State argued that the trial court lacked jurisdiction to reduce Bryant's sentence on May 16, 1991, more than three months after he had originally been sentenced on February 1, 1991, because, it said, although Bryant had filed a timely motion for sentence reduction, which was construed as a motion for a new trial and that motion was continued several times before the May 16, 1991, hearing, the motion was not continued by agreement of the parties in accordance with Rule 24.4, Ala. R.Crim. P., and, thus, the motion was deemed denied by operation of law 60 days after Bryant's February 1, 1991, sentencing — on April 2, 1991 — and the trial court's May 16, 1991, order purporting to reduce Bryant's sentence was void for lack of jurisdiction. The State requested that the circuit court reinstate Bryant's original 60-year sentence.

The circuit court issued an order on October 22, 2008, summarily denying Bryant's petition on the grounds that the petition was barred as successive under Rule 32.2(b), that the claims were insufficiently pleaded, and that Bryant's claim regarding his absence at the May 16, 1991, sentence-reduction hearing was moot because, it said, the trial court lacked jurisdiction to reduce the sentence when Bryant's postjudgment motion for sentence reduction was not continued by agreement of the parties in accordance with Rule 24.4, Ala. R.Crim. P. The circuit court reinstated Bryant's original 60-year sentence. On November 4, 2008 Bryant filed a motion objecting to the summary denial of his petition, arguing that the circuit court had not specifically "refuted" his challenge to the arrest warrant. (C. 58.) Bryant filed a notice of appeal on November 7, 2008. On November 25, 2008, Bryant filed an untimely motion to set aside that portion of the circuit court's order reinstating his 60-year sentence, arguing — in direct contradiction to the argument in his petition that the trial court did not have jurisdiction to reduce his sentence on May 16, 1991 — that the trial court did have jurisdiction to reduce his sentence on May 16, 1991, because, he said, his motion for sentence reduction had been continued by agreement of the parties past the 60th day after sentencing. The circuit court purported to deny this untimely motion on December 22, 2008.

On appeal, Bryant contends that the circuit court erred in summarily denying his petition without conducting an evidentiary hearing because, he says, both his claims are jurisdictional and, thus, are not barred by any of the provisions of Rule 32.2, and both are meritorious on their face. He also contends that the circuit court erred in reinstating his original 60-year sentence. We reject both arguments.

Contrary to Bryant's contention, a challenge to an arrest warrant does not present a jurisdictional challenge. See, e.g., Bearden v. State, 825 So.2d 868 (Ala. Crim.App.2001); Duren v. State, 813 So.2d 928 (Ala.Crim.App.2000); and Sumlin v. State, 710 So.2d 941 (Ala.Crim.App.1998) (all holding that a challenge to an arrest warrant is not jurisdictional). Therefore, the circuit court correctly found this claim to be barred as successive under Rule 32.2(b), which provides:

"If a petitioner has previously filed a petition that challenges any judgment, all subsequent petitions by that petitioner challenging any judgment arising out of that same trial or guilty-plea proceeding shall be treated as successive petitions under this rule. The court shall not grant relief on a successive petition on the same or similar grounds on behalf of the same petitioner. A successive petition on different grounds shall be denied unless (1) the petitioner is entitled to relief on the ground that the court was without jurisdiction to render a judgment or to impose sentence or (2) the petitioner shows both that good cause exists why the new ground or grounds were not known or could not have been ascertained through reasonable diligence when the first petition was heard, and that failure to entertain the petition will result in a miscarriage of justice."

Bryant's sole attempt to overcome the successive-petition bar was to argue, incorrectly, that this claim was jurisdictional. Bryant did not allege in his petition, in any of his other filings, or in his brief on appeal, that he had good cause for not raising this claim in any of his three previous petitions or that he could not have ascertained this claim through the exercise of reasonable diligence when his previous petitions were heard, nor did he allege that the failure to entertain this claim would result in a miscarriage of justice. See, e.g., Whitt v. State, 827 So.2d 869, 876 (Ala.Crim.App.2001) ("The circuit court correctly ruled that Whitt's claims ... were successive under Rule 32.2(b) because they could have been raised in his first Rule 32.2 petition.... Whitt made no attempt to show cause why the claims could not have been raised in his previous petition or to show that failure to entertain the new claims would result in a miscarriage of justice."). See also Wallace v. State, 959 So.2d 1161 (Ala.Crim.App.2006), and Fortner v. State, 825 So.2d 876 (Ala Crim.App.2001). Because this is Bryant's fourth petition and because he failed to show good cause why this claim was not raised in any of his previous petitions, it is barred by Rule 32.2(b). In addition, as the State asserted in its response, this claim is also barred by Rule 32.2(c), Ala. R.Crim. P., because Bryant's petition was filed long after the two-year limitations period applicable to his conviction² had expired. See, e.g., Sumlin, 710 So.2d at 942 ("Because the claim challenging the arrest warrant is not a jurisdictional claim and because the petition was filed more than two years after this court issued its certificate of judgment, it is also procedurally barred by the limitations period of Rule 32.2(c), Ala. R.Crim. P."). Accordingly, summary denial of this claim was proper under Rule 32.7(d), Ala. R.Crim. P.

As for Bryant's challenge to his reduced 40-year sentence, we note first that Bryant did not receive a true adverse ruling on this claim. Although the circuit court found that Bryant's specific challenge to the trial court's jurisdiction was moot, it nonetheless found exactly what Bryant argued — that the trial court lacked jurisdiction to reduce his sentence on May 16, 1991 — albeit for a different reason than argued by Bryant in his petition. "An adverse ruling is a prerequisite to appellate review...." Roberts v. State, 579 So.2d 62, 65 (Ala.Crim.App.1991). In addition, Bryant's argument on appeal — that the circuit court erred in reinstating his original 60-year sentence because, he says, the trial court did have jurisdiction to reduce his sentence on May 16, 1991 — is in direct conflict with the argument he made in his petition — that the trial court did not have jurisdiction to reduce his sentence on May 16, 1991.

"A party cannot assume inconsistent positions at trial and on appeal, and a party cannot allege as error proceedings in the trial court that were invited by him or were a natural consequence of his own action. Leverett v. State, 462 So.2d 972 (Ala.Cr.App.1984), cert, denied, 462 So.2d 972 (Ala.1985). A defendant cannot invite error by his conduct and later profit by the error. Timmons v. State, 487 So.2d 975 (Ala.Cr.App.), cert, denied, 487 So.2d 975 (Ala.1986)."

Fountain v. State, 586 So.2d 277, 282 (Ala. Crim.App.1991). Finally, Bryant's challenge to the reinstatement of his original...