Burton v. State

• Citation: 728 So.2d 1142
• Parties: Terry G. BURTON v. STATE.
• Decision Date: 18 April 1997
• Court: Alabama Court of Criminal Appeals

728 So.2d 1142

Terry G. BURTON v. STATE.

CR-96-0597.

Court of Criminal Appeals of Alabama.

April 18, 1997.

Opinion on Return to Remand April 3, 1998.

Rehearing Denied August 14, 1998.

Terry G. Burton, appellant, pro se.

Bill Pryor, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.

PATTERSON, Retired Appellate Judge.

The appellant, Terry G. Burton, appeals from the circuit court's denial of his Ala. R.Crim.P. 32 petition in which he contests his 1996 convictions for possession of a controlled substance and possession of a pistol after having been convicted of a violent crime. Burton did not appeal from these convictions.

As one of the allegations in his petition, Burton contends that his failure to appeal within the prescribed time was without fault on his part. In support of this ground, Burton asserts in his petition that he was "[n]ot aware or advised of an appeal"; that "[t]he court or petitioner's court appointed attorney fail to reserve his rights to a first appeal"; and "that he was not given a counsel or appointed a counsel by the court to secure his First Appeal as a matter of right, nor did his court appointed attorney at trial secure his right to appeal his conviction and sentence thereafter." These assertions are also the basis of Burton's claim of ineffective assistance of counsel. They are undisputed because the state filed no response to Burton's petition. The circuit court made the following finding in regard to the ground that failure to appeal was through no fault on the part of Burton: "The claim is without merit, and any error that could have been preserved by direct appeal is procedurally barred." The circuit court further found that "the specific allegations of ineffective assistance of counsel are without merit.

On the face of Burton's petition, his claims relating to the failure to appeal are meritorious. Moreover, we find no factual support in the record for the circuit court's findings that these claims are without merit. It is beyond question that a defendant has a right to effective assistance of counsel on direct appeal. See Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985)

.

Thus, we must remand this case for further findings by the circuit court. See Rule 32.9(d) ("The court shall make specific findings of fact relating to each material issue of fact presented."). See generally Mancil v. State, 682 So.2d 501 (Ala.Cr.App.1996)

; Wilson v. State, 641 So.2d 1268 (Ala.Cr.App. 1993). We adopt the following instructions from Harper v. State, 676 So.2d 949, 950 (Ala.Cr.App.1995), as applicable to this remand order:

"[T]he court may properly dispose of those allegations [that are meritorious on their face] without an evidentiary hearing under one of two sets of circumstances. First, if it has before it `facts supporting the position of each party [that] are fully set out in... supporting affidavits.' Johnson v. State, 564 So.2d 1019, 1021 (Ala.Cr.App. 1989) (relying on Temp. Rule 20.9(a), Ala. R.Cr.P., now Rule 32.9(a), which states, in part, that `[t]he court in its discretion may take evidence by affidavits, written interrogatories, or depositions, in lieu of an evidentiary hearing'). Second, if the events that serve as the basis of the ... allegation were observed by the same judge who rules on the Rule 32 petition. Ex parte Hill, 591 So.2d 462, 463 (Ala. 1991) (wherein the court held that `a judge who presided over the trial or other proceeding and observed the conduct of the attorneys at the trial or other proceeding need not hold a hearing on the effectiveness of those attorneys based upon the conduct that he observed'). See also Benefield v. State, 583 So.2d 1370, 1370 (Ala.Cr. App.1991)

(wherein the court noted that meritorious allegations `warrant either an evidentiary hearing or an adequate explanation for their denial'). In the event that the circuit judge has personal knowledge of the actual facts underlying any of Harper's allegations, he may deny the allegations without further proceedings on those allegations so long as he states the specific reasons for the denial in his written order. See Sheats v. State, 556 So.2d 1094 (Ala.Cr. App.1989)."

In addition to making findings of fact on the issues relating to the failure to appeal, the circuit court is further directed to make more specific findings in regard to the other issues raised in Burton's petition. For example, the court found that some of the issues were precluded, but did not specify which provision of Rule 32.2 precluded each issue. In the event the circuit court grants Burton an out-of-time appeal, see Starks v. State, 662 So.2d 1214, 1216 (Ala.Cr.App.1994) (where an out-of-time appeal is granted, the circuit court cannot then preclude any issue raised in the Rule 32 petition on the ground that the issue could have been, but was not, raised on appeal).

Accordingly, this case is remanded. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 63 days of the release of this opinion. If any hearing is held, the return to remand shall include a transcript of the remand proceedings.

The foregoing opinion was prepared by Retired Appellate Judge John Patterson while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e).

REMANDED WITH INSTRUCTIONS.

ALL JUDGES CONCUR.

On Return to Remand

PATTERSON, Retired Appellate Judge.

The appellant, Terry G. Burton, was arrested on August 3, 1995, for possession of cocaine and possession of a pistol after having been convicted of a crime of violence. He was subsequently indicted on February 9, 1996, in a two-count indictment for unlawful possession of a controlled substance, cocaine, a violation of Ala.Code 1975, § 13A-12-212, and for possession of a pistol after having been convicted of a crime of violence, i.e., robbery in the second degree, a violation of § 13A-11-72(a). At trial, he pleaded not guilty and was represented by retained counsel. A jury found him guilty of both counts as charged in the indictment, and the trial court sentenced him on the conviction for possession of a controlled substance to life imprisonment as a habitual offender with five prior felony convictions, not counting the robbery conviction that was used to prove the pistol charge, and to five years' imprisonment on the conviction for possession of a pistol after having been convicted of a crime of violence. The sentences were ordered to be served consecutively.

At trial, the state's evidence showed that as a result of undercover "buys" of cocaine by the police from the appellant at his apartment, which were tape-recorded, the police obtained a search warrant for his apartment and his automobile. The appellant had leased the apartment and was the sole occupant. In searching the apartment pursuant to the search warrant, the police found, inter alia, 17 small "ziplock" plastic bags, each containing "cocaine in the base form" or what is known on the street as "crack" cocaine, a controlled substance. They found $553 under the appellant's mattress in his bedroom and $97 on his person. He was unemployed at the time. They also found a loaded, 9 mm. Jennings automatic pistol in the appellant's automobile. After his arrest and after he was properly advised of his Miranda¹ rights by the police, and after waiving those rights, the appellant made a written statement in which he denied any knowledge of the cocaine found in his apartment, and denied selling any cocaine, but admitted that the pistol belonged to him.

The appellant did not testify at trial, and called only one witness in his defense, his girlfriend, Jennifer Kelley, who testified on direct examination that the pistol found in the appellant's automobile belonged to her, and that numerous people from time to time visited the appellant's apartment. She further testified that even though she rented an apartment nearby in the same apartment project, she "stayed" with the appellant in his apartment and had never seen any cocaine in the apartment when the appellant was present. On cross-examination, she admitted that she had previously given the officers a different statement in which she stated that she had seen the appellant selling cocaine to "lots" of people in the apartment and had seen him "cutting some up" in the kitchen of the apartment, and that the appellant knew that the pistol was in his automobile. She testified that she had lied to the officers in making the statement that the appellant was involved in selling or having cocaine in his apartment, but that she was telling the truth at trial. The jury, with good reason, did not believe her testimony, nor the appellant's denial in his pretrial statement to the police of any knowledge of the cocaine. When the case was submitted to the jury, it returned the verdicts of guilty in 11 minutes.

The appellant did not appeal his convictions.

On November 12, 1996, the appellant filed a post-conviction petition pursuant to Ala. R.Crim.P. 32, collaterally attacking the legality of his convictions. In his petition, he alleged, among other things, that he had been denied the right to appeal through no fault of his own, and that his counsel was constitutionally ineffective for failing to preserve his right to appeal and for failing to pursue his appeal. The allegations were undisputed because the state failed to file a response to the petition. In summarily denying the petition, the trial court found the appellant's claim that he had been denied the right to appeal through no fault of his own to be without merit and to be procedurally barred because "any error could have been preserved by direct appeal." The trial court also found the allegations of ineffective assistance of counsel to be without merit. Finding that the petition was facially meritorious as to the above allegations and that the trial court's findings as to those...