Clark v. State
Decision Date | 03 October 2014 |
Docket Number | CR–13–0121. |
Citation | 166 So.3d 147 |
Parties | Freddie L. CLARK v. STATE of Alabama. |
Court | Alabama Court of Criminal Appeals |
Eric Barbee Funderburk, Phenix City, for appellant.
Luther Strange, atty. gen. and J. Thomas Leverette, asst. atty. gen., for appellee.
The appellant, Freddie L. Clark, was convicted of one count of unlawful distribution of a controlled substance, a violation of § 13A–12–211, Ala.Code 1975. The circuit court sentenced Clark as a habitual felony offender with three prior felony convictions to a total of 30 years' imprisonment: 20 years' imprisonment for the unlawful-distribution conviction plus a 5–year enhancement pursuant to § 13A–12–250, Ala.Code 1975, because the offense took place within a 3–mile radius of a school, and a 5–year enhancement pursuant to § 13A–12–270, Ala.Code 1975, because the offense took place within a 3–mile radius of a public-housing project. The circuit court ordered Clark to pay a $5,000 fine, $50 to the Crime Victims Compensation Fund, a fine of $1,000 pursuant to the Drug Demand Reduction Assessment Act, $100 to the Alabama Forensic Services Trust Fund, and court costs.
The record indicates that in December 2011 Clark sold an “eight ball” of crack cocaine1 to a confidential informant who was working for the police. Clark was subsequently arrested and charged with unlawful distribution of a controlled substance. On September 9, 2013, Clark was convicted of unlawful distribution of a controlled substance and on October 11, 2013, the circuit court conducted a sentencing hearing. The following transpired at the sentencing hearing:
(R. 150–53.) This appeal followed.
Clark's sole contention on appeal is that the circuit court erred when the court sentenced him pursuant to the Habitual Felony Offender Act (“HFOA”) and failed to follow the presumptive sentencing standards which, Clark argues, were mandatory “for any sentencing event occurring after October 1, 2013, and because [he] was found guilty of an offense that is a non-violent offense.” (Clark's brief, p. 11.) Clark contends that because he was sentenced on October 11, 2013, the circuit court was required to sentence him pursuant to the presumptive sentencing standards established in § 12–25–35(b), Ala.Code 1975.2
The Alabama Sentencing Reform Act of 2003 (“the Act”), as amended effective October 1, 2006, created voluntary sentencing standards to, among other things, assist trial judges in determining the most appropriate sentence for convicted felony offenders. See § 12–25–31(a)(1), Ala.Code 1975. At the time the Act was passed, a trial judge had the discretion to sentence a defendant either pursuant to the voluntary sentencing standards or pursuant to the HFOA. See State v. Crittenden, 17 So.3d 253, 259 (Ala.Crim.App.2009).
In 2012, the legislature enacted § 12–25–34.2, Ala.Code 1975, effective May 15, 2012, to implement presumptive sentencing standards in place of the voluntary sentencing standards. See Act No. 2012–473, Ala. Acts 2012. Section 12–25–34.2(b), Ala.Code 1975, provides:
In M.H. v. State, 6 So.3d 41 (Ala.Crim.App.2008), this Court explained:
M.H., 6 So.3d at 49 (emphasis added).
We have reviewed Act No. 2012–473, Ala. Acts 2012, and § 12–25–34.2(b), Ala.Code 1975, and there is no express statement that § 12–25–34.2(b) is to apply retroactively. There is, however, an indication that the legislature intended the presumptive sentencing standards to apply retroactively.
Section 12–25–34(d), Ala.Code 1975, explains, in part, as follows:
”
(Emphasis added.)
Although § 12–25–34.2(b), Ala.Code 1975, does not expressly state that the presumptive sentencing standards are to be applied retroactively, that Code section requires the Alabama Sentencing Commission (“the Commission”) to create an annual report “containing proposed modifications” to the sentencing standards and to submit those proposed modifications to the legislature; those proposed modifications...
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