Connolly v. State

• Decision Date: 22 May 1992
• Citation: 602 So.2d 452
• Parties: Ex parte State of Alabama. (Re Rodney CONNOLLY v. STATE). 1901561.
• Court: Alabama Supreme Court

Page 452

602 So.2d 452

Ex parte State of Alabama (Re Rodney CONNOLLY v. STATE).

1901561.

Supreme Court of Alabama.

May 22, 1992.

James H. Evans, Atty. Gen., and Robert E. Lusk, Jr., Asst. Atty. Gen., for petitioner.

Elizabeth H. Shaw of Rives & Peterson, Birmingham, for respondent.

ALMON, Justice.

The trial court sentenced James Rodney Connolly to life imprisonment without parole. This sentence was mandatory because the State had invoked the Habitual Felony Offender Act ("HFOA"), Ala.Code 1975, § 13A-5-9, and had proved, to the trial court's satisfaction, that Connolly had been convicted of three prior felonies. The Court of Criminal Appeals reversed the judgment and ordered the sentence reduced to life imprisonment because the State could not prove that it had notified Connolly of the three prior felonies at a previous sentencing hearing. This Court granted the State's petition for a writ of certiorari to review the Court of Criminal Appeals' decision relating to the notice requirements of the HFOA.

Initially, Connolly was indicted and charged with capital murder (Ala.Code 1975, § 13A-5-40(a)(2), murder during robbery). He was convicted and sentenced to life imprisonment without parole. On appeal, the Court of Criminal Appeals reversed the conviction because the trial court had failed to instruct the jury on the lesser included offense of murder. Connolly v. State, 500 So.2d 57 (Ala.Crim.App.1985), aff'd, 500 So.2d 68 (Ala.1986). Connolly was then tried for and convicted of the theft of the victim's car. After his theft conviction, Connolly was retried on the original capital murder charge and was convicted of murder. Prior to this second trial for capital murder, the State notified Connolly that if he was convicted the State intended to proceed under the HFOA. At the sentencing hearing following this second trial, the State relied on two of Connolly's previous felony convictions. As a habitual offender with two prior felony convictions, Connolly was sentenced to life imprisonment. During the second trial, Connolly had admitted the commission of several other prior felonies including one in Oklahoma, theft of an automobile. The Court of Criminal Appeals reversed this second conviction because the theft conviction barred his prosecution for capital murder (murder during robbery) under the principle of former jeopardy. Connolly v. State, 539 So.2d 436 (Ala.Crim.App.1988).

Following the Court of Criminal Appeals' second reversal, Connolly was tried again and was convicted of murder. Prior to this third trial, the State notified Connolly of its intention to proceed under the HFOA and to prove the two prior felony convictions used after the second capital murder trial and a conviction for the previous Oklahoma felony that Connolly had admitted to during the second trial. Proof of a third previous felony conviction would require the trial court to sentence Connolly to life imprisonment without parole. Ala.Code 1975, § 13A-5-9(c). After the third trial ended in a murder conviction, Connolly was sentenced as a habitual offender with three prior felony convictions to life imprisonment without parole. On appeal, the Court of Criminal Appeals affirmed the murder conviction, but remanded the case to the trial court with directions that "[Connolly's] sentence of life imprisonment without the possibility of parole be reduced to life imprisonment, unless the State could show that [Connolly] was given proper notice of all three convictions before both the second and third sentence hearings." The State was unable to comply with the Court of Criminal Appeals' directions on remand because, at the time of the second sentencing, it could prove only two of the three alleged prior felony convictions. Connolly v. State, 602 So.2d 443 (Ala.Crim.App.1990). The trial court sentenced Connolly to life imprisonment, and on return to remand the Court of Criminal Appeals affirmed both his conviction for murder and the sentence of life imprisonment. Connolly v. State, 602 So.2d at 452 (Ala.Crim.App.1990).

The HFOA requires enhanced punishment for repeat felony offenders. Ala.Code 1975, § 13A-5-9. See, e.g., McLester v. Smith, 802 F.2d 1330 (11th Cir.1986). For the HFOA to apply to a particular sentencing, the State must give reasonable notice, prior to the sentencing hearing, of the State's intention to proceed under the HFOA. Rule 26.6(b)(3), Ala.R.Crim.P. (formerly Temp. Rule 6(b)(3)(ii), Ala.R.Crim.P.). Written notice is not required; oral notice will suffice. Garrett v. State, 480 So.2d 58 (Ala.Crim.App.1985). Determination of the "reasonableness" of the notice period is left to the trial judge's discretion, because the trial judge is present and is familiar with the circumstances of the case. Humber v. State, 481 So.2d 452 (Ala.Crim.App.1985). The notice requirement is eliminated when during the trial the defendant admits the previous felony conviction. Petite v. State, 520 So.2d 207 (Ala.Crim.App.1987).

More importantly, this Court has held that "the State may use at a second sentencing hearing convictions other than those it used at the first hearing, provided that proper notice has been given both times." State v. Jackson, 566 So.2d 758, 760 (Ala.1990) (emphasis in original). This requires only that the defendant be notified before each sentencing hearing that the HFOA will be applied and what convictions the State will attempt to prove. It does not require that notice of the same convictions be given "both times."

In Jackson, the State invoked the HFOA and attempted to prove that Jackson had been previously convicted of two felonies in Choctaw County, Alabama. Because the State's proof of the two previous Choctaw felonies was defective, the Court of Criminal Appeals set aside the sentence and remanded the case for a new sentencing hearing. Jackson v. State, 566 So.2d 752 (Ala.Crim.App.1987), cert. denied, 566 So.2d 757 (Ala.1988). At this second sentencing hearing, the State invoked the HFOA and proved five previous felony convictions from Washington County, Alabama. On return to remand, the Court of Criminal Appeals held that the trial court could not consider previous felony convictions other than those that the State had attempted to prove at the previous sentencing hearing. Id. at 758.

This Court granted the State's petition for certiorari and reversed the judgment of the Court of Criminal appeals. In doing so, this Court stated:

"The State correctly points out that [Ex parte] Glover [, 508 So.2d 218 (Ala.1980),] and [Ex parte] Williams [, 510 So.2d 135 (Ala.1987),] stand for the proposition that the Habitual Felony Offender Act cannot be applied if the defendant was not given proper notice before the first sentencing hearing; but those cases have nothing to do with what convictions the State can or cannot attempt to use at a later sentencing hearing. Indeed, Hinton v. State, 473 So.2d 1125 (Ala.1985), and Porter v. State, 505 So.2d 1292 (Ala.Cr.App.1986), both stand for the proposition that the State may use at a second sentencing hearing convictions other than those it used at the first hearing, provided that proper notice had been given both times, as it was here.

"There is a clear conflict here between the opinion of the Court of Criminal Appeals and the prior opinions in Hinton and Porter, and we conclude that the Court of Criminal Appeals has misinterpreted Glover and Williams. Therefore, we reverse the judgment of the Court of Criminal Appeals insofar as it holds that the Washington County convictions, of which the defendant had proper notice, cannot be used in the next sentence hearing, and we remand this cause so that court may order a new sentencing hearing consistent with this opinion. Because the trial court was without jurisdiction to sentence the defendant at the second sentencing hearing, the State should again give the defendant notice of the convictions it intends to use at this third sentencing hearing, so that the defendant, the trial court, and any reviewing court may know just which convictions are going to be used under the provisions of the Habitual Felony Offender Act."

State v. Jackson, 566 So.2d at 760. (Emphasis in original.)

In the present case, the Court of Criminal Appeals cited State v. Jackson, supra, but nevertheless held that "the State may use at the second [or subsequent] sentencing only those prior felony convictions of which the defendant was given proper notice before the first sentencing." As in State v. Jackson, supra, we reverse the judgment of the Court of Criminal Appeals.

To enhance a defendant's sentence under the HFOA, the State must give proper notice of its intent to do so. The State must also give the defendant proper notice of the alleged previous felony convictions that it will attempt to prove at that sentencing hearing. If, for whatever reason, another sentencing hearing is required and the State had notified the defendant of its intent to proceed under the...