Ervin v. State

• Decision Date: 10 July 2015
• Docket Number: CR–12–1890.
• Citation: 184 So.3d 1073
• Parties: Jeffery ERVIN v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

184 So.3d 1073

Jeffery ERVIN

v.STATE of Alabama.

CR–12–1890.

Court of Criminal Appeals of Alabama.

July 10, 2015.

Margaret Frances Demeranville, Mobile; Daniel L. McCleave, Mobile; and Martha Adrienne Tierney, Mobile, for appellant.

Luther Strange, atty. gen., and Tracy M. Daniel, asst. atty. gen., for appellee.

On Return to Remand^*

On Application for Rehearing

JOINER, Judge.

This Court's opinion of March 13, 2015, is withdrawn, and the following is substituted therefor.

Jeffery Ervin appeals the circuit court's decision to deny, in part, Ervin's Rule 32, Ala. R.Crim. P., petition for postconviction relief. We reverse and remand.

Facts and Procedural History

On April 7, 2009, Ervin, pursuant to a negotiated plea agreement, pleaded guilty to third-degree robbery, see § 13A–8–43, Ala.Code 1975, and to unlawful distribution of a controlled substance, see § 13A–12–211, Ala.Code 1975, and was sentenced to 10 years' imprisonment on each conviction, those sentences to run concurrently. Those sentences were split, and Ervin was ordered to serve 30 months' imprisonment, followed by 5 years' probation. (C. 5.) Ervin did not appeal his convictions or sentences.

On July 26, 2012, Ervin filed in the circuit court a Rule 32, Ala. R.Crim. P., petition for postconviction relief alleging, among other things, that his trial counsel—William T. Faile—had been ineffective. Specifically, Ervin alleged that Faile had represented him from December 28, 2008, through April 7, 2009,¹ when Ervin pleaded guilty to and was sentenced for the underlying offenses. Ervin claimed that "[a]t the same time [that] [Faile] was representing [Ervin], [Faile] [was] also represent[ing] Justin Charles Malone," who was charged as a codefendant in the same robbery as Ervin and who also gave a statement to police implicating Ervin in the robbery. (C. 17, 79.) Regarding Faile's representing both Malone and Ervin, Ervin alleged:

"In the case at bar, William T. Faile clearly was in the position of having divided loyalties. By representing Malone, the co-defendant in the robbery case, along with Ervin, Faile had to have known that Malone had made a statement implicating Ervin in the robbery. Certainly if Ervin had insisted on going to trial, Malone would have been a witness against [Ervin], placing Faile in a position of having to cross-examine his own client."

(C. 21.) Regarding the timing of these allegations, Ervin pleaded:

"Finally, these facts only came to light in June of 2012. At that time, undersigned counsel had in his representation of Ervin in federal court discovered that George Jones, III, had voluntarily given up his license to practice law. Thereafter, counsel discovered that William T. Faile took over representing Ervin. The investigation of William T. Faile revealed that he had had his license removed. It was only after undersigned counsel reviewed the court files on these cases that it was learned that William T. Faile also undertook to represent Justin Charles Malone, the co-defendant in the robbery case."

(C. 22.) To support his allegations, Ervin attached to his petition numerous exhibits, including case-action summaries and indictments showing that Faile represented both Ervin and Malone and that both Ervin and Malone had been indicted for a December 2007 robbery at a Sonic Drive–In restaurant. Ervin also included an exhibit demonstrating that Malone had implicated Ervin in the 2007 robbery. (C. 23–80.)

On August 27, 2012, the State filed a "Response to Petitioner's Rule 32 Petition and Motion to Dismiss," alleging that Ervin's claim was precluded under Rule 32.2(a)(3) and (a)(5), Ala. R.Crim. P.; that his claim was time-barred under Rule 32.2(c), Ala. R.Crim. P.; and that his claim was without merit. (C. 82–85.)

On September 12, 2012, Ervin filed a reply to the State's response, asserting that his claim was, in fact, meritorious and, further, that he "ha[d] demonstrated ... extraordinary circumstances justifying the application of the doctrine of equitable tolling." (C. 89–90.) Specifically, Ervin asserted that he

"had no knowledge and no way of knowing of the dual representation and the conflict that ... Faile was operating under. Ervin and Malone did not appear in court at the same time. In fact, it took undersigned counsel a great deal of investigating in order to uncover the fact that Faile represented Malone and that Malone had made a statement implicating Ervin in the robbery. In addition, Ervin had no knowledge that Faile had been involuntarily relieved of his right to practice law due to dementia and that the dementia reached back to the period when Faile was representing Ervin."

(C. 91.)

On October 23, 2012, Ervin amended his petition to include, among other things, an affidavit in which Ervin asserted the following:

"In June of 2012, I found out that Mr. Faile not only represented me but he represented Justin Malone, too. I also found out that Justin Malone was the person who told the police I was involved in the ... robbery. I didn't know any of this before then. If I had known Faile was representing Malone, I would have fired him. In addition, in June of 2012, I learned that Mr. Faile had stop[ped] practicing law in May of 2010. The statements in support of that finding indicate that Faile had been messing up cases since 2008. This was the same way he handled my case."

(C. 112.)

On November 20, 2012, the circuit court issued a written order concluding that Ervin had not "present[ed] the extraordinary circumstances required by Ex parte Ward[, 46 So.3d 888 (Ala.2007),]" to support a claim of equitable tolling and that Ervin had "simply waited too late to file [his] petition." (C. 118.) Thereafter, Ervin filed a timely notice of appeal.

Ervin, in his initial brief on appeal, argued that the circuit court erred when it summarily dismissed his claim of ineffective assistance of trial counsel and that his "Rule 32 motion for ineffective assistance of counsel was ‘equitably tolled.’ " (Ervin's brief, p. 4.) The State, in its brief on appeal, however, argued that Ervin's petition was untimely filed and that Ervin "failed to make any showing that the doctrine of equitable tolling should be applied in his case." (State's brief, p. ii.)

We agreed with Ervin's argument; thus, on February 27, 2014, this Court issued an order remanding Ervin's case to the circuit court for that court "to conduct an evidentiary hearing pursuant to Rule 32.9(a), Ala. R.Crim. P., to address the allegations that Faile simultaneously represented Ervin and Malone and to ‘make specific findings of fact relating to each material issue of fact presented.’ " (Record on Return to Remand, C. 5.)

On remand, the circuit court complied with our instructions. Specifically, the circuit court, on March 3, 2014, issued an order directing both Ervin and the State to "submit evidence on the issues in this case by affidavit, written interrogatories, or depositions in lieu of an evidentiary hearing." (Record on Return to Remand, C. 7.) In response to the circuit court's order, Ervin submitted numerous exhibits, including case-action summaries and indictments showing that Faile had represented both Ervin and Malone and that both Ervin and Malone had been indicted for a December 2007 robbery at a Sonic Drive–In restaurant; an exhibit demonstrating that Malone had implicated Ervin in the robbery; and an affidavit from Ervin. The State, however, failed to submit any evidence to support its position.²

On June 10, 2014, the circuit court issued an order granting Ervin relief as to his claim of ineffective assistance of counsel in the robbery case, finding:

"5. That Attorney William T. Faile did, in fact, represent Jeffery T. Ervin ... and Justin Charles Malone, and

"6. That [Ervin] and [Malone] were charged as codefendants in the same robbery, namely that of Candice McCraw and Sonic Drive–In on or about December 9, 2007, and

"7. That [Malone] did, in fact, give a statement to police implicating Ervin in the robbery."

(Record on Return to Remand, C. 84.) Thereafter, the circuit court concluded:

"8. Under ... Strickland v. Washington, 466 U.S. 668 (1984), where an actual conflict of interest exists, an ineffective assistance of counsel claim is presumed.

"9. In addition, ‘Once a defendant makes a sufficient showing of an actual conflict that adversely affected counsel's performance, prejudice ... is presumed.’ Jones v. State, 937 So.2d 96, 100 (Ala.Crim.App.2005).

"10. The Court finds that ... Jeffery T. Ervin has shown that his attorney labored under an actual conflict of interest simultaneously representing Ervin and [Malone].

"11. While the Court finds that [Ervin] was not necessarily prejudiced by his attorney's conflict of interest due to the result, because of the presumption of prejudice in this case to which no rebuttal has been filed, the Court has no choice but to set aside the conviction for robbery.

"WHEREFORE, the premises considered, the judgment, conviction and sentence heretofore rendered in [the robbery case] is hereby set aside and held for naught. It is further ordered that the Robbery, [first] degree, charge is hereby reinstated and [Ervin] will stand trial for said offense."

(Record on Return to Remand, C. 84–85.) With regard to his claim of ineffective assistance of counsel in the unlawful-distribution-of-a-controlled-substance case, the circuit court denied Ervin's claim, finding as follows:

"5. That Attorney William T. Faile did, in fact, represent Jeffery T. Ervin ... and Justin Charles Malone, and

"6. That [Ervin] and [Malone] were charged as codefendants in the same robbery, namely that of Candice McCraw and Sonic Drive–In on or about December 9, 2007, and

"7. That [Malone] did, in fact, give a statement to police implicating Ervin in the robbery.

"8. That there was no conflict of interest in CC–09–15 and that there is no presumption of prejudice in this case.

"9. That [Ervin] received adequate representation receiving a substantial reduction in the sentence than he would have received if he had

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