Ex parte A.D.R.

• Decision Date: 27 November 1996
• Citation: 690 So.2d 1208
• Parties: Ex parte A.D.R. (Re A.D.R. v. State). 1951541.
• Court: Alabama Supreme Court

Page 1208

690 So.2d 1208

Ex parte A.D.R.

(Re A.D.R. v. State).

1951541.

Supreme Court of Alabama.

Nov. 27, 1996.

Theresa S. Dean, Opelika, for Petitioner.

Jeff Sessions, Atty. Gen., and LaVette Lyas-Brown, Asst. Atty. Gen., for Respondent.

SHORES, Justice.

A.D.R., a juvenile, was initially brought to the Lee Juvenile Court on four counts of capital murder, those four counts being based on the deaths of three people. After a hearing, the juvenile court determined that A.D.R. should be transferred to the circuit court to be tried as an adult. Neither A.D.R.'s appointed counsel nor the juvenile judge informed A.D.R. that he could appeal the transfer order. After the 14-day period for appeal (see Rule 28, Ala. R. Juv. P.) had expired, the circuit court appointed new counsel to represent A.D.R.

The new attorney filed a motion in the juvenile court for a rehearing on the transfer order, but the motion was denied. A.D.R. appealed the juvenile court's denial, but the Court of Criminal Appeals on June 16, 1995, dismissed the appeal, without opinion. A.D.R. v. State, 678 So.2d 816 (Ala.Crim.App.1995) (table). The new attorney then attacked the transfer order by filing with the juvenile court what the attorney called a Rule 32, Ala. R.Crim. P., petition for "relief from judgment," based upon allegations of ineffective assistance of counsel. The juvenile court dismissed the petition. A.D.R. appealed the dismissal; the Court of Criminal Appeals dismissed the appeal, with an unpublished memorandum stating that Rule 32 does not apply to juvenile transfer hearings and citing J.M.V. v. State, 651 So.2d 1087, 1089 (Ala.Crim.App.1994). A.D.R. v. State, 687 So.2d 231 (Ala.Crim.App.1996) (table). We granted A.D.R.'s petition for certiorari review; we reverse and remand.

A.D.R. cites Ex parte Cruse, 474 So.2d 109 (Ala.1985), in which we considered a juvenile's claim of ineffective assistance of counsel and held that "[t]he decision of counsel appointed by the juvenile court not to appeal the transfer order, without [the juvenile's] knowledge, consent, or approval, denied him the constitutional right to effective assistance of counsel at a critical stage in the proceedings against him." Id. at 111. Ex parte Cruse relied on Wainwright v. Simpson, 360 F.2d 307 (5th Cir.1966). In Wainwright, relief was granted to a habeas corpus petitioner whose court-appointed trial counsel, although believing that there were meritorious grounds for appeal, had deliberately not moved for a new trial or filed a notice of appeal.

A.D.R. filed a Rule 32 "petition for relief from judgment." The Court of Criminal Appeals held in its unpublished memorandum that Rule 32 relief is available only after a conviction and that Rule 32 affords no mechanism for a court to consider a claim of ineffective assistance of counsel at a transfer hearing, citing J.M.V. v. State, 651 So.2d 1087, 1089 (Ala.Crim.App.1994). In J.M.V. the Court of Criminal Appeals stated that Rule 32 "does not apply to juvenile transfer hearings." Id. at 1089. By its terms, Rule 32 applies to "any defendant who has been convicted of a criminal offense."

While a transfer order is not a conviction, this Court has held that a transfer hearing is a critical stage in a criminal proceeding and therefore requires the assistance of competent counsel. Neither the Alabama Rules of Criminal Procedure nor the Alabama Rules of Juvenile Procedure address the question of how a court may consider a juvenile's claims of ineffective assistance of counsel in regard to the transfer hearing, where no appeal is taken. The petition for the writ of error coram nobis has historically been available for a criminal defendant to raise allegations of ineffective assistance of counsel. Thompson v. State, 525 So.2d 820 (Ala.1985). In fact, in Cruse, the juvenile raised the issue of his counsel's failure to appeal the transfer order, by petitioning for the writ of error coram nobis. 474 So.2d at 109. Rule 32, Ala. R.Crim. P., incorporates the procedure for filing what was classified under prior practice as a petition for the writ of error coram nobis. See H. Maddox, Alabama Rules of Criminal Procedure, § 32.0 at 782 (1990). Because no other procedure is provided by our procedural rules, A.D.R. has raised the issue of ineffective assistance of counsel by the use of Rule 32, which incorporated the petition for the writ of error coram nobis. At this point we are faced with either allowing A.D.R. to use Rule 32 to raise the issue of ineffective assistance of counsel in regard to the transfer hearing, or requiring him to await trial and, if convicted, raise it on appeal of the conviction or by a Rule 32 petition. A.D.R. awaits trial on capital murder. It would be a waste of time and money for the circuit court to try him as an adult and then, if he is convicted, for the appellate courts to reverse because he had...