Ex parte McCall
| Decision Date | 07 November 2008 |
| Docket Number | 1070633. |
| Citation | 30 So.3d 400 |
| Parties | Ex parte Willie Albert McCALL. (In re Willie Albert McCall v. State of Alabama). |
| Court | Alabama Supreme Court |
Glenn L. Davidson of Collins, Davidson L.L.C., Mobile, for petitioner.
Troy King, atty. gen., and John M. Porter, asst. atty. gen., for respondent.
The Court of Criminal Appeals affirmed the trial court's dismissal of Willie Albert McCall's Rule 32, Ala. R.Crim. P., petition for postconviction relief. This Court granted McCall's petition for the writ of certiorari to address a possible conflict between the Court of Criminal Appeals' decision and this Court's decision in Ex parte Grau, 791 So.2d 345 (Ala.2000). We hold that the Court of Criminal Appeals' judgment conflicts with prior caselaw, and we therefore reverse that judgment and remand this case.
Willie Albert McCall was indicted and tried for capital murder and attempted murder and for being a convicted felon in possession of a firearm. He was convicted on the firearm charge and was sentenced to five years' imprisonment. The jury, however, could not reach a unanimous verdict on the other two charges, and the trial court therefore declared a mistrial. McCall was reindicted and was eventually convicted of murder and attempted murder. He was sentenced to life imprisonment without parole on each conviction. McCall appealed his convictions for murder and attempted murder, and the Court of Criminal Appeals affirmed the trial court's judgment, without an opinion. McCall v. State, 919 So.2d 1237 (Ala.Crim. App.2004) (table).
McCall then petitioned the trial court for post-conviction relief under Rule 32, Ala. R.Crim. P., alleging ineffective assistance of counsel at both his trial and on appeal.1 He later amended his petition to allege 12 instances of ineffective assistance. The trial court held a hearing on his motion, at which McCall offered testimony on only 1 of his 12 claims: that his trial counsel's performance was deficient because counsel had failed to move the trial court to dismiss his capital-murder and attempted-murder indictments2 even though, he argued, the State had promised to nol-pros those indictments if he withdrew his appeal of the firearms conviction. McCall contends that he withdrew his appeal of the firearms conviction but that the State tried him on the charges of capital murder and attempted murder anyway. McCall entered into evidence an appellate brief filed by counsel in the Court of Criminal Appeals, the State's brief in response, and the Court of Criminal Appeals' unpublished memorandum, which, McCall stated, were offered to show ineffective assistance of counsel "on the appeal process."
In response to his claims, the State offered the testimony of McCall's counsel and of the prosecutor. McCall's counsel explained his trial strategy. The trial court dismissed McCall's Rule 32 petition, stating:
See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ( ).
McCall moved the trial court to alter, amend, or vacate its order, arguing that the trial court erred in not making specific findings of fact as required by Rule 32.9, Ala. R.Crim. P.3 The trial court denied that motion. McCall appealed the trial court's decision, and the Court of Criminal Appeals affirmed, by unpublished memorandum. McCall v. State (No. CR-06-0021, Dec. 14, 2007), 19 So.3d 259 (Ala.Crim.App. 2007) (table). McCall then petitioned this Court for the writ of certiorari. We granted the writ to determine whether the Court of Criminal Appeals' decision conflicts with Ex parte Grau, 791 So.2d 345 (Ala.2000).
McCall argues that the Court of Criminal Appeals' decision affirming the trial court's dismissal of his Rule 32, Ala. R.Crim. P., petition, which was issued after an evidentiary hearing and which did not contain specific findings of fact, conflicts with Ex parte Grau.
McCall argues here that the Court of Criminal Appeals' decision conflicts with Ex parte Grau because the trial court did not make specific findings as to the material issues of fact presented in his Rule 32, Ala. R.Crim. P., petition for postconviction relief. Grau was convicted of possession of a controlled substance and possession of drug paraphernalia. The arresting officer found cocaine and drug paraphernalia in the pocket of Grau's companion, Holly Simmons. The Court of Criminal Appeals affirmed Grau's conviction without an opinion.
Grau petitioned the trial court for postconviction relief under Rule 32, Ala. R.Crim. P., alleging that his counsel should have solicited the testimony of an expert witness as to a drug test Grau had taken a few days after his arrest. Grau argued that the "expert testimony would have indicated that, because there was no cocaine in Grau's system at the time of the test, Grau could not have ingested cocaine shortly before his arrest." Grau, 791 So.2d at 346. Grau also argued that "his trial counsel should have subpoenaed Simmons to establish that he did not use the cocaine and did not know that Simmons was in possession of the cocaine and drug paraphernalia." Grau, 791 So.2d at 346. The trial court denied Grau's Rule 32 petition without making any findings of fact on his ineffective-assistance-of-counsel claim. The Court of Criminal Appeals affirmed.
On certiorari review, this Court concluded that "because the circuit court did not make specific findings of fact, any review of Grau's claims by the Court would be premature." Ex parte Grau, 791 So.2d at 346-47. We stated: "`Rule 32.9(d), Ala. R.Crim. P., requires that if an evidentiary hearing is conducted on the Rule 32 petition, "the court shall make specific findings of fact relating to each material issue of fact presented."'" 791 So.2d at 347 (quoting Anglin v. State, 719 So.2d 855, 857 (Ala.Crim.App.1996)). We went on to note that "`a statement of the basis of the trial court's decision is essential to afford the appellant due process.'" 791 So.2d at 347 (quoting Owens v. State, 666 So.2d 31, 32 (Ala.Crim.App.1994)). We then reversed the judgment and remanded the case to the Court of Criminal Appeals, with instructions for that court to remand the case to the trial court to make specific findings of fact and to state the basis of its ruling.
Here, McCall, like Grau, petitioned for postconviction relief, alleging ineffective assistance of counsel, and the trial court, like the trial court in Ex parte Grau, held an evidentiary hearing, but it did not issue specific findings of fact when it dismissed McCall's petition. McCall argues, therefore, that the Court of Criminal Appeals should have reversed the trial court's judgment and remanded the case to allow the trial court to issue specific findings of fact. The Court of Criminal Appeals' failure to do so, McCall argues, is in conflict with the precedent set forth in Ex parte Grau; therefore, its judgment should be reversed and the case remanded. We agree.
The State argues that "although McCall sufficiently pleaded some of his claims warranting him an evidentiary hearing, he failed to present any evidence at his evidentiary hearing showing that there was a material issue of fact concerning any of those claims." State's brief at 11. Specifically, the State argues that the trial court's judgment was sufficient because McCall, unlike the petitioner in Ex parte Grau, did not present sufficient evidence of any prejudice he suffered as a result of counsel's allegedly deficient performance.4 Therefore, the State argues there was no violation of the Rule 32.9(d) requirement that "the court shall make specific findings of fact relating to each material issue of fact presented."5
We note that Rule 32.7(d), Ala. R.Crim. P., provides:
Thus, a hearing need not be held if the petitioner fails to adequately present a material issue. If, however, the court holds a hearing, then Rule 32.9, Ala. R.Crim. P., provides, in pertinent part, as follows:
Thus, the trial court must first determine whether the petition raises "material issues of fact or law ... which would entitle the petitioner to relief under Rule 32." Rule 32.7(d). Once a hearing is held on those issues, the trial court is required to make findings of fact as to each of the material issues upon which the hearing was held. See Ex parte Grau, supra.6
In this case, McCall petitioned for postconviction relief alleging 12 grounds of ineffective assistance of counsel.7 The trial ...
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...of fact as to all the issues raised in Lewis's third amended petition. See Rule 32.9(d), Ala. R. Crim. P. See also Ex parte McCall, 30 So. 3d 400, 404 (Ala. 2008). On remand, the circuit court complied with our instructions.2 (Record on Return to Remand C. 10.) The parties submitted more br......
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...P. The Alabama Supreme Court has classified Rule 32.9(d), Ala. R. Crim. P., as a "mandatory" provision of Rule 32. See Ex parte McCall, 30 So.3d 400, 404 (Ala. 2008).This Court has consistently remanded cases when no findings of fact are made by the circuit court following an evidentiary he......
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...to support this claim, this Court cannot "look back" and conclude that Marshall's claim was insufficiently pleaded.See Ex parte McCall, 30 So.3d 400, 403–04 (Ala.2008) ("The trial court held an evidentiary hearing on the petition. By holding that hearing, the trial court implicitly found th......