Ex parte Stringfellow

• Decision Date: 25 May 1990
• Citation: 565 So.2d 147
• Parties: Ex parte Donald Earl STRINGFELLOW. (Re Donald Earl Stringfellow v. State). 88-1581.
• Court: Alabama Supreme Court

Page 147

565 So.2d 147

Ex parte Donald Earl STRINGFELLOW.

(Re Donald Earl Stringfellow v. State).

88-1581.

Supreme Court of Alabama.

May 25, 1990.

Margaret Y. Brown, Auburn, for petitioner.

Don Siegelman, Atty. Gen., and Sandra Lewis, Asst. Atty. Gen., for respondent.

KENNEDY, Justice.

STATEMENT OF THE CASE

The defendant, Donald Earl Stringfellow, was convicted of first degree sodomy and was sentenced to life imprisonment. The Court of Criminal Appeals affirmed the conviction. Stringfellow, pro se, then filed a Rule 20, Ala.R.Cr.P.Temp., petition. The petition alleged that the defendant's trial counsel, who had been appointed, had been ineffective and that his ineffectiveness was demonstrated by his causing both the trial court and the jury to learn that the defendant was being investigated for a similar offense in the state of Virginia. The petition also alleged that his trial counsel had failed to call witnesses who would have provided exculpatory testimony. This petition was denied by the circuit court, without the appointment of counsel or an evidentiary hearing.

The Court of Criminal Appeals reversed and held that the two allegations of ineffective counsel cited in the Rule 20 petition were sufficient to justify a hearing. That court remanded the cause for a full evidentiary hearing. Stringfellow v. State, 520 So.2d 244 (Ala.Cr.App.1987).

The trial court then appointed an attorney to represent the defendant and held a hearing. The trial court then denied the defendant's petition and held that the defendant had not met his burden of showing that his trial counsel was ineffective, as required by Rule 20. The trial court also refused to allow the defendant's attorney to amend the defendant's pro se Rule 20 petition. Without an opinion, the Court of Criminal Appeals affirmed. Stringfellow v. State, 550 So.2d 1095 (1989). We then issued the writ of certiorari, and by this opinion we affirm in part, reverse in part, and remand.

ISSUES

The issues are whether the trial court erred by denying the defendant's petition regarding the charge of ineffective counsel and whether the court erred by denying defense counsel's request to amend the petition that was originally filed by the defendant.

I. Ineffective Counsel

The trial court made the following rulings on the issue of ineffective counsel:

"1. Representation of the Defendant by his court appointed counsel, James Cox, was not inadequate. Said attorney is experienced in the practice of criminal law, having tried between 75-100 cases in his seven years of practice.

"2. Defendant has not met his burden of proof as required by Rule 20.3, Alabama Rules of Criminal Procedure, in seeking to establish inadequacy of counsel."

At the Rule 20 hearing, the defendant's trial counsel admitted that the grandmother of the victim had told him that, after trial, the child admitted to both her mother and her grandmother that she had lied about what the defendant had done. However, he testified that he was not informed of this until a few days after the sentencing hearing. Trial counsel also testified that after the defendant had been sentenced, but before the time limit for filing an appeal had expired, he discussed the possibility of an appeal with the defendant's mother-in-law, but that the mother-in-law subsequently informed him that she had retained another attorney for the appeal.

In order to establish a showing of ineffective counsel, a criminal defendant must show that trial counsel "made errors so serious that counsel was not functioning as the 'counsel guaranteed the defendant by the Sixth Amendment.' " He must also show that this deficient performance prejudiced his case. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

The evidence before the trial court was conflicting. The defendant's trial counsel insisted that he was not aware of the victim's exculpatory statements prior to the sentencing hearing and that prior to the expiration of the time for appeal the defendant had hired another attorney. Several witnesses testifying for the defendant stated that trial counsel was aware of the statements prior to sentencing. The record, however, does not shed any light on when trial counsel was made aware of the statements.

When alleging ineffective counsel, a criminal defendant bears a substantial burden:

"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to secondguess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable."

Strickland, at 689, 104 S.Ct. at 2065.

Because the record and the briefs do not clarify the issue of when trial counsel learned of the victim's alleged statements, we conclude that the defendant did not meet the burden of Strickland and, accordingly, we affirm the trial court's ruling with regard to allegations of ineffective counsel.

II. Amendment of the petition

In the amended Rule 20 petition, the defendant's attorney alleges, inter alia, the following: that the mother and grandmother of the victim took the victim to the district attorney's office so that the child could recant her testimony; that after talking to the child alone, the district attorney returned and told the adults that the child was...