Falkner v. State, CR-89-632

Citation586 So.2d 39
Decision Date28 June 1991
Docket NumberCR-89-632
PartiesMilton Dale FALKNER v. STATE.
CourtAlabama Court of Criminal Appeals

Stephen A. Strickland, Birmingham, for appellant.

James H. Evans, Atty. Gen., and Gilda Branch Williams, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

This is an appeal from the denial of four Rule 20, A.R.Crim.P.Temp., petitions consolidated for a hearing in the circuit court.

In 1981, in case CC-80-1466, the appellant was convicted of rape. At sentencing, the State introduced three prior felony convictions, and the appellant was sentenced as a habitual offender to life imprisonment without parole. The appellant appealed the rape conviction, and this Court affirmed without published opinion on October 27, 1981, 416 So.2d 1115. Rehearing was denied November 24, 1981. The Alabama Supreme Court denied a petition for writ of certiorari on January 22, 1982.

Subsequently, the appellant filed petitions for writ of error coram nobis and habeas corpus attacking the rape conviction. Both petitions were heard and denied, and the denials were affirmed on appeal to this Court. See Falkner v. State, 462 So.2d 1040 (Ala.Cr.App.1984) (coram nobis); Falkner v. State, 497 So.2d 855 (Ala.Cr.App.1986) (habeas corpus) (unpublished memorandum opinion), cert. denied, 514 So.2d 342 (Ala.1987).

In March 1989, the appellant filed four petitions under Rule 20, A.R.Crim.P.Temp. (now Rule 32, A.R.Cr.P.), once again collaterally attacking his 1981 rape conviction, and, in addition, collaterally attacking (for the first time) each of the three underlying convictions which had been used to enhance his sentence for rape. See Lochli v. State, 565 So.2d 294, 296 (Ala.Cr.App.1990) (validity of underlying prior convictions should be challenged by filing a separate Rule 20 petition attacking each underlying conviction). The appellant claims that those three underlying convictions were unavailable for enhancement purposes because they were based on an unconstitutional statute. Those underlying convictions are as follows: (1) On December 21, 1973, in case CC-73-28983, the appellant, then age 16, pleaded guilty to forgery. He was sentenced to imprisonment for a year and a day and was placed on probation. His probation was later revoked and he served the sentence imposed. (2) On September 30, 1974, in case CC-74-30732, the then 16-year-old appellant pleaded guilty to buying, receiving, or concealing stolen property. He was sentenced to a year and a day. (3) On November 11, 1974, in case CC-74-30138, the appellant, then age 17, pleaded guilty to grand larceny and was sentenced to a year and a day. All three convictions occurred in Jefferson County.

The appellant maintains that these three underlying convictions denied him equal protection of the law on the basis of sex. In 1973 and 1974 when the convictions occurred, the applicable statute provided that in Jefferson County young male offenders were treated as adults at age 16, whereas young female offenders were given the benefit of juvenile adjudication and not treated as adults until age 18. The appellant argues that if males and females had been treated equally in Jefferson County in 1973 and 1974, he would have had three prior juvenile adjudications, which would not have been available to enhance the sentence for his 1981 crime, instead of three adult felony convictions, which increased the sentence for his 1981 offense to life imprisonment without parole. The appellant asks this Court to vacate his 1973 and 1974 convictions and to remand his 1981 rape conviction for proper sentencing.

The circuit court denied all four petitions. It ruled that the petition in case CC-80-1466 was successive and, therefore, procedurally barred. We agree that the petition in case CC-80-1466 (the third petition attacking the rape conviction) appears to be successive within the meaning of Rule 20.2(b). (1) It was the third petition collaterally attacking the appellant's rape conviction, and (2) in both of the two prior petitions there had been a hearing on the merits. See Blount v. State, 572 So.2d 498 (Ala.Cr.App.1990). (3) Neither of the prior petitions alleged the ground raised in the third. Furthermore, the appellant's third, and current, petition did not show

"both that good cause exist[ed] why the new ground or grounds were not known or could not have been ascertained through reasonable diligence when the first [and second] petition[s] [were] heard, and that failure to entertain the petition [would] result in a miscarriage of justice."

Rule 20.2(b), A.R.Cr.P.Temp. (emphasis added).

Apparently, the circuit court denied the three remaining petitions on the following grounds: (1) that they were procedurally barred due to "an unreasonable and unexplained delay" in filing, citing Young v. State, 516 So.2d 858, 859 (Ala.Cr.App.1987); (2) that the statute setting the age for juvenile treatment in Jefferson County was constitutional; and (3) that although "no evidence was presented nor any allegations made concerning ineffectiveness of counsel [at the 1973 and 1974 convictions]," the appellant "was represented by competent, effective counsel." We disagree with all three reasons.

(1) In denying the petitions, the circuit court stated: "The Court is further satisfied that the controlling case of Young v. State, 516 So.2d 858 (1987), applies in that the Petitioner/Defendant has not satisfactorily explained a delay from the time of the pleas of guilty to the time of filing of his Petition pursuant to Rule 20." While it is true that "an unreasonable and unexplained delay may, in itself, afford sufficient ground for the dismissal of the petition," Young v. State, 516 So.2d at 859; accord, Rahman v. State, 563 So.2d 50, 52-53 (Ala.Cr.App.1990), the appellant's delay was not argued by the State as a ground for dismissing the petition. The State argued that the petition should be dismissed because relief was precluded under Rule 20.2(a)(4), A.R.Crim.P.Temp., in that the matters were raised on appeal or in a previous collateral proceeding, under Rule 20.2(a)(5) in that the matters could have been but were not raised on appeal, and under Rule 20.2(b) in that the petitions were successive.

Rule 20.3 provides that "[t]he State shall have the burden of pleading any ground of preclusion." Under that rule, "the State is required to plead the ground or grounds of preclusion that it believes apply to the petitioner's case, thereby giving the petitioner the notice he needs to attempt to formulate arguments and present evidence to 'disprove [the] existence [of those grounds] by a preponderance of the evidence.' " Ex parte Rice, 565 So.2d 606, 608 (Ala.1990). In that case, the Alabama Supreme Court held that this was a right "inherent in our concept of due process to prisoners filing Rule 20 petitions." Id.

Furthermore, in its order denying the petitions, the circuit court made no finding that the delay had resulted in any prejudice to the State.

"Lapse of time alone does not establish laches. Ellis v. Stickney, 253 Ala. 86, 42 So.2d 779 (1949). To be affected by laches, the delay should have been with notice of the existence of the right, resulting in disadvantage to another, or should have operated to bring about changes of conditions and circumstances of which there can no longer be a safe determination of the controversy. Merrill v. Merrill, 260 Ala. 408, 71 So.2d 44 (1954)."

Davis v. Thomaston, 420 So.2d 82, 84 (Ala.1982). "The burden of showing the existence of circumstances, changed conditions, prejudice, or injustices amounting to laches, rests upon him who duly invokes the same, when not shown on the face of the bill from the facts averred." Blythe v. Enslen, 219 Ala. 638, 643, 123 So. 71, 75 (1929). "Laches is not fixed by a hard and fast limit of time, but is a principle of good conscience dependent on the facts of each case." Woods v. Sanders, 247 Ala. 492, 496, 25 So.2d 141, 144 (1946).

In addition, by not arguing laches as a basis of its motion to dismiss, the State has in effect waived that ground of preclusion. See Ex parte Williams, 571 So.2d 987, 989 (Ala.1990) ("the failure of a party to object to a matter at trial precludes the party from raising that matter on appeal as error").

For each of these reasons, the circuit court erroneously relied on the ground of laches as a basis for denying the petitions.

(2) The circuit court erred in concluding that the statute setting the age for juvenile treatment in Jefferson County was constitutional. In 1973 and 1974, when the appellant's three underlying convictions occurred, a "delinquent child" was defined, in that county, as "any male child who while under sixteen years of age, or any female child who while under eighteen years of age, ... violates any penal law...." Title 62, § 311, Code of Alabama 1940 (Recomp.1958) (emphasis added). The statewide law of general application was Title 13, § 350, Code of Alabama 1940 (Recomp.1958), which provided that "[t]he words 'delinquent child' shall mean any child who while under sixteen years of age violates any penal law...." While Title 62, § 311, established the authority of the Jefferson County juvenile court over male offenders under the age of 16 and female offenders under the age of 18, a related statute provided that a Jefferson County adult criminal court could, in its discretion, transfer a male offender between the ages of 16 and 18 to the jurisdiction of the juvenile court. 1

It is evident that Title 62, § 311, treated similarly-situated young offenders differently solely on the basis of sex. Comparable statutes in other jurisdictions have uniformly been declared to be unconstitutional violations of the equal protection clause. See, e.g., Lamb v. Brown, 456 F.2d 18, 20 (10th Cir.1972) (Oklahoma statute defining juveniles as males under the age of 16 and females under the age of 18); People v. Ellis, 57 Ill.2d 127, 133, 311 N.E.2d 98, 101 (1974) (Illinois statute treating 17-year-old...

To continue reading

Request your trial
48 cases
  • Williams v. State
    • United States
    • Alabama Court of Criminal Appeals
    • February 4, 2000
    ...the case at the time of counsel's actions before determining whether counsel rendered ineffective assistance. Falkner v. State, 586 So.2d 39 (Ala.Cr.App.1991)." Hallford v. State, 629 So.2d 6, 8-9 (Ala.Cr. App.1992), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 491 "In determini......
  • Flowers v. State
    • United States
    • Alabama Court of Criminal Appeals
    • October 29, 1999
    ...aff'd, 590 So.2d 369 (Ala.1991), cert. denied, 503 U.S. 974, 112 S.Ct. 1594, 118 L.Ed.2d 310 (1992); Falkner v. State, 586 So.2d 39 (Ala.Crim.App.1991)." Here, counsel was faced with overwhelming evidence of Flowers's guilt. Flowers confessed to murdering Addy. One eyewitness saw Flowers sh......
  • Boyd v. State
    • United States
    • Alabama Court of Criminal Appeals
    • March 26, 1999
    ...the case at the time of counsel's actions before determining whether counsel rendered ineffective assistance. Falkner v. State, 586 So.2d 39 (Ala.Cr.App.1991).' "Hallford v. State, 629 So.2d 6, 8-9 (Ala. Cr.App.1992), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 491 "`In determi......
  • Pierce v. State
    • United States
    • Alabama Court of Criminal Appeals
    • March 2, 1999
    ...the case at the time of counsel's actions before determining whether counsel rendered ineffective assistance. Falkner v. State, 586 So.2d 39 (Ala.Cr.App.1991)." Hallford v. State, 629 So.2d 6, 8-9 (Ala.Cr. App.1992), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 491 "In determini......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT