Fortner v. State

• Decision Date: 28 September 2001
• Citation: 825 So.2d 876
• Parties: Charles Quinlyn FORTNER v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

825 So.2d 876

Charles Quinlyn FORTNER v. STATE of Alabama.

CR-00-1041.

Court of Criminal Appeals of Alabama.

September 28, 2001.

Rehearing Denied November 21, 2001.

Certiorari Denied January 25, 2002.

Charles Quinlyn Fortner, pro se.

Bill Pryor, atty. gen., and Frances R. Clement, asst. atty. gen., for appellee.

Alabama Supreme Court 1010551.

COBB, Judge.

On December 19, 1989, Charles Quinlyn Fortner was convicted of first-degree sodomy. On January 3, 1990, the trial court sentenced him to 25 years in prison. Fortner appealed, and this Court affirmed his conviction. Fortner v. State, 582 So.2d 581 (Ala.Crim.App.1990). This Court issued the certificate of judgment on May 17, 1991. On April 8, 1993, Fortner filed his first Rule 32, Ala. R.Crim. P., petition, which the circuit court summarily denied. This court affirmed the circuit court's denial in an unpublished memorandum. Fortner v. State, (No. CR-93-338) 655 So.2d 57 (Ala.Crim.App.1994) (table). On August 17, 2000, Fortner filed this, his second, Rule 32 petition. On September 26, 2000, the State responded. On January 3, 2001, the circuit court summarily denied the petition. This appeal followed.

"[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo." Ex parte White, 792 So.2d 1097 (Ala.2001). We find that the circuit court's summary denial of this petition was appropriate.

Rule 32.7(d), Ala. R.Crim. P., provides for the summary disposition of a Rule 32 petition only

"[i]f the court determines that the petition is not sufficiently specific [in violation of Rule 32.6(b)], or is precluded [under Rule 32.2, Ala. R.Crim. P.], or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by further proceedings...."

(Emphasis added.) A petition may be precluded as successive under Rule 32.2(b):

"The court shall not grant relief on a second or successive petition on the same or similar grounds on behalf of the same petitioner. A second or successive petition on different grounds shall be denied unless the petition shows both that good cause exists why the new ground or grounds were not known or could not have been ascertained through reasonable diligence when the first petition was heard, and that failure to entertain the petition will result in a miscarriage of justice."

See also Whitt v. State, 827 So.2d 869 (Ala.Crim.App.2001) (citing Rule 32.2(b), Ala. R.Crim. P.).

Fortner argues on appeal that the circuit court erred in summarily denying his petition as successive because 1) he did not pay a docket fee and the circuit court did not approve his in forma pauperis status; 2) the district attorney never gave specific grounds for preclusion in his motion to dismiss Fortner's petition; 3) his first petition had not been adjudicated on the merits; 4) his claims were jurisdictional; 5) the failure to address his petition on the merits results in a miscarriage of justice; and 6) the circuit court should have granted him an evidentiary hearing.

The record refutes claims 1 and 2. The notice of appeal the Cullman Circuit Court filed in this Court reflects that Fortner was granted indigency status both at trial and on appeal. (C.R.6.) The State's motion to dismiss Fortner's petition states specific grounds for preclusion of his claims. (C.R.251-54.)

As for Fortner's argument that the claims in his petition were jurisdictional and that the circuit court should therefore have held an evidentiary hearing on those claims, Fortner presented the following issues to the circuit court:

A. The trial court was without jurisdiction to render judgment and to impose sentence because its jury instruction on reasonable doubt was erroneous.

B. The trial court was without jurisdiction to render judgment and to impose sentence because his conviction violated his constitutional guarantee against double jeopardy.¹

C. The trial court was without jurisdiction to render judgment and to impose sentence because of prosecutorial misconduct.

D. The trial court was without jurisdiction to render judgment and to impose sentence because the trial judge was biased.

E. The trial court was without jurisdiction to render judgment and to impose sentence because the trial court failed to instruct the jury that its verdict must unanimously determine which act underlay the indictment.

F. The trial court was without jurisdiction to render judgment and to impose sentence because the jury venire was not sworn before voir dire and was biased against him.

G. The trial court was without jurisdiction to render judgment and to impose sentence because Fortner was not allowed to introduce evidence of bias during the cross-examination of a witness for the prosecution.

H. The trial court was without jurisdiction to render judgment and to impose sentence because his trial counsel rendered ineffective assistance.

I. Fortner was denied a fundamentally fair direct appeal because his appellate counsel rendered ineffective assistance.

Although Fortner couches his arguments in jurisdictional terms, his claims are actually nonjurisdictional. We begin by discussing Fortner's claim that the jury venire was not sworn before voir dire. We have held, albeit reluctantly, that this claim is jurisdictional and that it cannot be waived or precluded. Nix v. State, 819 So.2d 84 (Ala.Crim.App.2001). We stated that, "[b]ecause this Court is bound by the decisions of the Alabama Supreme Court, § 12-3-16, Ala.Code 1975, and `is without authority to overrule the decisions of that court,' ... we are required to follow the holding of the majority in Hamlett .... However, we would urge the Supreme Court to revisit its holding in [Ex parte] Hamlett, [815 So.2d 499 (Ala.2000)]." In Nix, we concluded that Hamlett suggested that Nix's claim that the jury venire in his case had not been properly sworn before voir dire was jurisdictional and nonwaivable. A closer examination of the Alabama Supreme Court's decision in Hamlett indicates that this Court construed the holding in Hamlett too broadly. Upon reconsideration, we find that Hamlett does not indicate that we are to treat jury-swearing issues as jurisdictional and therefore nonwaivable.

In Hamlett, the appellant filed a Rule 32 petition within the two-year limitations period.² In that petition, he claimed that the jury venire had not been properly sworn and that his trial counsel had rendered ineffective assistance because he had failed to preserve the jury-swearing error for appellate review. The Court issued two holdings. First, the Court espoused the holding in Holland v. State, 668 So.2d 107 (Ala.Crim.App.1995), that a defendant is entitled to have his conviction set aside if the jury venire was not properly sworn before voir dire.³ Second, the Court found that, because the record was silent as to whether the oath had been administered to the venire, the cause was to be remanded in order for the circuit court to determine whether the venire had been properly sworn. This decision conflicted with the Court's prior holding that an appellate court could presume from a silent record that a jury venire had been sworn. See Hamlett, 815 So.2d at 501 (citing Washington v. State, 81 Ala. 35, 1 So. 18 (1887)). The Court then stated,

"Therefore, we do not reach Hamlett's claim of ineffective assistance of counsel. We remand this case for the Court of Criminal Appeals to remand for the trial court to make such findings as are necessary to determine whether the venire was properly sworn."

Hamlett, 815 So.2d at 500-01.

Our rereading of Hamlett teaches us, first, that Hamlett's claim was within the two-year limitations period in Rule 32.2(c). Thus, the simple fact that the Court was willing to reach the claim does not indicate that the claim was jurisdictional because the claim was raised in a petition that had been filed within the two-year limitations period. Second, the Court remanded the cause to the circuit court both because it would not assume from a silent record that the venire had been sworn and because it could not reach Hamlett's ineffective-assistance-of-counsel claim without knowing whether Hamlett's counsel had in fact rendered ineffective assistance by failing to object to the trial court's alleged failure to administer the oath to the venire. Thus, because of Hamlett's ineffective-assistance-of-counsel claim, the Court could not simply find that Hamlett had waived his claim that the venire had not been sworn because that claim had a direct bearing on the result of Hamlett's claim alleging ineffective assistance of counsel. If the Court allowed the waiver of the jury-swearing claim, it effectively allowed the waiver of Hamlett's ineffective-assistance-of-trial-counsel claim, which would have been contrary to the law in Alabama concerning the waivability of ineffective-assistance-of-counsel claims. Ex parte Ingram, 675 So.2d 863, 866 (Ala.1996) ("When a defendant makes a claim of ineffective assistance of trial counsel, and that claim cannot reasonably be presented in a new trial motion filed within the 30 days allowed by Rule 24.1(b), Ala.R.Crim.P., the proper method for presenting that claim for appellate review is to file a Rule 32, Ala. R.Crim.P., petition for post-conviction relief.") Thus it was the ineffective-assistance-of-counsel claim that concerned the Court in Hamlett.

Nothing in Hamlett indicates that the Alabama Supreme Court set out to overrule precedent of this Court and thereby render jury-swearing claims jurisdictional and nonwaivable. A trial court's failure to administer the oath to a jury venire, while reversible error, does not rob the trial court of its jurisdiction to render judgment and to impose sentence against a defendant. We therefore narrow our reading of Hamlett, overrule our decision in Nix, and find that a petitioner's claim that the...