Fountain v. State

Decision Date28 April 2000
Citation842 So.2d 719
PartiesTony FOUNTAIN v. STATE.
CourtAlabama Court of Criminal Appeals

842 So.2d 719

Tony FOUNTAIN
v.
STATE

CR-99-0378.

Court of Criminal Appeals of Alabama.

April 28, 2000.

Rehearing Denied June 23, 2000.


842 So.2d 720
Tony Fountain, pro se

William H. Pryor, Jr., atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.

COBB, Judge.

In an out-of-time appeal granted by the circuit court, Tony Fountain appeals from the circuit court's 1996 dismissal of his Rule 32, Ala.R.Crim.P., petition for postconviction relief. The question whether Rule 32, Ala.R.Crim.P., permits an out-of-time appeal from the denial of a petition for posttrial relief is a matter of first impression in the State of Alabama.

Fountain's petition challenged his November 15, 1988, convictions for rape in the first degree and kidnapping in the second degree. On direct appeal, we affirmed Fountain's convictions. Fountain v. State, 598 So.2d 1026 (Ala.Cr.App.1992). Fountain filed a Rule 32 petition for post-conviction relief on December 10, 1992, raising several allegations of error during the trial, allegations of ineffective assistance regarding an attorney who was briefly appointed to represent Fountain, but who withdrew before trial, and the following allegations of ineffective assistance of the trial defense counsel:

1. Counsel "failed to investigate the case and the applicable law and failed to interview or subpoena a witness who was present in the car with Fountain on the night of the kidnapping and rape";
2. Counsel "failed to subpoena the doctor or nurse that examined the victim at the hospital and failed to subpoena the victim's medical records, which may have disclosed the presence or absence of any signs of physical violence or signs of forcible penetration";
3. Counsel "failed to interview, investigate, or impeach state witnesses";
4. Counsel "failed to object to prosecutor's leading questions";
5. Counsel "improperly asked the trial court to conduct a post-trial hearing, pursuant to Rule 10(f), Ala.R.App.P., at which the trial court corrected an improper sentence as to the kidnapping count, and then failed to object to the trial court's correcting the sentence at that hearing";
6. Counsel "failed to admit a tape of the preliminary hearing into evidence at trial";
7. Counsel "failed to advise Fountain of his constitutional rights guaranteed him by the Sixth Amendment";
8. Counsel "failed to subpoena the rape victim's school records and failed to investigate into the victim's reputation as to chastity, failed to discover the identity of the victim's boyfriend, and, if there was such a person, failed to call him as a witness so that he could testify that the victim was at his house the night of the rape";
9. Counsel "failed to object to the court's reasonable doubt instruction";
10. Counsel "failed to establish and maintain the requisite confidential relationship with Fountain, failed to properly prepare Fountain for his testimony at trial, and failed to inform Fountain of the state's motion to consolidate the charges for trial";
11. Counsel "failed to provide Fountain with a complete transcript of the trial (the jury strike list was missing)";
12. Counsel "failed to challenge the indictment on a lesser included offense";
13. Counsel "failed to object to the prosecution's suppression of the evidence
842 So.2d 721
which should have been raised on pre-trial motion, or at trial, or on direct appeals"; and
14. Counsel "failed to object to the court's contaminating, by extraneous influence, the jury's deliberations."

The circuit court eventually dismissed Fountain's petition on March 21, 1996, stating:

"Petitioner filed a timely Rule 32 asserting that certain constitutional rights were violated. Fountain claims that the pretrial line-up procedures employed by the Montgomery Police Department were unconstitutional, that he was given ineffective assistance of counsel, that the Court failed to notify the petitioner and counsel of the numerical division of the jury, that there was insufficient evidence, that there was improper consolidation, and that counsel did not inform petitioner of consolidation which resulted in ineffective assistance of counsel.
"The petitioner's allegations are precluded based on Rules 32.2[ (a)](2), 32.2[ (a) ](3), and 32.2[ (a) ](5), A.R.Crim. P., because the issues were not raised and addressed at trial, and could have been raised on appeal but were not raised.
"Based on the foregoing, it is ordered that the Respondent's Motion to Dismiss and/or Answer to Amended Petition is due to be and is hereby granted."

(C. 130.)

On September 20, 1999, Fountain filed a Rule 32 petition for postconviction relief, alleging that he was entitled to an out-of-time appeal of the 1996 dismissal of his first petition. On November 4, 1999, the circuit court granted Fountain an out-of-time appeal, ruling that, because Fountain was never notified of the 1996 dismissal of his petition, his failure to timely appeal from that dismissal was through no fault of his own.

I.

The State argues that Rule 32, Ala. R.Crim.P., does not provide for an out-of-time appeal from a circuit court's denial of postconviction relief and asks that we dismiss Fountain's appeal. The State cites as authority an unpublished memorandum of this court issued in Ho v. State, (No. CR-98-2469, December 3, 1999), 796 So.2d 461 (Ala.Crim.App.1999)(table), in which this court concluded that, while Rule 32.1(f), Ala.R.Crim.P., provides a means of seeking an out-of-time appeal of a conviction or sentence, it does not provide a means of seeking an out-of-time appeal of the denial of a Rule 32 petition. An unpublished memorandum has no precedential value. Rule 54(d), Ala.R.App.P.; Ex parte Hugley, 731 So.2d 634 (Ala.1999). Rule 32.1, in pertinent part, reads:

"Subject to the limitations of Rule 32.2, any defendant who has been convicted of a criminal offense may institute a proceeding in the court of original jurisdiction to secure appropriate relief on the ground that:
". . . .
"(f) The petitioner failed to appeal within the prescribed time and that failure was without fault on petitioner's part."

(Emphasis added.)

A plain reading of Rule 32, Ala.R.Crim. P., reveals that the Alabama Rules of Criminal Procedure do not specifically provide for an out-of-time appeal from the denial of a Rule 32 petition, neither do the Rules specifically prohibit such relief. However, Rule 1.2 of the Alabama Rules of Criminal Procedure provides the following:

"These rules are intended to provide for the just and speedy determination of every criminal proceeding. They shall be construed to secure simplicity in procedure,
842 So.2d 722
fairness in administration, and the elimination of unnecessary delay and expense, and to protect the rights of individuals while preserving the public welfare."

While there is no caselaw that directly addresses the issue, there is caselaw in which Alabama appellate courts have interpreted the Alabama Rules of Criminal Procedure in such a way as to protect the rights of individuals and to assure fairness in the administration of our judicial process.

In Ex parte A.D.R., 690 So.2d 1208 (Ala.1996), the Alabama Supreme...

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17 cases
  • Ankrom v. State
    • United States
    • Alabama Court of Criminal Appeals
    • August 26, 2011
    ...(Ala.Crim.App.2002),] that it had ‘created a narrow exception to the 42–day rule [in Rule 4(b)(1), Ala. R.App. P.,] in Fountain v. State, 842 So.2d 719 (Ala.Crim.App.2000)....’ Brooks, 892 So.2d at 971. The Court of Criminal Appeals may not, however, amend the rules of procedure. ”152 So.3d......
  • Ankrom v. State
    • United States
    • Alabama Court of Criminal Appeals
    • August 26, 2011
    ...Crim. App. 2002),] that it had 'created a narrow exception to the 42-day rule [in Rule 4(b)(1), Ala. R.App. P.,] in Fountain v. State, 842 So. 2d 719 (Ala. Crim. App. 2000) ....' Brooks, 892 So. 2d at 971. The Court of Criminal Appeals may not, however, amend the rules of procedure."8 84 So......
  • Barbour v. State
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    • Alabama Court of Criminal Appeals
    • June 25, 2004
    ...judgment in Barbour's initial Rule 32 petition, Barbour was not entitled to amend that petition. Barbour's reliance on Fountain v. State, 842 So.2d 719 (Ala.Crim.App.2000), aff'd in part, rev'd in part, and remanded, 842 So.2d 726 (Ala.2001); Ex parte A.D.R., 690 So.2d 1208 (Ala.1996); and ......
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    ...(Ala.Crim.App.2002),] that it had “created a narrow exception to the 42–day rule [in Rule 4(b)(1), Ala. R.App. P.,] in Fountain v. State, 842 So.2d 719 (Ala.Crim.App.2000)....” Brooks, 892 So.2d at 971. The Court of Criminal Appeals may not, however, amend the rules of procedure. ’“884 So.2......
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