Gilbert v. State

• Decision Date: 18 March 2016
• Docket Number: CR–13–0839.
• Citation: 220 So.3d 1099
• Parties: Thomas Eugene GILBERT v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

220 So.3d 1099

Thomas Eugene GILBERT

v.STATE of Alabama.

CR–13–0839.

Court of Criminal Appeals of Alabama.

March 18, 2016.

Rehearing Denied May 27, 2016.

Certiorari Denied Oct. 14, 2016

Ronald Smith, Huntsville, for appellant.

Luther Strange, atty. gen., and Michael A. Nunnelley and Ferris Stephens, asst. attys. gen., for appellee.

BURKE, Judge.

Thomas Eugene Gilbert appeals his guilty-plea conviction for sexual misconduct, see § 13A–6–65(a)(3), Ala.Code 1975, and his resulting sentence of 365 days in the Jackson County jail. That sentence was suspended, and Gilbert was ordered to serve 24 months of supervised probation.

Gilbert was indicted for one count of sexual misconduct and one count of first-degree sodomy. Both counts involved the same victim, R.D., a 17–year–old male. On February 19, 2014, Gilbert pleaded guilty to sexual misconduct, and the sodomy charge was dismissed. Gilbert reserved the right to appeal the issue whether § 13A–6–65(a)(3) is unconstitutional, but he failed to preserve this issue for appellate review because he did not obtain a ruling from the circuit court on his constitutional challenge. On February 26, 2014, Gilbert moved to withdraw his guilty plea on the ground that, although his plea was conditioned upon his ability to challenge the constitutionality of § 13A–6–65(a)(3) on appeal, the circuit court had failed to enter an adverse ruling on Gilbert's motion to dismiss; therefore, Gilbert's challenge was not preserved for appellate review.

On March 3, 2014, the circuit court held a hearing. During that hearing, the circuit court granted Gilbert's motion to withdraw his guilty plea and then heard argument on Gilbert's motion to dismiss the sexual misconduct charge against him based on his contention that the United States Supreme Court's holding in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), rendered § 13A–6–65(a)(3) unconstitutional. There is no written motion to dismiss in the record. It is unclear from Gilbert's oral argument during the hearing whether he was attempting to argue that § 13A–6–65(a)(3) is unconstitutional on its face or whether he was attempting to argue that § 13A–6–65(a)(3) is unconstitutional only as applied to him. During the argument on the motion to dismiss, Gilbert's attorney stated that § 13A–6–65(a)(3) is unconstitutional, but, other than a citation to Lawrence, the specific basis of his constitutional challenge is unclear. Gilbert's attorney stated that § 13A–6–65(a)(3) is unconstitutional and argued:

"And we would cite the case of Lawrence v. Texas, it's a U.S. Supreme Court case, 539 U.S. 558. It's 2003. In that case, the supreme court struck down a very similar statute, a Texas statute, on the grounds that it violated due process on the Fifth and Fourteenth Amendments and the right to privacy in that it prohibited sexual relations within somebody's private residence or within a private area."

(R. 5.)

The State responded:

"I would like to say on the record this was a 17–year–old child victim. Alcohol use was involved by both the defendant who was charged and the child victim. And although the statute says consent is not a defense to prosecution under this subdivision, consent—consent was not given in the case before the Court today, your Honor. So the State's position is that there was no consent. Alcohol was involved by both parties. Alcohol use was a part of this event on the part of both parties, and the alleged victim was a 17–year–old minor."

(R. 7–8.)

Gilbert's attorney replied:

"I just wanted to respond about the consent issue, your Honor. Lack of consent or consent is not relevant under the statute. I think the whole point of this case in—what it is is he's also charged with forcible compulsion, and our defense at trial would have been that it was consensual. The State may have a different thought on that, but, you know, under my client's recollection and version of events it was a consensual—it was a 17–year–old. He was over 16, but he was not 19 years old. He is not an adult under Alabama law, but he was capable of consent. And under the statute, it prohibits consensual or nonconsensual. And it does—[ § 13A–6–65 ](a)(1) and (a)(2) do give a provision where you can apply a fact pattern of what [the prosecutor] just described of where there is not forcible compulsion but there is not necessarily consent either. But it does not apply to same-sex acts; it only applies to opposite gender."

(R. 8–9.)

After hearing that argument, the circuit court denied Gilbert's motion to dismiss. Gilbert then entered his guilty plea to one count of sexual misconduct, and again reserved his right to challenge the constitutionality of § 13A–6–65(a)(3) on appeal. There is no stipulated set of facts or other specific factual basis for the plea set forth in the record. The indictment charging Gilbert with sexual misconduct simply stated that Gilbert "did engage in deviate sexual intercourse with another person, to-wit: [R.D.], under circumstances other than those covered by Sections 13A–6–63 and 13A–6–64, in violation of Section 13A–6–65(a)(3) of the Code of Alabama." (C. 7.) After Gilbert entered his guilty plea, pursuant to his previous agreement with the State, the sodomy charge was dismissed and Gilbert was sentenced.

On appeal, Gilbert's only argument is that " section 13A–6–65(a)(3) is unconstitutional in light of the Supreme Court's ruling in Lawrence v. Texas, 539 U.S. 558 (2003)." Gilbert's brief, at 8. Gilbert states that "the statute is void and cannot be enforced against [Gilbert] or anyone else." Id. at 11.

Section 13A–6–65(a), Ala.Code 1975, provides:

"A person commits the crime of sexual misconduct if:

"(1) Being a male, he engages in sexual intercourse with a female without her consent, under circumstances other than those covered by Sections 13A–6–61 and 13A–6–62; or with her consent where consent was obtained by the use of any fraud or artifice; or"(2) Being a female, she engages in sexual intercourse with a male without his consent; or

"(3) He or she engages in deviate sexual intercourse with another person under circumstances other than those covered by Sections 13A–6–63 and 13A–6–64. Consent is no defense to a prosecution under this subdivision."

Section 13A–6–60(2), Ala.Code 1975, defines "deviate sexual intercourse" as "any act of sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another."

In Williams v. State, 184 So.3d 1064 (Ala.Crim.App.2015), this Court held that § 13A–6–65(a)(3) was unconstitutional as applied to a specific defendant in a particular situation. However, this Court has never held that § 13A–6–65(a)(3) is unconstitutional on its face.

This Court has explained:

"A ' "facial challenge" ... is defined as "[a] claim that a statute is unconstitutional on its face—that is, that it always operates unconstitutionally." ' Board of Water & Sewer Comm'rs of Mobile v. Hunter, 956 So.2d 403, 419 (Ala.2006) (quoting Black's Law Dictionary 244 (8th ed.2004)). To prevail on a facial challenge to the constitutionality of a statute, it must be established 'that no set of circumstances exists under which the [statute] would be valid.' United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). In contrast, an 'as-applied challenge' is 'a claim that a statute is unconstitutional on the facts of a particular case or in its application to a particular party.' Black's Law Dictionary 244 (8th ed.2004)."

State v. Adams, 91 So.3d 724, 754 (Ala.Crim.App.2010).

In State v. Woodruff, 460 So.2d 325 (Ala.Crim.App.1984), the defendant was charged with violating § 13A–6–65(a)(3). The defendant moved to dismiss the charge on the basis that § 13A–6–65(a)(3) was unconstitutional on its face. This Court held that the defendant did not have standing to make such a challenge because the record was "totally devoid of evidence indicating that [the defendant's] right to privacy was violated." Woodruff, 460 So.2d at 330. In J.L.N. v. State, 894 So.2d 751 (Ala.2004), the Alabama Supreme Court discussed standing and approvingly discussed our decision in Woodruff, as follows:

" 'Not all controversies ... are justiciable. Justiciability is a compound concept, composed of a number of distinct elements. Chief among these elements is the requirement that a plaintiff have "standing to invoke the power of the court in his behalf." ' Ex parte State ex rel. James, 711 So.2d 952, 960 (Ala.1998) (quoting Ex parte Izundu, 568 So.2d 771, 772 (Ala.1990) ). 'Standing ... turns on "whether the party has been injured in fact and whether the injury is to a legally protected right." ' State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1027 (Ala.1999) (quoting Romer v. Board of County Comm'rs of the County of Pueblo, 956 P.2d 566, 581 (Colo.1998) (Kourlis, J., dissenting)).

" 'When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction. Barshop v. Medina County Underground Water Conservation District, 925 S.W.2d 618, 626 (Tex.1996) ( "Standing is a necessary component of subject matter jurisdiction"). See also Raines v. Byrd, 521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997) ; Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) ; United States v. Hays, 515 U.S. 737, 742, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995) (" 'standing "is perhaps the most important of [the jurisdictional] doctrines" ' "); National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994) ("Standing represents a jurisdictional requirement which remains open to review at all stages of the litigation."); Romer v. Board of County Comm'rs of the County of Pueblo, supra, 956 P.2d at 585 ("standing is a jurisdictional prerequisite to every case and may be raised at any stage of the proceedings") (Martinez, J., dissenting); Cotton v. Steele, 255 Neb. 892, 587 N.W.2d 693 (1999). But see Hertzberg v.

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