Ginn v. State

• Decision Date: 28 May 2004
• Citation: 894 So.2d 793
• Parties: Danny Ray GINN v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

894 So.2d 793

Danny Ray GINN v. STATE of Alabama.

CR-02-2257.

Court of Criminal Appeals of Alabama.

May 28, 2004.

Rehearing Denied July 30, 2004.

Kathryn Curtis Montgomery (withdrawn 1/14/2004); and Shaunathan Bell, Fort Payne, for appellant.

William H. Pryor, Jr., atty. gen., and Nancy M. Kirby, deputy atty. gen., for appellee.

SHAW, Judge.

The appellant, Danny Ray Ginn, pleaded guilty to the unlawful possession of a controlled substance, methamphetamine, a violation of § 13A-12-212(a)(1), Ala.Code 1975, and to the unlawful manufacture of a controlled substance, methamphetamine, a violation of § 13A-12-218, Ala.Code 1975. He was sentenced, as a habitual offender with three prior felony convictions, to life imprisonment; the sentences were to run concurrently.¹

I.

Ginn first contends that his guilty pleas were involuntary because, he says, the trial court did not properly advise him of the minimum and maximum sentences he could receive pursuant to the Habitual Felony Offender Act ("HFOA"), § 13A-5-9, Ala.Code 1975, as required by Rule 14.4, Ala.R.Crim.P. However, Ginn did not present this claim to the trial court. Although Ginn filed a motion for a new trial in which he challenged the voluntariness of his pleas, he did so on a different ground from the one he now raises on appeal.² "`The statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial.'" Culp v. State, 710 So.2d 1357, 1359 (Ala.Crim.App.1996), quoting Ex parte Frith, 526 So.2d 880, 882 (Ala.1987). "`[C]laims relating to the voluntariness of guilty pleas must first be presented to the trial court or they are waived on direct appeal.'" Danzey v. State, 703 So.2d 1019, 1019 (Ala.Crim.App.1997), quoting Anderson v. State, 668 So.2d 159, 162 (Ala.Crim.App.1995). Because this specific claim was not first presented to the trial court, it is not properly before this Court for review.

II.

Ginn next contends that his sentences were improperly enhanced under the HFOA. Specifically, he argues that two of the three prior convictions used to enhance his sentences were not valid for use under the HFOA.

At the sentencing hearing, the State introduced into evidence documents relating to three prior convictions — a 1989 conviction in Alabama for burglary, a 1973 guilty-plea conviction in Georgia for burglary, and a 1973 guilty-plea conviction in Georgia for theft. Ginn does not challenge the 1989 Alabama conviction. With respect to the two Georgia convictions, Ginn makes two arguments.

A.

First, Ginn contends that the two prior Georgia convictions were not, in fact, convictions because, he says, they were entered under Georgia's first-offender law, and that, therefore, they were not valid for use under the HFOA.

Although Ginn did not object to the use of these priors at the sentencing hearing but instead raised this issue for the first time in his motion for a new trial, the use of an invalid prior conviction for sentence enhancement renders a sentence illegal, and a challenge to an illegal sentence is jurisdictional and can be raised at any time. See, e.g., Ex parte Casey, 852 So.2d 175 (Ala.2002) (Rule 32, Ala. R.Crim. P., petitioner's claim, that he had received a full pardon on the six prior convictions used to enhance his sentence and that, therefore, the convictions were not valid for use as enhancement, was a jurisdictional issue regarding the legality of the sentence); Bell v. State, 845 So.2d 856 (Ala.Crim.App.2002) (Rule 32 petitioner's claim, that one of the prior convictions used to enhance his sentence was a misdemeanor conviction, was a jurisdictional issue challenging the legality of the sentence); Carter v. State, 853 So.2d 1040 (Ala.Crim.App.2002) (Rule 32 petitioner's claim, that one of the prior convictions from another jurisdiction used to enhance his sentence arose from conduct that was not a felony in Alabama, was a jurisdictional issue challenging the legality of the sentence); and Jones v. State, 585 So.2d 180 (Ala.Crim.App.1991) (appellant's claim, that two prior convictions used to enhance his sentence were based on pleas of nolo contendre, was a jurisdictional issue that did not have to be preserved in the trial court).

At the time of Ginn's guilty pleas in Georgia, in 1973, Ga.Code Ann. § 27-2727 (1972) (now Ga.Code Ann. § 42-8-60 (2003)), provided:

"Upon a verdict or plea of guilty or a plea of nolo contendere b[ut] before an adjudication of guilt, the court may, in the case of a defendant who has not been previously convicted of a felony, without entering a judgment of guilt and with the consent of the defendant, defer further proceeding and place the defendant on probation as provided by the Statewide Probation Act [§§ 27-2702 through 27-2726.1]. Upon violation of the terms of probation, or upon a conviction for another crime, the court may enter an adjudication of guilt and proceed as otherwise provided. No person may avail himself of the provisions of this law [§§ 27-2727 through 27-2732] on more than one occasion."

In addition, Ga.Code Ann. § 27-2728 (now Ga.Code Ann. § 42-8-62) provided:

"Upon fulfillment of the terms of probation, or upon release by the court prior to the termination of the period thereof, the defendant shall be discharged without court adjudication of guilt. Such discharge shall completely exonerate the defendant of any criminal purpose, shall not effect any civil right or liberties, and he shall not be considered to have a criminal conviction. Should a person be placed under probation under this law [§§ 27-2727 through 27-2732], a record of the same shall be forwarded to the office of the State Probation System and to the Identification Division of the Federal Bureau of Investigation."

(Emphasis added.) In Gunter v. State, 182 Ga.App. 548, 356 S.E.2d 276 (1987), the Georgia Court of Appeals explained the first-offender law as follows:

"[S]ince [the appellant] was dealt with under the First Offender Act, there has been no adjudication on the plea; it has simply been tendered and accepted for the purpose of imposing punishment which, if successfully completed by defendant, will relieve him of any judgment of guilt and hence of any conviction.

[Ga.Code. Ann.] § 42-8-62. That section expressly provides: `The discharge shall completely exonerate the defendant of any criminal purpose and shall not affect any of his civil rights or liberties; and the defendant shall not be considered to have a criminal conviction.' The wording of [Ga.Code Ann.] §§ 42-8-63 and 42-8-64 also demonstrate that there is no conviction unless there is an adjudication following nonfulfillment of the court's terms.

"As explained in State v. Wiley, 233 Ga. 316, 317, 210 S.E.2d 790 (1974): `Any probationary sentence entered under this Act is preliminary only, and, if completed without violation, permits the offender complete rehabilitation without the stigma of a felony conviction.' Again in Favors v. State, 234 Ga. 80, 86, 214 S.E.2d 645 (1975), the Supreme Court states: `under our law, the formal act of "conviction" is not completed for a person who satisfactorily completes the probationary period.' We recognized this in Hightower v. Gen. Motors Corp., 175 Ga.App. 112, 113(1), 332 S.E.2d 336 (1985). The point is that while there is an acceptance of the plea for the purpose of imposing a period of probation, there is no adjudication based on that plea. Rather, the court act of adjudicating is suspended and will never occur if probation is fulfilled."

182 Ga.App. at 549, 356 S.E.2d at 277. See also Melton v. State, 216 Ga.App. 215, 454 S.E.2d 545 (1995). In other words, a guilty plea under Georgia's first-offender law is not considered a "conviction" if the terms of probation are completed and the defendant is discharged. Such a plea cannot be used to enhance future sentences, see Williams v. State, 228 Ga.App. 62, 492 S.E.2d 290 (1997), nor can it be used for impeachment, see Matthews v. State, 268 Ga. 798, 493 S.E.2d 136 (1997). See also Priest v. State, 261 Ga. 651, 409 S.E.2d 657 (1991) (a defendant who pleads guilty to the unlawful possession of a controlled substance pursuant to the first-offender law has not been "convicted" and, thus, mandatory driver's license suspension for persons convicted of the unlawful possession of a controlled substance, Ga.Code Ann., § 40-5-75, is not required).

Thus, the question in this case is whether Ginn's guilty pleas in Georgia were, in fact, felony convictions that could be used for sentence enhancement under the HFOA or whether they were entered under Georgia's first-offender law. After thoroughly reviewing the record, we conclude that it does not support Ginn's claim that his Georgia pleas were entered under Georgia's first-offender law and were, therefore, not valid felony convictions under the HFOA.

At the sentencing hearing, the State introduced into evidence certified copies of the Georgia indictment charging Ginn with burglary and theft, and the Georgia trial court's sentencing orders regarding the burglary and theft convictions. The copy of the indictment indicated that Ginn waived arraignment, initially pleaded not guilty, and then withdrew the plea of not guilty and entered guilty pleas.³ (C. 114.) The sentencing order for the burglary charge indicates that Ginn pleaded guilty to the charge, and then states, in pertinent part:

"Whereupon it is ordered and adjudged by the Court: That the defendant serve the full term of 5 (years) in the Penitentiary or such other institution as the Director of the State Board of Corrections may direct, to be computed as provided by law.

"....

"However, the defendant is given leave to serve the 5 years said sentence outside of said penitentiary, Public Works Camp, and jail on Probation."

(C. 116.) The sentencing order for the theft charge indicates that Ginn pleaded guilty to the charge, and then states, in pertinent part:

"Whereupon, it is

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