Hall v. State

• Citation: 266 So.3d 759
• Decision Date: 18 March 2016
• Docket Number: CR–13–0785
• Parties: Harold HALL v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

266 So.3d 759

Harold HALL

v.STATE of Alabama

CR–13–0785

Court of Criminal Appeals of Alabama.

March 18, 2016

Rehearing Denied May 27, 2016

Certiorari Quashed June 15, 2018

Alabama Supreme Court 1150950

J.D. Lloyd, Birmingham, for appellant.

Luther Strange, atty. gen., and Tracy M. Daniel, asst. atty. gen., for appellee.

On Return to Second Remand ^*

JOINER, Judge.

Harold Hall appeals his conviction for unlawful distribution of a controlled substance, see § 13A–12–211(a), Ala.Code 1975.

Facts and Procedural History

On March 11, 2013, Hall was indicted for distributing cocaine in violation of Section 13A–12–211(a), Ala.Code 1975. Hall's case was scheduled to begin on December 9, 2013. The record indicates that Hall appeared in court for voir dire but that he did not, however, appear at his trial. On appeal, Hall, who does not dispute the facts of his case, raises two claims—that he was denied the effective assistance of trial counsel and that the trial court, when it sentenced him, erroneously departed from the presumptive sentencing standards, see § 12–25–34.2, Ala.Code 1975.

The following discussion occurred immediately before the trial:

"THE COURT: All right. Okay. Obviously, Mr. Hall is not present. How would the State like to proceed?

"[THE STATE]: The State would like to go ahead and try this case. He did make himself present at the jury selection and has apparently voluntarily absented himself from these proceedings.

"THE COURT: Okay. [Defense counsel]?

"[DEFENSE COUNSEL]: We would like to ask for a continuance because my defense was based on two witnesses he was supposed to bring, and now my—I don't know how to proceed because now my whole defense strategy is blown out of the water. So I, basically, don't have a defense without those witnesses.

"[THE STATE]: Well, just because those witnesses aren't here, even if the defendant was here and they didn't show up—as far as I know, they weren't served with subpoenas, so that's not the issue.

"[DEFENSE COUNSEL]: Well, that's what I—they guaranteed me they would be here; they didn't need a subpoena.

"THE COURT: So they have told you they would be here?

"[DEFENSE COUNSEL]: Yes.

"THE COURT: Okay. Well, let's just go ahead and proceed. I find that he has voluntar[il]y absented himself from the proceedings. We've already selected a jury. He was here on Monday. He knew when we were to start, and we will just try him in absentia.

"....

"[DEFENSE COUNSEL]: Well, I would like to—I don't know what has happened to him.

"THE COURT: Have you tried to call him?

"[DEFENSE COUNSEL]: Yes, I have tried to call him. But I don't know, you know, if he's got involved in a wreck or something, in the hospital. But I have tried to call numerous times because he was to be at my office at eight o'clock. Okay? And it would be unfair to him to have a trial without a proper defense, because he has the right to be present.

"....

"THE COURT: Well, I don't think we have a choice but to have to go forward. Y'all help me write up something that you want—everybody can agree on the preliminary instruction. I don't think there is any kind of standard instruction for that. So—

"....

"[DEFENSE COUNSEL]: Probably because it's not supposed to be done.

"THE COURT: Yes. Pursuant to the rule they can voluntar[il]y absen[t] themselves from a trial."

(R. 4–8.) Butler County Sheriff Kenny Harden informed the trial court that there had not been any recent reports of accidents involving Hall and that Hall was not present at either of his two known addresses.

The parties discussed a preliminary jury instruction regarding Hall's absence, and Hall's trial counsel stated her concern that the jury, regardless of an instruction to the contrary, would improperly presume that Hall was guilty if the trial continued in his absence. Ultimately, Hall's trial counsel objected "to the proceedings continuing" but did not object to the instruction itself. The trial court then found that Hall had "voluntarily absented himself from the proceeding," elected to try Hall in absentia, and issued a bench warrant for his arrest. (R. 15.)

The trial court gave the following instruction to the jury before commencing the trial:

"A defendant does have the right to be present at every stage of the trial, pursuant to Alabama Rules of Criminal Procedure. The defendant may waive the right to be present at any proceeding if the Court finds that his absence from the proceeding was voluntary and constitutes an understanding and voluntary waiver of the right to be present and that the defendant had notice of the time and place of the proceeding and was informed of the right to be present. The proceeding may then proceed and the defendant is tried in absentia.

"You may draw no inference or make any assumptions to the guilt or innocence of the defendant by his absence. And his absence is not evidence. Your verdict is to be based on the testimony and evidence presented during the trial."

(R. 16–17.)

Hall's defense counsel, when given the opportunity to make opening and closing arguments and to cross-examine the State's witnesses, repeatedly stated: "Defendant through his counsel objects to these proceedings occurring without the defendant because a proper defense cannot be presented because the defendant is absent and request[s] a continuance." (R. 27, 40, 48, 54, 62, 63–64, 70.) The trial court overruled each objection and denied each motion to continue, and the case proceeded.

The evidence at trial indicated that Hall sold crack cocaine to a confidential informant who was working with the Greenville Police Department. Officer Lionel Davidson, Lieutenant Byron Russell, and the confidential informant all testified that the informant purchased two white rocks from Hall during a controlled buy conducted under the supervision of Lt. Russell and Officer Davidson. Lt. Russell also testified that the transaction occurred within three miles of a school and within three miles of a public housing community. John Bruner, a drug chemist with the Alabama Department of Forensic Sciences, testified that Officer Davidson delivered the white rocks to him for scientific analysis. Bruner stated that he determined the rocks to be "cocaine-based, known as crack cocaine." (R. 60.)

After the State rested, Hall's counsel moved for a judgment of acquittal on the ground that "the State did not present [a prima facie case of unlawful distribution of a controlled substance] beyond a reasonable doubt." (R. 64.) Hall's counsel made no other objections during the trial and did not call any witnesses in Hall's behalf.

After the jury returned the guilty verdict, the trial court determined that it would set Hall's sentencing hearing upon his arrest. Hall was eventually arrested, and the trial court conducted a sentencing hearing on February 20, 2014. At that hearing, the State presented evidence indicating that Hall had more than three prior felony convictions and recommended that the trial court sentence Hall to life imprisonment. Hall's counsel objected to "having [had] the trial in the first place" and also to the State's sentencing recommendation. (R. 97.) Hall himself objected to the State's sentencing recommendation, stating:

"As far as the presumptive sentence, the aggravating factors are part of the presumptive sentence. They're not part of the aggravating factors. They're encompassed inside of the presumptive sentencing; therefore, a proper sentence should be within the guidelines. The aggravating factors are not part of the prior felony conviction, are part of presumptive sentencing. The five and five—no sentence enhancement is supposed to depart outside of the guidelines. They're encompassed in the new sentencing guidelines."

(R. 97–98.)

The trial court sentenced Hall as follows:

"All right. Mr. Hall, I am departing from the presumptive sentencing recommendations, and I will be sentencing you under the Habitual Felony Offender Act within that sentencing scheme of 20 years to life. So I hereby sentence you to life imprisonment in the penitentiary in the State of Alabama. I'm also giving you five years for Section 13A–12–250, for being within a three mile radius of a school, and five years for Section 13A–12–270, for being within three miles of a housing project."¹

(R. 100–01.) The trial court memorialized its sentence in a written order issued the same day.²

Hall's appointed trial counsel was permitted to withdraw on February 21, 2014. On March 10, 2014, appellate counsel was appointed for Hall, and counsel filed a motion for a new trial that requested simply that the trial court "reconsider the matter and order a new trial." (C. 107.) On March 12, 2014, Hall retained counsel who filed a notice of appearance and, on March 13, 2014, filed an amended motion for a new trial. The amended motion alleged, among other issues, that Hall was denied the effective assistance of counsel at trial and requested that the trial court "vacate [his] sentence under [the Habitual Felony Offender Act, § 13A–5–9, Ala.Code 1975,] and resentence him pursuant to the presumptive sentencing [standards]." (C. 112–19.) Hall also incorporated a motion for sentence reconsideration into his amended motion for a new trial in which he made the following claims: (1) that the trial court "committed a procedural error when it used ... ‘aggravating circumstances' to depart from the sentencing [standards]" (R. 123); (2) that the trial court "committed substantive error by using these ‘aggravating circumstances' to depart from the presumptive [standards]" (R. 124); and (3) that, "[b]ecause the sentencing [standards] say that departures should be rare and because [his] case is not an extraordinary case, [the trial court] should not have departed from the presumptive [standards]." (R. 125.)

On March 20, 2014, the trial court allowed Hall's appointed appellate counsel to withdraw, and the trial court set a hearing on Hall's amended motion for a new trial for April 4, 2014. The record, however, does not indicate that a hearing was held on that...