Holley v. State, CR–12–2023.

• Decision Date: 03 October 2014
• Docket Number: CR–12–2023.
• Citation: 212 So.3d 967
• Parties: Thaddeus Raynard HOLLEY, Sr. v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

212 So.3d 967

Thaddeus Raynard HOLLEY, Sr.

v.STATE of Alabama.

CR–12–2023.

Court of Criminal Appeals of Alabama.

Oct. 3, 2014.

Spencer A. Phillips, Mobile, for appellant.

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

On Return to Remand^*

WELCH, Judge.

This Court remanded this case by order on February 3, 2014, for the Mobile Circuit Court to make a finding setting forth the date the offense underlying the criminal conviction of Thaddeus Raynard Holley, Sr., was committed. The circuit court submitted a return to this Court on February 27, 2014, informing this Court that the offense was committed on December 17, 2005.

Holley was indicted for having committed, on December 17, 2005, the crime of first-degree sexual abuse of a child under the age of 12, a violation of § 13A–6–66(a)(3), Ala.Code 1975.¹ On August 4, 2006, Holley pleaded guilty and was sentenced to 10 years' imprisonment. The 10–year sentence was split pursuant to the Split Sentence Act, § 15–18–8, Ala.Code 1975, to be served as 3 years' incarceration followed by 5 years' probation. While Holley was serving the probationary portion of his sentence, his probation officer filed a delinquency report alleging that Holley had violated the terms and conditions of his probation by violating the Alabama Sex Offender Registration and Community Notification Act, § 15–20A–1 et seq., Ala.Code 1975, by failing to pay supervision fees and other court-ordered moneys. On August 22, 2013, the circuit court held a revocation hearing, after which it revoked Holley's probation. Holley appealed from the revocation order.

On appeal, Holley argues that the circuit court improperly revoked his probation based on hearsay testimony. Holley also contends that the revocation was improper because, he says, he was indigent and could not pay court-ordered moneys and fees.

We need not address either of Holley's claims because our review of the record reveals that Holley's sentence was illegal. Despite the fact that Holley did not raise this issue in the circuit court or on appeal, "[m]atters concerning unauthorized sentences are jurisdictional." Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994). Therefore, this Court may take notice of an illegal sentence at any time.

Pender v. State, 740 So.2d 482, 484 (Ala.Crim.App.1999).

"A defendant's sentence is determined by the law in effect at the time of the commission of the offense." Davis v. State, 571 So.2d 1287, 1289 (Ala.Crim.App.1990). Holley pleaded guilty to sexual abuse of a child under the age of 12 and was sentenced pursuant to the Split Sentence Act—§ 15–18–8, Ala.Code 1975. The Split Sentence Act was amended before December 17, 2005, the date the crime took place, to prohibit splitting a sentence based upon a conviction for a criminal sex offense involving a child. Effective October 1, 2005, § 15–18–8(a) was amended to specifically prohibit splitting the sentence of an offender who is convicted of "a criminal sex offense involving a child as defined in Section 15–20–21(5)." Section 15–20–21(5), Ala.Code 1975, defines a "criminal sex offense involving a child" as "a conviction for any criminal sex offense in which the victim was a child under the age of 12 and any offense involving child pornography." Additionally, § 15–18–8(b), Ala.Code 1975, specifically precludes a trial court from imposing a term of probation for offenders convicted of "a criminal sex offense involving a child as defined in Section 15–20–21(5), which constitutes a Class A or B felony."²

In Enfinger v. State, 123 So.3d 535 (Ala.Crim.App.2012), this Court recently held that a trial court has no authority to revoke probation that was imposed as part of an illegal sentence.

"[W]e have held that when the circuit court does not have the authority to split a sentence under the Split–Sentence Act, § 15–18–8, Ala.Code 1975, ‘the manner in which the [circuit] court split the sentence is illegal [,]’ Austin v. State, 864 So.2d 1115, 1118 (Ala.Crim.App.2003), and that ‘[m]atters concerning unauthorized sentences are jurisdictional.’ Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994)."

Enfinger v. State, 123 So.3d at 537. Because Holley committed the crime of first-degree sexual abuse of a child under the age of 12 on December 17, 2005, the sentence imposed was an illegal sentence because it violated the Split Sentence Act that had become the law on October 1, 2005. Moreover, pursuant to Enfinger, a subsequent probation-revocation order in such a case has no effect. Enfinger v. State, 123 So.3d at 538 ("Because the circuit court had no authority to split Enfinger's sentence or to impose a term of probation, it likewise had no authority to conduct a probation-revocation hearing and revoke Enfinger's probation...."); see also Mewborn v. State, 170 So.3d 709 (Ala.Crim.App.2014).

This case must be remanded for the circuit court to conduct a sentencing hearing and to resentence Holley. To avoid a violation of Holley's rights under the Equal Protection Clause of the 14th Amendment to the United States Constitution, however, the circuit court may not impose a sentence greater than the original sentence of 10 years' imprisonment. Mewborn v. State, 170 So.3d at 712 n. 1 ("We note that in resentencing Mewborn the circuit court may not impose a sentence greater than [the original sentence] because doing so ‘would be a violation of [Mewborn's] rights under the Equal Protection Clause of the 14th Amendment to the Constitution of the United States.’ Ex parte Tice, 475 So.2d 590, 592 (Ala.1984) (citing Rice v. Simpson, 274 F.Supp. 116 (M.D.Ala.1967) ))."

The record does not indicate whether Holley's guilty plea or sentence was the result of a plea bargain. "Therefore, it is impossible for this Court to determine whether resentencing [Holley] will affect the voluntariness of his plea." Austin v. State, 864 So.2d 1115, 1119 (Ala.Crim.App.2003). " ‘If the [suspended] sentence was a term of [Holley's] "plea bargain," and, if he moves to withdraw his guilty plea, the circuit court should conduct a hearing to determine whether withdrawal of the plea is necessary to correct a manifest injustice. See Rule 14.4(e), Ala. R.Crim. P.’ Enfinger [v. State ], 123 So.3d [535,] 539 [ (Ala.Crim.App.2012) ]." Mewborn, 170...