K.D.D. v. State

• Decision Date: 12 March 2021
• Docket Number: CR-19-1086
• Citation: 350 So.3d 702
• Parties: K.D.D., Jr. v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

350 So.3d 702

K.D.D., Jr.

v.STATE of Alabama

CR-19-1086

Court of Criminal Appeals of Alabama.

March 12, 2021

Gary L. Blume of Blume & Blume, Attorneys at Law, P.C., Northport.

Steve Marshall, att'y gen., and Yvonne A.H. Saxon, asst. att'y gen., for appellee.

KELLUM, Judge.

K.D.D., Jr., ("K.D.D.") appeals the juvenile court's summary dismissal of his petition for a writ of error coram nobis.

On November 14, 2019, the Pickens Juvenile Court adjudicated K.D.D. delinquent on underlying charges of attempting to elude a law-enforcement officer, first-degree receiving stolen property, and two counts of reckless endangerment. The court placed K.D.D. on probation for 18 months and committed K.D.D. to the custody of the Department of Youth Services ("DYS"), with "a recommendation for a placement under the continuing supervision of this Court. Placement shall be 18 months Mt. Meigs -- 6 months CTS [credit for time served] time in Detention." (C. 51.) As a condition of probation, the court ordered that K.D.D. was "[n]ot to return to Pickens County." (C. 54.) K.D.D. did not appeal his adjudication.

On or about May 26, 2020, K.D.D., through retained counsel, filed in the Pickens Juvenile Court a petition for a writ of error coram nobis challenging his adjudication and resulting sentence. See W.B.S. v. State, 244 So. 3d 133 (Ala. Crim. App. 2017) (holding that a petition for a writ of error coram nobis is the proper means by which to challenge a delinquency adjudication). As best we can discern, K.D.D. alleged in his petition:

(1) That his trial counsel was ineffective for not moving to transfer the delinquency proceedings to Tuscaloosa County, his county of residence, pursuant to § 12-15-260, Ala. Code 1975;

(2) That the juvenile court erred in imposing a determinate commitment without adjudicating him a serious juvenile offender and without complying with the requirements in Ex parte R.E.C., 678 So. 2d 1041 (Ala. 1995), and that his trial counsel was ineffective for not objecting to the alleged error;

(3) That the juvenile court erred in banishing him from Pickens County as a condition of his probation, and that his trial counsel was ineffective for not objecting to the banishment; and

(4) That his trial counsel was ineffective for not appealing the adjudication despite K.D.D.'s request that he do so and that, therefore, he was entitled to an out-of-time appeal.

The State did not file a response to K.D.D.'s petition. On September 9, 2020, the juvenile court summarily dismissed K.D.D.'s petition without an evidentiary hearing and without stating grounds.

On appeal, K.D.D. reasserts all four claims he raised in his petition, and he contends that the juvenile court erred in summarily dismissing his claims. He argues that he was entitled to an evidentiary hearing on his claims of ineffective assistance of counsel and that he was entitled to relief on his substantive challenges to his sentence found in claims (2) and (3), as set out above.

I.

Before addressing K.D.D.'s claims, we address two arguments made by the State.

First, the State argues that K.D.D. did not properly preserve for appellate review the issue whether he was entitled to an evidentiary hearing on his claims of ineffective assistance of counsel because, it says, K.D.D. did not file a postjudgment motion objecting to the juvenile court's summary dismissal of those claims without a hearing. It relies on Whitehead v. State, 593 So. 2d 126, 130 (Ala. Crim. App. 1991), in support of its argument. In Whitehead, this Court held that a postconviction petitioner's argument on appeal that the circuit court had failed to make specific findings of fact in its order denying the petition was not properly preserved for review because it was not raised in the circuit court.¹ However, Whitehead did not speak to the issue whether a petitioner must object in the circuit court to the lack of an evidentiary hearing; therefore, it is inapposite.

There is no question that "[t]he general rules of preservation apply to [postconviction] proceedings," Boyd v. State, 913 So. 2d 1113, 1123 (Ala. Crim. App. 2003), and that "[a]n adverse ruling is a prerequisite for preserving alleged error for appellate review." Rice v. State, 611 So. 2d 1161, 1163 (Ala. Crim. App. 1992). However, in Ex parte McCall, 30 So. 3d 400, 403-404 (Ala. 2008), the Alabama Supreme Court recognized that, because a hearing on a postconviction petition is not required unless the petitioner adequately presents a material issue of fact or law that, if true, would entitle the petitioner to relief, when a court conducts an evidentiary hearing on a postconviction petition, the court has made an implicit finding that the petitioner has adequately raised such a material issue. The converse is likewise true. When a court summarily dismisses a postconviction petition without an evidentiary hearing, it has made an implicit finding that the petitioner has failed to adequately present a material issue of fact or law that, if true, would entitle the petitioner to relief, and that, therefore, an evidentiary hearing is not warranted. Thus, the summary dismissal of a postconviction petition is itself an adverse ruling on the issue whether a petitioner is entitled to an evidentiary hearing, and a petitioner is not required to file a postjudgment motion raising that issue again to properly preserve it for appellate review. Therefore, K.D.D.'s argument that he was entitled to an evidentiary hearing on his claims of ineffective assistance of counsel is properly before this Court for review.

Second, the State argues that any error in the juvenile court's not conducting an evidentiary hearing on K.D.D.'s claims of ineffective assistance of counsel was "arguably" invited by K.D.D. because K.D.D. objected to the court conducting a "virtual" hearing which, the State says, "was perhaps a signal to the court that he did not want a hearing." (State's brief, p. 9.) We disagree. The record reflects that the juvenile court initially scheduled an evidentiary hearing on K.D.D.'s petition and that K.D.D. filed a motion to be transported to the hearing from the juvenile facility where he was confined. The State objected to K.D.D.'s being transported to court for the hearing because of the COVID-19 pandemic and its accompanying restrictions, arguing that if K.D.D. left the juvenile facility for the hearing, he may face quarantine on his return or the facility could refuse his return. The State asserted that K.D.D. could attend the hearing using a video-communication service, such as Zoom or Facetime. K.D.D. then objected to not being present in person at the hearing, arguing that his physical absence would violate his constitutional rights. However, nothing in K.D.D.'s objection could be construed as indicating that he did not want a hearing on his petition. Therefore, the doctrine of invited error is not applicable here.

II.

In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court articulated two criteria that must be satisfied to show ineffective assistance of counsel. A defendant has the burden of showing (1) that his or her counsel's performance was deficient and (2) that the deficient performance actually prejudiced the defense. "To meet the first prong of the test, the petitioner must show that his counsel's representation fell below an objective standard of reasonableness. The performance inquiry must be whether counsel's assistance was reasonable, considering all the circumstances." Ex parte Lawley, 512 So. 2d 1370, 1372 (Ala. 1987). "A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To meet the second prong of the test, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. "The likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter, 562 U.S. 86, 112, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

"Challenges based on the inadequacy of counsel constitute grounds for coram nobis." Summers v. State, 366 So. 2d 336, 341 (Ala. Crim. App. 1978). See also W.B.S. v. State, 244 So. 3d 133, 144 (Ala. Crim. App. 2017) ("[A]n ineffective-assistance-of-counsel claim is cognizable in a petition for a writ of error coram nobis."). Challenges to the legality of a sentence are likewise properly raised in a petition for a writ of error coram nobis. See, e.g., Williams v. State, 478 So. 2d 1, 2 (Ala. Crim. App. 1984) (holding that petitioner was entitled to an evidentiary hearing on his claim that his sentence was illegal). In addition, a request for an out-of-time appeal is properly raised in a coram nobis petition. See Jones v. State, 495 So. 2d 722, 723-24 (Ala. Crim. App. 1986) ("The traditional relief available on coram nobis has been expanded to include a belated or out of time appeal where necessary to insure justice and fairness.").

"[A]n evidentiary hearing must be held on a coram nobis petition which is meritorious on its face, i.e., one which contains matters and allegations (such as ineffective assistance of counsel) which, if true, entitle the petitioner to relief." Ex parte Boatwright, 471 So. 2d 1257, 1258 (Ala. 1985).

"A petition for a writ of error coram nobis is ‘meritorious on its face’ only if it contains a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the facts relied upon (as opposed to a general statement concerning the nature and effect of those facts), Thomas v. State, [274 Ala. 531, 150 So. 2d 387 (1963) ]; Ex parte Phillips, 276 Ala. 282, 161 So. 2d 485 (1964) ; Stephens v. State, 420 So. 2d 826 (Ala. Crim. App. 1982), sufficient to

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