Kelley v. State (Ex parte Kelley)

• Decision Date: 06 November 2015
• Docket Number: 1131451.
• Citation: 246 So.3d 1068
• Parties: Ex parte Michael Brandon KELLEY (In re Michael Brandon Kelley v. State of Alabama)
• Court: Alabama Supreme Court

246 So.3d 1068

Ex parte Michael Brandon KELLEY(In re Michael Brandon Kelley

v.State of Alabama)

1131451.

Supreme Court of Alabama.

Nov. 6, 2015.

Patrick Mulvaney and William R. Montross, Jr., Southern Center for Human Rights, Atlanta, Georgia, for petitioner.

Luther Strange, atty. gen., and Megan A. Kirkpatrick, aast. atty. gen., for respondent.

PARKER, Justice.

Michael Brandon Kelley petitioned this Court for a writ of certiorari to review the Court of Criminal Appeals' decision affirming the judgment of the St. Clair Circuit Court ("the trial court") sentencing Kelley to death for his convictions for two counts of murder made capital pursuant to §§ 13A–5–40(a)(1) and (8), Ala.Code 1975, and sentencing Kelley to life imprisonment for his conviction for one count of sexual torture, see § 13A–6–65.1, Ala.Code 1975. Kelley v. State, 246 So.3d 1032 (Ala.Crim.App.2014). We granted Kelley's petition solely to determine whether the Court of Criminal Appeals lacked jurisdiction to review Kelley's sexual-torture conviction. We reverse in part and remand.

Facts and Procedural History

The factual basis for Kelley's convictions is set out in detail in the Court of Criminal Appeals' decision. The following procedural history is pertinent to our review.

On September 2, 2010, a jury convicted Kelley of murder made capital because it was committed during the course of a first-degree kidnapping, see § 13A–5–40(a)(1), Ala.Code 1975; murder made capital because it was committed during the course of sexual abuse, see § 13A–5–40(a)(8), Ala.Code 1975; and sexual torture, see § 13A–6–65.1, Ala.Code 1975. Following the penalty phase of Kelley's trial, the jury recommended that Kelley be sentenced to death.

On November 18, 2010, the trial court conducted a sentencing hearing. After receiving evidence and considering arguments from both sides, the trial court stated on the record that it found Kelley guilty of both counts of capital murder and sentenced Kelley to death. It is undisputed, however, that the trial court did not state on the record that it found Kelley guilty of sexual torture and did not state on the record a sentence for Kelley's sexual-torture conviction. Nonetheless, that same day, November 18, 2010, the trial court entered a written order sentencing Kelley to death for the capital-murder convictions and purporting to sentence Kelley to life imprisonment for his sexual-torture conviction.

On February 2, 2011, Kelley filed a notice of appeal to the Court of Criminal Appeals. The notice-of-appeal form asks Kelley, in part, to "LIST EACH CONVICTION BELOW." In response, Kelley listed "CAPITAL MURDER (2 Counts)." Kelley did not list the sexual-torture conviction, and no reference to that conviction appears on his notice of appeal.

In Kelley's brief before the Court of Criminal Appeals, Kelley did not allege any error regarding his sexual-torture conviction. Similarly, in its brief before the Court of Criminal Appeals, the State did not request that the Court of Criminal Appeals affirm Kelley's sexual-torture conviction. Nonetheless, the Court of Criminal Appeals affirmed both of Kelley's capital-murder convictions and his conviction for sexual torture.

Kelley filed an application for rehearing in the Court of Criminal Appeals, alleging, among other things, that the Court of Criminal Appeals did not have jurisdiction to affirm his conviction for sexual torture. Kelley argued that a sentence was never pronounced for his sexual-torture conviction and that, therefore, "jurisdiction over the sexual torture conviction remain[ed] in the circuit court." Kelley also argued that the Court of Criminal Appeals' lack of jurisdiction over Kelley's sexual-torture conviction was the reason he did not appeal that conviction.

On September 5, 2014, the Court of Criminal Appeals denied Kelley's application for rehearing, withdrew its March 14, 2014, opinion, and substituted a new opinion. In its new opinion, the Court of Criminal Appeals addressed Kelley's allegation that he had never been sentenced for his sexual-torture conviction in a footnote, as follows: "On rehearing, Kelley argues that this Court lacks jurisdiction to review his conviction for sexual torture because he was never sentenced in relation to that conviction. Kelley's argument is refuted by the record. (C. 322–24.)" 246 So.3d at 1037 n. 1. The citation to the record provided by the Court of Criminal Appeals in that footnote refers to the trial court's written order purporting to sentence Kelley to life imprisonment for his sexual-torture conviction. The Court of Criminal Appeals did not provide any other analysis of Kelley's argument that the Court of Criminal Appeals lacked jurisdiction to review Kelley's conviction for sexual torture.

Kelley then filed with this Court a petition for a writ of certiorari. In the first ground asserted in his petition as a basis for issuing the writ, Kelley alleged that the Court of Criminal Appeals lacked jurisdiction to affirm his sexual-torture conviction and thus that its decision conflicted with prior decisions of this Court and of the Court of Criminal Appeals. We granted Kelley's petition for certiorari review solely to address that first ground.

Standard of Review

A claim that a court lacks jurisdiction presents a question of law, which this Court reviews de novo. See Sheffield v. State, 194 So.3d 911, 912 (Ala.2014) (applying a de novo standard of review when determining whether the Court of Criminal Appeals had jurisdiction to consider an appeal), and Ex parte Walker, 152 So.3d 1247 (Ala.2014) ; see also Ex parte Morrow, 915 So.2d 539, 541 (Ala.2004) (" ‘This Court reviews pure questions of law in criminal cases de novo.’ " (quoting Ex parte Key, 890 So.2d 1056, 1059 (Ala.2003) )).

Discussion

Kelley alleges that the Court of Criminal Appeals lacked jurisdiction to affirm his sexual-torture conviction because, he argues, his sexual-torture conviction was not ripe for appeal. We agree.

In Alabama, the right to appeal a conviction is specifically provided for in § 12–22–130, Ala.Code 1975:

"A person convicted of a criminal offense in the circuit court or other court from which an appeal lies directly to the Supreme Court or Court of Criminal Appeals may appeal from the judgment of conviction to the appropriate appellate court."

Under § 12–22–130, appeals lie only from a "judgment of conviction." Ex parte Eason, 929 So.2d 992, 993 (Ala.2005) ; Thornton v. State, 390 So.2d 1093, 1096 (Ala.Crim.App.1980). A judgment of conviction consists of the pronouncement of both a determination of a defendant's guilt and a sentence. Ex parte Walker, 152 So.3d at 1252. Absent a judgment of conviction, a conviction is not ripe for appeal. Id.

Kelley alleges that no judgment of conviction was entered on the sexual-torture conviction because, he argues, the trial court did not pronounce a sentence on that conviction. After reviewing the transcript from Kelley's sentencing hearing, we agree. " ‘ "Pronounce" is "to utter officially or ceremoniously." Webster's Third New International Dictionary, G. & C. Merriam Co. 1971. "Utter" is defined as "to send forth as a sound: give out in an audible voice." Id.’ " King v. State, 862 So.2d 677, 678 (Ala.Crim.App.2003) (quoting Hill v. State, 733 So.2d 937, 939 (Ala.Crim.App.1998) ). It is undisputed that, during Kelley's sentencing hearing, the trial court did not mention Kelley's sexual-torture conviction; the trial court did not pronounce a determination of guilt as to that conviction or a sentence. Thus, a judgment of conviction was not entered as to that offense. See Ex parte Walker, supra (defining a judgment of conviction as the pronouncement of both a determination of a defendant's guilt and a sentence). Because a judgment of conviction was not entered for that offense, Kelley's sexual-torture conviction was not ripe for appeal. See id.

The State argues that the trial court's failure to pronounce a sentence on Kelley's sexual-torture conviction did not deprive the Court of Criminal Appeals of jurisdiction to consider an appeal of that conviction. Specifically, the State argues 1) that Kelley failed to preserve the issue whether the trial court had pronounced a sentence on his sexual-torture conviction; 2) that the trial court's failure to pronounce a sentence on Kelley's sexual-torture conviction did not affect the jurisdiction of the Court of Criminal Appeals as this Court defined jurisdiction in Ex parte Seymour, 946 So.2d 536 (Ala.2006) ; and 3) that the trial court's failure to pronounce a sentence on Kelley's sexual-torture conviction was merely a procedural defect. State's brief, at pp. 8, 12, 15. We address each argument in turn.

We first address the State's allegation that Kelley failed to preserve the issue whether the trial court pronounced a sentence on his sexual-torture conviction. As explained above, the pronouncement of a sentence for a conviction affects the jurisdiction of the Court of Criminal Appeals because, without such a pronouncement, a judgment of conviction has not been entered. "[J]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu. Horn v. Dunn Brothers, Inc., 262 Ala. 404, 79 So.2d 11 (1955)." Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). Thus, even assuming, for the sake of argument, that Kelley failed to preserve the issue whether the trial court pronounced a sentence on his sexual-torture conviction, that issue is properly before this Court.

Next, the State alleges that the trial court's failure to pronounce sentence does not "affect the [Court of Criminal Appeals'] power and authority to hear Kelley's appeal." State's brief, at p. 15. In support of this argument, the State cites this Court's decision in Ex parte Seymour, supra, in which we defined jurisdiction as follows:

"Jurisdiction is ‘[a] court's power to decide a case or issue a decree.’ Black's Law Dictionary 867 (8th ed.2004). Subject-matter jurisdiction concerns a court

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