Lancaster v. State, CR-91-1882

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: TAYLOR; BOWEN
• Citation: 638 So.2d 1370
• Parties: Michael LANCASTER v. STATE.
• Docket Number: CR-91-1882
• Decision Date: 22 January 1993

Page 1370

638 So.2d 1370 Michael LANCASTER
v.
STATE. CR-91-1882. Court of Criminal Appeals of Alabama. Jan. 22, 1993.

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Sidney Wright III, Dothan, for appellant.

James H. Evans, Atty. Gen., and Robert Ward, Jr., Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

Michael Lancaster appeals from the summary denial of his petition for post-conviction relief filed under Rule 32, A.R.Crim.P. The uncontradicted facts, as alleged by the appellant, are as follows: The appellant pleaded guilty in the Circuit Court of Houston County to the unlawful possession of cocaine on May 20, 1986. He was conditionally sentenced to 10 years' imprisonment, and a final sentencing hearing was scheduled for July 7, 1986. During the interim, the trial court was to decide whether the appellant would be granted probation. On May 20, the appellant was released on $10,000 bond. After his release but before the final sentencing hearing, the appellant appeared in federal court to be sentenced on a separate charge. At the federal court sentencing hearing, the appellant was sentenced to 12 years' imprisonment. The appellant immediately began serving his federal prison sentence at a federal correctional institution in North Carolina. On July 7, 1986, the trial court of Houston County sentenced the appellant, in absentia, to 10 years' imprisonment. The appellant did not directly appeal. The appellant is now incarcerated at the federal correctional institution in Talladega, Alabama.

The appellant, in his Rule 32 petition, alleges that the Alabama trial court was without jurisdiction to sentence him. He raises several points that he contends are error:

(1) There was a violation of his right to be present at the sentencing hearing pursuant to Rule 9.1(a), A.R.Crim.P.; Rule 26.7, A.R.Crim.P.

(2) The court erred when a sentencing hearing was held in his absence even though he did not waive his right to be present at the sentencing hearing pursuant to Rule 9.1(c), A.R.Crim.P.

(3) There was a violation of his right to have a presentence investigation report completed prior to his sentencing hearing pursuant to Rule 26.3(a)(2), A.R.Crim.P.

(4) There was a violation of his right to obtain a copy of his presentence investigation report pursuant to Rule 26.3(c), A.R.Crim.P.

(5) There was a failure to obtain copies of the presentence investigation report prior to the sentencing hearing pursuant to Rule 26.6(b)(1), A.R.Crim.P.

(6) There was a failure to allow the appellant the opportunity to present any evidence which may bear on the sentence to be imposed pursuant to Rule 26.6(b)(2), A.R.Crim.P.

(7) There was a failure to impose a sentence which is the least restrictive sanction consistent with the protection of the public and the gravity of the crime pursuant to Rule 26.8, A.R.Crim.P.

(8) There was a failure to allow the appellant an opportunity to make a statement in his own behalf before sentence was imposed pursuant to Rule 26.9(b)(1), A.R.Crim.P.

(9) There was a failure to state that credit will be given toward his prison sentence for time served; failure, upon application and finding of indigency, to appoint counsel on appeal, and to provide a free transcript of the proceedings pursuant to Rule 26.9(b)(2), A.R.Crim.P.

(10) There was a failure to explain to the appellant the terms of his sentence pursuant to Rule 26.9(b)(3), A.R.Crim.P.

(11) There was a failure to inform the appellant of his right to appeal pursuant to Rule 26.9(b)(4), A.R.Crim.P.

(12) There was a failure to appoint the appellant counsel on appeal, after application and a finding of indigency pursuant to Rule 26.10, A.R.Crim.P.

The appellant also alleged that the trial judge was aware both of the existence and of the date of his upcoming federal sentencing hearing, but that he nevertheless held the final sentencing hearing in the appellant's absence. The appellant contends that because he was not present during the final

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sentencing hearing and was not afforded the opportunity to exercise his rights during the sentencing hearing, the trial court was without jurisdiction to impose a sentence during the July 7, 1986, sentencing hearing. In response to the appellant's petition, the state filed a standard form entitled "Motion for Summary Disposition." The trial court granted the state's motion, and dismissed the petition without a hearing, stating that the petition failed to state a claim for which relief could be granted, that it was successive, and that it was filed beyond the period of limitations.

The state contends that the appellant's petition for post-conviction relief under Rule 32, A.R.Crim.P., is procedurally barred for two reasons: (1) because the appellant filed his petition after the two-year period of limitations provided for under that rule had expired, and (2) because the appellant could have raised the issues on direct appeal, but failed to do so.

Generally, questions of subject matter jurisdiction are not waivable. Therefore, the lack of subject matter jurisdiction may be raised for the first time on appeal. Mobile & Gulf R.R. v. Crocker, 455 So.2d 829 (Ala.1984). Subject matter jurisdiction also may be attacked in a petition for post-conviction relief under Rule 32, A.R.Crim.P. Ex parte Ward, 540 So.2d 1350 (Ala.1988) (interpreting Rule 20, A.R.Crim.P.Temp., predecessor to Rule 32, A.R.Crim.P.).

"It is settled that the continuous presence of the defendant from arraignment to sentence is an essential part of the process provided for the trial of the defendant and without which the court has no jurisdiction to pronounce judgment against him." Neal v. State, 257 Ala. 496, 59 So.2d 797 (1952). Trials in absentia are generally condemned...