Lanier v. State

• Decision Date: 13 July 2018
• Docket Number: CR-17-0429
• Citation: 270 So.3d 304
• Parties: Samuel LANIER v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

270 So.3d 304

Samuel LANIER

v.STATE of Alabama

CR-17-0429

Court of Criminal Appeals of Alabama.

July 13, 2018

Rehearing Denied August 24, 2018

On Return to Remand ^*

KELLUM, Judge.

Samuel Lanier appeals the circuit court's summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P., in which he attacked his August 2016 resentencing to 25 years' imprisonment for his 1996 guilty-plea conviction for first-degree robbery. Lanier did not appeal his 1996 guilty-plea conviction or his 2016 resentencing.

In his petition, Lanier alleged that he had filed a previous Rule 32 petition challenging his 1996 conviction and the legality of the original sentence imposed for that conviction -- which he had asserted was 5 years' imprisonment and below the mandatory minimum sentence for a Class A felony during which a firearm is used -- and that the circuit court, instead of "withdrawing" that conviction for use for sentence enhancement for his subsequent convictions, set aside the sentence on the ground that it was illegal and resentenced him in August 2016 to 25 years' imprisonment.¹ (C. 12.) Lanier alleged that the circuit court lacked jurisdiction to resentence him in 2016 for his 1996 conviction, even though the original sentence was illegal, because, he said: (1) his original sentence had expired before he was resentenced; and (2) he was not represented by counsel at the resentencing hearing.

Without receiving a response from the State, the circuit court summarily dismissed Lanier's petition, finding that Lanier had originally been sentenced to 12 years' imprisonment for his 1996 conviction, not 5 years' imprisonment as Lanier alleged; that the original sentence had been split and Lanier had been ordered to serve 2 years in confinement followed by probation; and that Lanier's sentence had not expired before he was resentenced in 2016 because the court did "not see any indication" that Lanier's probation had been revoked after he had served the confinement portion of his sentence or that Lanier had ever served in confinement the remaining 10 years of his sentence. (C. 19.) The court also found that Lanier was represented by counsel at the resentencing hearing. Because the record before this Court was not sufficient for us to review the propriety of the circuit court's findings, we remanded this case by order dated April 10, 2018, for the circuit court to supplement the record with documentation relating to Lanier's 1996 conviction, his prior Rule 32 petition, and his resentencing. The circuit court promptly complied with our instructions, and this cause was resubmitted on return to remand on April 17, 2018.

On appeal, Lanier reasserts the two claims from his petition and argues that the circuit court erred in denying him relief from his resentencing. Lanier's claim that he was not represented by counsel at his August 2016 resentencing is meritless. The transcript of the resentencing hearing clearly reflects that Lanier was, in fact, represented by counsel. Therefore, the circuit court properly dismissed this claim. See Rule 32.7(d), Ala. R. Crim. P.

However, Lanier's claim that the circuit court lacked jurisdiction to resentence him after his original sentence had expired is more problematic. Initially, we point out that, although the State concedes on appeal that Lanier's original sentence had expired before he was resentenced, the circuit court found otherwise. In its summary-dismissal order, the circuit court found that Lanier had served the confinement portion of his original sentence but that his probation had never been revoked and he had never served the remaining 10 years of his 12-year sentence. Those factual findings are supported by the record. The record reflects that Lanier was sentenced to 12 years' imprisonment, that the sentence was split, and that Lanier was ordered to serve 2 years in confinement followed by 3 years on probation. Lanier was also given 468 days of jail credit. The confinement portion of Lanier's sentence began in January 1996, and, after completing that portion of his sentence, he was released to serve the probationary portion of his sentence. On October 31, 1996, Lanier's probation officer filed a delinquency report alleging that Lanier had violated the terms of his probation by committing a new offense, and the trial court ordered Lanier's arrest, but two weeks later, after a probation-revocation hearing, the trial court reinstated Lanier's probation, and the record reflects no further action with respect to Lanier's probationary term.²

Although the circuit court was correct that Lanier's probation was never revoked and that he did not serve in confinement the entirety of his 12-year sentence, the court's conclusion, based on those facts, that Lanier's sentence had not expired was erroneous. In Woodward v. State, 3 So.3d 941, 944 (Ala. Crim. App. 2008), this Court recognized that a probationary period ends when (1) the probationer satisfactorily fulfills all the conditions of probation and the probationary term ordered by the court expires; (2) the maximum period of probation allowed by law expires, even if the probationer has not fulfilled the conditions of probation; or (3) the court formally discharges the probationer from probation. In this case, there is no indication that Lanier fulfilled the conditions of his probation or that the court formally discharged him from probation. However, the record is clear that the maximum period of probation allowed by law expired before Lanier was resentenced.

When a defendant is sentenced pursuant to the Split Sentence Act, as Lanier was, the maximum period of probation allowed by law is that portion of the sentence not ordered to be served in confinement. See Burge v. State, 623 So.2d 450 (Ala. Crim. App. 1993), and Hatcher v. State, 547 So.2d 905 (Ala. Crim. App. 1989). In this case, the maximum period of probation allowed by law was 10 years, and once those 10 years lapsed the probationary period ended and Lanier's sentence expired. Because his probation was never revoked, although it was tolled for approximately 2 weeks (see note 2, supra), the 10-year maximum probationary term ended, and Lanier's sentence expired, in 2006, a decade before Lanier was resentenced. Therefore, the circuit court erred in concluding that Lanier's sentence had not expired before he was resentenced.

Having determined that Lanier's sentence had expired long before he was resentenced, the question before this Court is whether a trial court retains jurisdiction to correct an illegal sentence after that sentence has expired.³ Absent a posttrial motion under Rule 24, Ala. R. Crim. P., a trial court generally retains jurisdiction to modify a sentence for only 30 days after the sentence is imposed. See Ex parte Hitt, 778 So.2d 159, 162 (Ala. 2000). Under the Split Sentence Act, a trial court retains jurisdiction to suspend the confinement portion of a split sentence throughout that portion of the sentence. See § 15-18-8(g), Ala. Code 1975. The exception to these jurisdictional limitations is when the sentence imposed is illegal. It is well settled that an illegal sentence is a jurisdictional defect and both this Court and the Alabama Supreme Court have repeatedly recognized that an illegal sentence may be challenged, or noticed by this Court, at any time. See, e.g., Ex parte Jarrett, 89 So.3d 730, 732 (Ala. 2011) ; Ex parte Batey, 958 So.2d 339, 341 (Ala. 2006) ; McNeal v. State, 43 So.3d 628, 629 (Ala. Crim. App. 2008) ; and Ginn v. State, 894 So.2d 793, 796 (Ala. Crim. App. 2004). This Court has also recognized that " ‘even after the defendant has begun to serve his sentence, the trial court is obligated to alter an invalid sentence [and] any increase in the sentence does not raise double jeopardy problems.’ " Greenhill v. State, 746 So.2d 1064, 1072 (Ala. Crim. App. 1999) (quoting Love v. State, 681 So.2d 1108, 1109 (Ala. Crim. App. 1996) ).

However, it does not appear that this Court or the Alabama Supreme Court has ever been squarely presented with, or addressed, the issue whether a trial court retains jurisdiction to correct an illegal sentence after that sentence has expired,⁴ and it does not automatically follow from the jurisdictional nature of an illegal sentence that a trial court retains jurisdiction indefinitely to correct an illegal sentence. "[T]here must be a temporal limitation on a court's ability to resentence a defendant ... since criminal courts do not have perpetual jurisdiction over all persons who were once sentenced for criminal acts." People v. Williams, 14 N.Y.3d 198, 217, 899 N.Y.S.2d 76, 88, 925 N.E.2d 878, 890 (2010). That limitation logically falls at the expiration of a sentence. Although an illegal sentence may be corrected after the defendant has begun serving the sentence without double-jeopardy implications, resentencing a defendant after the expiration of a sentence, even to correct an illegal sentence, results in multiple punishments for the same offense.

"The Fifth Amendment's Double Jeopardy Clause protects against a second prosecution for the same offense after an acquittal, a second prosecution for the same offense after conviction, and against multiple punishments for the same offense." Woods v. State, 709 So.2d 1340, 1342 (Ala. Crim. App. 1997). "The clause applies to ‘multiple punishment’ because, if it did not apply to punishment, then the prohibition against ‘multiple trials’ would be meaningless; a court could achieve the same result as a second trial by simply resentencing a defendant after he has served all or part of an initial sentence."

United States v. Fogel, 829 F.2d 77, 88 (D.C. Cir. 1987). "[T]he primary purpose of the Double Jeopardy Clause [i]s to protect the integrity of a final judgment," United States v. Scott, 437 U.S. 82, 92, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), and jeopardy attaches to a sentence when the defendant acquires "an expectation of finality in the original...