Lawrence v. State

• Decision Date: 29 September 2006
• Docket Number: CR-05-0068.
• Citation: 953 So.2d 431
• Parties: Larry James LAWRENCE v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

953 So.2d 431

Larry James LAWRENCE v. STATE of Alabama.

CR-05-0068.

Court of Criminal Appeals of Alabama.

September 29, 2006.

Larry James Lawrence, pro se.

Troy King, atty. gen., and James B. Prude, asst. atty. gen., for appellee.

COBB, Judge.

Larry James Lawrence appeals the Jefferson Circuit Court's summary denial of his Rule 32, Ala. R.Crim. P., petition for postconviction relief, in which he attacked his February 24, 2005, conviction for second-degree theft of property and his resulting sentence of 15 years' imprisonment.

Lawrence was indicted as follows:

"James Lawrence . . . after having been previously convicted of Theft in the 2nd degree, did knowingly obtain or exert unauthorized control over one pocket knife of the value of $29.99; two multitools of the aggregate value of $119.98; one pocket knife of the value of $44.99; two archery/bow site of the aggregate value of $65.98; and four archery/bow site of the aggregate value of $184.00, the property of ACADEMY SPORTS AND OUTDOORS, INC., A CORPORATION with the intent to deprive the owner of said property, in violation of Section 13A-8-4 of the Alabama Criminal Code, against the peace and dignity of the State of Alabama."

(C. 26) (capitalization in original).

Lawrence entered a guilty plea to the above charge and did not appeal his conviction or sentence. On August 8, 2005, he filed the instant petition. In his petition, Lawrence presented the following claims:

"(1) Petitioner's conviction and sentence was unauthorized by law because the element of the prior felony, i.e., the element providing the enhancement on his conviction from theft in the third degree to theft in the second degree, was not certified and proven to the finder of fact as required by Apprendi v. New Jersey, 530 U.S. 466 (2000).¹ Thus, petitioner should have been convicted and sentenced for the misdemeanor of theft of property in the third degree as defined in § 13A-8-5, Ala.Code 1975, instead of the Class C felony of theft in the second degree as defined in § 13A-8-4(g), Ala. Code 1975.

"(2) Petitioner's trial counsel was ineffective for failing to object to the illegal enhancement of his conviction and sentence as set forth in issue (1).

"(3) Petitioner claims that the trial court was without jurisdiction to render judgment and impose sentence because it used the same prior conviction to enhance the charge from a misdemeanor to a Class C felony and then to enhance his sentence under the Habitual Felony Offender Act. This is `double dipping' because its effect was to enhance his sentence two times.

"(4) Petitioner claims that trial counsel was ineffective for failing to prevent the State from using the prior conviction to enhance the charge and enhance the sentence as set forth in claim (3)."

After the State responded with a motion to dismiss, the circuit court, citing Rule 32.7, Ala. R.Crim. P., summarily dismissed the petition. Lawrence then filed this appeal essentially reasserting the claims from his petition.

At the time the offense was committed, the Code of Alabama defined second-degree theft as follows:

"(a) The theft of property which exceeds five hundred dollars ($500) in value but does not exceed two thousand five hundred dollars ($2,500) in value, and which is not taken from the person of another, constitutes theft of property in the second degree.

". . . .

"(g) Notwithstanding subsection (a), the theft of property which exceeds two hundred fifty dollars ($250) in value but does not exceed two thousand five hundred dollars ($2,500) in value, and which is not taken from the person of another, where the defendant has previously been convicted of a theft of property in the first or second degree or receiving stolen property in the first or second degree, constitutes theft of property in the second degree."

Section 13A-8-4, Ala.Code 1975. Because Lawrence stole property valued at $444.94, he was properly charged under subsection (g).

Lawrence's first claim—that he should have been convicted and sentenced of a misdemeanor because evidence of his prior felony was not certified and proven— lacks credence. The United State Supreme Court stated in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. 2348. Thus the prior conviction did not have to be proved beyond a reasonable doubt. Furthermore, by pleading guilty, Lawrence admitted that he had a prior conviction, an element of the offense second degree theft of property under § 13A-8-4(g), Ala.Code 1975. "A guilty plea serves as an admission to all elements of the offense charged." Mitchell v. State, 495 So.2d 738, 739 (Ala.Crim.App.1986). Thus, we find that the prior conviction was proven.

Lawrence's second claim regarding ineffective assistance of counsel based on the aforementioned substantive claim also lacks credence. Counsel cannot be said to be ineffective for not filing a motion for which there is no legal basis. See Patrick v. State, 680 So.2d 959, 963 (Ala.Cri...