Lawson v. State

• Decision Date: 25 August 2006
• Docket Number: CR-05-0010.
• Citation: 954 So.2d 1127
• Parties: Kevin LAWSON v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

954 So.2d 1127

Kevin LAWSON v. STATE of Alabama.

CR-05-0010.

Court of Criminal Appeals of Alabama.

August 25, 2006.

Rehearing Denied October 6, 2006.

William Morgan Rayborn, Brantley, for appellant.

Troy King, atty. gen., and Nancy M. Kirby, asst. atty. gen., for appellee.

PER CURIAM.

Kevin Lawson appeals his August 3, 2005, conviction for second-degree robbery, violation of § 13A-8-42, Ala.Code 1975, by the Montgomery Circuit Court. He was sentenced in accordance with the Habitual Felony Offender Act, § 13A-5-9, Ala.Code 1975, to 20-years' imprisonment. He was also ordered to pay court costs, restitution, and $50 to the victims compensation fund in accordance with § 15-23-17(b), Ala.Code 1975.

Lawson and an accomplice robbed a Spectrum convenience store in Montgomery on April 28, 1995. He was arrested the same day, and he posted a $10,000 appearance bond and was released from the Montgomery County jail on May 1, 1995. (C. 2.) He was indicted on June 30, 1995. (C. 2.) From July 10 until August 2, 1995, Lawson was incarcerated at the Autauga County jail on a different charge. He was then released to the Clanton Police Department. (C. 94.) A letter contained in the record from Autauga County Sheriff Herbie Johnson states: "A hold had been placed by Montgomery County and when they were notified subject was being released, they advised they had nothing on him." (C. 94.)

The matter was set for trial on August 28, 1995, but Lawson failed to appear for trial. The trial was reset for September 19, 1995, but again Lawson failed to appear for trial. A capias warrant was issued for Lawson on September 22, 1995.

Sometime before December 1995, Lawson was incarcerated at Rikers Island, a jail for New York City. (C. 14.) He was to be released from Rikers Island on August 26, 1996, but a robbery charge was pending in New York City. (C. 39.) From 1996 until 2004, Lawson was incarcerated in the State of New York, apparently for the conviction of the aforementioned robbery charge. (R. 13.) While Lawson was incarcerated in New York, Autauga County placed a detainer on Lawson. He waived extradition, but Autauga County decided not to prosecute Lawson, and the detainer was removed.

On June 9, 2005, Lawson was detained by the New York State Division of Parole on the Montgomery County robbery charge. (R. 4.) Lawson waived extradition, and the capias warrant was executed on July 2, 2005. (R. 4; C. 2.) A two-day trial was held August 2-3, 2005, before a Montgomery County jury which found Lawson guilty of second-degree robbery. (C. 3.)

I.

Lawson argues on appeal that he was not properly arraigned for the robbery charge and that the trial court thus committed reversible error. The State, in a 12-line argument in its brief, summarily dismisses Lawson's argument as not properly preserved for appellate review. A review of the record, however, makes it obvious that this issue was properly preserved for our review.¹

In his "Motion to Dismiss for Failure to Provide a Speedy Trial" filed July 6, 2005, Lawson stated:

"The case action summary sheet does not indicate that [Lawson] was arraigned; however, there is an entry dated August 28, 1995, stating that [Lawson] failed to appear for trial, at which time a forfeiture and capias was issued. It does not appear, however, from the file that [Lawson] was ever notified of his trial date."

(C. 47)(emphasis added). Further, in his "Motion for Defendant to be Released on Bail" filed July 7, 2005, Lawson stated:

"The case action summary sheet indicates that [a forfeiture and capias] was issued on August 28, 1995; however, [Lawson] has advised the undersigned attorney that he was never advised of his trial date. Further, the case action summary sheet does not indicate that the Defendant was ever arraigned."

(C. 45)(emphasis added). Immediately before trial, the trial judge held a hearing on Lawson's motion to dismiss on speedy-trial basis, during which Lawson testified. During his testimony, the following occurred:

"Q. [Defense Counsel]: Were you ever arraigned-arraignment is where you plead either guilty or not guilty. You go before the judge and plead either guilty or not guilty. Were you ever arraigned on the charge of Robbery Two here in Montgomery?

"A. [Lawson]: No, I was not."

(R. 5.) After Lawson testified, the following exchange occurred:

"[DEFENSE COUNSEL]: Your Honor, I would ask the court to take judicial notice of the documents that are in the court file. And would call the court's attention to a letter which I'm going to introduce into evidence as a part of this hearing marked Defendant's Exhibit 1. It purports to be a letter from the sheriff of Autauga County stating that Mr. Lawson was incarcerated in the Autauga County jail from July 10, '95 through August 2, '95.

"That he had been brought to that facility by Steve Roberts Bonding Company. And that Mr. Lawson was released from the Autauga County jail to the Clanton Police Department. That a hold had been placed by Montgomery County. And when Montgomery County was notified that Mr. Lawson was being released, Montgomery County advised that they had nothing on him.

"[PROSECUTOR]: Judge, I'm going to object to that being admitted as evidence. [Defense counsel] has failed to authenticate that.

"THE COURT: It is part of the court file. All of that is going to be considered and [Defense counsel] just at the same time your client has just testified he didn't know anything about this until '05. The court file reflects that he was served in 1995. So that's the reason we have a '95 case number. So just so that the file is clear and the testimony is clear, I know your client says he didn't know, he failed to show up for the first trial we had set back in August of '05 after being served. Okay.

"[DEFENSE COUNSEL]: Judge, just for the sake of clarity. When you say after being served, you mean served with the indictment or—

"THE COURT: Yes, sir. They wouldn't have made a file. I wouldn't have this red file marked 1995 unless he was served with a copy of the indictment. The red file is not created until he is served.

"[DEFENSE COUNSEL]: Judge, with all due respect, the Alabama Rules of Criminal Procedure provide that if somebody has been arrested for a criminal offense and is released on bond, that that person is not rearrested after indictment unless the bond changes. If the bond goes higher, then the person is due to be rearrested in order for that person to make the higher bond.

"So I think that was the procedure back in 1995 where the indictment—the defense attorney would be notified that [Lawson] had been indicted and then normally the defense attorney would advise the client of that fact or mail the client a notice, have the client appear to plead either guilty or not guilty or to sign a plea of not guilty and waiver of arraignment.

"In this case there is nothing on the case action summary sheet to indicate that [Lawson] was ever advised of being indicted. And there is nothing on the case action summary sheet to indicate that he was ever arraigned on the indictment.

"THE COURT: It is because he absented himself from the jurisdiction for the trial. Had he been here, those matters would have been taken care of."

(R. 7-11) (emphasis added). The trial court then stated:

"THE COURT: Of course he knows he has a trial. He made bond to start with. Of course he knows he has a case here. So sorry I can't agree with you on that. And the records will speak for whatever the records say."

(R. 11-12.) After the trial, Lawson filed a motion in arrest of judgement or for a new trial in which he stated:

"This Motion In Arrest of Judgment/Motion For New Trial is due to be granted unless the State can prove that the court file affirmatively shows that [Lawson] was arraigned and entered a plea to the indictment. O'Leary v. State, [417 So.2d 214 (Ala.Crim.App. 1980)]."

and

"The indictment against [Lawson] should have been dismissed in that [Lawson] was denied a speedy trial. [Lawson] was indicted by the Montgomery County Grand Jury on June 30, 1995. The Case Action Summary Sheet does not reflect that [Lawson] was ever arraigned, nor does the court file reflect that [Lawson] was ever given notice of his trial date."

(C. 88-89).

It is readily apparent from the foregoing that before trial Lawson placed the trial court on notice that he had not been arraigned, and the trial court still failed to arraign him. Thus this issue is preserved for our review.

B.

We now turn to the merits of Lawson's argument that the trial court committed reversible error by not arraigning him. Section 15-15-20.1(c), Ala.Code 1975, states:

"Upon the filing of an information, the court shall ascertain whether the defendant has retained counsel, and, shall appoint counsel if the defendant is indigent. The court shall set an arraignment date to enable the defendant to formally enter a plea of guilty in open court. Arraignment may be held and the guilty plea entered at any time after the filing of an information."

The Alabama Rules of Criminal Procedure also address this issue:

"(a) In General. Except as provided in section (b), no defendant shall be tried for the commission of any misdemeanor or felony offense until he has been arraigned in open court."

Rule 14.1, Ala. R.Crim. P. Arraignment may happen any time before trial. In fact, a defendant may be arraigned after the jury has been empaneled. Carroll v. State, 445 So.2d 952 (Ala.Crim.App.1983).

A defendant waives arraignment if he does not timely object to not being arraigned. "`Even arraignment and plea can be waived by a defendant's failure to object to the lack thereof until after the jury has returned a verdict.'" Soriano v. State, 527 So.2d 1367, 1372 (Ala.Crim.App. 1988) (quoting Smith v. State, 507 So.2d 579, 580 (Ala.Crim.App.1987)).

However, if a defendant brings to the trial court's attention before trial the fact that he has not been arraigned, and the trial court fails to remedy the...