Marshall v. State

• Decision Date: 26 September 2003
• Citation: 884 So.2d 900
• Parties: Ex parte State of Alabama. (In re Gary Lewis MARSHALL v. STATE of Alabama).
• Court: Alabama Supreme Court

884 So.2d 900

Ex parte State of Alabama.

(In re Gary Lewis MARSHALL v. STATE of Alabama).

1012217.

Supreme Court of Alabama.

September 26, 2003.

William H. Pryor, Jr., atty. gen., and Thomas Leverette and Cedric B. Colvin, asst. attys. gen., for petitioner.

Gary Lewis Marhall, pro se.

PER CURIAM.

This Court granted the State's petition for a writ of certiorari to review the Court of Criminal Appeals' decision reversing the circuit court's denial of Gary Lewis Marshall's second Rule 32, Ala. R.Crim. P., petition. The Court of Criminal Appeals concluded that, because Marshall never received notice that his first Rule 32 petition had been dismissed, he was entitled to an out-of-time appeal based on the authority of Ex parte Fountain, 842 So.2d 726 (Ala.2001), and Brooks v. State, [Ms. CR-00-1134, April 26, 2002] ___ So.2d ___ (Ala.Crim.App.2002). We reverse and remand.

I. Proceedings in the Circuit Court

On May 7, 1997, Marshall was convicted of murder and was sentenced to life in prison. The Court of Criminal Appeals affirmed his conviction and sentence, without an opinion. Marshall v. State (No. CR-96-1996), 728 So.2d 713 (Ala.Crim.App.1998)(table). Marshall filed his first Rule 32 petition in the Hale Circuit Court on April 21, 1998. The circuit court dismissed Marshall's petition. Marshall claims that he never received notice of the circuit court's dismissal of this petition and that he discovered that his Rule 32 petition had been denied after the time for taking an appeal had passed. Marshall appealed the dismissal of his Rule 32 petition, arguing that his failure to appeal was through no fault of his own; the Court of Criminal Appeals dismissed his appeal as untimely, without an opinion. Marshall v. State (No. CR-00-0307, March 23, 2001) 821 So.2d 1041 (Ala.Crim.App.2001)(table).

On June 6, 2001, Marshall filed his second Rule 32 petition. The circuit court dismissed the petition (1) because the petition was not filed within the two-year limitations period established in Rule 32.2(c), Ala. R.Crim. P., as that rule then provided;¹ and (2) because it was a successive petition, presenting grounds previously presented in Marshall's first Rule 32 petition. The circuit court also addressed Marshall's failure to appeal from the denial of his first Rule 32 petition:

"[T]he defendant has an obligation to stay informed of the status of his case. He has filed numerous pro se motions and pleadings throughout this matter and it appears obvious to the Court that he could have found out that an order was entered if, in fact, no copy had been mailed to him. Accordingly, the Court finds that this petition is due to be dismissed."

II. Proceedings in the Court of Criminal Appeals

Marshall appealed the dismissal of his second Rule 32 petition to the Court of Criminal Appeals. On appeal, he argued that, through no fault of his own, he had never received notice of the dismissal of his first Rule 32 petition and learned of that dismissal only through a family member sometime in November 2000, well beyond the time for taking an appeal. He alleged that the circuit court did not send him a copy of the order dismissing the petition and that his counsel rendered ineffective assistance by failing to inform him that his first Rule 32 petition had been dismissed. The Court of Criminal Appeals concluded "that Marshall was not informed of the dismissal of his first Rule 32 petition," a contention it says "neither the State nor the circuit court disputed," and held that Marshall was entitled to an out-of-time appeal, as requested in his second Rule 32 petition. Marshall v. State, 884 So.2d 898 (Ala.Crim.App.2002). With no elaboration, the Court of Criminal Appeals rested its decision "on the authority of Fountain and Brooks," supra. ___ So.2d at ___.

III. Petition for the Writ of Certiorari

The State filed a petition for a writ of certiorari in this Court, asserting that the decision of the Court of Criminal Appeals conflicts with decisions of this Court and of the Court of Criminal Appeals. We granted the petition to consider the State's argument that the Court of Criminal Appeals' decision conflicts with Ex parte Weeks, 611 So.2d 259 (Ala.1992), and Ex parte Johnson, 806 So.2d 1195 (Ala.2001). We also take this opportunity to clarify our holding in Ex parte Fountin.²

IV. Analysis

A review of the cases relied upon by Marshall and the Court of Criminal Appeals is in order.

In Ex parte Fountain, Tony Fountain, appealing the circuit court's dismissal of his Rule 32 petition, presented only one argument to this Court, i.e., "that his right to due process was violated by the State's failure to send him a copy of its response brief on appeal." 842 So.2d at 729. The Court of Criminal Appeals had affirmed the judgment of the circuit court denying Fountain's Rule 32 petition. This Court relied upon Ex parte Weeks, supra, in which this Court noted that procedural due process contemplates" `rudimentary requirements of fair play, which include ... information as to the claims of the opposing party, with reasonable opportunity to controvert them.'" Ex parte Fountain, 842 So.2d at 729 (quoting Ex parte Weeks, 611 So.2d at 261). This Court in Ex parte Fountain interpreted the requirement in Rule 31(a), Ala. R.App. P., that each party's appellate brief be served on the other party to encompass "precisely the goal of fundamental fairness that is the essence of due process." 842 So.2d at 730. Thus, we reversed the judgment of the Court of Criminal Appeals as to this issue because that court did not "afford[] [Fountain] his due process right to know the State's arguments in order to formulate the reply Rule 31 allows him." 842 So.2d at 730 (emphasis added). This issue was the main thrust of the opinion.

However, the Court of Criminal Appeals in Ex parte Fountain had also affirmed the circuit court's order granting Fountain an out-of-time appeal, which the circuit court granted because, like Marshall, Fountain alleged that he had not received notice of the dismissal of his Rule 32 petition. However, as Judge Shaw noted in his special writing in Brooks, ___ So.2d at ___ (Shaw, J., concurring in the result, with Baschab, J., joining), the other case relied on by the Court of Criminal Appeals in Marshall's case, the issue whether the out-of-time appeal was properly granted was never before this Court in Ex parte Fountain. Ex parte Fountain, 842 So.2d at 727. Indeed, this Court in Ex parte Fountain made it clear that the petition for the writ of certiorari was granted

"to determine whether [Fountain's] right to due process was violated by the State's failure to serve him with a copy of its appellee's brief on Fountain's appeal of the denial of his first Rule 32, Ala. R.Crim. P., petition and by the failure of the Court of Criminal Appeals to enforce his right to a copy of the State's brief and to accord him a fair opportunity to reply to it. We reverse and remand on that issue. The State has not sought certiorari review of the aspect of the judgment of the Court of Criminal Appeals affirming the trial court in its granting Fountain an out-of-time appeal."³

842 So.2d at 727 (emphasis added). The issue was not raised by Fountain's certiorari petition; certiorari review was not granted as to it; and it was, therefore, not before this Court in Ex parte Fountain. See Ex parte Hodges, 856 So.2d 936, 949 n. 2 (Ala.2003)("We have addressed only those issues relating to Hodges's sentence, because his petition for certiorari review does not raise questions relating to his conviction."); and Ex parte MacEwan, 860 So.2d 896, 897 n. 1 (Ala.2002) (Court declined to consider the issue whether the trial court erroneously found MacEwan's ineffective-assistance-of-counsel claim to be time-barred because the issue "was not raised by either party on this certiorari review").

Having concluded that Ex parte Fountain provides no basis for the Court of Criminal Appeals' decision in this case, we turn to the other case upon which the Court of Criminal Appeals relied: Brooks v. State, supra. In Brooks, the Court of Criminal Appeals relied upon the four-month-old decision in Ex parte Fountain and on Ex parte Johnson, 806 So.2d 1195 (Ala.2001), to justify its conclusion that Brooks was entitled to an out-of-time appeal from the dismissal of his Rule 32 petition if, on remand, the circuit court concluded (1) that Brooks never received notice of the circuit court's order denying his Rule 32 petition, or (2) that the 42-day period for filing a notice of appeal, Rule 4(b)(1), Ala. R.App. P., had run before Brooks received his copy of the order. Ex parte Fountain provides no support for this conclusion; neither does Ex parte Johnson, supra.

In Ex parte Johnson, this Court found that Bonnide Johnson "was not notified that his Rule 32 petition was denied" — even though he had "asked, through the office of the circuit clerk, that he be notified of material developments in his case" — "and the 42-day period during which he could have appealed that denial has expired." 806 So.2d at 1197. This Court relied upon and quoted Ex parte Weeks, in which this Court stated:

"`Although it is generally held in Alabama that a party is under a duty to follow the status of his case, whether he is represented by counsel or acting pro se, and that, as a general rule, no duty rests upon either the court or the opposing party to advise that party of his scheduled trial date, see the cases collected at 18A Ala. Digest Trial § 9(1)(1956), a party's right to procedural due process is nonetheless violated if he is denied his day in court because the court, acting through its clerk, assumed the duty of notifying that party of his scheduled trial date and then negligently failed to do so.'"

806 So.2d at 1197 (quoting Ex parte Weeks, 611 So.2d at 262)(emphasis added). This Court in Ex parte Weeks made it clear that procedural-due-process concerns arose when the court assumed a duty of notification...