McBurnett v. State

• Decision Date: 01 June 2018
• Docket Number: CR–16–1324
• Citation: 266 So.3d 122
• Parties: Martin Tracy MCBURNETT v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

266 So.3d 122

Martin Tracy MCBURNETT

v.STATE of Alabama

CR–16–1324

Court of Criminal Appeals of Alabama.

June 1, 2018

Martin Tracy McBurnett, pro se.

Steve Marshall, atty. gen., and Laura I. Cuthbert, asst. atty. gen., for appellee.

WELCH, Judge.

Martin Tracy McBurnett appeals from the circuit court's summary denial of his Rule 32, Ala. R. Crim. P., petition. The petition challenged his convictions, following his entry of "best-interest" guilty pleas¹ to: first-degree unlawful possession of marijuana, a violation of § 13A–12–213, Ala. Code 1975; first-degree rape, a violation of § 13A–6–61, Ala. Code 1975; two counts of first-degree sodomy, a violation of § 13A–6–63; sexual abuse of a child less than 12 years old, a violation of § 13A–6–69.1, Ala. Code 1975; and production of pornographic material depicting a minor, a violation of § 13A–12–197, Ala. Code 1975. The circuit court sentenced McBurnett to 10 years' imprisonment for the first-degree-possession-of-marijuana conviction; life imprisonment for the rape conviction; life imprisonment for each of his two sodomy convictions; 20 years' imprisonment for his sexual-abuse conviction; and life imprisonment for his conviction for the production of child pornography. The circuit court ordered that the sentences run consecutively. On October 30, 2009, McBurnett's convictions were affirmed on direct appeal, by unpublished memorandum. McBurnett v. State (No. CR-08-1149), 64 So.3d 1156 (Ala. Crim. App. 2009) (table). The certificate of final judgment was issued on February 16, 2010. McBurnett timely filed the instant Rule 32 petition on February 15, 2011.² Subsequently, he filed three amendments³ to his petition. McBurnett's third and final amendment was filed on March 9, 2015. On March 17, 2015, the circuit court entered an order accepting McBurnett's amendments. On July 17, 2017, the State filed a motion to dismiss McBurnett's petition. On July 31, 2017, the circuit court entered an order addressing McBurnett's numerous claims. The circuit court vacated the plea of guilty to and accompanying sentence for sexual abuse of a child less than 12 years old. The circuit court otherwise granted the State's motion to dismiss the petition.

On August 28, 2017, McBurnett filed a motion to alter, amend, or vacate the July 31, 2017, order denying the petition and amendments. The circuit court denied the motion on August 30, 2017. On September 5, 2017, McBurnett filed a motion to supplement his motion to alter, amend, or vacate the July 31, 2017, order denying his petition. That motion was not ruled on. On September 6, 2017, McBurnett filed a motion to reconsider the order of July 31, 2017. That motion was not ruled on.

McBurnett appealed.

Appeal

Appellate review from the denial of a Rule 32, Ala. R. Crim. P., petition is undertaken with consideration of the following. "The petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds." Rule 32.6(b), Ala. R. Crim. P. It is the petitioner's burden to plead in the petition a factual basis that, if proven to be true, reflects that the petitioner is entitled to relief from his sentence and/or conviction. Rule 32.3, Ala. R. Crim. P. " ‘The standard of review on appeal in a postconviction proceeding is whether the trial judge abused his discretion when he denied the petition. Ex parte Heaton, 542 So.2d 931 (Ala.1989).’ Elliott v. State, 601 So.2d 1118, 1119 (Ala.Cr.App.1992)." Strickland v. State, 771 So.2d 1123, 1125 (Ala. Crim. App. 1999). However, "when the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo." Ex parte White, 792 So.2d 1097, 1098 (Ala. 2001). Moreover, except for utilizing on appeal a preclusionary bar, which neither the State pleaded, nor the circuit court cited, "when reviewing a circuit court's rulings made in a postconviction petition, we may affirm a ruling if it is correct for any reason." Bush v. State, 92 So.3d 121, 134 (Ala. Crim. App. 2009). A circuit court may summarily dismiss a petitioner's Rule 32 petition pursuant to Rule 32.7(d), Ala. R. Crim. P.,

"[i]f the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition."

See also Hannon v. State, 861 So.2d 426, 427 (Ala. Crim. App. 2003) ; Cogman v. State, 852 So.2d 191, 193 (Ala. Crim. App. 2002) ; Tatum v. State, 607 So.2d 383, 384 (Ala. Crim. App. 1992).

Moreover, to prevail on an ineffective-assistance-of-counsel claim, a Rule 32 petitioner must satisfy the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, a petitioner must identify the specific acts or omissions he or she alleges were not the result of reasonable professional judgment on counsel's part and show that these acts or omissions fall "outside the wide range of professionally competent assistance." 466 U.S. at 690. If a petitioner meets this burden, he or she must then show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id."The likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 792, 178 L.Ed.2d 624 (2011) (citing Strickland, 466 U.S. at 693 ). "A bare allegation that prejudice occurred without specific facts indicating how the petitioner was prejudiced is not sufficient." Hyde v. State, 950 So.2d 344, 356 (Ala. Crim. App. 2006). In the context of guilty-plea proceedings, this Court has held:

"When an appellant's claim of ineffective assistance of counsel arises from alleged errors committed by counsel in the guilty plea process, the prejudice prong of the Strickland analysis is satisfied by the appellant's establishing ‘that there is a reasonable probability that, but for counsel's errors, he could not have pleaded guilty and would have insisted on going to trial.’ "

Culver v. State, 549 So.2d 568, 572 (Ala. Crim. App. 1989) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ).

Also, "[u]nrefuted allegations in a postconviction petition must be accepted as true." McCary v. State, 93 So.3d 1002, 1008 (Ala. Crim. App. 2011), citing Ex parte Hodges, 147 So.3d 973 (Ala. 2011) ; Archie v. State, 6 So.3d 566 (Ala. Crim. App. 2008) ; Poole v. State, 988 So.2d 604 (Ala. Crim. App. 2007) ; and Thomas v. State, 908 So.2d 308 (Ala. Crim. App. 2004).

Finally, this Court may take judicial notice of the appellate record filed in McBurnett's direct appeal. See Hull v. State, 607 So.2d 369, 371 (Ala. Crim. App. 1992) (noting that this Court may take judicial notice of its own records); Ex parte Salter, 520 So.2d 213, 216 (Ala. Crim. App. 1987) (same).

I.

McBurnett contends as a substantive error and as ineffective assistance of counsel that, during the guilty-plea proceedings, he was misinformed of the range of punishment and was not informed that the trial court could order that to be served concurrently or consecutively. Specifically, as to the minimum sentence, he asserts that he was told that the minimum sentence for his sex offenses was 10 years when it was actually 20 years. At the time of his conviction, § 13A–5–6(a)(5), Ala. Code 1975, stated that a sentence for a "Class A felony criminal sex offenses involving a child as defined in Section 15–20–21(5)" was not less than 20 years.

As previously stated, McBurnett filed his final amendment on March 9, 2015, and the circuit court issued its final order of judgment on July 31, 2017. On August 28, 2017, McBurnett filed a motion asking the circuit court to alter, amend, or vacate its July 31, 2017, order denying McBurnett's petitions and grant him relief. This motion presented for the first time the claims that he was misinformed of the range of punishment and that he was not informed that his sentences could be served concurrently or consecutively.

By presenting new claims in the motion to amend, McBurnett was in essence seeking another amendment to his petition. "Amendments to pleadings may be permitted at any stage of the proceeding prior to the entry of judgment." Rule 32.7(b), Ala. R. Crim. P.; Allen v. State, 825 So.2d 264, 268 (Ala. Crim. App. 2001) (noting that amendments to Rule 32 petition should be "freely allowed"; however, "such amendments are permitted only ‘prior to the entry of judgment.’ Rule 32.7(b), Ala. R. Crim. P.").

Moreover, because the claims were not presented in McBurnett's petition or any of the amended petitions filed before the circuit court entered its judgment, they were not properly before the circuit court and are not now properly before this Court. "An appellant cannot raise an issue on appeal from the denial of a Rule 32 petition which was not raised in the Rule 32 petition." Arrington v. State, 716 So.2d 237, 239 (Ala. Crim. App. 1997).

Moreover, these issues do not present a jurisdictional challenge allowing this Court to take notice ex mero motu. The trial court's failure to inform McBurnett that he could be ordered to serve consecutive sentences if he pleaded guilty and the trial court's failure to advise him of the maximum and minimum sentence on his guilty pleas go to the voluntariness of the pleas. A challenge to the voluntariness of a guilty plea is not jurisdictional. Fincher v. State, 837 So.2d 876, 878 (Ala. Crim. App. 2002) ; Cantu v. State, 660 So.2d 1026 (Ala. Crim. App. 1994) (holding that issue regarding failure to advise an appellant of the maximum...