McGowan v. State

• Citation: 346 So.3d 1
• Decision Date: 12 July 2019
• Docket Number: CR-18-0173
• Parties: Walter MCGOWAN v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

346 So.3d 1

Walter MCGOWAN

v.STATE of Alabama

CR-18-0173

Court of Criminal Appeals of Alabama.

July 12, 2019

Rehearing Denied August 18, 2019

Sammie D. Shaw, Birmingham, for appellant.

Steve Marshall, att'y gen., and Beth Slate Poe, asst. att'y gen.

PER CURIAM.

Walter McGowan appeals from an order revoking his split sentences. On December 18, 2017, McGowan pleaded guilty to first-degree burglary, a violation of § 13A-7-5, Ala. Code 1975, first-degree robbery, a violation of § 13A-8-41, Ala. Code 1975, second-degree assault, a violation of § 13A-6-21, Ala. Code 1975, obstruction of justice, a violation of § 13A-8-194, Ala. Code 1975, and third-degree escape, a violation of § 13A-10-33, Ala. Code 1975.¹ For each conviction, the Jefferson Circuit Court sentenced McGowan, who is a habitual felony offender, pursuant to the voluntary-sentencing guidelines to 15 years in prison; those sentences, however, were split, and McGowan was sentenced to serve 5 years in prison, followed by 2 years on probation. The sentences were ordered to run concurrently. On February 23, 2018, a motion to revoke McGowan's split sentences was filed. Following a hearing, the circuit court revoked McGowan's split sentences, and McGowan now appeals.

On appeal, McGowan argues, as he did at the revocation hearing, that his sentences are illegal. He further contends that the circuit court's order revoking his allegedly illegal split sentences must be vacated. Specifically, McGowan argues that the circuit court did not have authority under § 15-18-8(a), Ala. Code 1975, a part of the Split-Sentence Act, to split his 15-year sentences to any period of confinement over 3 years.

At the time of most of McGowan's offenses in 2016,² § 15-18-8, Ala. Code 1975, the Split-Sentence Act, provided, in relevant part:

"(a) When a defendant is convicted of an offense, other than a sex offense involving a child as defined in Section 15-20A-4(26), [Ala. Code 1975,] that constitutes a Class A or Class B felony offense and receives a sentence of 20 years or less in any court having jurisdiction to try offenses against the State of Alabama and the judge presiding over the case is satisfied that the ends of justice and the best interests of the public as well as the defendant will be served thereby, he or she may order:

"(1) That a defendant convicted of a Class A or Class B felony be confined in a prison, jail-type institution, or treatment institution for a period not exceeding three years in cases where the imposed sentence is not more than 15 years, and that the execution of the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary and that the defendant be placed on probation for such period and upon such terms as the court deems best.

"....

"(b) Unless a defendant is sentenced to probation, drug court, or a pretrial diversion program, when a defendant is convicted of an offense that constitutes a Class C or D felony offense and receives a sentence of not more than 15 years, the judge presiding over the case shall order that the convicted defendant be confined in a prison, jail-type institution, treatment institution, or community corrections program for a Class C felony offense ... for a period not exceeding two years in cases where the imposed sentence is not more than 15 years, and that the execution of the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary and that the defendant be placed on probation for a period not exceeding three years and upon such terms as the court deems best. ..."

(Emphasis added.)

The circuit court imposed 5-year periods of confinement on sentences that did not exceed 15 years in prison. As McGowan correctly argues, his sentences for burglary and robbery, which were Class A or B felonies, are illegal because the sentences exceed the three-year maximum period of confinement under the applicable version of § 15-18-8(a)(1). This Court also notes that McGowan had three Class C felony convictions -- second-degree assault, obstruction of justice, and third-degree escape. Under the applicable version of § 15-18-8(b), the maximum period of confinement McGowan could receive for those convictions, where the sentence imposed is not more than 15 years, is 2 years.

In support of his claim that the revocation order must be vacated, McGowan cites to this Court's decision in Enfinger v. State, 123 So. 3d 535 (Ala. Crim. App. 2012). In Enfinger, this Court addressed the effect of probation revocation following the imposition of an illegal sentence.

"In Enfinger, Enfinger pleaded guilty to sexual abuse of a child under 12, see § 13A-12-69.1, Ala. Code 1975, and his sentence was split; Enfinger's probation was eventually revoked, and he appealed. On appeal, this Court first recognized that, because of the nature of Enfinger's offense -- ‘a criminal sex offense involving a child’ -- ‘the circuit court did not have the authority to either impose a split sentence or to impose a term of probation.’ Enfinger, 123 So. 3d at 537. Therefore, this Court concluded that the circuit court's purported probation-revocation order was unauthorized because the circuit court ‘had no authority to conduct a probation-revocation hearing and revoke Enfinger's probation.’ Enfinger, 123 So. 3d at 538."

Scott v. State, 148 So. 3d 458, 462-63 (Ala. Crim. App. 2013).

In Enfinger, Scott, and the cases that flowed therefrom, this Court has held that if the split portion of a defendant's sentence was unauthorized, then the circuit court was likewise unauthorized to revoke the defendant's probation or split sentence. See Hicks v. State, 138 So. 3d 338 (Ala. Crim. App. 2013) ; Pardue v. State, 160 So. 3d 363 (Ala. Crim. App. 2013) ; Brown v. State, 142 So. 3d 1269 (Ala. Crim. App. 2013) ; Adams v. State, 141 So. 3d 510 (Ala. Crim. App. 2013) ; Holley v. State, 212 So. 3d 967 (Ala. Crim. App. 2014) ; Mewborn v. State, 170 So. 3d 709 (Ala. Crim. App. 2014) ; McNair v. State, 164 So. 3d 1179 (Ala. Crim. App. 2014) ; and Belote v. State, 185 So. 3d 1154 (Ala. Crim. App. 2015). Nonetheless, the State contends that, even if the split portions of McGowan's initial sentences were unauthorized, this issue is moot because McGowan is no longer serving a split sentence.

The periods of confinement imposed on McGowan's sentences were not authorized by § 15-18-8. Enfinger, if followed, would dictate that this Court hold that the circuit court did not have the authority to revoke McGowan's split sentences and that this Court remand the case back to the circuit court so that McGowan could be resentenced. However, upon reexamining Enfinger, this Court now believes that the decision in Enfinger was an unnecessary departure from this Court's previous position that the removal of the illegal manner of execution of a sentence renders the illegality moot. See Kenney v. State, 949 So. 2d 192, 193 n.1 (Ala. Crim. App. 2006) (recognizing that the circuit court's imposition of an illegal probationary period was rendered moot when the defendant's probation was revoked); Williams v. State, 535 So. 2d 197, 198 (Ala. Crim. App. 1988) ("[A]ny question pertaining to appellant's sentence is now moot, since appellant's probation term has been terminated.").

In her dissent in Enfinger, Presiding Judge Windom disagreed with the majority's holding that, because it did not have the authority to split Enfinger's sentence or to impose a term of probation, the circuit court in that case had no authority to conduct a probation-revocation hearing or to revoke Enfinger's probation. Presiding Judge Windom stated:

"[T]his Court has ‘held that when the circuit court does not have the authority to split a sentence under the Split-Sentence Act, § 15-18-8, Ala. Code 1975, "the manner in which the [circuit] court split the sentence is illegal[,]" Austin v. State, 864 So. 2d 1115, 1118 (Ala. Crim. App. 2003), and ... "[m]atters concerning unauthorized sentences are jurisdictional." Hunt v. State, 659 So. 2d 998, 999 (Ala. Crim. App. 1994).’ 123 So. 3d at 537. Further, it is well settled that a court can and should correct a jurisdictional error at any time. See Ex parte Peterson, 884 So. 2d 924, 926 (Ala. Crim. App. 2003) (‘A court can notice a jurisdictional defect at any time and has a duty to correct the defect.’). Here, the circuit court corrected a jurisdictional defect -- it removed the illegality in the manner in which Enfinger executes his sentence -- and, because the defect was jurisdictional, the circuit court had the authority to do so. Id."

Enfinger, 123 So. 3d at 541-42 (Windom, P.J., dissenting).

Presiding Judge Windom further stated that, when the circuit court revoked Enfinger's probation and imposed Enfinger's original sentence, the illegal split had been removed, rendering moot any error in the circuit court's decision to split the sentence. Presiding Judge Windom explained:

"Enfinger's sentence, as a habitual felon with two prior felonies, to 20 years in prison for the crime of sexual abuse of a child less than 12, see § 13A-6-69.1, Ala. Code 1975, a class B felony, was within the statutory range of punishment. See § 13A-5-9(b)(2), Ala. Code 1975 (‘In all cases when it is shown that a criminal defendant has been previously convicted of any two felonies and after such convictions has committed another felony, he or she must be punished ... [o]n conviction of a Class B felony, [to] imprisonment for life or [to] any term of not more than 99 years but not less than 15 years.’). Accordingly, Enfinger's sentence of 20 years in prison was not illegal.

"However, the manner in which Enfinger was to execute his sentence -- a split sentence with time served followed by 3 years of probation -- was illegal. Before trial, Enfinger pleaded guilty to sexual abuse of a child less than 12, a criminal sex offense against a child. Because Enfinger was convicted of a criminal sex offense against a child, the circuit court did not have the authority to impose a

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