McGowan v. State (Ex parte McGowan)

• Decision Date: 30 April 2021
• Docket Number: 1190090
• Citation: 346 So.3d 10
• Parties: EX PARTE Walter MCGOWAN (In re: Walter McGowan v. State of Alabama )
• Court: Alabama Supreme Court

346 So.3d 10

EX PARTE Walter MCGOWAN

(In re: Walter McGowan

v.State of Alabama )

1190090

Supreme Court of Alabama.

April 30, 2021

Sammie D. Shaw, Birmingham, for petitioner.

Steve Marshall, att'y gen., and Edmund G. LaCour, Jr., solicitor gen., Kelsey J. Curtis, asst. solicitor gen., and Beth Slate Poe, asst. att'y gen., for respondent.

STEWART, Justice.

This Court granted certiorari review to determine whether the Court of Criminal Appeals erred in affirming the order of the Jefferson Circuit Court ("the trial court") revoking Walter McGowan's probation. We conclude that the trial court was without jurisdiction to conduct probation-revocation proceedings and to enter the probation-revocation order. Therefore, we reverse the Court of Criminal Appeals’ judgment and remand the cause.

Facts and Procedural History

McGowan, a habitual felony offender, pleaded guilty in the trial court 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. Adhering to the voluntary sentencing guidelines, the trial court sentenced McGowan to 15 years’ imprisonment for each conviction, but it split the sentences, ordering McGowan to serve 5 years in prison followed by 2 years’ supervised probation for each conviction. The trial court also ordered the sentences to run concurrently. Subsequently, the State filed a "Motion to Revoke Split Sentence," in which it specifically requested that McGowan's probation be revoked, based on the fact that McGowan had been charged with new felony offenses. The trial court held a revocation hearing and then entered an order revoking McGowan's probation. McGowan appealed to the Court of Criminal Appeals.

Before the Court of Criminal Appeals, McGowan asserted that his sentences -- 15 years, split to serve 5 years in prison followed by 2 years’ probation -- were illegal sentences because they did not comply with § 15-18-8(a)(1) or (b), Ala. Code 1975. McGowan argued that, because his split sentences were unauthorized under § 15-18-8, commonly referred to as the Split-Sentence Act, the trial court had lacked subject-matter jurisdiction to conduct a revocation hearing and to enter an order revoking his probation. Citing Enfinger v. State, 123 So. 3d 535 (Ala. Crim. App. 2012), in which the Court of Criminal Appeals concluded that resentencing the defendant was the sole remedy to cure an unauthorized split sentence, McGowan argued that, because the trial court had lacked jurisdiction, the probation-revocation order was due to be vacated.

The Court of Criminal Appeals held that the split sentences were unauthorized under § 15-18-8 ; however, it declined to follow Enfinger, concluding that the trial court's probation-revocation order imposing the original 15-year sentences had remedied the illegality of the split sentences. The Court of Criminal Appeals explicitly overruled Enfinger, concluding that the probation-revocation order had remedied the illegal manner in which McGowan's sentences were being executed, thus rendering the illegality of the split sentences moot. McGowan v. State, 346 So.3d 1 (Ala. Crim. App. 2019). Judge McCool disagreed with the majority's conclusion and issued a dissenting opinion stating that Enfinger is "a well-reasoned decision" and that the doctrine of stare decisis should compel the court from overruling Enfinger. McGowan, 346 So.3d at 7 (McCool, J., dissenting). The Court of Criminal Appeals overruled McGowan's application for rehearing. This Court granted McGowan's petition for the writ of certiorari to review the Court of Criminal Appeals’ decision.

Standard of Review

" ‘ "This Court reviews pure questions of law in criminal cases de novo." ’ " Ex parte Knox, 201 So. 3d 1213, 1216 (Ala. 2015) (quoting Ex parte Morrow, 915 So. 2d 539, 541 (Ala. 2004), quoting in turn Ex parte Key, 890 So. 2d 1056, 1059 (Ala. 2003) ).

Discussion

I.

At issue in this case is whether the trial court's revocation of McGowan's probation cures the jurisdictional defect arising from the imposition of split sentences that are not authorized under § 15-18-8. The Court of Criminal Appeals correctly concluded that the split sentences imposed by the trial court were not authorized by § 15-18-8. Section 15-18-8 provides, 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 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. ..."¹

Although the 15-year sentences imposed on McGowan were within the authorized range for the offenses to which McGowan pleaded guilty, the trial court had no authority to impose split sentences under § 15-18-8(a)(1) that included a term of confinement in prison for a period exceeding three years for his burglary and robbery convictions and had no authority to impose split sentences under § 15-18-8(b) that included a term of confinement in prison for a period exceeding two years for his assault, obstruction-of-justice, and escape convictions. Accordingly, the trial court improperly imposed split sentences of five years’ imprisonment followed by two years’ probation.

II.

A circuit court derives its jurisdiction from the Alabama Constitution of 1901 and the Alabama Code. Ex parte Seymour, 946 So. 2d 536, 538 (Ala. 2006). Alabama courts have recognized that "[m]atters concerning unauthorized sentences are jurisdictional." Hunt v. State, 659 So. 2d 998, 999 (Ala. Crim. App. 1994). " ‘[A] trial court does not have [subject-matter] jurisdiction to impose a sentence not provided for by statute.’ " Ex parte Butler, 972 So. 2d 821, 825 (Ala. 2007) (quoting Hollis v. State, 845 So. 2d 5, 6 (Ala. Crim. App. 2002) ). This Court has routinely held that the imposition of a sentence in a criminal case that is not authorized by statute creates a jurisdictional defect that is nonwaivable and that can be raised at any time. See Ex parte Batey, 958 So. 2d 339, 341 (Ala. 2006) ("A challenge to an illegal sentence ... is a jurisdictional matter that can be raised at any time."). See also Ex parte Casey, 852 So. 2d 175 (Ala. 2002) (concluding that the convictions for which a defendant received a full pardon were not valid for use as a sentencing enhancement and, thus, that a jurisdictional issue existed regarding the legality of the defendant's sentence, which had been enhanced based on the pardoned convictions); Ex parte Brannon, 547 So. 2d 68, 68 (Ala. 1989) ("[W]hen a sentence is clearly illegal or is clearly not authorized by statute, the defendant does not need to object at the trial level in order to preserve that issue for appellate review."). Although the legality of the underlying 15-year sentences in this case are not in question, the trial court's imposition of the split sentences, which were unauthorized by § 15-18-8, implicates the trial court's jurisdiction not only to impose those sentences, but also to hold subsequent revocation proceedings and to revoke McGowan's probation.

The Court of Criminal Appeals, however, concluded that the revocation of McGowan's probation and the imposition of the original 15-year sentences had remedied the unauthorized portion of the sentences, thus curing any jurisdictional defect. The probation-revocation order, the Court of Criminal Appeals held, rendered moot any error in the trial court's initial decision to split the sentences in a manner contrary to § 15-18-8. In reaching that conclusion, the Court of Criminal Appeals expressly overruled its decision in Enfinger v. State, 123 So. 3d 535 (Ala. Crim. App. 2012), and the line of cases flowing therefrom,² in which that court had concluded that the imposition of a split sentence not authorized under § 15-18-8 divests a trial court of jurisdiction to conduct a revocation hearing and to revoke a defendant's probation or split sentence. Enfinger, 123 So. 3d at 538.

In Enfinger, the defendant pleaded guilty to sexual abuse of a child under the age of 12, a violation of § 13A-6-69.1, Ala. Code 1975. The Baldwin Circuit Court sentenced the defendant to 20 years’ imprisonment, but it ordered that the defendant's sentence be split. Later, the circuit court revoked the defendant's probation....