McGuire v. State

Decision Date09 July 2021
Docket NumberCR-19-0714
PartiesCraig Ray McGuire v. State of Alabama
CourtAlabama Court of Criminal Appeals

Craig Ray McGuire
v.
State of Alabama

CR-19-0714

Alabama Court of Criminal Appeals

OCTOBER TERM, 2020-2021
July 9, 2021


Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from St. Clair Circuit Court
(CC-06-183.60 and CC-06-197.60)

COLE, Judge.

Craig Ray McGuire appeals the circuit court's summary dismissal of his Rule 32, Ala. R. Crim. P., petition for postconviction relief, challenging his convictions and resulting sentences for third-degree burglary, a

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violation of § 13A-7-7, Ala. Code 1975, and for his violation of Alabama's Community Notification Act ("CNA"), see § 15-20-23(a), Ala. Code 1975 (repealed).1 The convictions and sentences were imposed pursuant to an agreement between the parties. The State asserts that McGuire is not entitled to relief and argues that this case should be remanded with instructions for the circuit court to increase McGuire's sentence in the case involving his violation of the CNA because Alabama's Habitual Felony Offender Act, see § 13A-5-9, Ala. Code 1975 ("HFOA"), was not applied to that conviction.

Facts and Procedural History

On October 5, 2006, McGuire pleaded guilty to third-degree burglary and to a violation of the CNA. Pursuant to a negotiated agreement with the State, McGuire was sentenced to 20 years' imprisonment for his third-degree-burglary conviction, which sentence was split and McGuire was ordered to serve 3 years' imprisonment, followed by 17 years of probation,

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and to 10 years' imprisonment for his CNA conviction, which sentence was split and he was ordered to serve 3 years' imprisonment, followed by 7 years of probation. (C. 52-64.) The written plea agreement signed by the State, McGuire, and his trial counsel indicates that McGuire had at least six prior felony convictions. (C. 41.) The circuit court's sentencing order for both offenses shows that the HFOA was invoked by the State and granted by the circuit court. (C. 56, 62.) And, although McGuire's third-degree-burglary sentence falls within the range of punishment as provided in the HFOA, McGuire's sentence for his CNA conviction falls below the minimum sentence he could receive under the HFOA, see § 13A-5-9(c)(1), Ala. Code 1975. McGuire did not appeal, and the State did not complain either in the trial court or in this Court about the sentences imposed.

About 15 years after the agreement was accepted and McGuire was convicted and sentenced, he filed a Rule 32 petition, his first. In his petition, McGuire alleged (1) that his CNA conviction and sentence must be vacated because the offense was based on an "out-of-state charge from Florida" that was committed when he was a juvenile and that was the result of "nolo contendere" plea (C. 19-20); (2) that the "State presented

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evidence to the Grand Jury of St. Clair County that was wrong, false, ... misleading and prejudicing" (C. 20); (3) that his sentences for his burglary conviction and his CNA conviction are illegal because "[t]he terms of probation given on each case exceed that what is allowable by law" (C. 21); (4) that his sentences are illegal because the "State used [a] nolo contendere plea from Florida to place [him] under [the] Habitual Felony Offender Act (HFOA)" (C. 21); (5) that his CNA conviction "violated the 'Double Jeopardy Clause' " because "the State is relying on [an] out of state nolo contendere plea" to not only charge him with a violation in this case, but also charge him with a second violation on a separate occasion (C. 22); (6) that his trial counsel was ineffective because his trial counsel "refused to argue a fact of law that could have caused a different outcome had they done so" (C. 22); and (7) that requiring him to register as a sex offender for an offense that predates the establishment of the CNA violates the ex post facto clause of the United States Constitution (C. 23-24). To support his allegations, McGuire attached several exhibits to his petition.

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On April 9, 2020, the State moved to dismiss McGuire's Rule 32 petition. (C. 46-51.) In its motion, the State alleged that McGuire's claims were meritless, that they were insufficiently pleaded, that they were precluded under Rule 32.2(a)(3) and (5), Ala. R. Crim. P., because they could have been raised at trial or on appeal but were not, and that they were time-barred under Rule 32.2(c), Ala. R. Crim. P. The State also alleged that McGuire's ineffective-assistance-of-counsel claim was precluded under Rule 32.2(d), Ala. R. Crim. P. To support its allegations, the State attached several exhibits to its motion. The State did not argue to the circuit court that McGuire needed to be resentenced for either of his convictions.

On April 15, 2020, the circuit court issued a written order summarily dismissing McGuire's petition. (C. 67-69.) This appeal follows.

Standard of Review

It is well settled that a circuit court may summarily dismiss a 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

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the petitioner to relief under this rule and that no purpose would be served by any further proceedings...."

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).

When reviewing a circuit court's summary dismissal of a postconviction petition " '[t]he standard of review this Court uses ... is whether the [circuit] court abused its discretion.' " Lee v. State, 44 So. 3d 1145, 1149 (Ala. Crim. App. 2009) (quoting Hunt v. State, 940 So. 2d 1041, 1049 (Ala. Crim. App. 2005)). If the circuit court bases its determination on a " 'cold trial record,' " however, we apply a de novo standard of review. Ex parte Hinton, 172 So. 3d 348, 353 (Ala. 2012). Moreover, subject to certain exceptions that are not applicable here, "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).

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Discussion

On appeal, McGuire argues that the circuit court erred when it summarily dismissed his Rule 32 petition because, he says, (1) his trial counsel was ineffective (McGuire's brief, p. 16); (2) "the 2005 Amendment to the SORNA act that specifically targeted people with pleas of Nolo Contendere in their history is illegal and cannot be applied to [him]" (McGuire's brief, pp. 16-17); (3) the State used a prior sex-offense conviction from the State of Florida that, he says, was based on "a plea of Nolo Contendre" to "arrest [him] and charge for failure to register as adult sex offender -- a felony," "used to indict [him] as adult sex offender," and used to "enhance [his] sentence under H.F.O.A." (McGuire's brief, pp. 13-14); and (4) his sentences are illegal because the terms of probation exceed five years (McGuire's brief, p. 15).

The State argues that, although none of McGuire's arguments on appeal entitle him to relief, this Court must remand this case to the circuit court to have that court resentence McGuire because the 10-year sentence for his CNA conviction is illegal because it falls below the minimum sentence he could receive under the HFOA. We first address

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McGuire's arguments on appeal and then turn to the State's request to remand this case to the circuit court to increase McGuire's 10-year sentence.

I.

As set out above, McGuire argues that the circuit court erred when it summarily dismissed his claims that his counsel was ineffective, that the CNA is "illegal and cannot be applied to [him]," and that he was improperly arrested, charged, and indicted for failing to register as a sex offender when that sex-offense conviction was based on a sex offense from Florida that was the result of a nolo contendre plea. McGuire's claims, however, are nonjurisdictional and, thus, are subject to the grounds of preclusion set out in Rule 32.2, Ala. R. Crim. P. See, e.g., Ex parte Seymour, 946 So. 2d 536, 539 (Ala. 2006) ("A defendant who challenges a defective indictment is thus subject to the same preclusive bars as one who challenges any other nonjurisdictional error, such as illegal seizure or a violation of the Confrontation Clause."); Griggs v. State, 980 So. 2d 1031 (Ala. Crim. App. 2006) (a challenge to the constitutionality of a statute is a nonjurisdictional claim and is subject to the procedural bars

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of Rule 32.2); and Cogman v. State, 852 So. 2d 191, 192 (Ala. Crim. App. 2002) ("An ineffective assistance of counsel claim is not jurisdictional; therefore, it is subject to the two-year limitations period in Rule 32.2(c)."). Because McGuire raised these claims well after the limitations period in Rule 32.2(c), Ala. R. Crim. P., had passed, the circuit court correctly dismissed these claims as time-barred.

II.

McGuire also argues that the circuit court erred when it summarily dismissed his claims that the State used a nolo contendre plea to improperly enhance his sentence2 under the HFOA and that his sentences are illegal because the terms of probation exceed five years. Although McGuire's claims are jurisdictional, in the sense that they are not subject to the grounds of preclusion set out in Rule 32.2, see, e.g., Ex parte Trawick, 972 So. 2d 782, 783 (Ala. 2007) ("Trawick's claim that his sentence is illegal under the HFOA presents a jurisdictional claim"), and Minshew v. State, 975 So. 2d 395 (Ala. Crim. App. 2007) (holding that a

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challenge to the length of a term of probation...

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