McLester v. State, 4 Div. 294

• Decision Date: 13 November 1984
• Docket Number: 4 Div. 294
• Citation: 460 So.2d 870
• Parties: Terry Wayne McLESTER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 870

460 So.2d 870

Terry Wayne McLESTER v. STATE.

4 Div. 294.

Court of Criminal Appeals of Alabama.

Nov. 13, 1984.

William J. Baxley of Baxley, Beck, Dillard & Dauphin and Jeffrey H. Long, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.

PATTERSON, Judge.

The appellant, Terry Wayne McLester, appeals the trial court's dismissal of his petition for writ of habeas corpus, or in the alternative, petition for writ of error coram nobis. Among the allegations in his petition, McLester alleged that his sentence of life without the possibility of parole is violative of the eighth amendment proscription against cruel and unusual punishment, for it is disproportionate to the crime committed and it is the result of the application of the Alabama Habitual Felony Offender Act in which seven prior felony convictions arising out of a single occurrence were considered as seven separate felonies rather than as a single offense.

These allegations were supported by the following facts either alleged in McLester's petition or elicited at a hearing on the petition's merits:

McLester was indicted and convicted on November 17, 1981, for the offense of robbery in the first degree. Regarding this offense, McLester testified that, prior to the robbery, he had drunk about a case of beer and probably smoked "a couple of joints;" however, he did not testify at his robbery trial. He was on work release at the time of the robbery.

For this conviction of first degree robbery, McLester was sentenced to life imprisonment without the possibility of parole. At the time, he was twenty-five years old. His sentence was pursuant to the mandate of the Habitual Felony Offender Act, for McLester had pleaded guilty in 1979 to seven charges of burglary in the second degree. These convictions are the consequences of a common event in which McLester broke into a mall and then proceeded to break into several stores. McLester claimed that between about dark and after midnight when he broke into the mall, he had drunk probably a bottle of whiskey, smoked "about twenty joints", and snorted three or four grams of cocaine.

I

McLester first argues that the trial court erred in denying his petition on the ground that his sentence is so disproportionate to the offense committed that it violates the eighth amendment's prohibition against cruel and unusual punishment. ¹ He claims that the disproportionate sentence is a result of the trial court's treatment of the seven felony convictions arising out of one continuous action and entered upon guilty pleas on the same day as seven separate convictions rather than as a single conviction.

These assertions were decided adversely to McLester in the direct appeal of his conviction for robbery in the first degree and his sentence of imprisonment for life without possibility of parole. In McLester v. State, 423 So.2d 286 (Ala.Cr.App.1982), the court relied on Seritt v. State, 401 So.2d 248 (Ala.Cr.App.), cert. denied, 401 So.2d 251 (Ala.1981), in holding that McLester's seven convictions arising out of a common occurrence properly constituted seven separate convictions for the implementation of the Habitual Felony Offender Act. 423 So.2d at 289-90. The court further ruled that McLester's mandatory punishment of imprisonment for life without parole does not constitute cruel and unusual punishment, for it is not excessive in light of the underlying prior convictions. 423 So.2d at 290.

McLester urges our reconsideration of these issues in light of the recent United States Supreme Court opinion of Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), in which the Supreme Court explicitly held that a noncapital punishment could be so excessive in length as to be disproportionate to the defendant's crime, thus violating the eighth amendment. Helm's punishment pursuant to a recidivist statute was imprisonment for life without the possibility of parole. This enhanced punishment was authorized pursuant to six prior offenses which involved nonviolent property crimes and were alcohol-related and to a subsequent conviction for uttering a "no-account" check in the amount of $100. The majority (five to four) held "that a criminal sentence must be proportionate to the crime for which the defendant has been convicted." 103 S.Ct. at 3009. The Court set forth the following objective factors to be weighed by a court in its proportionality analysis: (i) an assessment of the gravity of the offense and the harshness of the penalty; (ii) a comparison of the punishment with the sentences imposed on other convicted defendants in the same jurisdiction; and (iii) a comparison of the punishment with the sentences imposed for the commission of the same crime in other jurisdictions. 103 S.Ct. at 3011.

However, even in stressing the general rule and the test to be followed in ascertaining whether a sentence bears a reasonable relationship to the crime, the Court indicated its intention that the application of this proportionality analysis be limited, for it stated the issue in Solem as an extremely narrow one: "[W]hether the Eighth Amendment proscribes a life sentence without possibility of parole for a seventh nonviolent felony." 103 S.Ct. at 3004 (emphasis added). ² In observing the Court's expression of its narrow holding in Solem, we have declined to apply the Solem test if the "triggering" offense is one which the legislature has classed as a serious "life-endangering" crime, such as robbery in the first degree. Casey v. State, 456 So.2d 1161 (Ala.Cr.App.1984). ³ Unless the factual situation before the appellate court presents a "triggering offense" which is one of the less serious offenses, Solem is "factually different and therefore inapposite." Seritt v. Alabama, 731 F.2d 728, 732 (11th Cir.1984). Because McLester's "triggering offense" is first degree robbery, the Solem analysis is not applicable.

In further contrasting the instant facts with those in Solem, we recognize that McLester's sentence was mandated by the Alabama Habitual Felony Offender Act, while Helm's life sentence was merely authorized as within the statutory limitation, rather than mandated. In Solem, the length of the sentence actually imposed was within the trial court's discretion, while, in the instant case, it was mandated by legislative act. Thus, the avoidance of judicial intrusion into the legislative mandate as advanced by the United States Supreme Court in Rummel v. Estelle, 445 U.S. 263, 274-75, 279-85 & n. 27, 100 S.Ct. 1133, 1139, 1142-45 & n. 27, 63 L.Ed.2d 382 (1979), is of more appropriate significance in the instant case than it was in Solem. See Case Comment, Solem v. Helm: Extension of Eighth Amendment Proportionality Review to Noncapital Punishment, 69 Iowa L.Rev. 775, 783, 793-94 (1984). Accordingly, we reiterate the Rummel Court's proposal that "the length of the sentence actually imposed is purely a matter of legislative prerogative." 445 U.S. at 274, 100 S.Ct. at 1139. A legislatively mandated sentence carries a presumption of validity, because the legislature presumably considered proportionality objectives when it defined the offense and set the corresponding penalty; Solem provides constitutional protection in the event the legislative standards fail. Case Comment, supra, at 793-94. In regard to McLester's sentence, we are given no reason why the Alabama legislature's definite expression of the public interest in setting the punishment for robbery in the first degree should not be given the substantial deference recognized by the Rummel Court and reiterated by the Solem Court when it stated: "Reviewing courts, of course should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes...." 103 S.Ct. at 3009. See also id. at n. 16.

Aside from these factual distinctions limiting the observation of the Solem proportionality review, the Court indicated that its opinion should not be construed to hold that extensive appellate review of all prison sentences is constitutionally mandated, for the Court noted:

"[W]e do not adopt or imply approval of a general rule of appellate review of sentences. Absent specific authority, it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence; rather, in applying the Eighth Amendment the appellate court decides only whether the sentence under review is within constitutional limits. In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate."

Solem, 103 S.Ct. at 3009, n. 16. Likewise, as observed by the Rummel Court, a proportionality principle would come into play in an "extreme example" such as "if a legislature made overtime parking a felony punishable by life imprisonment." 445 U.S. at 274, n. 11, 100 S.Ct. at 1139, n. 11. Thus, "[i]n many cases, an eighth amendment claim attacking a prison sentence will require only the most cursory review by a court before a finding of constitutionality is made." Note, Solem v. Helm: Extending Judicial Review Under the Cruel and Unusual Punishments Clause to Require "Proportionality" of Prison Sentences, 33 Cath.U.L.Rev. 479, 514 (1984). See also Moreno v. Estelle, 717 F.2d 171, 179, 180 &amp n. 10 (5th Cir.1983) (recognizing that a cursory analysis per Solem is required unless Rummel applies and controls those facts not clearly distinguishable from the Rummel facts).

The instant case is not an "extreme example" requiring us to engage in an extended analysis of McLester's eighth amendment claim. On numerous occasions, this court has upheld the mandatory sentence of life without parole for a conviction...