Miller v. State

Decision Date21 December 2007
Docket NumberCR-06-1148.
Citation1 So.3d 1073
PartiesJohnny MILLER III v. STATE of Alabama.
CourtAlabama Court of Criminal Appeals

Johnny Miller III, pro se.

Troy King, atty. gen., and Robin D. Scales, asst. atty. gen., for appellee.

WELCH, Judge.

Johnny Miller III appeals from the circuit court's summary dismissal of his Rule 32, Ala. R.Crim. P., petition. The petition sought postconviction relief from his December 1, 2004, conviction after a trial by jury for reckless manslaughter in the killing of his wife and his sentence, imposed on January 13, 2005, as a habitual felony offender with one prior felony, of 25 years' imprisonment. His conviction was affirmed on direct appeal by an unpublished memorandum. Miller v. State, 954 So.2d 1142 (Ala.Crim.App.2005) (table). The certificate of judgment was issued on April 14, 2006. The instant petition was deemed filed on January 12, 2007.

In his petition Miller claimed: 1) that trial and appellate counsel had committed numerous instances of ineffective assistance; 2) that the trial court lacked jurisdiction to render judgment and to impose sentence because a plea bargain had been entered into before trial; and 3) that the trial court lacked jurisdiction to render judgment and to impose sentence because the plea bargain should have been presented to the trial court and Miller sentenced accordingly.

The State filed a motion to dismiss Miller's petition claiming: 1) that the petition was filed after the expiration of the one-year limitations period; 2) that all claims are precluded by Rule 32.2(a)(3) and (5), Ala. R.Crim. P., because they could have been, but were not, raised at trial and on appeal; 3) that Miller did not meet his burden of pleading for various reasons set forth in the motion to dismiss; and 4) that the claims are without merit for various reasons set forth in the motion to dismiss.

The circuit court entered an order on the case-action-summary sheet denying the petition "on basis of each ground cited in State's response." (CR. 6.)

Miller presents the following claims on appeal.1

I.

The following claims Miller presents on appeal were not preserved for appellate review because they were not presented to the circuit court. See generally, Whitehead v. State, 593 So.2d 126 (Ala.Crim.App.1991)(a Rule 32 petitioner must first present to the circuit court his argument that that court erroneously dismissed his petition without making specific findings of fact in order to preserve the argument for appellate review).

1. The circuit court erred in permitting the deputy district attorney to appear before that court for arguments on the Rule 32 petition without Miller or any counsel for Miller being present.

2. The circuit court erred in making the final decision on Miller's meritorious ineffective-assistance-of-counsel claims when the judge making that decision was not the same judge who tried the

case and the deputy district attorney was not the same deputy district attorney who tried the case.

3. It was error for the circuit court to dismiss Miller's ineffective-assistance-of-counsel claims without an evidentiary hearing, when neither the trial judge nor the deputy district attorney who filed the motion to dismiss the Rule 32 petition had any factual knowledge of the case and had not witnessed trial counsel's performance.

4. It was error for the circuit court to deny Miller's Rule 32 petition before receiving Miller's response to the State's motion to dismiss that alleged procedural bar claims.

5. It was error for the circuit court to deny Miller's Rule 32 petition without issuing an order addressing each ineffective-assistance-of-counsel claim raised by Miller.

II.

Miller contends that he was denied effective assistance of trial counsel because trial counsel failed to object: (1) to the failure of the deputy district attorney to advise the trial court that a plea agreement had been reached between Miller and the State pursuant to which a 20-year sentence was to be imposed, which was then to be split to serve 3 years; and (2) to the State's breaking a negotiated plea agreement with Miller.2 Quoting Ingram v. State, Miller relies on "`Ex parte Yarber, 437 So.2d 1330 (Ala.1983), wherein our Supreme Court held that "once the state chooses to make an agreement, it should not be allowed to repudiate that agreement with impunity." Id. at 1335 (citation omitted).'" Ingram v. State, 552 So.2d 169, 171 (Ala.Crim.App.1989).

To prevail on an ineffective-assistance-of-counsel claim, the appellant must show that his counsel's performance was deficient and that counsel's deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In support of this claim, Miller submitted his affidavit; the affidavit of his aunt, Annie R. Robinson; and the affidavit of his sister, Vanessa Crawford, all of which related events leading up to Miller's acceptance of the State's plea offer.

The affidavits essentially reflect that Miller engaged in a series of discussions with the State regarding a plea. He accepted the State's second plea offer. However, he was advised by the State soon thereafter that there could be no plea agreement because the victim's family had decided that a plea was not appropriate. Miller argues that he was not advised during negotiations that a plea bargain depended on approval from the victim's family. He maintains that when he accepted the State's plea offer, the agreement was final and enforceable.

The pleadings convey that there were plea discussions, but contrary to his assertions, Miller's pleadings do not portray that a "final" plea agreement was ever reached.

Miller's assertion that he discussed a plea agreement with the State and that he decided to accept a plea offer does not establish that an enforceable plea agreement was reached. "We have stated regarding plea agreements that, if the district attorney makes an offer and that offer is accepted by the accused, either by entering a guilty plea or by taking action to his detriment in reliance on the offer, the plea agreement becomes binding and enforceable." Ex parte Richardson, 678 So.2d 1046, 1047 (Ala.1995)(emphasis added) (State not allowed to repudiate a plea agreement). Miller did not enter a guilty plea nor did he plead what detrimental action he took in reliance on the alleged offer to plea—other than that his sentence following a jury trial was less favorable to him than the sentence that would have been imposed under the alleged plea agreement. This is not sufficient to establish a plea agreement.

"Moreover, as the United States Supreme Court stated in Weatherford v. Bursey, 429 U.S. 545, 561, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977), `[t]here is no constitutional right to plea bargain; the prosecutor need not do so if he prefers to go to trial. It is a novel argument that constitutional rights are infringed by trying the defendant rather than accepting his plea of guilty.' See also Ex parte Pfalzgraf, 741 So.2d 1118 (Ala. Crim.App.1999), and Murray v. State, 494 So.2d 891 (Ala.Crim.App.1986)."

Smith v. State, 908 So.2d 273, 282-83 (Ala. Crim.App.2000).

Counsel cannot be said to be ineffective for not filing a motion for which there is no legal basis. See Patrick v. State, 680 So.2d 959, 963 (Ala.Crim.App. 1996); Hope v. State, 521 So.2d 1383, 1386 (Ala.Crim.App.1988). Miller has failed to plead facts signifying that counsel was ineffective and, thus, that he is entitled to relief. See Rule 32.3.

For the reasons stated above, Miller was not entitled to relief on this claim.

III.

Miller contends that he was denied effective assistance of trial counsel when trial counsel failed to properly preserve for appeal the allegedly improper opinion testimony from the coroner, Dr. Gary Simmons, that the victim's death was a homicide and not an accident. This, Miller argues, invades the province of the jury. Specifically, Miller argues, as he did in his petition, that counsel was ineffective based on the following comment, which was made during defense counsel's cross-examination of Simmons.

"`It was done though, was not ruled an accident, it was ruled a homicide based on the history that I received' (Tr. Pg. 400, Ln 10-12). `Well, basically the information I had, I ruled it as a homicide, homicide being—' (Tr. Pg. 400, Ln 24-25). (C: 47-48)."

(CR. 30.) According to Miller,

"[c]learly, Dr. Simmons expressed his opinion that Minnie, Miller's wife, died as a result of a homicide not as the result of an accident. Trial counsel should have objected immediately to this opinion testimony and requested curative instructions or a mistrial, but he failed to do so. (Tr. 400-401)."

(CR. 30.)

We have taken notice of the record on direct appeal3 and found that Miller's claim is, as the State and circuit court asserted, without merit. The following transpired at trial:

"Q. [Defense counsel]: And basically what you did, you examined the body, you filed a report, and it was a homicide based on people don't generally get shot. You don't know whether it's unjustifiable homicide, an accident homicide. It's a homicide, and that's your description, is it not?

"A. [Dr. Simmons]: Homicides for medical legal purposes is not the same as a court defining murder. It was done, though, was not ruled an accident, it was ruled a homicide based on the history that I received.

"Q. And these ladies and gentlemen of the jury determine what type of homicide it is?

"A. I'm not the court, yes, sir. That is certainly true."

(Record on direct appeal at R. 400.)

Thus, the challenged testimony was not admitted in error and did not warrant any action by defense counsel to preserve a challenge on direct appeal. Counsel cannot be said to be ineffective for not filing a motion for which there is no legal basis. See Patrick v. State, 680 So.2d 959, 963 (Ala.Crim.App.1996); Hope v. State, 521 So.2d 1383, 1386 (Ala.Crim.App.1988). Thus, Miller has failed to plead facts that if...

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