Morrow v. State

• Decision Date: 13 March 2020
• Docket Number: CR-18-0794
• Citation: 323 So.3d 689
• Parties: Ross Connor MORROW v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

323 So.3d 689

Ross Connor MORROW

v.STATE of Alabama

CR-18-0794

Court of Criminal Appeals of Alabama.

March 13, 2020

Rehearing Denied October 9, 2020

Pete J. Vallas, Mobile, for appellant.

Steve Marshall, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.

MINOR, Judge.

Ross Connor Morrow pleaded guilty to one count of third-degree burglary, see § 13A-7-7, Ala. Code 1975, three counts of unlawfully breaking and entering a vehicle, see § 13A-8-11(b), Ala. Code 1975, and one count of first-degree promoting prison contraband, see § 13A-10-36, Ala. Code 1975. For each conviction the Mobile Circuit Court sentenced Morrow to five years in the custody of the Alabama Department of Corrections, to run consecutively.¹ Morrow raises four issues on appeal: (1) whether the circuit court adequately advised him that it could order his sentences to run consecutively to each other; (2) whether the circuit court properly found an aggravating factor in departing from the presumptive and voluntary sentencing standards; (3) whether the circuit court allowed him to make a statement in his own behalf before sentencing him; and (4) whether Morrow's sentences are grossly disproportionate to his offenses and thus violate the prohibition on cruel and unusual punishment in the Eighth Amendment to the United States Constitution. For the reasons discussed below, we hold that there is no merit to issues (1) and (2) above but that, because the circuit court did not split Morrow's sentences under § 15-18-8(b), Ala. Code 1975, we must remand this case for the circuit court to resentence Morrow, rendering moot issues (3) and (4) above.²

Facts and Procedural History

A Mobile County grand jury indicted Morrow in September 2018 for two counts of third-degree burglary, three counts of unlawfully breaking and entering a vehicle, and one count of first-degree promoting prison contraband. Morrow, who was 18 years old at the time of the offenses, requested but was denied youthful-offender status. He entered a blind guilty plea in March 2019 to one count of third-degree burglary, three counts of unlawfully breaking and entering a vehicle, and one count of first-degree promoting prison contraband. Morrow admitted the aggravating sentencing factor of multiple victims. (C. 61.)

For each conviction Morrow signed an "Explanation of Rights and Plea of Guilty" form, commonly known as the Ireland form,³ that included, among other things, a statement that, "[i]f you face multiple sentences for multiple crimes, the court may order your sentence for the above crime to run consecutively to or concurrently with the other sentence or sentences." (C. 58; S.R. 19; S.R. 22.⁴ )

Before Morrow pleaded guilty the circuit court addressed Morrow and advised him of the charges against him and of the punishment range for each offense. The circuit court showed Morrow the Ireland forms and asked him whether he had signed the forms, whether he had reviewed the forms with his lawyer, and, as to the Ireland forms for the promoting-prison-contraband charge and the unlawfully-breaking-and-entering-a-vehicle charges, whether he understood the forms' contents. Morrow confirmed that he had signed the forms, had reviewed the forms with his lawyer, and that he understood the contents of the forms.⁵ (R. 5-10.⁶ )

Allen Carpenter, one of the victims of Morrow's burglary offenses, testified at the sentencing hearing. After Carpenter testified, the State told the circuit court that Morrow admitted the aggravating factor of there being multiple victims of his crimes. The circuit court did not comment on the aggravating factor but asked the State what sentence it recommended. The State recommended a sentence of 10 years in prison, split to serve 18 months, with 5 years of probation for each conviction, to run concurrently. The circuit court asked the State, "Did you run that past the victim?," and the State responded that the recommendation was "approximately twice what the guideline sentences would have given him." (R2. 13.) The circuit court stated, "When I hear the dog got beat [and] [t]he gun thing, that bothers me. The jewelry thing, that bothers me, but beating the damn dog, that really torques me off."⁷ (R2. 14.) The circuit court then asked Carpenter what sentence Morrow should receive:

"The Court: What do you think is appropriate?

"The Witness: I think he should get whatever he deserves. You know, jail time.

"The Court: I'm going to give him some jail time. I'm just curious what would you think?

"The Witness: I'd give him the max if I could.

"The Court: Would you run it concurrent or consecutive?

"The Witness: Consecutive.

"The Court: That would be 50 years. Some people commit murder and they don't get 50 years.

"The Witness: Yeah.

"The Court: I tell you what I'm going to do. I'm going to give him five years for each one, and I'm going to run them consecutive. That'll give him 25, okay? And you know and I know that the State is broke. And these are not going to be considered violent. And Memaw's prison system is going to let him out at some point.

"The Witness: As long as they notify me, that's fine.

"The Court: And he's going to be somebody's girlfriend up there for a while. So I'm going to sentence you to five years in prison for each one of these counts, and I'm going to run them consecutive, okay? So that's 25 years."

(R2. 15-16.) Morrow objected to the sentences and told the circuit court, "That sentence you're giving is far outside of what the guidelines indicate." The circuit court responded, "Well, I don't have the guidelines." (R. 19.) Morrow's counsel advised the circuit court that Morrow did not have any prior felonies, and the circuit court pointed out that Morrow had a juvenile criminal record:

"The Court: He has a record of youthful offender. He is a career criminal, okay? He has never learned.

"Mr. Vallas [Morrow's counsel]: Well, he was 18 years old at the time of the offense.

"The Court: Well, maybe we're breaking the chain of causation. Maybe he resorts to murder the next time he gets the drugs or whatever. Maybe something happens.

"Mr. Vallas: I don't believe any of his prior offenses involve violence. Not a single one.

"The Court. This is the sentence. Tell me that dog didn't experience some violence."

(R2. 19.) Morrow's counsel then told the court, "I think he wanted to say something." Morrow asked, "May I speak to the Court?" The circuit court responded, "May you speak with him?" Morrow then asked Carpenter some questions about Carpenter's dog, and, after Morrow denied that he had touched or beaten the dog during the burglary, Carpenter briefly addressed the circuit court. The circuit court then stated, "Okay. This is over. We're serving no purpose." (R2. 19-20.)

The circuit court entered a written order in each case sentencing Morrow to five years' imprisonment, to run consecutively. The circuit court denied Morrow's motion to withdraw his guilty plea and his motion to reconsider his sentences and for a new trial.

I.

Morrow contends that the circuit court should have allowed him to withdraw his guilty plea because, Morrow says, the circuit court did not advise him that it could order his sentences to run consecutively to each other. Morrow argues that his guilty plea was not entered knowingly, voluntarily, and intelligently, and thus, he says, the circuit court should have granted his motion to withdraw his guilty plea.

"Whether to allow a defendant to withdraw his guilty plea rests within the sound discretion of the trial court, and this Court will not overrule that decision on appeal absent an abuse of discretion." Thacker v. State, 703 So. 2d 1023, 1026 (Ala. Crim. App. 1997). See also Speigner v. State, 663 So. 2d 1024, 1028 (Ala. Crim. App. 1994) ("The standard of review this court uses when evaluating the trial court's ruling on a motion to withdraw a plea of guilty is whether the trial court abused its discretion.").

Rule 14.4, Ala. R. Crim. P., states that a circuit court:

"(a) ... shall not accept a plea of guilty without first addressing the defendant personally in the presence of counsel in open court for the purposes of:

"(1) Ascertaining that the defendant has a full understanding of what a plea of guilty means and its consequences, by informing the defendant of and determining that the defendant understands:

"....

"(iii) If applicable, the fact that the sentence may run consecutively to or concurrently with another sentence or sentences."

Subsection (d) of Rule 14.4 allows the circuit court to meet the requirements of Rule 14.4(a) by "determining from a personal colloquy with the defendant that the defendant has read, or has had read to the defendant, and understands each item contained in" the Ireland form. The Committee Comments to Rule 14.4 provide:

"Section (d) is included to accommodate the current Alabama practice of informing the defendant of his rights through a form similar to that approved in Ireland v. State, 47 Ala. App. 65, 250 So. 2d 602 (1971), and subsequent cases. The rule, however, specifically retains the requirement that the trial judge personally address the defendant in order to determine that he understands the contents of the form and that the judge specifically question the defendant concerning the information contained in each item. Thus, in every case, the record should affirmatively show a colloquy between the trial judge and the defendant concerning all such matters. Twyman v. State, 293 Ala. 75, 300 So. 2d 124 (1974), held that where the record affirmatively shows that the defendant was informed of and understood his rights, the record need not include a full transcript of the colloquy. Subsequent cases in the Court of Appeals have held that while a full colloquy is not required where the form is used, the record must show that the trial judge made inquiry as to the defendant's understanding of the rights set out in the form. This rule requires such a colloquy and requires that specific inquiry be made with regard to the rights set out

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