Newton v. State
Citation | 673 So.2d 799 |
Decision Date | 26 May 1995 |
Docket Number | CR-94-613 |
Parties | Jimmy NEWTON, alias v. STATE. |
Court | Alabama Court of Criminal Appeals |
Joseph Powers, Mobile, for Appellant.
Jeff Sessions, Atty. Gen., and Gregory O. Griffin, Sr., Asst. Atty. Gen., for Appellee.
The appellant, Jimmy Newton, pleaded guilty to two counts of illegal possession of cocaine. He was sentenced to 25 years in the penitentiary on each count, the sentences to be served concurrently.
The appellant contends that the trial court erred when it denied his motion requesting that the court suspend the imposition of the sentence and hold a sentencing hearing. Rule 26.6(b)(1), Ala.R.Crim.P., provides, in pertinent part, "Unless the court has no discretion as to the penalty to be imposed and no power to suspend execution of the sentence, the court shall conduct a sentence hearing in all felony cases, unless waived by the parties with consent of the court." Specifically, the appellant contends that he was denied his right to address the court as provided in Rule 26.9(b)(1), and to present witness testimony. The appellant contends that this denial violated his right to due process. The State argues that the appellant is procedurally barred from raising this claim because he made no objections when his guilty plea was accepted. There is no question that the sentence hearing was not "waived by the parties with the consent of the court."
Our threshold inquiry is whether the issue was preserved for appellate review. "An adverse ruling is required in order to preserve error for appellate review." Maul v. State, 531 So.2d 35, 36 (Ala.Cr.App.1987). The appellant's motion alleges that he was denied his right to present testimony in mitigation of his sentence. The court held a hearing on the merits of that motion. The denial of the appellant's motion constitutes an adverse ruling and preserves this issue for our review. "The primary purpose of objections is not to 'preserve error' for appellate review; their primary purpose is to give the trial court an opportunity to correct that which might otherwise have been error." Johnson v. State, 500 So.2d 69, 72 (Ala.Cr.App.1986). See also Ex parte Works, 640 So.2d 1056 (Ala.1994). Because the trial court retained jurisdiction to modify the appellant's sentence when the motion at issue was filed, the court had an opportunity to correct the defect.
The judges of this court who dissent in this case contend that this issue was not preserved for our consideration because no specific objection was made. However, the portion of the motion hearing quoted in the dissenting opinion shows that the court was aware of the specific alleged defect; i.e., that no sentencing hearing was held. The court had ample time to correct any defect, but did not do so.
Additionally, "[t]he Alabama courts have considered a sentence without an allocution to be 'erroneous,' Ex parte Anderson, 434 So.2d 737, 738 (Ala.1983), and mandatorily subject to remand for 'proper sentence under law,' id." Cline v. State, 571 So.2d 368, 372 (Ala.Cr.App.1990).
The next question is whether the appellant was denied his due process rights by the court's failure to hold a sentence hearing and to afford the appellant the right to speak in his own behalf. We conclude that he was. An individual's right to allocution and to a sentence hearing is spelled out in the Alabama Rules of Criminal Procedure. Rule 26.9(b), Ala.R.Crim.P., states: "In pronouncing sentence, the court shall: (1) Afford the defendant an opportunity to make a statement in his or her own behalf before imposing sentence." Rule 26.6(b)(1) further provides:
(Emphasis added.)
These two rules require an affirmative act of waiver by the parties. The record shows that the requirements of Rule 26.9(b)(1) and Rule 26.6(b)(1) were not met here. The record states:
The Committee Comments to Rule 26.9 state:
"...
The record reveals that upon accepting appellant's guilty plea, the court not only did not hold a sentencing hearing, but did not ask the appellant whether he had anything to say in his behalf. No "allocution" occurred. Allocution means:
"Formality of court's inquiry of defendant as to whether he has any legal cause to show why judgment should not be pronounced against him on verdict of conviction; or, whether he would like to make statement on his own behalf and present any information in mitigation of sentence."
Black's Law Dictionary 76 (6th ed.1990).
Our inquiry, however, does not end here. The appellant's right to be present at a sentencing hearing, which presupposes the right to have a sentencing hearing, and the right to speak in his own behalf, may be waived. The Committee Comments to Rule 26.9, Ala.R.Crim.P., state that the defendant has 2 " (Emphasis added.)
The committee comments to Rule 9.1 illustrate the manner of waiver:
The record contains no evidence that the appellant made an express waiver of his rights to allocution and to a sentence hearing, and he was not voluntarily absent from a court proceeding.
Those judges dissenting from this opinion conclude that the appellant waived his right to a sentencing hearing. I do not agree. The above dialogue shows that at no point did the court address the appellant and ask him if he had anything to say in his behalf. The record shows that there was no sentence hearing. The court proceeded directly, after taking the appellant's pleas, to sentence the appellant. The appellant was afforded no opportunity to speak in his own behalf. Nor is there any indication in the record that this issue was expressly waived. "A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Rule 26.6, Ala.R.Crim.P., was not complied with. Therefore, the sentence was "erroneous." Ex parte Anderson, 434 So.2d 737 (Ala.1983). This cause must be remanded to the circuit court.
The appellant's sentence is set aside, and this cause is remanded to the Circuit Court for Mobile County for that court to hold a sentencing hearing in compliance with Rules 26.6(b)(1) and 26.9(b) Ala.R.Crim.P.
REMANDED WITH DIRECTIONS. *
The substance of the appellant's claim in this appeal is that the trial court erred in not holding a sentencing hearing. However, the convictions and sentences in this case were the result of a negotiated plea agreement that was very favorable to the appellant. The appellant, who had at least three previous felony convictions, was allowed to plead guilty to two Class C felonies, as opposed to the two Class B felonies with which he was originally charged. He received concurrent 25-year sentences within a possible sentencing range of 15 to 99 years, as opposed to the mandatory life imprisonment for the Class B felonies.
At the hearing on the appellant's motion to suspend imposition of his sentence, the appellant made no credible offer of proof as to any evidence he might present that could possibly mitigate his negotiated sentence. At the motion hearing, the following occurred:
Mr. Whiddon: Was kind of a product of the prison system when he came out. Basically no rehabilitation whatsoever in prison. He was thrown back into a neighborhood really without any money, without any family support there for a while,...
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