Nichols v. State

• Decision Date: 07 May 1993
• Citation: 629 So.2d 51
• Parties: Johnny Ray NICHOLS, alias Atmore v. STATE. CR 92-301.
• Court: Alabama Court of Criminal Appeals

Page 51

629 So.2d 51

Johnny Ray NICHOLS, alias Atmore v. STATE.

CR 92-301.

Court of Criminal Appeals of Alabama.

May 7, 1993.

Rehearing Denied June 18, 1993.

Certiorari Quashed Nov. 19, 1993

Alabama Supreme Court 1921495.

Glenn Davidson, Mobile, for appellant.

James H. Evans, Atty. Gen., and Jack Willis, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Johnny Ray Nichols, the appellant, was charged by six separate indictments with two instances of theft of property in the second degree, three instances of receiving stolen property in the second degree, and one instance of possession of burglar's tools. In one proceeding, he pleaded guilty to and was convicted of all six charges. Immediately after accepting the appellant's guilty pleas, the trial court sentenced him to 15 years' imprisonment on each charge, with the sentences to run concurrently with each other and with another sentence that the appellant was then serving.

On this direct appeal from the six guilty plea convictions, the appellant contends that he was improperly sentenced as a habitual offender because the State failed to give him notice of its intent to invoke the Habitual Felony Offender Act (HFOA) and also failed to prove that he had any prior convictions. We note at the outset that there was no objection on any ground at the time of sentencing and there is no indication in the record that a motion for new trial, motion to withdraw the pleas, or motion to reconsider sentence alleging these grounds, or any other grounds, was filed. ¹

I

The initial problem we face with regard to the issue of the State's alleged failure to give the appellant notice that it intended to invoke the HFOA is whether that issue is properly before this Court for review. As noted above, no objection was made on this ground in the trial court. ² The decisions of this Court are conflicting as to whether an objection is necessary to preserve the issue for appellate review--we have held both that the failure to object to the adequacy or lack of notice precludes review on appeal and that an objection to lack of notice is not necessary for review on appeal. The Alabama Supreme Court has not directly addressed this particular issue.

This Court's cases holding that an objection is necessary to preserve the issue are: Harrell v. State, 555 So.2d 257, 262 (Ala.Cr.App.), affirmed, 555 So.2d 263 (Ala.1989); Petite v. State, 520 So.2d 207, 213 (Ala.Cr.App.1987); Phillips v. State, 518 So.2d 833, 834 (Ala.Cr.App.1987); Jackson v. State, 566 So.2d 752, 756 (Ala.Cr.App.1987), cert. denied, 566 So.2d 757 (Ala.1988); see also Terry v. State, 570 So.2d 781, 784 (Ala.Cr.App.1990); Weaver v. State, 437 So.2d 626, 627 (Ala.Cr.App.1983); Wilson v. State, 428 So.2d 197, 201 (Ala.Cr.App.1983). Accord, H. Maddox, Alabama Rules of Criminal Procedure, § 26.6 at 163 (Supp.1992). This line of cases treats an alleged lack of notice as one of the general sentencing issues that must be brought to the attention of the trial judge in order to preserve the matter for appellate review. See, e.g., Ex parte Yeung, 489 So.2d 1106, 1110 (Ala.1986) (where defendant failed to object to trial court's "setting aside the original sentence he imposed and resentencing [the defendant] to a more severe sentence pursuant to a motion by the State," that issue was not properly before the Alabama Supreme Court); Garrick v. State, 589 So.2d 760, 764-65 (Ala.Cr.App.1991) (where defendant failed to assert before the trial court that the schoolyard enhancement statute (§ 13A-12-250) was unconstitutional, that issue was not preserved for appellate review); Jordan v. State, 574 So.2d 1024, 1025 (Ala.Cr.App.1990) (where defendant failed to "object to his sentence at the sentence hearing" and did not "file a motion for reconsideration based upon the [trial] court's consideration of allegedly improper facts at the sentence hearing," that issue was not preserved for appellate review).

The conflicting cases, holding that an objection is not necessary to preserve the issue are: May v. State, 586 So.2d 56, 57 (Ala.Cr.App.1991); Ellison v. State, 593 So.2d 150, 152 (Ala.Cr.App.1991); Hayes v. State, 588 So.2d 502, 506-07 (Ala.Cr.App.1991); Smith v. State, 471 So.2d 501, 502-03 (Ala.Cr.App.1984); see also Robinson v. State, 629 So.2d 1 (Ala.Cr.App.1992); Nicastro v. State, 624 So.2d 665 (Ala.Cr.App.1992); Bland v. State, 601 So.2d 521, 527 n. 3 (Ala.Cr.App.1992); Hugley v. State, 581 So.2d 11, 14 (Ala.Cr.App.1991). These cases are based primarily on the Alabama Supreme Court's decision in Ex parte Brannon, 547 So.2d 68 (Ala.1989), or cases citing that case.

In Brannon, the defendant pleaded guilty to a drug offense and, when the State produced evidence of three prior convictions, was sentenced under the HFOA. Several months after Brannon was sentenced, the Alabama Supreme Court decided Ex parte Chambers, 522 So.2d 313, 314 (Ala.1987), in which it held that the HFOA was "not the proper penalty enhancement provision to be applied" to persons convicted of drug offenses under the old Controlled Substances Act (codified in former Chapter 2 of Title 20 of the Alabama Code). ³ Instead, persons convicted under that Act were to be sentenced pursuant to Ala.Code, § 20-2-76 (1984), "which [wa]s the recidivist statute found within the Controlled Substances Act itself." Ex parte Chambers, 522 at 314 (emphasis deleted).

Brannon, who was convicted under the old Controlled Substances Act, argued on appeal that he was improperly sentenced under the HFOA. The State maintained that the issue was not properly preserved because Brannon had not objected in the trial court to the application of the HFOA. The Alabama Supreme Court held:

"[A]n objection was unnecessary in this case.... [W]hen a sentence is clearly illegal or is clearly not authorized by statute, the defendant does not need to object at the trial level in order to preserve that issue for appellate review."

Ex parte Brannon, 547 So.2d at 68 (emphasis added). In Brannon, the sentencing judge applied the wrong recidivist statute. The sentence imposed was not authorized by statute, from which it follows that the sentencing judge acted without authority. As our Supreme Court stated: "Chambers makes it clear that 'defendants convicted [under the Controlled Substances Act] must be sentenced according to its provisions, not the sentencing provisions of Title 13A[, which include the HFOA].' 522 So.2d at 316." Ex parte Brannon, 547 So.2d at 69 (emphasis in Chambers).

The rationale of Brannon has been applied by the Alabama Supreme Court in other sentencing situations where the trial court acted without authority. See Ex parte Vinson, 615 So.2d 655 (Ala.1992) (no objection required to preserve issue of validity of recoupment order imposed on felony defendant, where statute authorizes recoupment only from misdemeanants); Ex parte McKelvey, 630 So.2d 56 (Ala.1992) (no objection required to preserve issue of validity of multiple sentences imposed for conduct arising out of a single transaction, where statute authorizes only one sentence ⁴); Ex parte Rivers, 597 So.2d 1308 (Ala.1991) (indicating that where the trial court fails to properly accept a guilty plea, it has no authority to sentence defendant and no objection is necessary to preserve the alleged illegality of the sentence for appellate review). Thus, it appears that, in order to determine whether the appellant's first issue is properly before us for review, we must first determine whether notice to the defendant is necessary to the trial court's authority to sentence that defendant under the HFOA.

A trial court's sentencing authority is found in § 13A-5-1(a), which provides: "Every person convicted of any offense defined in this title, or defined outside this title, shall be sentenced by the court in accordance with this article, unless otherwise specifically provided by law." (Emphasis added.) The "article" referred to in § 13A-5-1(a) is Article I of Chapter 5 of Title 13A. The HFOA is contained within Article I and mandates that enhanced punishment be imposed "[i]n all cases when it is shown that a criminal defendant has been previously convicted of [one or more] felon[ies]." § 13A-5-9. Section 13A-5-10(a) provides that "[t]he court may conduct a hearing upon the issue of whether a defendant is a repeat or habitual offender under section 13A-5-9, according to procedures established by rule of court."

The rules for proceeding under the HFOA are found in Rule 26.6(b)(3), A.R.Crim.P. (formerly Rule 6(b)(3), A.R.Crim.P.Temp.). Subsections (i) and (ii) of that rule provide:

"(i) In any case involving an alleged habitual felony offender as provided in Ala.Code 1975, § 13A-5-9, if a hearing is necessary in order to establish the alleged prior conviction or convictions in the record, the court, on its own motion, or on a motion of the district attorney or on motion of the defendant, after a determination of guilt, shall hold a hearing at a date to be set by the court.

"(ii) At a reasonable time prior to the hearing, the defendant shall be notified of the prior conviction or convictions upon which the state intends to proceed."

(Emphasis added.) Obviously, notice under Rule 26.6(b)(3)(ii) also provides a defendant with notice that the State intends to invoke the HFOA. See Bland v. State, 601 So.2d 521, 527 (Ala.Cr.App.1992). The purpose of this notice "is to inform the accused of which convictions will be relied upon by the State to enhance his punishment," Huff v. State 452 So.2d 1352, 1355 (Ala.Cr.App.1984), and "to ensure [that] the appellant has the time and opportunity to adequately prepare his case in this regard," Hollins v. State, 415 So.2d 1249, 1255 (Ala.Cr.App.1982).

It does not appear from either the statutes or the rules set out above that notice to the defendant is necessary to the trial court's authority (i.e., a jurisdictional prerequisite) to sentence a defendant under the HFOA. Under § 13A-5-9 it appears...