Poole v. State

• Decision Date: 31 August 2001
• Parties: Larry James POOLE, Sr. v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

846 So.2d 370

Larry James POOLE, Sr. v. STATE of Alabama.

CR-99-1200.

Court of Criminal Appeals of Alabama.

August 31, 2001.

Opinion on Return to Remand February 1, 2002.

Dissenting Opinion on Overruling of Rehearing April 26, 2002.

Certiorari Denied October 11, 2002.

Marcus W. Reid, Anniston, for appellant.

William H. Pryor, Jr., atty. gen.; and Kristi L. Deason and Hense R. Ellis II, asst. attys. gen., for appellee.

Melinda A. Morgan Austin, Florence; and Kathryn A. King, Florence, for amicus curiae Alabama Criminal Defense Lawyers Association, in support of the appellant.

Thomas W. Sorrells, Montgomery, for amicus curiae Alabama Office of Prosecution Services, in support of the appellee.

Alabama Supreme Court 1011556.

PER CURIAM.

The appellant, Larry James Poole, Sr., was convicted of four counts of distributing controlled substances, violations of § 13A-12-211, Ala.Code 1975, and one count of possessing a controlled substance, a violation of § 13A-12-212, Ala.Code 1975. After a sentencing hearing, the trial court sentenced Poole, on one distribution count, to 20 years' imprisonment, plus an additional 5 years' imprisonment under § 13A-12-250 and an additional 5 years' imprisonment under § 13A-12-270, Ala.Code 1975—for a total of 30 years' imprisonment. On each of the other three distribution counts, the trial court sentenced Poole to 15 years' imprisonment, plus an additional 5 years under both § 13A-12-250 and § 13A-12-270—for a total of 25 years' imprisonment on each count. On the possession conviction Poole was sentenced to two years' imprisonment.¹ The base sentences were to be served concurrently and the enhanced portions of each sentence were to be served consecutively.

The State's evidence tended to show the following. On March 31, 1995, a confidential informant purchased cocaine from Poole on two separate occasions. On April 1, 1995, the confidential informant made another purchase. On May 10, 1995, a large quantity of a cocaine-based substance was purchased at Poole's house. On the basis of information supplied by the informant regarding the drug transactions, officers obtained a search warrant for Poole's house. A search of Poole's house revealed crack cocaine. Poole admitted that the cocaine in the house was his, but stated that it was for his personal use.

Poole raises six issues on this direct appeal. We have resolved five of those issues by an unpublished memorandum issued today. See Poole v. State, (No. CR-99-1200) 837 So.2d 885 (Ala.Crim.App. 2001) (table). Because of the significance of one issue Poole raises, we have chosen to address it exclusively in this opinion.

Poole argued at trial and on appeal that the portions of his sentences for his distribution convictions enhanced by §§ 13A-12-250 and 13A-12-270 are unconstitutional because, he says, the underlying facts upon which the enhancements were based were not proven beyond a reasonable doubt. Poole was charged in a five-count indictment with four counts of distributing controlled substances, violations of § 13A-12-211, and one count of possessing a controlled substance, a violation of § 13A-12-212. The indictment did not contain any reference to § 13A-12-250 and § 13A-12-270, Ala.Code 1975. Poole's indictment tracked the language of § 13A-12-211, which states: "A person commits the crime of unlawful distribution of controlled substances if, except as otherwise authorized, he sells, furnishes, gives away, manufactures, delivers or distributes a controlled substance enumerated in Schedules I through V." Poole was given notice of the State's intention to seek the enhanced sentences for his distribution convictions. He filed an extensive brief opposing the implementation of these two statutory enhancements. This issue was preserved for appellate review.

The Apprendi Decision

The argument raised at trial and on appeal requires an examination of the United States Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In that case, Apprendi pleaded guilty to two counts of second-degree possession of a firearm for an unlawful purpose and to one count of unlawfully possessing an "antipersonnel bomb." A New Jersey statute provided that a sentence could be enhanced if the crime was motivated by "bias." New Jersey sought to invoke this statute. After a hearing, the trial court, based on the testimony from the witness stand, found by a preponderance of the evidence that the crime was motivated by racial bias. The trial court then enhanced Apprendi's sentence. Apprendi specifically reserved the right to challenge this enhancement on appeal. Apprendi argued that due process required that the question whether the crime was motivated by bias be presented to a jury and proven beyond a reasonable doubt. The New Jersey Supreme Court upheld the enhanced sentence. The United States Supreme Court reversed. Citing earlier decisions, the United States Supreme Court stated:

"It was in McMillan v. Pennsylvania, 477 U.S. 79 (1986), that this Court, for the first time, coined the term `sentencing factor' to refer to a fact that was not found by a jury but that could affect the sentence imposed by the judge. That case involved a challenge to the State's Mandatory Minimum Sentencing Act, 42 Pa. Cons.Stat. § 9712 (1982). According to its provisions, anyone convicted of certain felonies would be subject to a mandatory minimum penalty of five years imprisonment if the judge found, by a preponderance of the evidence, that the person `visibly possessed a firearm' in the course of committing one of the specified felonies. 477 U.S., at 81-82. Articulating for the first time, and then applying, a multifactor set of criteria for determining whether the [In the Matter of] Winship [, 397 U.S. 358 (1970)] protections applied to bar such a system, we concluded that the Pennsylvania statute did not run afoul of our previous admonitions against relieving the State of its burden of proving guilt, or tailoring the mere form of a criminal statute solely to avoid Winship's strictures. 477 U.S., at 86-88.

"We did not, however, there budge from the position that (1) constitutional limits exist to States' authority to define away facts necessary to constitute a criminal offense, id., at 85-88, and (2) that a state scheme that keeps from the jury facts that `expos[e] [defendants] to greater or additional punishment,' id., at 88, may raise serious constitutional concern. As we explained:

"`Section 9712 neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm.... The statute gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense. Petitioners' claim that visible possession under the Pennsylvania statute is "really" an element of the offenses for which they are being punished—that Pennsylvania has in effect defined a new set of upgraded felonies—would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment, cf. 18 U.S.C. § 2113(d) (providing separate and greater punishment for bank robberies accomplished through "use of a dangerous weapon or device"), but it does not.' Id., at 87-88.

"Finally, as we made plain in Jones [v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)] last Term, Almendarez-Torres v. United States, 523 U.S. 224 (1998), represents at best an exceptional departure from the historic practice that we have described. In that case, we considered a federal grand jury indictment, which charged the petitioner with `having been "found in the United States ... after being deported,"' in violation of 8 U.S.C. § 1326(a)—an offense carrying a maximum sentence of two years. 523 U.S., at 227. Almendarez-Torres pleaded guilty to the indictment, admitting at the plea hearing that he had been deported, that he had unlawfully reentered this country, and that `the earlier deportation had taken place "pursuant to" three earlier "convictions" for aggravated felonies.' Ibid. The Government then filed a presentence report indicating that Almendarez-Torres' offense fell within the bounds of § 1326(b) because, as specified in that provision, his original deportation had been subsequent to an aggravated felony conviction; accordingly, Almendarez-Torres could be subject to a sentence of up to 20 years. Almendarez-Torres objected, contending that because the indictment `had not mentioned his earlier aggravated felony convictions,' he could be sentenced to no more than two years in prison. Ibid.

"Rejecting Almendarez-Torres' objection, we concluded that sentencing him to a term higher than that attached to the offense alleged in the indictment did not violate the strictures of Winship in that case. Because Almendarez-Torres had admitted the three earlier convictions for aggravated felonies—all of which had been entered pursuant to proceedings with substantial procedural safeguards of their own—no question concerning the right to a jury trial or the standard of proof that would apply to a contested issue of fact was before the Court. Although our conclusion in that case was based in part on our application of the criteria we had invoked in McMillan, the specific question decided concerned the sufficiency of the indictment. More important, as Jones [v. United States,526 U.S. 227 (1999)] made crystal clear, 526 U.S., at 248-249, our conclusion in Almendarez-Torres turned heavily upon the fact that the additional sentence to which the defendant was subject was `the prior commission of a serious crime.' 523 U.S., at 230; see also id., at 243 (explaining that `recidivism... is a traditional, if not the most...