Ray v. State, 5 Div. 535

• Decision Date: 24 February 1981
• Docket Number: 5 Div. 535
• Citation: 398 So.2d 774
• Parties: Billy Gene RAY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 774

398 So.2d 774

Billy Gene RAY v. STATE.

5 Div. 535.

Court of Criminal Appeals of Alabama.

Feb. 24, 1981.

Rehearing Denied March 31, 1981.

Thomas E. Jones, Auburn, for appellant.

Charles A. Graddick, Atty. Gen., and Cynthia D. Welch, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a conviction and sentence for the crime of "Receiving stolen property," which is defined by Code of Alabama 1975 (1980 Cum.Supp.), § 13A-8-16 as follows:

"A person commits a crime of receiving stolen property if he intentionally receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen, unless the property is received, retained or disposed of with intent to restore it to the owner

"...."

By § 13A-8-18, receiving stolen property which "exceeds $100 in value but does not exceed $1,000 in value" constitutes "receiving stolen property in the second degree."

The indictment charged that defendant "did receive, retain, or dispose of stolen property, to-wit: one (1) .357 Magnum, Smith & Wesson pistol, the property of L. J. Brasher, of the value of $200.00, knowing that it was stolen, or having reasonable grounds to believe it had been stolen and not having the intent to restore it to its owner, in violation of § 13A-8-18, Code of Alabama." ¹

The theft of the pistol described in the indictment was established by the testimony of Mr. Rickey Barnett and Mr. L. J. Brasher, the owner. According to their testimony, the pistol was taken on the night of January 30-31, 1980, with some other property, during a burglary of the place of business of the owner. Officers of the Opelika Police Department were promptly called the next day.

Mr. Brasher testified that about three weeks after the burglary he received the pistol from Eddie Guerin. Mr. Eddie Guerin testified that he obtained the pistol from Charlie Allen. Mr. Allen testified that on February 1 or 2, 1980, he bought the pistol from the defendant.

The value of the pistol as alleged in the indictment was established by the evidence.

The defendant did not testify. Although some witnesses testified in his behalf, there was no testimony in conflict with the evidence that he had sold the pistol to Mr. Allen or to explain his possession of the then recently stolen pistol.

In our opinion, the evidence was sufficient to present a jury issue as to defendant's guilt. See Code of Alabama 1975, § 13-8-16 Commentary, citing Stanley v. State, 46 Ala.App. 542, 245 So.2d 827 (1970). There is no contention to the contrary.

A major contention of appellant is as to the action of the court in sentencing the defendant to imprisonment for twenty years pursuant to the Alabama Habitual Felony Offenders Act (Code of Alabama 1975, § 13A-5-9 as supplemented). He says that the Act, as it was applied in the instant case, would be unconstitutional in two different respects. We treat each one separately.

Appellant's contention that the law was unconstitutionally applied to two of the three prior felony convictions in that defendant did not have counsel at the time of such convictions, upon his entry of a plea of guilty, stems from the case cited by appellant of Burgett v. Texas, 389 U.S. 109, 114, 88 S.Ct. 258, 261, 19 L.Ed.2d 319, 324 (1967), in which it was held:

"The same result must follow here. Gideon v. Wainwright, (372 U.S. 335, 83 S.Ct 792, 9 L.Ed.2d 799) established the rule that the right to counsel guaranteed by the Sixth Amendment was applicable to the states by virtue of the Fourteenth, making it unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one. And that ruling was not limited to prospective application.... In this case the certified records of the Tennessee conviction on their face raise a presumption that petitioner was denied his right to counsel in the Tennessee proceedings, and therefore that his conviction was void. Presuming waiver of counsel from a silent record is impermissible...."

The transcript in the instant case affirmatively shows by the record in each of said prior convictions that defendant formally and fully, intelligently and understandingly, waived his right to counsel. The convictions were conformable to what was held in Burgett, supra.

An additional contention of appellant is to the effect that having occurred prior to the effective date of the Habitual Felony Offenders Act such convictions could not be considered, that to do so would give the Act efficacy as a constitutionally prohibited ex post facto law. The precise question has been decided adversely to appellant in Williams v. State, Ala.Cr.App., 400 So.2d 427, (1981), in reliance upon Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1947).

Appellant also contends that as to one of the prior convictions, which was in the same court as the conviction in the instant case, it was not established on the sentencing hearing by proper evidence. A copy of the minutes, certified by the Clerk of the Court on the day of the hearing was introduced in evidence. A prior conviction may be proved by a certified copy of the court's record. Hunter v. State, 57 Ala.App. 651, 331 So.2d 406 (1976). Appellant contends, however, as he did on the trial, that the minute entries were not made until a long time after the conviction. A deputy clerk of the court testified at the sentencing hearing that a certified copy was made "from the Minute Book," that though there had been a lapse in the constant maintenance of the minutes book in the past, she had placed in the...