Rhone v. State

Decision Date30 January 2004
Citation900 So.2d 443
PartiesWalter Lee RHONE, Jr. v. STATE of Alabama.
CourtAlabama Court of Criminal Appeals

Walter Lee Rhone, Jr., pro se.

William H. Pryor, Jr., and Troy King, attys. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.

WISE, Judge.

Walter Lee Rhone, Jr., appeals from the circuit court's denial of his petition for postconviction relief, filed pursuant to u e 32, Ala.R.Crim.P. In 1999, Rhone was convicted of capital murder; he was sentenced to life imprisonment without the possibility of parole. On September 22, 2000, this Court affirmed Rhone's conviction on direct appeal, by unpublished memorandum. See Rhone v. State (No. CR-99-0011), 814 So.2d 1011 (Ala.Crim.App.2000) (table). A certificate of judgment was issued on October 10, 2000.

On June 17, 2002, Rhone filed a Rule 32 petition, seeking relief from his 1999 conviction and sentence.1 As grounds for relief, he alleged: (1) that he was denied effective assistance of counsel at trial and on appeal, based on counsel's failure to assert a claim that certain evidence admit by the State during his trial was obtained as the result of an illegal arrest and, therefore, should have been suppressed;2 (2) that he was denied effective assistance of counsel at trial and on appeal based on counsel's failure to object to the prospective jurors' not being sworn before voir dire examination; and (3) that he was denied effective assistance of counsel at trial and on appeal based on counsel's failure to assert a claim that the trial court had abused its discretion by overruling an objection to the prosecutor's mention of statements made by Rhone to law-enforcement officials reflecting that he had other pending felony charges. On August 14, 2002, Rhone filed a motion to amend his petition; the amended petition presented additional grounds to support his ineffective-assistance-of-counsel claims, as well as several claims of error on the part of the trial court. Rhone's motion to amend offered no explanation as to why the court should grant his motion to amend the Rule 32 petition. The court entered no ruling on Rhone's motion to amend.

The State filed a response to Rhone's Rule 32 petition on September 30, 2002; the response addressed only the allegations in Rhone's original petition. On October 28, 2002, the circuit court issued a written order denying Rhone's petition. The circuit court's order addressed only those claims asserted in Rhone's original petition. The court's order made no mention of the claims contained in the proposed amendment to the petition. On November 18, 2002, Rhone filed a motion to alter, amend, or vacate the circuit court's order. Rhone's motion requested that the court grant his previously filed motion to amend the Rule 32 petition and that the court address the claims raised in the amendment to the petition. The court denied Rhone's motion. On December 6, 2002, Rhone filed a notice of appeal.

On appeal, Rhone presents 15 issues for review. However, because several of the issues address closely related matters, the issues have been consolidated for purposes of appeal.

I.

Rhone argues in parts II, III, and IV of his brief that the circuit court erred in rejecting his claims of ineffective assistance of trial and appellate counsel.

To prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) that his counsel's performance was deficient, and (2) that he was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.1987). "The performance component outlined in Strickland is an objective one: that is, whether counsel's assistance, judged under `prevailing professional norms,' was `reasonable considering all the circumstances.'" Daniels v. State, 650 So.2d 544, 552 (Ala.Crim.App.1994) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690, 104 S.Ct. 2052. In a Rule 32 proceeding, the petitioner has "the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief" Rule 32.3, Ala.R.Crim.P. See Fortenberry v. State, 659 So.2d 194 (Ala.Crim.App. 1994); Elliott v. State, 601 So.2d 1118 (Ala. Crim.App.1992).

When reviewing a claim of ineffective assistance of counsel, this Court indulges a strong presumption that counsel's conduct was appropriate and reasonable. Hallford v. State, 629 So.2d 6 (Ala.Crim.App.1992); Luke v. State, 484 So.2d 531 (Ala.Crim. App.1985). Moreover, this Court avoids using "hindsight" to evaluate the performance of counsel. Instead, we consider the circumstances surrounding the case at the time of counsel's actions before determining whether the assistance counsel rendered was ineffective. Hallford, 629 So.2d at 9; see also, e.g., Cartwright v. State, 645 So.2d 326 (Ala.Crim.App.1994).

A defendant is not entitled to an error-free trial, and the fact that trial counsel made a mistake is not sufficient to show that counsel's performance was ineffective. See Cosby v. State, 627 So.2d 1059 (Ala.Crim.App.1993). Moreover, the fact that trial counsel did not object at every possible instance does not mean that a defendant's counsel was incompetent. See O'Neil v. State, 605 So.2d 1247, 1250 (Ala. Crim.App.1992). Finally, an attorney is not required to raise every conceivable claim available at trial or on appeal in order to render effective assistance. Thomas v. State, 766 So.2d 860 (Ala.Crim. App.1998), aff'd, 766 So.2d 975 (Ala.2000); Holladay v. State, 629 So.2d 673 (Ala. Crim.App.1992).

A.

Rhone argues in part II of his brief that the evidence used at his trial should have been suppressed because, he says, it was obtained as the result of an illegal arrest, and that counsel's failure to raise this issue denied him effective assistance of trial and appellate counsel. To the extent that Rhone contends that his counsel was ineffective for failing to raise this issue at trial, his claim is without merit. An examination of the record in Rhone's direct appeal3 reveals that counsel did, in fact, file a motion to suppress the challenged evidence, and that motion was denied. Thus, the circuit court correctly denied Rhone's petition for relief on this ground. Moreover, the fact that counsel elected not to raise this issue on appeal does not signify that counsel's performance was unreasonable. We note that on direct appeal counsel briefed 16 substantive issues and this Court addressed those issues in its unpublished memorandum affirming Rhone's conviction. As this Court noted in Thomas v. State, supra, 766 So.2d at 876:

"The United States Supreme Court has recognized that `[e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.' Jones v. Barnes, 463 U.S. [745,] at 751-52, 103 S.Ct. 3308, 77 L.Ed.2d 987 [(1983)]. Such a winnowing process `far from being evidence of incompetence, is the hallmark of effective advocacy.' Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). Appellate counsel is presumed to exercise sound strategy in the selection of issues most likely to afford relief on appeal. Pruett v. Thompson, 996 F.2d 1560, 1568 (4th Cir. 1993), cert. denied, 510 U.S. 984, 114 S.Ct. 487, 126 L.Ed.2d 437 (1993). One claiming ineffective appellate counsel must show prejudice, i.e., the reasonable probability that, but for counsel's errors, the petitioner would have prevailed on appeal. Miller v. Keeney, 882 F.2d 1428, 1434 and n. 9 (9th Cir.1989)."

Counsel's decision regarding which issues to raise on appeal was a strategic decision. "Strategic choices made after a thorough investigation of relevant law and facts are virtually unchallengeable." Ex parte Lawley, supra, 512 So.2d at 1372. The fact that Rhone disagreed with his counsel's decision on which issues to raise on appeal is insufficient to render counsel's performance ineffective. See Patrick v. State, 680 So. 2d 959, 962 (Ala.Crim.App.1996). Based on our review of the record, we conclude that Rhone failed to establish that his counsel was ineffective for failing to raise this issue. Therefore, the circuit court correctly determined that Rhone was not entitled to relief on this claim.

B.

Rhone argues in part III of his brief that he was denied effective assistance of trial and appellate counsel based on counsel's failure to object to the prospective jurors not being sworn prior to voir dire examination and failure to raise the issue on appeal. Our review of the record reveals that the State's response to Rhone's claim included an affidavit from the circuit clerk, indicating that the clerk had, in fact, administered the statutorily mandated oath to the prospective jurors before voir dire examination. (C. 314.) Thus, there was no basis for raising this claim either at trial or on appeal. Counsel is not ineffective for failing to raise an issue for which there is no legal basis. See Bedwell v. State, 710 So.2d 493, 497 (Ala.Crim.App.1997). Accordingly, the circuit court correctly denied relief as to this claim.

C.

Rhone argues in part IV of his brief that the trial court abused its discretion by overruling his objection at trial to the prosecutor's mention of the statements made by him to law enforcement; those statements, Rhone maintains, reflected that he had prior pending felonies, and he contends that he was denied effective assistance of trial and appellate counsel based on counsel's failure to assert this claim I at trial and to raise it on appeal.

Contrary to Rhone's claim, our review of the record of Rhone's...

To continue reading

Request your trial
14 cases
  • Woods v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 27 d5 Agosto d5 2004
    ...without regard to the specific facts surrounding each case. See McWilliams v. State, 897 So.2d 437 (Ala.Crim.App.2004); Rhone v. State, 900 So.2d 443 (Ala.Crim.App. 2004); Neelley v. State, 642 So.2d 494 (Ala.Crim.App.1993); and Cochran v. State, 548 So.2d 1062 (Ala.Crim.App. 1989). As we s......
  • Wynn v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 9 d5 Setembro d5 2016
    ...the scheduled evidentiary hearing. Specifically, Wynn argues that, according to the Alabama Supreme Court's decision in Ex parte Rhone, 900 So.2d 455 (Ala.2004), the only grounds that will support the denial of a motion to amend a postconviction petition are "actual prejudice" or "undue del......
  • Coral v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 28 d5 Maio d5 2004
    ...regard to the specific facts surrounding each case.5 See McWilliams v. State, 897 So.2d 437 (Ala.Crim.App.2004); Rhone v. State, 900 So.2d 443 (Ala.Crim.App.2004); Neelley v. State, 642 So.2d 494 (Ala.Crim.App. 1993); and Cochran v. State, 548 So.2d 1062 (Ala.Crim.App.1989). As we stated in......
  • Ex Parte Jenkins
    • United States
    • Alabama Supreme Court
    • 8 d5 Abril d5 2005
    ...the amendment or that the facts underlying the amendment were unknown to him before filing his original petition." Rhone v. State, 900 So.2d 443, 448 (Ala.Crim.App. 2004). This Court granted certiorari review to consider Rhone's contention that the Court of Criminal Appeals' decision confli......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT