Ross v. State

• Decision Date: 28 June 1988
• Docket Number: 8 Div. 624
• Citation: Ross v. State, 529 So.2d 1074 (Ala. Crim. App. 1988)
• Parties: Clifford ROSS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1074

529 So.2d 1074

Clifford ROSS v. STATE.

8 Div. 624.

Court of Criminal Appeals of Alabama.

June 28, 1988.

Dan C. Totten of Malone & Totten, Athens, for appellant.

Charles Graddick, Atty. Gen., and J. Elizabeth Kellum, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

The appellant, Clifford Ross, appeals the trial court's summary dismissal of his petition for writ of habeas corpus wherein Ross alleges that he is being unlawfully detained pursuant to a ten-year sentence for his 1984 conviction for the offense of rape in the second degree, entered on his plea of guilty. He specifically contends that this judgment is void because the trial court failed to observe the requirements of § 15-15-22, Code of Alabama 1975, since his plea to a charge allegedly not included in the indictment was entered within three days after notice to the court of his intention to plead guilty.

For the writ of habeas corpus to apply, the judgment under which the convicted person is held must be void on its face. Sneed v. State, 157 Ala. 8, 47 So. 1028 (1908). Moreover, the jurisdiction of the court to render that judgment is the only matter that can be questioned. State v. Baker, 268 Ala. 410, 108 So.2d 361 (1959). Failure to comply with the mandatory requirements of § 15-15-22 voids any judgment entered under the provisions of §§ 15-15-20 et seq. Id. 268 Ala. at 412, 108 So.2d at 363.

The attorney general contends that § 15-15-22 does not apply because "it applies only to guilty pleas where an information --not an indictment--is the basis of the charge against an accused." (Brief, p. 6, emphasis in original.) The attorney general is correct in his assertion that § 15-15-22 does not apply unless the accused desires to plead guilty to a non-capital felony charge before indictment. E.g., Terry v. State, 467 Ala.App. 296, 241 So.2d 137 (1970). However, in applying this principle to those situations wherein the defendant has been indicted for some offense, we interpret this principle to be limited by the requirement that the indictment must be the basis of the charge to which the accused pleads guilty. Clearly, Ross was not indicted for the charge to which he pleaded guilty. ¹ Thus, the instant indictment could have been the basis of the charge of second degree rape, to which Ross pleaded guilty, only if the charge is a lesser included offense of first degree rape alleged in the indictment or if the indictment was amended to charge the offense of second degree rape.

The instant indictment does not encompass, as a lesser included offense, the charge of rape in the second degree. ²

"In the context of the offense[] for which the appellant was indicted, rape in the first degree requires proof that the victim is less than 12 years old while rape in the second degree requires proof that the victim is less than 16, but more than 12 years old. Therefore, rape in the second degree is not a lesser included offense of rape in the first degree, since the proof necessary to establish the offense of rape in the first degree (the greater offense) does not of necessity establish every element of the offense of rape in the second degree (the lesser offense). See Commentary to § 13A-1-9, Code of Alabama 1975. It must be impossible to commit the greater offense without first committing the lesser offense if the lesser offense is to be an included offense of the greater. Sharpe v. State, 340 So.2d 885 (Ala.Cr.App.), cert. denied, 340 So.2d 889 (Ala.1976).

"The age factor necessarily distinguishes these two offenses and makes them separate and distinct crimes. The offenses of first and second degree rape each require proof of a certain age of the victim that the other does not require. Because of this difference, you cannot commit second degree rape while committing first degree rape."

Allen v. State, 472 So.2d 1122, 1125-26 (Ala.Cr.App.1985) (emphasis added). ³

Likewise, we reject the attorney general's argument that the indictment preferred by the grand jury was "impliedly" amended, pursuant to A.R.Crim.P.Temp. 15.5, which became effective March 1, 1983, to include the charge of rape in the second degree. The pertinent part of Rule 15.5, subsection (a), reads as follows:

"AMENDMENT OF CHARGE. A charge may be amended by order of the court with the consent of the defendant in all cases except to change the offense or to charge new offenses not included in the original indictment, information, or complaint."

"This means that (1) a charge may only be amended with the defendant's consent and (2) a charge may not be amended where the amendment changes the offense or charges a new offense not included in the original charge." Dunn v. City of Montgomery, 515 So.2d 135, 136 (Ala.Cr.App.1987).

At common law, an indictment could not be amended as to a matter of substance without the consent of the grand jury. Crews v. State, 40 Ala.App. 306, 112 So.2d 805 (1959). This common law rule is reflected by Rule 15.5. Since § 15-8-90, Code of Alabama 1975, ⁴ also reflects this common law rule, Crews, and is supplanted by Rule 15.5, Edwards v. State, 480 So.2d 1259 (Ala.Cr.App.), cert. denied, 480 So.2d 1264 (Ala.1985), we find persuasive the cases decided under § 15-8-90 and its predecessor, Tit. 15, § 253, Code of Alabama 1940 (Recomp.1958).

In Crews, the appellant was indicted for the offense of burglary in the second degree, the indictment was amended by a second count charging the appellant with receiving and concealing stolen money, the appellant entered a plea of guilty to this second count, and the burglary charge was dismissed. In reversing, the court stated the following:

"It is obvious under the facts that Amendment 37 to our Constitution, and its enabling statutory provisions, Sections 260-266 of Title 15, Code of Alabama 1940, relating to dispensing with an indictment in felony cases where an accused is awaiting a preliminary hearing, or action by a grand jury, can have no application to our consideration of the present case.

"Under Amendment 37 of our Constitution, (amending Section 8), one can ordinarily be proceeded against for a felony only upon an indictment, Kennedy v. State, 39 Ala.App. 676, 107 So.2d 913, unless of course within the provisions of Sections 260-266, supra, above mentioned.

"...

"The offense of receiving and concealing stolen property, knowing the same to have been stolen is a substantive offense within itself, and differs entirely in constituent elements from the substantive offense of burglary. See Ray v. State, 126 Ala. 9, 28 So. 634.

"The attempted amendment in this case therefore constituted a change of substance in the indictment as preferred by the grand jury, and not a change of form within the permissible limits of Section 253 [, which was recodified as § 15-8-90].

"Since under Constitutional requirements a person can be adjudged guilty of a felony only upon an indictment found by a grand jury, except under the conditions set forth in Sections 260-266, supra, the consent of the defendant to the amendment of the indictment can in no way be deemed to destroy any of those precious guarantees of liberty with which our forefathers, in their wisdom, saw fit to clothe every individual."

40 Ala.App. at 307-08, 112 So.2d at 806-07. Likewise, in Hargett v. State, 54 Ala.App. 544, 310 So.2d 263, cert. denied, 293 Ala. 758, 310 So.2d 264 (1975), the court relied on Tit. 15, § 263, to hold that the trial court was without authority to accept a plea of guilty to the amended charge of assault with intent to rob, where the original indictment charged assault with intent to murder, since the added charge was not a lesser or included offense of the charge in the indictment. See also Bester v. State, 362 So.2d 1282 (Ala.Cr.App.1978) (wherein the court, in reversing the appellant's conviction for murder based on his plea of guilty, held that the amendment of the indictment charging capital murder, even with the appellant's consent, was not permissible under § 15-8-90).

In the instant case, the alleged amendment was improper under Rule 15.5(a). Even if we assume that Ross consented to the amendment, it is a substantial change from the indictment returned by the grand jury by charging a new offense not included in the original charge and, thus, does not fall within the permissible limits of the Rule.

The applicability of A.R.A.P. 45 to a violation of Rule 15.5 has been limited only to "the amendment of an indictment as to an immaterial matter." Edwards v. State, 480 So.2d at 1264 (emphasis in original). See, e.g., Sisson v. State, 528 So.2d 1159 (Ala.1988) (wherein the court refused to apply the harmless error doctrine to an amended charge where the defendant had not received notice of the charge he would be called upon to defend); Peoples v. State, 527 So.2d 169 (Ala.Cr.App.1988) (wherein the court held that an amendment, though violating Rule 15.5, was harmless error where it only charged an additional description of the charge and not an additional or different offense); Dunn v. City of Montgomery (wherein the court implicitly declined to apply the harmless error doctrine to an amendment to an information, charging a different offense); Mason v. City of Vestavia Hills, 518 So.2d 221 (Ala.Cr.App.1987) (wherein the court ruled that an improper amendment which added an alternative intent allegation was harmless). Thus, the harmless error doctrine has no applicability here.

Implicit in the attorney general's argument that the requirements of § 15-15-22 did not apply here is the assertion that § 15-15-22 is not triggered unless an information has been filed. This is true, but pursuant to § 15-15-21, when the accused makes known to the court his desire to plead guilty, the court "shall direct the district attorney ... to prefer and file an information against such defendant, under the oath of such district attorney or some witness, which information shall accuse the defendant, with the same certainty as an indictment,...