Shaw v. State

• Decision Date: 04 October 2013
• Docket Number: CR–12–0674.
• Citation: 148 So.3d 745
• Parties: Nathaniel SHAW v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

148 So.3d 745

Nathaniel SHAW

v.STATE of Alabama.

CR–12–0674.

Court of Criminal Appeals of Alabama.

Oct. 4, 2013.

Rehearing Denied Dec. 13, 2013.

Certiorari Denied Feb. 14, 2014

Nathaniel Shaw, pro se.

Luther Strange, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.

Opinion

KELLUM, Judge.

Nathaniel Shaw appeals the circuit court's summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P., in which he attacked his 2009 convictions for one count of first-degree theft of property, one count of unlawful possession of cocaine, one count of trafficking in stolen identities, and four counts of second-degree criminal possession of a forged instrument, and his resulting sentences, as a habitual offender, of 27 years' imprisonment for each of the first-degree-theft and trafficking-in-stolen-identities convictions, and 10 years' imprisonment for the possession-of-cocaine conviction and each of the possession-of-a-forged-instrument convictions. This Court affirmed Shaw's convictions and sentences on appeal in an unpublished memorandum issued on April 16, 2010. Shaw v. State (No. CR–08–1340), 77 So.3d 624 (Ala.Crim.App.2010) (table). The Alabama Supreme Court denied certiorari review, and this Court issued a certificate of judgment on December 10, 2010.

Shaw filed this, his first, Rule 32 petition on August 8, 2012. In his petition, Shaw alleged:

(1) That the trial court lacked jurisdiction to render the judgments or to impose the sentences because, he said, he was incompetent to stand trial;

(2) That his sentences violated double-jeopardy principles because, he said, he was originally sentenced to 27 years' imprisonment for the first-degree-theft and trafficking-in-stolen-identities convictions, and to 5 years' imprisonment for the possession-of-cocaine conviction and each of the possession-of-a-forged-instrument convictions, with all the sentences ordered to run concurrently, but that four days after the original sentence was imposed, the trial court increased his 5–year sentences to 10 years' imprisonment and ordered those sentences to run consecutively to the two 27–year sentences, thus resulting in his being punished twice for each of his convictions;

(3) That he was denied his right to counsel of choice when, he said, the trial court refused his repeated requests to fire retained trial counsel and hire new counsel;

(4) That his convictions for first-degree theft and four counts of possession of a forged instrument violated double-jeopardy principles because, he said, the currency that formed the basis of the theft charge was obtained as a result of the possession-of-a-forged-instrument charges and all five charges arose from the same act or omission;

(5) That the evidence was insufficient to sustain his conviction for trafficking in stolen identifies because, he said, the State failed to present evidence of five or more identification documents of the same person or identifying information of five or more separate persons as required by § 13A–8–193(b), Ala.Code 1975;

(6) That his convictions for trafficking in stolen identities and four counts of possession of a forged instrument violated double-jeopardy principles because, he said, the persons named as part of the trafficking-in-stolen-identities charge were the same persons that formed the basis of the four possession-of-a-forged-instrument charges;

(7) That his indictment was multiplicious “because it renames the single offense of possession of forged instruments as theft of property and/or trafficking in stolen identities” (C. 37); and

(8) That he was denied the effective assistance of counsel both at trial and on appeal because, he said, trial and appellate counsel did not raise the above issues at trial or on appeal.

Shaw attached several exhibits to his petition to support his claims.

On October 4, 2012, Shaw filed a motion for the appointment of counsel, which the circuit court denied on October 5, 2012. On November 20, 2012, Shaw filed a motion requesting that the circuit court expedite the proceedings and schedule an evidentiary hearing, which the circuit court denied on November 27, 2012. On or about December 17, 2012, the State filed an answer to Shaw's petition, arguing that each of Shaw's claims was meritless. On December 18, 2012, the circuit court issued an order summarily dismissing Shaw's petition. In its order, the circuit court found that claim (1) and that part of claim (8) regarding ineffective assistance of trial counsel, as set out above, had been “addressed extensively on his direct appeal” and it “decline[d] to replow these grounds.” (C. 108.) The circuit court then stated that “[t]he only colorable issue raised” in the petition was claim (2), as set out above, and the court found that claim to be meritless. (C. 108.) The court did not specifically address in its order claims (3) through (7), as set out above. On January 4, 2013, Shaw filed an “objection” to the circuit court's order summarily dismissing his petition, arguing that the circuit court erred in not making specific findings of fact regarding each of his claims and in summarily dismissing his petition without receiving a response from the State. The circuit court denied the “objection” on January 10, 2013. This appeal followed.

For a better understanding of Shaw's claims, we set out the following statement of facts from our unpublished memorandum affirming Shaw's convictions and sentences:

“In May of 2007, the Royal Bank of Canada (‘RBC’) notified employees at all of its Montgomery area branches that it was conducting an investigation. RBC was looking for a person who was committing bank fraud in the Montgomery area. The suspect was believed to have been at a local branch of RBC on May 9, 2007. RBC sent out a description of a suspect, including an image of the suspect taken from video surveillance at a local branch. On that same day, Bryan Shaffer, a manager at the RBC on the Atlanta Highway, saw Shaw enter and leave the bank and believed him to be the person involved in the bank fraud. Shaffer followed Shaw outside the bank. He saw Shaw get into a vehicle. When Shaffer attempted to write down the number of the vehicle's license plate, Shaw, apparently noticing Shaffer, switched the license plate on the vehicle and drove away. Shaffer got in his vehicle, followed Shaw, and called police. Shaffer followed Shaw to a Publix grocery store parking lot. Shaffer remained in his vehicle while Shaw got out of his vehicle and walked towards the store. At that time, police arrived at the store, approached Shaw, and took him into custody. At the police station, police compared images of the suspect at the local banks and compared the person in the images to Shaw. Believing Shaw to be the person in the images, police arrested him. Shaw's vehicle was impounded, and an inventory search revealed an eyeglass case containing crack cocaine, bank statements with account information of other individuals, checkbooks containing checks of several individuals, and a check made out to a Kenneth Dent for $986. Police also found a bag that contained deposit slips that were used to make split deposits—deposits from which a person receives cash back. Police also found other items, including multiple counterfeit identifications. The names and driver's license numbers on some of these counterfeit identifications matched the names and driver's license numbers on the canceled forged checks from RBC. In other words, these identifications were used to cash the forged checks. Shaw's picture was on the identifications. Video surveillance captured Shaw cashing those checks.”

I.

Initially, we point out that Shaw does not pursue in his brief on appeal claims (5), (6), (7), and (8), as set out above. It is well settled that this Court “will not review issues not listed and argued in brief.” Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App.1995). “ ‘[A]llegations ... not expressly argued on ... appeal ... are deemed by us to be abandoned.’ ” Burks v. State, 600 So.2d 374, 380 (Ala.Crim.App.1991) (quoting United States v. Burroughs, 650 F.2d 595, 598 (5th Cir.1981) ). Because Shaw does not expressly argue on appeal claims (5), (6), (7), and (8), as set out above, those claims are deemed abandoned and will not be considered by this Court.

II.

Shaw first contends on appeal that the circuit court erred in summarily dismissing his petition without making specific findings of fact regarding the merits of each of his claims. Shaw raised this issue in his postjudgment motion; therefore, it was properly preserved for our review. However, Shaw's argument is meritless because the circuit court summarily dismissed his petition pursuant to Rule 32.7(d), Ala. R.Crim. P., and it is well settled that “Rule 32.7 does not require the trial court to make specific findings of fact upon a summary dismissal.” Fincher v. State, 724 So.2d 87, 89 (Ala.Crim.App.1998). As this Court explained in Daniel v. State, 86 So.3d 405 (Ala.Crim.App.2011) :

“No evidentiary hearing was held in this case—the circuit court summarily dismissed Daniel's petition. ‘Because the trial court did not hold an evidentiary hearing, it was not required to make specific findings of facts as to each claim.’ Beckworth v. State, [Ms. CR–07–0051, May 1, 2009] ––– So.3d ––––, –––– (Ala.Crim.App.2009). ‘[R]ule 32.9(d), Ala. R.Crim. P., requires findings of fact only if an evidentiary hearing is held. Findings are not required if the petition is dismissed.’ Fowler v. State, 890 So.2d 1101, 1103 (Ala.Crim.App.2004). ‘Rule 32.9(d), Ala. R.Crim. P., requires the circuit court to make specific findings of fact only after an evidentiary hearing or the receipt of affidavits in lieu of a hearing.’ Chambers v. State, 884 So.2d 15, 19 (Ala.Crim.App.2003). See also Ex parte McCall, 30 So.3d 400 (Ala.2008). The circuit court did not err in failing to make written findings of fact concerning Daniel's claims.”

86 So.3d at 413. Therefore, the circuit court...