Shrove v. State

• Decision Date: 16 December 2020
• Docket Number: CR-19-0043
• Citation: 329 So.3d 93
• Parties: Christopher SHROVE v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

329 So.3d 93

Christopher SHROVE

v.STATE of Alabama

CR-19-0043

Court of Criminal Appeals of Alabama.

December 16, 2020

Christopher L. Davis, Bessemer, for appellant.

Steve Marshall, atty. gen., and Laura I. Cuthbert, asst. atty. gen., for appellee.

COLE, Judge.

Christopher Shrove appeals the circuit court's denial of his third Rule 32, Ala. R. Crim. P., petition for postconviction relief, challenging his October 11, 2006, guilty-plea conviction for soliciting a child by computer, a violation of § 13A-6-110, Ala. Code 1975,¹ and his resulting sentence of 15 years’ imprisonment.

Facts and Procedural History

The facts underlying Shrove's guilty-plea conviction and sentence are undisputed. The circuit court summarized those facts in its order denying Shrove's petition as follows:

"According to the ‘Affidavit and Felony Warrant of Arrest’ and information contained in a report filed by the Prattville Police Department, Shrove's conduct and the relevant conduct giving rise to the charge occurred on March 30, 2006. According to the affidavit and felony warrant of arrest, Shrove communicated, by means of a computer, with a confidential informant that ‘he believed to be a 14-year-old child.’ For weeks prior to March 30, 2006, Shrove messaged or solicited, via computer, an adult, ‘undercover operative that he believed to be a fourteen-year-old girl.’ Shrove attempted to meet the adult, undercover operative on March 30, 2006, at Spinners Park located in Autauga County, Alabama. According to the presentence report, investigator Angela Allen sat on playground equipment in the park when Shrove walked ‘within hearing distance’ of Investigator Allen and attempted to greet her. The only witnesses, whether via computer instant messaging or in-person, to Shrove's conduct giving rise to the charge and conviction were adults and members of law enforcement; no children under the age of sixteen years were involved or present. At no point was Shrove's conduct directed to a person under the age of sixteen years of age."

(C. 182.)

At the time Shrove pleaded guilty to soliciting a child by computer, § 13A-6-110, Ala. Code 1975, provided as follows:

"[A] person is guilty of solicitation of a child by a computer if the person is 19 years of age or older and the person knowingly, with the intent to commit an unlawful sex act, entices, induces, persuades, seduces, prevails, advises, coerces, or orders, by means of a computer, a child who is less than 16 years of age and at least three years younger than the defendant, to meet with the defendant or any other person for the purpose of engaging in sexual intercourse, sodomy, or to engage in a sexual performance, obscene sexual performance, or sexual conduct for his or her benefit."

Shrove did not argue that his specific conduct--using a computer to communicate with an adult posing as a child under the age of 16--was not a violation of § 13A-6-110, Ala. Code 1975. And Shrove did not appeal his guilty-plea conviction or sentence.

Three years after Shrove pleaded guilty, the legislature repealed § 13A-6-110 and replaced it with § 13A-6-122. See Act No. 2009-745, Ala. Acts 2009. The new computer-solicitation-of-a-child statute altered the old statute by adding language that made communicating with "another person believed by the defendant to be a child at least three years younger than the defendant" a crime. § 13A-6-122, Ala. Code 1975 (emphasis added). At the same time it enacted § 13A-6-122, the legislature also enacted § 13A-6-127, Ala. Code 1975, which provides that it is no defense to computer solicitation of a child "[t]hat an undercover operative or law enforcement officer was involved in the detection and investigation."

In 2012, six years after Shrove pleaded guilty, this Court addressed the question "whether a person could be convicted of violating § 13A-6-110, Ala. Code 1975, as it provided prior to May 22, 2009, when an actual child was never solicited even though that person believed that he was soliciting an actual child." Tennyson v. State, 101 So. 3d 1256, 1257 (Ala. Crim. App. 2012). This Court unanimously held "that the plain language of § 13A–6–110, Ala. Code 1975, as it existed at the time of the relevant conduct, required that a defendant solicit an actual child and not an undercover officer whom he believed to be a child." Tennyson, 101 So. 3d at 1262 (emphasis added). Put differently, before May 22, 2009, using a computer to communicate with an adult who is posing as a child was not criminal conduct punishable under § 13A-6-110, Ala. Code 1975.

On January 3, 2019, Shrove filed the instant Rule 32 petition. (C. 6.) Relying on Tennyson, Shrove alleged that the trial court did not have jurisdiction to render a judgment or to impose a sentence in his case because his conduct--communicating, "at all times, with an adult, undercover operative posing as a child less than sixteen (16) years of age"--was not a crime under § 13A-6-110. (C. 15.) Shrove acknowledged that his petition was successive, but he alleged that the grounds of preclusion set out in Rule 32.2, Ala. R. Crim. P., did not bar his petition because his claim is "jurisdictional." Shrove argued:

"Because the indictment did not state an offense and an indictment or complaint invokes the Court's subject-matter jurisdiction, the Court was without jurisdiction to render a judgment or impose sentence. The indictment alleged a violation of Alabama Code § 13A-6-110, but the specific facts alleged in the indictment did not invoke the Court's jurisdiction. For the Court to render judgment and maintain subject-matter jurisdiction the indictment must allege an offense. For the Court to render judgment, the facts giving rise to the indictment must allege an offense. Shrove committed no offense. The Court was without subject-matter jurisdiction to render judgment. Therefore, Shrove's successive petition is not precluded."

(C. 25 (citations omitted).)

On March 6, 2019, the State moved to dismiss Shrove's petition. (C. 161-66.) The State argued that Shrove's claim was not jurisdictional and that it was precluded by Rule 32.2(a)(5), Ala. R. Crim. P., that it was successive under Rule 32.2(b), Ala. R. Crim. P., and that it was time-barred under Rule 32.2(c), Ala. R. Crim. P. (C. 162.) The State also argued that Shrove's claim was meritless because, it said, Tennyson "has no retroactive application" to Shrove's case. (C. 164.)

In response, Shrove again noted that his petition was successive but argued that none of the grounds of preclusion set out in Rule 32.2, Ala. R. Crim. P., apply to his claim because, he said, his claim is jurisdictional. Shrove explained that his

"indictment did not allege a crime. Shrove did not solicit or communicate with a child under the age of sixteen years old. He communicated at all times with an undercover operative posing as a child. Under Tennyson and Section 13A-6-110 at the time of Shrove's conduct giving rise to the indictment, communicating or soliciting an undercover operative posing as a child was not a crime. A valid indictment confers jurisdiction. A valid indictment must allege a crime. Otherwise, the court is without jurisdiction to render a judgment and/or impose sentence. The petition asserts a jurisdictional claim for relief."

(C. 171.) Shrove also argued that Tennyson was retroactive because it announced a "substantive rule that narrows the scope of a criminal statute by interpreting its terms and places particular conduct or persons covered by the statute beyond the State's power to punish." (C. 172.) Shrove continued:

"The Tennyson holding was a new and substantive rule, not a procedural rule. Tennyson, therefore, is retroactive to Shrove. In Tennyson, the court narrowed the scope of section 13A-6-110 by interpreting the plain language of the statute to permit only the prosecution of defendants that solicited or communicated a child, not an adult posing as a child. According to Tennyson, the relevant conduct, the solicitation and communication, had to involve a person under the age of sixteen years. It, quite obviously, narrowed the particular conduct or persons covered by the statute that the State had the power to punish under 13A-6-11. The State, thus, could no longer prosecute individuals that merely solicited or communicated with adults posing as children. Hence, proposed and enacted legislation after Tennyson, stated that its purpose was, among other things, ‘to specify that the crime may be committed if the person the defendant believed to be a child was a law enforcement officer ...’ Tennyson at 1258,. Also see §§ 13A-6-122 and 13A-6-127, Code of Alabama, 1975. To disallow Tennyson from applying retroactively would ‘carry a significant risk’ that Shrove, and others similarly situated that solicited or communicated only with an adult, would stand ‘convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him.’ Schiro [Schriro v. Summerlin, 542 U.S. 348, 352 (2004).] ... Refusal to apply Tennyson retroactively would produce the exact results and constitutional violations that the Schiro [Schriro] court warned against. Tennyson involves the applicability of a new, substantive rule, not a procedural rule. Tennyson ... applies retroactively to Shrove."

(C. 173.)

On August 14, 2019, the circuit court held a hearing on Shrove's petition. At the hearing, the parties reiterated the arguments raised in their respective motions. After the hearing, the circuit court issued an order granting the State's motion to dismiss. In its order, the circuit court found that Tennyson applied retroactively to Shrove's case (C. 182-85) but concluded that Shrove's claim was nonjurisdictional and thus precluded under Rule 32.2(a)(5), Ala. R. Crim. P., successive under Rule 32.2(b), Ala. R. Crim. P., and time-barred under Rule 32.2(c), Ala. R. Crim. P. (C. 185-86). This appeal follows.

Standard of Review

" ‘ "The standard of review on appeal in a postconviction

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