State v. Arrington (Ex parte State) , CR–10–0634.

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: PER CURIAM.
• Citation: 74 So.3d 482
• Parties: Ex parte State of Alabama.(In re STATE of Alabama v. Corey ARRINGTON).
• Docket Number: CR–10–0634.
• Decision Date: 27 May 2011

74 So.3d 482

Ex parte State of Alabama.(In re STATE of Alabama
v.
Corey ARRINGTON).

CR–10–0634.

Court of Criminal Appeals of Alabama.

May 27, 2011.

[74 So.3d 483]

Luther Strange, atty. gen., and Carrie E. Gray, asst. district atty., for petitioner.

Barr Duane Younker, Jr., Montgomery, for respondent.

PER CURIAM.

The district attorney for the Fifteenth Judicial Circuit filed this petition for a writ of mandamus requesting that we direct Judge William Shashy of the Montgomery Circuit Court to set aside his order granting Corey Arrington's motion for a judgment of acquittal notwithstanding the verdict, to reinstate Arrington's conviction, and to direct that he be sentenced in accordance with that conviction.

In February 2010, Arrington was indicted for violating the Community Notification Act (“the CNA”) by failing to notify the Montgomery County Sheriff of his intent to change his address within 30 days of moving, a violation of § 15–20–23, Ala.Code 1975.¹ Before trial, Arrington moved to dismiss the charges against him because, he said, it was impossible for him to comply with the statute in that he had been evicted from his apartment for failing to pay rent. Judge Shashy denied that motion. A jury then convicted Arrington of violating the CNA. Arrington moved for a judgment of acquittal notwithstanding the jury's verdict and argued that the CNA was unconstitutional as applied to him. The State responded that the circuit court was limited by Rule 20.1, Ala. R.Crim. P., to considering only issues involving the sufficiency of the evidence; therefore, it argued, Arrington's motion should be denied. On January 27, 2011, Judge Shashy entered a lengthy order holding that the CNA, as applied to Arrington, was unconstitutional. Judge Shashy also set aside the jury's verdict and dismissed the charges against Arrington. The State objected and moved that

[74 So.3d 484]

Judge Shashy reconsider his ruling. ² On February 1, 2011, the State filed this timely petition for a writ of mandamus challenging Judge's Shashy's ruling and moved that we stay the proceedings in the lower court.³ Pursuant to State v. Webber, 892 So.2d 869 (Ala.2004), we granted the State's motion to stay the proceedings pending the resolution of this mandamus petition.

The district attorney argues that Judge Shashy exceeded the scope of Rule 20.3, Ala. R.Crim. P., by setting aside the jury's verdict based on grounds other than the sufficiency of the evidence. It cites this Court's opinion in State v. Grantland, 709 So.2d 1310 (Ala.Crim.App.1997), to support its argument.

Initially, we must determine if a petition for a writ of mandamus is the proper means of attacking Judge Shashy's ruling. Over the past several years, the Alabama Supreme Court has limited the State's right to seek mandamus review. See State v. Martin, 69 So.3d 94 (Ala.2011) (the State may not use mandamus to seek review of discovery ruling in postconviction proceedings unless the State “can demonstrate that an appeal will not provide an adequate remedy”); State v. Murphy, 39 So.3d 1045, 1048–49 (Ala.2009) (the State may not use mandamus to obtain review of a pretrial ruling granting a defendant's motion in limine); Ex parte King, 23 So.3d 77 (Ala.2009) (the State may not use mandamus to seek review of a pretrial ruling denying the State's motion in limine). Nonetheless, the Supreme Court has left undisturbed our holding in State v. Grantland, that the State may use an extraordinary petition for a writ of mandamus to seek review of a circuit court's ruling that the State believes exceeds the scope of Rule 20.3, Ala. R.Crim. P. See also Ex parte Nice, 407 So.2d 874, 876 (Ala.1981). This case is correctly before this Court by way of a petition for a writ of mandamus.

A challenge to the constitutionality of a statute has been described as an “affirmative defense.” Jefferson County Comm'n v. Edwards, 49 So.3d 685, 692 (Ala.2010). Rule 15.4(a), Ala. R.Crim. P.,⁴ addresses pretrial motions related to defenses and states:

“A motion raising defenses or objections made before trial pursuant to this rule shall be determined before trial, unless the court for good cause orders that it be deferred for determination at the trial on the merits.”

The Committee Comments to this rule state the reasons for the adoption of this rule:

“Rule 15.4 requires that the pre-trial motion be determined by the court before trial, unless deferred for good cause until the trial. When the motion raises an issue better determined during the trial, it would be proper to defer the

[74 So.3d 485]

motion. For example, the question of venue may be ‘[one of] fact so entwined with the merits ... that a decision should not be made before trial but postponed until trial.’ United States v. Callahan, 300 F.Supp. 519, 522 (S.D.N.Y.1969). In Callahan, the defendants were charged with a conspiracy, and venue was allegedly based on the planning having been done in the county of trial. To prove venue, the planning of the crime would have to be shown. A ruling on the motion was properly deferred until the trial.

“On the other hand, the motion may raise only questions of law which would properly be decided by the court. The purpose of this rule is to dispose of defenses which may be determinative of the case, but which do not require a trial on the merits. Such determinations will reduce the expense of trial and, in appropriate cases, will permit the state a right of appeal under Rule 15.7; thus trial judges should determine pre-trial motions in advance of trial in all possible instances.

“This rule allows the judge to decide all issues of fact raised by the motion, which are not constitutionally required to be tried by a jury. Examples of such facts would be the waiver of constitutional rights, legality of searches, the presence of unauthorized persons in the grand jury room, and discrimination in the selection of the grand jurors. See United States v. Smyth, 104 F.Supp. 279 (N.D.Cal.1952), Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254 (1964). See also Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), requiring a hearing on the question of competence to stand trial when that issue is raised by the evidence presented at...