State v. Baker

• Decision Date: 06 February 2015
• Docket Number: CR–13–1201.
• Citation: 172 So.3d 860
• Parties: STATE of Alabama v. John Edward BAKER.
• Court: Alabama Court of Criminal Appeals

172 So.3d 860

STATE of Alabama

v.John Edward BAKER.

CR–13–1201.

Court of Criminal Appeals of Alabama.

Feb. 6, 2015.

Luther Strange, atty. gen., and Jack W. Willis, asst. atty. gen., for appellant.

Jacob Edward Bergman, Scottsboro, for appellee.

Opinion

JOINER, Judge.

The State of Alabama appeals the circuit court's decision to grant John Edward Baker's Rule 32, Ala. R.Crim. P., petition for postconviction relief. See Rule 32.10, Ala. R.Crim. P. We reverse and remand.

Facts and Procedural History

On August 18, 2010, Baker pleaded guilty to one count of sexual abuse of a child less than 12 years old, see § 13A–6–69.1, Ala.Code 1975, and was sentenced to 10 years' imprisonment.¹ Baker applied for probation, which the circuit court denied after conducting a hearing. Baker did not file a direct appeal challenging either his conviction or sentence.

Thereafter, Baker filed several pro se motions with the circuit court requesting that the circuit court either “reconsider” or “modify” his sentence; the circuit court denied those motions.

On November 11, 2011, Baker, with the assistance of counsel,² filed his first Rule 32 petition, alleging that his trial counsel was ineffective because, he said, his trial counsel failed to inform him of numerous things before he pleaded guilty and that, as a result of his trial counsel's ineffectiveness, his guilty plea was not knowingly, voluntarily, and intelligently made. The circuit court, after conducting an evidentiary hearing on Baker's claims, denied Baker's Rule 32 petition, holding that Baker's claims were without merit, were precluded under Rule 32.2(a)(3) and (5), Ala. R.Crim. P., and were time-barred under Rule 32.2(c), Ala. R.Crim. P. Baker appealed the circuit court's decision, and this Court affirmed the circuit court's decision in an unpublished memorandum issued on December 7, 2012. See Baker v. State (No. CR–11–1376, Dec. 7, 2012), 155 So.3d 1127 (Ala.Crim.App.2013) (table).

Thereafter, on October 18, 2013, Baker filed a motion he styled as a “Motion for a Sentence Reduction or Reverse Sentence for a Jurisdictional Defective Misunderstanding of the Plea to the Indictment; Lack of Evidence to Support the Charge,” in which Baker again challenged his guilty-plea conviction for sexual abuse of a child less than 12 years old, alleging that “his plea was illegally accepted because he did not understand his plea” because, he said, his “understanding of the plea was that he would get a 10 year sentence with good time” and his trial counsel told him that he “would be pleading to a sentence of 3 years, 4 months, 17 days.” (C. 5.) Baker also alleged that his “conviction and sentence [were] wrongfully and unlawfully imposed because it appears that there is no evidence to support his charge(s) nor his conviction.” (C. 6.)

On November 8, 2013, the State filed a response to Baker's motion, arguing that, although not styled as such, Baker's motion was truly a Rule 32, Ala. R.Crim. P., petition for postconviction relief, see, e.g., Hiett v. State, 642 So.2d 492, 493 (Ala.Crim.App.1993) (“[A] petition for writ of habeas corpus contesting the validity of a conviction should [be] treated as a petition for post-conviction relief.”). Further, the State argued that Baker's filing “fail [ed] to conform to the requirements of ... Rule 32.6(a)[, Ala. R.Crim. P.]” (C. 11), which provides, in part:

“A proceeding under this rule is commenced by filing a petition, verified by the petitioner or the petitioner's attorney, with the clerk of the court. A petition may be filed at any time after entry of judgment and sentence (subject to the provisions of Rule 32.2(c) ). The petition should be filed by using or following the form accompanying this rule. If that form is not used or followed, the court shall return the petition to the petitioner to be amended to comply with the form. The petition shall be accompanied by two copies thereof. It shall also be accompanied by the filing fee prescribed by law or rule in civil cases in the circuit court unless the petitioner applies for and is given leave to prosecute the petition in forma pauperis. If the petitioner desires to prosecute the petition in forma pauperis, he or she shall file the ‘In Forma Pauperis Declaration’ at the end of the form.”

Thus, the State requested that the circuit court return the petition to Baker and instruct Baker “to comply with the form requirements and that it be re-filed appropriately, and as part of that re-filing, that it be accompanied by the filing fee or the application to proceed in forma pauperis.” (C. 11.)

On November 12, 2013, the circuit court granted the State's motion and returned Baker's motion to him to be refiled in the appropriate form. The circuit court also appointed counsel “to represent [Baker] ... for the limited purpose of helping the court determine [Baker's] indigency.” (C. 13.) Baker, through his appointed counsel, filed an “Affidavit for Substantial Hardship,” a request to proceed in forma pauperis,³ and a corrected Rule 32, Ala. R.Crim. P., petition for postconviction relief.

The corrected petition, Baker's second, was deemed filed on February 6, 2014. Baker filed the standard Rule 32 form found in the appendix to Rule 32 and attached a supplement setting out his detailed claims. In his supplement to the petition, Baker alleged that his trial counsel was ineffective because, he said, his trial counsel “fail[ed] to advise [him] of the direct consequences of his conviction prior to entering a plea of guilty” and that his guilty plea was “invalid because it was not ‘a voluntary, knowing, and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences.’ ” Baker further alleged that although his petition was, on its face, untimely, see Rule 32.2(c), Ala. R.Crim. P., his petition should not be summarily dismissed because, he said, he was entitled to have the doctrine of equitable tolling applied.

On March 3, 2014, the State filed a response to Baker's Rule 32 petition, alleging that, because the circuit court had already entered an order granting Baker an evidentiary hearing, it “reserves all possible claims, defenses and preclusions and the right to claim the same at the scheduled hearing.” (C. 44.) The State further alleged that it denied “all factual and legal issues raised by” Baker. (C. 44.)

On March 14, 2014, Baker filed an “Amended Petition for Relief from Conviction or Sentence,” in which Baker reasserted the claims raised in his second Rule 32 petition and further alleged:

“At the April 24, 2012[,] hearing on Baker's first Rule 32 Petition, Baker's retained trial counsel ... testified numerous times as to Mr. Baker's hopes of being granted probation or a split sentence when he decided to plead guilty, as well as her own expectation that probation could possibly be granted. For example, [Baker's trial counsel] testified:

“ ‘But from the get-go, he wanted me to negotiate a deal where he didn't have to go to prison, that was his first hope, or a split sentence where he would be in jail’ (April 24, 2012 Transcript at Page 57). [Baker's trial counsel] later testified, ‘I had relayed what [the Assistant District Attorney] had offered, and [Baker] agreed with that, that he would take his chances and apply for probation.’ (April 24, 2012 Transcript, Page 59).

“To be sure, this court went so far as to later hold a probation hearing on Mr. Baker's application for probation on November 10, 2010. After receiving a pre-probation report, and hearing and considering the evidence, the court denied Baker's application for probation.

“Thus, it cannot reasonably be disputed that Mr. Baker, [his trial counsel], [the State], and quite frankly, everyone else familiar with this case, were of the understanding, before and after Baker decided to plead guilty, that a split sentence or sentence of probation was a possibility, was legal, and was a question of fact to be decided by the sentencing judge. The Alabama legislature thought otherwise when it enacted Ala.Code § 15–18–8.”

(C. 46–47.)

On March 8, 2014, the State filed a response to Baker's amended Rule 32 petition, alleging that Baker's claims were precluded under Rule 32.2(a)(4), Ala. R.Crim. P., because they were raised and addressed in a previous appeal or collateral proceeding; that Baker's claims were successive under Rule 32.2(b), Ala. R.Crim. P.; that Baker's claims were time-barred under Rule 32.2(c), Ala. R.Crim. P.; and that Baker's ineffective-assistance-of-counsel claim was precluded under Rule 32.2(d), Ala. R.Crim. P. The State further alleged that Baker's claims were without merit. To support its allegations, the State attached to its response a copy of this Court's unpublished memorandum affirming the circuit court's denial of Baker's first Rule 32 petition; an affidavit from Baker's trial counsel; Baker's affidavit—which he had attached to his first Rule 32 petition; a copy of the explanation-of-rights-and-plea-of-guilty form signed by Baker, his trial counsel, and the circuit court; and a copy of the transcript of Baker's guilty-plea colloquy.

On April 7, 2014, the circuit court conducted an evidentiary hearing on Baker's claims, at which Baker was represented by counsel. At the hearing, Baker presented no testimony to prove his claims and, instead, made only “legal arguments” in favor of his position. Baker, in addressing the circuit court, however, did introduce one exhibit—the written plea agreement between Baker and the State.⁴ Likewise, the State presented no testimony at the evidentiary hearing and, like Baker, made only “legal arguments” in favor of its position. As stated above, however, the State, in support of its position, had attached several exhibits to its response to Baker's Rule 32 petition.

On May 9, 2014, the circuit court issued a written order granting Baker's Rule 32 petition, finding that Baker's trial counsel was ineffective for failing “to advise [Baker] of the direct consequences of his conviction prior to...