State v. Drewry, 6 Div. 290

• Decision Date: 10 November 1987
• Docket Number: 6 Div. 290
• Citation: 519 So.2d 591
• Parties: Ex parte: State of Alabama. (In re: STATE of Alabama v. John Norwood DREWRY).
• Court: Alabama Court of Criminal Appeals

Page 591

519 So.2d 591

Ex parte: State of Alabama (In re: STATE of Alabama v. John Norwood DREWRY).

6 Div. 290.

Court of Criminal Appeals of Alabama.

Nov. 10, 1987.

Rehearing Denied Dec. 29, 1987.

Don Siegelman, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for petitioner.

Ralph I. Knowles, Jr., Tuscaloosa, for respondent.

PETITION FOR WRIT OF MANDAMUS

BOWEN, Presiding Judge.

This is an original petition for writ of mandamus filed by the Attorney General for the State of Alabama seeking to compel the Circuit Court of Tuscaloosa County to set aside its order granting probation to a defendant convicted of trafficking in marijuana.

In September of 1984, John Norwood Drewry pleaded guilty and was convicted of trafficking in cannabis in violation of Alabama Code 1975, § 20-2-80. Thereafter, Drewry's attorney contacted the District Attorney's Office in Tuscaloosa County in an effort to secure probation or a reduced sentence for his client.

The particular facts surrounding any assistance Drewry may or may not have given law enforcement in an effort to secure probation will not be revealed inasmuch as the trial court has ordered that "the records in this case be ... sealed and not ... released without court order."

At the sentencing hearing, the Assistant District Attorney refused to recommend probation and opposed Drewry's receiving any consideration under § 20-2-81(b). However, the sentencing judge found that Drewry was "entitled to consideration for probation" and sentenced him to six years' imprisonment, which he suspended and ordered Drewry placed on probation after serving sixty days in the county jail. Drewry was also fined $25,000 and ordered to pay $25 to the Victims' Compensation Fund.

The Attorney General filed the petition for writ of mandamus in this Court contending that a sentencing judge is not authorized to grant a person convicted of trafficking in cannabis under § 20-2-80(1)(a), a reduced sentenced or probation under § 20-2-81(b) absent an appropriate motion by the District Attorney.

The controlling statute is § 20-2-81, Alabama Code 1975, which provides:

"(a) Notwithstanding the provisions of chapter 22, Title 15, [pardons, paroles and probation] with respect to any person who is found to have violated this article, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall such person be eligible for parole prior to serving the mandatory minimum term of imprisonment prescribed by this article.

"(b) The prosecuting attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of this article, except where the sentence is life imprisonment without parole, and who provides substantial assistance in the identification, arrest, or conviction of any of his accomplices, accessories, coconspirators, or principals. The arresting agency shall be given an opportunity to be heard in aggravation or mitigation in reference to any such motion. Upon good cause shown, the motion may be filed and heard in camera. The judge hearing the motion may reduce or suspend the sentence if he finds that the defendant rendered such substantial assistance."

In sentencing Drewry and in granting probation, the sentencing judge issued the following written order, dated January 12, 1987:

"This cause came to be heard on Defendant's motion to consider his application for probation under Code of Alabama, Title 20-2-81(b), which provides in part:

" 'the prosecuting attorney may move the sentencing court to reduce or rescind the sentence of any person who is convicted of a violation of this article who provides assistance in the identification, arrest, or conviction of any of his accomplices, accessories, coconspirators, or principles ...'

"The wording of the foregoing statute is couched in disjunctive terms as opposed to conjunctive terms as to the wording 'identification, arrest, or conviction.' This court interprets the disjunctive wording as opposed to the conjunctive wording to mean that substantial assistance is required in only one area; i.e., identification or arrest or conviction, in order for the defendant to have a right to be considered for the benefit of the section.

"There are no Alabama cases defining the words 'substantial assistance.' Black's Law Dictionary defines the word 'substantial' as, among other things, valuable, real, solid, verifiable. Black's Law Dictionary further defines the word 'assistance' as 'to help.' The Defendant at the hearing presented evidence of the efforts he had made under the statute by identifying his supplier of drugs as well as attempts, though unsuccessful, to set up a buy with the supplier for the purpose of effecting the supplier's arrest. Since the defendant did comply with at least one of the disjunctive criteria, he is found to be entitled to consideration for probation. The defendant is, however, not entitled to have the law enforcement agency, the probation office, or the district attorney's office recommend probation under these circumstances. The court is aware of a possible 'watering-down' effect that granting probation in these cases, without recommendation of the law enforcement agency or district attorney, could have on future identification and arrest of large drug suppliers. With this in mind, the court recognizes that probation should be granted only in very rare and unusual cases, where there is no recommendation from these agencies. However, the court is bound by language of the statute and finds that compliance with one condition such as identification, would open the door for consideration of probation by the court.

"Prior to consideration of the probation issue in this case, this court must sentence the defendant. Evidence at the sentencing hearing indicated that the defendant admitted to possession of 4.5 pounds of marijuana, and 1.5 pounds of hashish. Therefore, this court sentences the defendant to six (6) years' incarceration in the state penitentiary and assesses a $25,000.00 fine. In addition, a $25.00 victim's compensation assessment is ordered.

"Upon consideration of the defendant's request for probation, the court finds that this is a rare case in which the best interests of the community would be served by placing the defendant on probation for a period of five (5) years subject to the normal, general conditions of probation and the following special terms and conditions:

"(1) The defendant is ordered to serve a sixty day split sentence in the Tuscaloosa County jail beginning on January 26, 1987, at 8:00 a.m.

"(2) On completion of the split sentence the defendant is to complete 300 hours of community service work within six (6) months of the completion date of the sentence in the Tuscaloosa County jail.

"(3) Defendant is ordered to refrain from use or possession of any illegal controlled substances or association with any person using or possessing any illegal controlled substance or narcotic drug.

"The defendant is hereby advised that he has the right to appeal from the court's judgment in this case, however, he must do so within forty-two (42) days of the date of this order or lose the right to appeal. It is ordered that a copy of this order be served on the defendant."

On April 28th of 1987, an additional order was issued:

"The Court hereby makes additional findings to clarify an ostensible inconsistency between the finding and the order:

"1. There existed an agreement between the prosecuting attorney and the defendant, that if the defendant provided substantial assistance under Section 20-2-81, Code of Alabama, that the State would move the Court for leniency.

"2. The defendant made reasonable efforts to comply with the agreement.

"3. The prosecuting attorney arbitrarily decided not to move the Court for leniency.

"4. The defendant under the authority of Ex Parte John Lloyd Sides moved the Court for a hearing to determine if the prosecuting attorney abused his discretion by not moving for leniency.

"5. This Court finds that the prosecuting attorney did abuse his discretion by not informing the Court of the agreement."

I

The meaning of § 20-2-81 and the intent of the legislature is clear. "The legislature obviously intended that all persons convicted of trafficking would receive a minimum mandatory sentence (unless they fall within the express exception set out in § 20-2-81(b)) and that the sentence would be served. Neither the trial courts nor the Pardons and Paroles Board has the power to reduce or suspend the mandated sentence." Ex parte Jones, 444 So.2d 888, 890 (Ala.1983) (bracketed material in original). See also Roberts v. State, 482 So.2d 1293 (Ala.Cr.App.1985) (conviction for trafficking not preclude accumulation of good time). We reject the Attorney General's argument that all persons convicted must serve a minimum of three years' imprisonment even if probation is granted.

II

In this case, probation was improperly granted.

In the amended order of the sentencing judge, reference is made to the case of "Ex parte John Lloyd Sides." Sides v. State, 501 So.2d 1259, 1261 (Ala.Cr.App.1985), reversed, Ex parte Sides, 501 So.2d 1262 (Ala.1986), involved the issue of whether or not a defendant, before pleading guilty, could compel the enforcement of a plea bargain agreement and require the district attorney to file a motion under § 20-2-81(b) for reduction or suspension of sentence. This Court held that mandamus was not the proper remedy because the accused had not yet pleaded guilty and because the filing of the motion and its grant or denial were discretionary with the prosecutor and the sentencing judge. In so finding, this Court held:

"There are three conditions precedent to the application of § 20-2-81(b):

"1. A defendant must have been found guilty or must have pleaded guilty to a trafficking offense. This procedure is entirely post-conviction in nature. Dickerson v. State, 414 So.2d 998 (Ala.Crim.App.1982); ...