State v. Kerley

• Decision Date: 15 December 2017
• Docket Number: CR–16–0740
• Citation: 260 So.3d 891
• Parties: STATE of Alabama v. Frank M. KERLEY Frank M. Kerley v. State of Alabama
• Court: Alabama Court of Criminal Appeals

260 So.3d 891

STATE of Alabama

v.Frank M. KERLEY

Frank M. Kerley

v.State of Alabama

CR–16–0740

Court of Criminal Appeals of Alabama.

December 15, 2017

Rehearing Denied February 2, 2018

Certiorari Denied March 16, 2018

Alabama Supreme Court 1170444

Steve Marshall, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellant/cross-appellee State of Alabama.

William R. Myers, Birmingham; and Robert G. Boliek, Jr., Birmingham, for appellee/cross-appellant Frank M. Kerley.

KELLUM, Judge.

The State of Alabama appeals the circuit court's order granting Frank M. Kerley's Rule 32, Ala. R. Crim. P., petition for postconviction relief on one of the claims in Kerley's petition. Kerley cross-appeals the circuit court's denial of the other two claims raised in his petition.

Facts and Procedural History

In 2014, Kerley was convicted of one count of first-degree sexual abuse of M.L. and one count of first-degree sexual abuse of J.H. See § 13A–6–66(a)(1), Ala. Code 1975. The trial court sentenced Kerley to five years' imprisonment for each conviction. This Court affirmed Kerley's convictions and sentences on direct appeal in an unpublished memorandum issued on April 10, 2015. Kerley v. State (No. CR-13-1628), 213 So.3d 611 (Ala. Crim. App. 2015) (table).

This Court issued a certificate of judgment on September 18, 2015.

In our unpublished memorandum affirming Kerley's convictions and sentences,¹ this Court set out the evidence presented at trial by the State:

"The record indicates the following pertinent facts. Kerley was married to E.K., the mother of J.H. and M.L., and lived with E.K., J.H., and M.L. in Jefferson County. E.K. was a nurse and worked the night shift in a hospital on weekends. While E.K. worked, Kerley would keep M.L. and J.H. at home.

"M.L. testified that on her ninth birthday—January 2, 2002—the first incident of sexual abuse by Kerley occurred. M.L. and Kerley were lying on the sofa watching television together when Kerley began to ‘rub ... his penis against [her] butt.’ (R. 43.) M.L. indicated that they were both clothed and that Kerley told her that ‘this is what dads and daughters did on their ninth birthday.’ (R. 44.) E.K. was at work and Kerley and M.L. were alone in the house at the time this incident occurred.

"M.L. testified that, on multiple occasions, Kerley would enter her bedroom to read her a bedtime story. Inside the bedroom, Kerley would ‘grind his penis on [M.L.'s] vagina area.’ (R. 45.) At first, Kerley touched M.L. while she wore clothes but the abuse progressed to the point where M.L. was unclothed. Kerley told M.L. that it was ‘really hot’ in the room and told M.L. to undress, making ‘it seem like it was part of the bedtime story.’ (R. 45.) Kerley used his hands to touch M.L.'s breasts and vagina. Kerley also penetrated M.L.'s vagina with his fingers.

"M.L. testified that Kerley had his clothes on when these incidents first began; however, as the abuse progressed, Kerley would sometimes not wear any pants or underwear. Kerley would tell M.L. to hold his penis. M.L. testified that she did as Kerley asked because she did not know what else to do. M.L. indicated that these incidents continued until she was 12 years old. M.L. did not tell anyone about the abuse because Kerley threatened to kill M.L.'s family if she ever disclosed the abuse.

"J.H. was 8 years old and had her own bedroom down the hall from M.L. when Kerley began abusing J.H. J.H. testified that she would be asleep in her room and would be awakened by Kerley touching her breasts and vagina with his fingers; the touching occurred both over and underneath J.H.'s clothing. After Kerley touched J.H., he would tell her that she ‘was loved.’ (R. 86.) J.H. testified that Kerley would touch her a couple of times each month. These incidents ended when J.H. was either 12 or 13 years old and moved in with her father to escape Kerley's abuse. When J.H. moved, she wrote E.K. a letter and explained that she no longer wanted to live with E.K. anymore. J.H. did not tell anyone about the abuse because Kerley said that E.K. would be angry at her. M.L. and J.H. eventually confided the abuse to each other and the two contacted the police."

Although Kerley did not testify on his own behalf at trial, he called two witnesses in his defense, and, through their testimony as well as through cross-examination and argument, Kerley denied the sexual-abuse allegations, asserted that M.L. and J.H. had made up the allegations against him at the urging of their mother, who was fighting Kerley for custody of M.L.'s and J.H.'s half sister at the time M.L. and J.H. had made the allegations against him in September 2010, and attacked M.L.'s and J.H.'s credibility, including presenting evidence impeaching portions of M.L.'s and J.H.'s testimony. For example, Kerley presented evidence indicating that the layout of the house that he shared with E.K., M.L., and J.H., was not as M.L. had testified; that he and M.L. were not alone in the house on her ninth birthday, as M.L. had testified; and that M.L. and J.H. had lived with their father for several months in the summer of 2003, contrary to their testimony that they had spent only two weeks with their father that year.

On September 19, 2016, Kerley, through counsel, timely filed the instant Rule 32 petition.² He filed an amendment on December 21, 2016, and a second amendment on March 24, 2017.³ In his petition and amendments, Kerley alleged that his trial counsel was ineffective for allegedly: (1) not requesting a unanimity instruction; (2) not calling his brother to testify and not eliciting testimony from his sister that M.L. had recanted her allegations of sexual abuse; and (3) not calling to testify Kerley's adult daughter to refute M.L.'s testimony that she was abused on her ninth birthday. On January 13, 2017, the State filed a response and a motion to dismiss Kerley's petition and first amendment, arguing that the claims raised therein—claims (1) and (2), as set out above—were insufficiently pleaded and meritless.

On March 15, 2017, the circuit court conducted an evidentiary hearing on Kerley's petition. On March 29, 2017, the circuit court issued an order granting Kerley's Rule 32 petition and setting aside his convictions and sentences on the ground that his trial counsel had been ineffective for not requesting a unanimity instruction, claim (1), as set out above; the circuit court found that claims (2) and (3), as set out above, had no merit. On April 25, 2017, both the State and Kerley filed motions to reconsider the circuit court's judgment. The circuit court did not issue a ruling on either motion; therefore, both motions were denied by operation of law 30 days after the circuit court's March 29, 2017, order. See, e.g., Loggins v. State, 910 So.2d 146, 148–49 (Ala. Crim. App. 2005). On April 7, 2017, and May 5, 2017, respectively, the State and Kerley filed notices of appeal.

Standard of Review

"[W]here there are disputed facts in a postconviction proceeding and the circuit court resolves those disputed facts, ‘[t]he standard of review on appeal ... is whether the trial judge abused his discretion when he denied the petition.’ " Boyd v. State, 913 So.2d 1113, 1122 (Ala. Crim. App. 2003) (quoting Elliott v. State, 601 So.2d 1118, 1119 (Ala. Crim. App. 1992) ). However, "when the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo." Ex parte White, 792 So.2d 1097, 1098 (Ala. 2001). Additionally, "where a trial court does not receive evidence ore tenus, but instead makes its judgment based on the pleadings, exhibits, and briefs, the ore tenus standard's presumption of correctness does not apply to the trial court's factual findings and it is the duty of the appellate court to judge the evidence de novo." Ex parte Horn, 718 So.2d 694, 705 (Ala. 1998).

Likewise, where a trial court makes its judgment based on the "cold trial record," no presumption of correctness applies to the trial court's findings, and the appellate court must review the evidence de novo. Ex parte Hinton, 172 So.3d 348, 353 (Ala. 2012).

" ‘The burden of proof in a Rule 32 proceeding rests solely with the petitioner, not the State.’ Davis v. State, 9 So.3d 514, 519 (Ala. Crim. App. 2006), rev'd on other grounds, 9 So.3d 537 (Ala. 2007). ‘[I]n a Rule 32, Ala. R. Crim. P., proceeding, the burden of proof is upon the petitioner seeking post-conviction relief to establish his grounds for relief by a preponderance of the evidence.’ Wilson v. State, 644 So.2d 1326, 1328 (Ala. Crim. App. 1994). Rule 32.3, Ala. R. Crim. P., specifically provides that ‘[t]he petitioner shall have the burden of ... proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.’ "

Wilkerson v. State, 70 So.3d 442, 451 (Ala. Crim. App. 2011).

In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court articulated two criteria that must be satisfied to show ineffective assistance of counsel. A defendant has the burden of showing (1) that his or her counsel's performance was deficient and (2) that the deficient performance actually prejudiced the defense. "To meet the first prong of the test, the petitioner must show that his counsel's representation fell below an objective standard of reasonableness. The performance inquiry must be whether counsel's assistance was reasonable, considering all the circumstances." Ex parte Lawley, 512 So.2d 1370, 1372 (Ala. 1987). " ‘This court must avoid using "hindsight" to evaluate the performance of counsel. We must evaluate all the circumstances surrounding the case at the time of counsel's actions before determining whether counsel rendered ineffective assistance.’ " Lawhorn v. State, 756 So.2d 971, 979 (Ala. Crim. App. 1999) (quoting Hallford v. State, 629 So.2d 6, 9 (Ala. Crim. App. 1992) ). "A court must indulge a strong presumption that counsel's conduct falls...