Strickland v. State

• Decision Date: 29 October 1999
• Citation: 771 So.2d 1123
• Parties: Don Lee STRICKLAND v. STATE.
• Court: Alabama Court of Criminal Appeals

771 So.2d 1123

Don Lee STRICKLAND v. STATE.

CR-98-1667.

Court of Criminal Appeals of Alabama.

October 29, 1999.

Rehearing Denied December 17, 1999.

Jeb Stuart Fannin, Talladega, for appellant.

Bill Pryor, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.

COBB, Judge.

Don Lee Strickland appeals the circuit court's denial of his Rule 32, Ala.R.Crim. P., petition for postconviction relief. The petition sought relief from his December 11, 1996, conviction for theft of property in the first degree and his sentence to life in prison as a habitual felony offender. This court affirmed Strickland's conviction on direct appeal on June 20, 1997. Strickland v. State, 717 So.2d 900 (Ala.Cr.App.1997)(table). The certificate of judgment was issued on July 8, 1997. Strickland's Rule 32 petition was timely filed on November 6, 1998.

Strickland presented two claims in his petition. He claimed that the trial court was without jurisdiction to render a judgment or to impose sentence in his case because, he says, the trial court's jury charge failed to define all the elements of theft of property in the first degree. Strickland also claimed that the trial court was without jurisdiction to render a judgment or to impose sentence because, he says, Strickland was denied effective assistance of counsel at both his trial and on appeal.

The basis for both claims was that the trial court failed to define "deprive," as that term is defined in § 13A-8-1(2), Ala. Code 1975, in its instructions to the jury. According to Strickland, the omission allowed the jury to convict him on less than all the elements required under § 13A-8-3, Ala.Code 1975. He cites Weeks v. State, 611 So.2d 1156 (Ala.Cr.App.1992), and Ainsworth v. State, 465 So.2d 467 (Ala.Cr. App.1984), in support of his claims. In these cases convictions for theft of property in the first degree were reversed on direct appeal because the trial court had refused a requested jury instruction providing the statutory definition of "deprive" as found in § 13A-8-1(2), Ala.Code 1975.

A hearing was conducted on Strickland's petition. Strickland was the only witness at the hearing. He testified that while he was on work release under the authority of the Department of Corrections, he had taken a Department of Corrections van without permission and had driven to Hanceville to see his grandchildren. Afterwards, he went to his nephew's house and telephoned the police to come get him. Upon this evidence he was convicted of theft of property in the first degree. He reasserted that the only basis for both his jurisdictional claim and his ineffective-assistance-of-counsel claim was that the jury was not given the statutory definition of the word "deprive." He stated that Weeks and Ainsworth were reversed on direct appeal because of this error, but that his counsel did not object to the trial court's jury charge, and, thus, could not appeal based on this error. Strickland testified that he believed the outcome of his case would have been different had counsel made the proper objection to the charge. He believes the jury would have acquitted him had the term "deprive" been defined. He also believes that, based on Weeks and Ainsworth, the Court of Criminal Appeals would have reversed his conviction had counsel obtained an adverse ruling to a requested instruction defining "deprive." He stated that based on the evidence presented at trial, the jury would not have believed that he intended to keep the van, so as to "deprive" the Department of Corrections of it.

In compliance with Rule 32.9(d), Ala. R.Crim.P., the trial court issued a written order finding, in pertinent part, the following:

"5. There has been no credible evidence presented to this Court, or legal authority, that the Circuit Court of Talladega County, Alabama was without jurisdiction to render the judgment and impose the sentence. Therefore, this allegation is without merit and due to be denied.

". . . .

"9. In this case, the record is clear that the Defendant committed the theft of a motor vehicle while he was in the custody of the Department of Corrections and working in Talladega County, Alabama, at Caradale Lodge. The Defendant did not have permission to take the van and drive it to Hanceville, Alabama, where he was arrested without incident. The jury determined that he committed the crime of theft of property in the first degree and this Court specifically finds that even if `deprived' had been defined for the jury, the result would not have been different. The outcome of this case was not effected by the failure of counsel to request the definition of `deprive' and this Court believes that the failure not to request the definition of `deprive' was not an unprofessional error and counsel was not deficient and the Defendant not prejudiced."

R. 26-27.

Strickland appeals from the circuit court's ruling; he presents the same claims and arguments on appeal as he presented in his petition. He also claims that the circuit court erred in denying his Rule 32 petition because, he says, his claims are meritorious and entitle him to a new trial.

"The standard of review on appeal in a postconviction proceeding is whether the trial judge abused his discretion when he denied the petition. Ex parte Heaton, 542 So.2d 931 (Ala.1989)." Elliott v. State, 601 So.2d 1118, 1119 (Ala.Cr.App.1992).

I.

Strickland claims that the trial court was without jurisdiction to render a judgment or to impose sentence because, he says, the trial court failed to charge the jury on the definition of "deprive." The circuit court ruled that no credible evidence was presented showing that that court was without jurisdiction to render a judgment or to impose sentence. Thus, the circuit court ruled that this claim was meritless. The merits of this particular claim do not have to be determined. This substantive claim does not concern the jurisdiction of the trial court. "Failure to object to the trial court's instruction to the jury before the jury retires to deliberate waives any alleged error for review." Siler v. State, 705 So.2d 552, 558 (Ala.Cr.App. 1997). Claims that can be waived are not jurisdictional. See Lancaster v. State, 638 So.2d 1370, 1374 (Ala.Cr.App.1993) (Bowen, P.J., dissenting). This claim is precluded because it could have been, but was not, raised at trial and on appeal. Rule 32.2(a)(3) and (5), Ala.R.Crim.P. If the circuit court's ruling is correct for any reason, it will be affirmed on appeal, even if the court assigns the wrong reason therefor. Hoobler v. State, 668 So.2d 905, 908-09 (Ala.Cr.App.1995).

II.

Strickland claims that he was denied effective assistance of trial counsel and appellate counsel.¹ Strickland was represented by the same counsel at trial and on direct appeal. Where trial counsel also served as appellate counsel, claims of ineffective assistance of counsel are cognizable in a Rule 32, Ala.R.Crim.P., petition. Ex parte Besselaar, 600 So.2d 978, 979 (Ala.1992). He claims trial counsel was ineffective because counsel did not object to the trial court's failure to instruct the jury on the definition of "deprive."

In order to prevail on a claim of ineffective assistance of counsel, a defendant must show (1) that his counsel's performance was deficient, and (2) that he was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

In addition to the testimony from the Rule 32 proceedings, we take judicial notice of the following facts from the record on direct appeal.² Strickland was in the custody of the Department of Corrections and was working in Sylacauga in Talladega County at the Caradale Lodge, a part of Cheaha Regional Mental Health Mental Retardation Board, Inc., also known as the Cheaha Mental Health Center. On March 29, 1996, Strickland drove a van belonging to Cheaha Mental Health Center from Sylacauga to Hanceville, Alabama. Strickland and his supervisors testified that he did not have permission to drive the van to Hanceville. Strickland testified that he took the van so he could visit his grandchildren. He admitted that he could telephone his grandchildren and that they could visit him where he was housed in the custody of the Department of Corrections. However, he stated that the children were about to move to Tennessee and that he wanted to see them. After meeting with his grandchildren for about an hour at a Hardee's restaurant near Hanceville, he drove to his nephew's house in Hanceville, where he telephoned the police and told the police where he was. He sat on the front steps and waited for the police to arrive. Strickland testified that when he was waiting he was wearing his "prison whites," as he had all day. The arresting officer testified that Strickland identified himself when the officer arrived and that Strickland was very drunk. Strickland was arrested without incident.

"The theft of a motor vehicle, regardless of its value, constitutes theft of property in the first degree." § 13A-8-3(b), Ala.Code, 1975. However, in order to obtain a conviction for theft of property the State must prove that a person:

"(1) Knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his property; or

"(2) Knowingly obtains by deception control over the property of another, with intent to deprive the owner of his property."

§ 13A-8-2, Ala.Code 1975.

Strickland correctly argues that the jury charge given in his case was almost identical to the charge given by the trial court in Weeks. The following charge was given in Strickland's case:

"Now to convict the defendant, the state must prove beyond a reasonable doubt each of the following elements of the offense of theft of property in the first degree: One would be that the defendant, Don Lee Strickland, knowingly obtained—now, you will notice this is in the alternative where you say knowingly obtained or exerted

...