VR v. State
Citation | 852 So.2d 194 |
Parties | V.R. v. STATE of Alabama. |
Decision Date | 28 June 2002 |
Court | Alabama Court of Criminal Appeals |
James M. Byrd, Mobile, for appellant.
William H. Pryor, Jr., atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellee.
Alabama Supreme Court 1020047.
V.R. appeals the circuit court's summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his April 2000 convictions for two counts of rape in the first degree and his resulting sentences of 19 years' imprisonment, which were to be served concurrently. This Court affirmed V.R.'s convictions and sentences on direct appeal in an unpublished memorandum issued on December 15, 2000. See Rogers v. State, (No. CR-99-2106) 820 So.2d 176 (Ala.Crim.App. 2000) (table). The Alabama Supreme Court denied certiorari review, and this Court issued a certificate of judgment on April 27, 2001.
V.R. filed the present petition on June 11, 2001, claiming that he had been denied effective assistance of trial counsel because, he said, his trial counsel should have had a reputable physician test V.R. for chlamydia prior to trial and his trial counsel should have called a doctor to testify at trial that V.R. did not have chlamydia. In his petition, V.R. alleged the following: (1) that V.R. was accused of having sexual intercourse with R.F., his 10-year-old stepdaughter ("the victim"); (2) that during discovery the State advised V.R.'s trial counsel that the victim suffered from the sexually transmitted disease chlamydia; (3) that V.R. advised his trial counsel that he had never had sexual intercourse with the victim and that he did not have the sexually transmitted disease chlamydia; (4) that at trial the State introduced into evidence the victim's medical records, which showed that she had tested positive for chlamydia; (5) that at trial Dr. Angela Powell testified that the only means by which the victim could have contracted chlamydia was through sexual intercourse and that chlamydia is often asymptomatic; (6) that at trial the victim testified that she had never had sexual intercourse with anyone other than V.R.; (7) that at trial V.R. testified that he had never had sexual intercourse with the victim and that he did not have the sexually transmitted disease chlamydia, but on cross-examination, V.R. was unable to explain how he was sure that he did not have chlamydia since the disease is asymptomatic; (8) that while his direct appeal was pending, V.R.'s appellate counsel directed him to be tested for chlamydia by a reputable physician; and (9) that in August 2000, V.R. tested negative for chlamydia. V.R. attached a copy of the lab report to his petition.
In its response, the State (C. 12.) Additionally, the State alleged that V.R. was (C. 12.) This matter was scheduled for a September 17, 2001, hearing, and the case action summary shows that on September 18, 2001, the attorneys were given 15 days to submit caselaw as to whether V.R.'s claim was precluded. Relying on Avery v. State, 832 So.2d 664, 666 (Ala.Crim.App.2001), V.R. contended that "[t]he 30-day time limit for filing [a] motion for new trial had long since passed before appellate counsel was able to discover and document ineffective assistance by trial counsel." (C. 14.) The State argued the following:
(C. 23.) On October 24, 2001, the circuit court denied V.R.'s petition, on the ground "that the issue of ineffective assistance of counsel could reasonably have been presented in the timely filed motion for new trial." (C. 29.) In its order, the circuit court also stated:
(C. 28-29.)
Although the circuit court originally scheduled a hearing on V.R.'s petition, it appears from the record that a hearing was never held. No transcript of a hearing is found in the record, and in its order denying the petition, the circuit court does not state that a hearing was held; rather, the circuit court merely states that it "reviewed the record and the pleadings [and] is of the opinion that the Rule 32 petition submitted by V.R.....is due to be dismissed." (C. 28.) In addition, although V.R. initially ordered a transcript, a note in the record from the circuit clerk states, (C. 37.)
In Avery, 832 So.2d at 666, this Court stated:
"Under [Ex parte] Ingram[, 675 So.2d 863 (Ala.1996)
], the proper method for presenting an ineffective assistance of trial counsel claim that could not reasonably be presented in a motion for a new trial is by filing a Rule 32 petition.
(Emphasis added.) In the present case, V.R. was convicted in April 2000 and was sentenced on June 12, 2000. V.R.'s newly appointed appellate counsel filed a motion for a new trial on July 10, 2000. Neither the trial transcript nor the results of V.R.'s medical examination were available until after the expiration of the 30-day period in which to file a motion for a new trial. In its appellate brief, the State argues:
(State's brief at p. 7-8.) However, without the trial transcript, V.R.'s appellate counsel could not have known specific details from the trial, such as: (1) that Dr. Angela Powell testified that the victim had chlamydia, a sexually transmitted disease that is often asymptomatic and that the only means by which the victim could have contracted chlamydia was through sexual intercourse; (2) that the victim testified that she had never had sexual intercourse with anyone other than V.R.; and (3) that V.R.'s statement that he did not have chlamydia was rendered self-serving and meaningless when he was asked on cross-examination how he knew he did not have a disease that was asymptomatic. While it is true that V.R.'s newly appointed appellate counsel could have made a general allegation of ineffective assistance of trial counsel in V.R.'s motion for a new trial, it would appear that V.R.'s appellate counsel needed the trial transcript and the results of V.R.'s medical examination to be able to provide specific details to support an ineffective-assistance-of-trial-counsel claim.
Therefore, V.R.'s claim of ineffective assistance of trial counsel is not precluded by Rule 32.2(a)(3) and (5). In addition, V.R. pleaded sufficient facts that, if true, would entitle him to...
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