Watson v. State, 8 Div. 379

• Citation: 392 So.2d 1274
• Decision Date: 28 October 1980
• Docket Number: 8 Div. 379
• Parties: Donald Elliot WATSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1274

392 So.2d 1274

Donald Elliot WATSON v. STATE.

8 Div. 379.

Court of Criminal Appeals of Alabama.

Oct. 28, 1980.

Rehearing Denied Nov. 25, 1980.

Charles W. Cochran, III, of Keller & Cochran, Florence, for appellant.

Charles A. Graddick, Atty. Gen., and Cynthia D. Welch, Asst. Atty. Gen., for appellee.

J. Mark White, Roderick Beddow, Jr., William M. Dawson, Jr., Larry Waites, J. Louis Wilkinson, Mark B. Polson, Birmingham, amicus curiae on rehearing.

DeCARLO, Judge.

The appellant was indicted and charged with the offense of unlawfully breaking and entering a vehicle. After arraignment, with his attorney present, he pleaded not guilty and filed a "request to enter a guilty plea." This "request to enter a guilty plea," signed by the appellant and his attorney, follows the form found in Ireland v. State, 47 Ala.App. 65, 250 So.2d 602. This form incorporates the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. The record indicates questions by the trial judge concerning the guilty plea form and the requisites of Boykin, supra. The court granted the appellant's request to plead guilty and, after accepting his guilty plea, set a date for sentencing. Previously, the appellant had been given notice that he was to be sentenced under the Habitual Offender Statute, § 13A-5-9, Code of Alabama (1975). At the sentencing hearing, the State established that the appellant had eight prior forgery convictions with concurrent sentences of sixteen months which had been probated. No evidence which showed that the appellant had served any time for these cases was elicited. The State showed that the appellant had been convicted of felony possession of marijuana and indicated that he had served time in the penitentiary for this offense.

The appellant moved to exclude from the record and the consideration of the court the nine felony convictions enumerated. The court denied the motion, and the appellant was sentenced to fifteen years in accordance with the Habitual Offender Act, § 13A-5-9, supra.

I

All issues raised by the appellant on this appeal concern the application of the Habitual Offender Statute, § 13A-5-9, Code of Alabama (1975), which reads as follows:

"(a) In all cases when it is shown that a criminal defendant has been previously convicted of any felony and after such conviction has committed another felony, he must be punished as follows:

"(1) On conviction of a Class C felony, he must be punished for a Class B felony;

"(2) On conviction of a Class B felony, he must be punished for a Class A felony.

"(3) On conviction of a Class A felony, he must be punished by imprisonment for life or for any term of not more than 99 years but not less than 15 years.

"(b) In all cases when it is shown that a criminal defendant has been previously convicted of any two felonies and after such convictions has committed another felony, he must be punished as follows:

"(1) On conviction of a Class C felony, he must be punished for a Class A felony;

"(2) On conviction of a Class B felony, he must be punished by imprisonment for life or for any term of not more than 99 years but not less than 15 years;

"(3) On conviction of a Class A felony, he must be punished by imprisonment for life or for any term not less than 99 years.

"(c) In all cases when it is shown that a criminal defendant has been previously convicted of any three felonies and after such convictions has committed another felony, he must be punished as follows:

"(1) On conviction of a Class C felony, he must be punished by imprisonment for life or for any term not more than 99 years but not less than 15 years;

"(2) On conviction of a Class B felony, he must be punished for life in the penitentiary;

"(3) On conviction of a Class A felony, he must be punished by imprisonment for life without parole. (Acts 1977, No. 607, p. 812, § 1235; Acts 1979, No. 471, § 1; Acts 1979, No. 79-664, p. 1163, § 1.)"

The appellant contends that Alabama's Habitual Offender Statute is ex post facto as applied to him and violates the Constitution of the United States. Further, he says that, because § 13A-5-9 provides the trial court with very little discretion in sentencing and has been made mandatory by the legislature, he was deprived of his due process and equal protection rights under the Constitution of the United States. He argues that he has been subjected to a "grossly disproportionate punishment."

The United States Supreme Court in Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed.2d 1683, addressed the questions as to whether the Pennsylvania Habitual Criminal Act was unconstitutional, retroactive, and ex post facto. The court stated:

"Nor do we think the fact that one of the convictions that entered into the calculations by which petitioner became a fourth offender occurred before the Act was passed, makes the Act invalidly retroactive or subjects the petitioner to double jeopardy."

In an earlier case, McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542, the United States Supreme Court addressed a similar question. In that case, the court said, "The statute, imposing a punishment on none but future crimes, is not ex post facto."

It is true that the provisions of the Habitual Offender Statute are mandatory and not discretionary. In subsections (a), (b), and (c) of § 13A-5-9, the act specifies that a criminal defendant who has been previously convicted of any felony, two felonies or three felonies "must be punished as follows..." (Emphasis added.) The word, "must," as it is used in § 13A-5-9, leaves no discretion with the court as to whether a repeat offender is to be punished under the statute.

Although punishment under the Habitual Offender Statute is mandated, the trial judge had the option of sentencing the appellant to life imprisonment or to any term of not more than ninety-nine years, but not less than fifteen years. Section 13A-5-9(c)(1), Code of Alabama (1975). The appellant was sentenced to fifteen years.

A statute which enhances the punishment for a second or subsequent offense is not in violation of the due process clause of the constitution. Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed.2d 917.

In Goodman v. Kunkle, 72 F.2d 334, the court held that no denial of due process was shown because the habitual criminal statute did not create or define a new or independent crime. The statute merely prescribed "circumstances wherein one found guilty of a specific crime may be more severely penalized because of his previous criminalities." Goodman v. Kunkle, supra. In the present case, the increased punishment appellant received on his third conviction became mandatory because of appellant's status as a prior offender.

The appellant has cited Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, in support of his contention that his sentence was "disproportionate to the severity of the crime." He has also cited Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793.

The court, in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382, recognized that the prohibition of cruel and unusual punishment in capital cases was of "limited assistance in deciding the constitutionality of the punishment in habitual offender statutes." Regarding Weems v. United States, supra, the court in Rummel v. Estelle, stated:

"Given the unique nature of the punishment, considered in Weems, and in the death-penalty cases, one could argue without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a State penitentiary, the length of the sentence actually imposed is purely a matter of legislative prerogative."

The Supreme Court noted that Weems had been punished more severely than other persons similarly situated in the same jurisdiction who had committed more serious crimes or persons who committed a similar crime in other American jurisdictions.

In Rummel v. Estelle, supra, the petitioner had two previous convictions in Texas state courts one for falsely using a credit card to obtain eighty dollars worth of goods or services and the other for passing a forged check in the amount of $28.36. He had been sentenced to imprisonment on each of these felonies. He was convicted on a third felony, obtaining $120.75 by false pretense, and received a mandatory life sentence pursuant to the Texas recidivist statute. The Supreme Court, in reviewing the Rummel v. Estelle, supra, case, held that the mandatory life sentence imposed on Rummel did not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments. The court stated:

"Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction."

In the present case, the court did not abuse its discretion. The appellant received the minimum sentence of fifteen years. His punishment was within the range prescribed by the statute. As this court stated in Ex parte Messelt, Ala.Cr.App., 351 So.2d 636, "Where the punishment prescribed by the legislature is severe merely by reason of its extent, as distinguished from its nature, there is no collision with the Eighth Amendment."

Based upon the cited facts and principles, we are of the opinion that the Habitual Offender Statute, § 13A-5-9, Code of Alabama (1975), as applied to this appellant, did not violate the Constitution of the United States.

II

The issue, whether the trial court erred in considering State's Exhibits 1 through 8, inclusive, as a basis for sentencing the appellant under the Alabama Habitual Offender Statute, must be resolved by construing the statutes, especially the word, "convicted."

Habitual criminal statutes have...