Wells v. State

• Decision Date: 16 December 2011
• Docket Number: CR–09–1735.
• Citation: 93 So.3d 155
• Parties: Jennifer Ann WELLS v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

93 So.3d 155

Jennifer Ann WELLS

v.STATE of Alabama.

CR–09–1735.

Court of Criminal Appeals of Alabama.

Dec. 16, 2011.

Opinion on Overruling of

Application for Rehearing

Feb. 10, 2012.

Certiorari Denied April 6, 2012

Alabama Supreme Court 1110616.

James Anthony Jennings, Jr., Fort Payne, for appellant.

Troy King and Luther Strange, attys. gen., and Andy Scott Poole, asst. atty. gen., for appellee.

BURKE, Judge.

Jennifer Ann Wells ¹ pleaded guilty to the unlawful possession of methamphetamine and the unlawful possession of morphine, both violations of § 13A–12–212(a)(1), Ala.Code 1975. She was sentenced to six years' imprisonment as to each conviction, the sentences to run concurrently and to also run concurrently with the sentence in a second-degree possession of marijuana conviction to which she also pleaded guilty. She was fined $1,000, ordered to pay a drug-demand-reduction assessment of $2,000, as well as a forensic assessment of $100.

The record indicates that Wells was indicted on four counts of possession of a controlled substance for possessing methamphetamine, morphine, diazepam, and dihydrocodeine (hydrocodone), all stemming from the same incident. She moved to dismiss the indictment, alleging that she could not be convicted of multiple offenses based on the possession of several types of controlled substances at one point in time. She claimed that her right to be protected against double jeopardy was violated, and she cited Vogel v. State, 426 So.2d 863 (Ala.Crim.App.1980), and Smith v. State, 472 So.2d 677 (Ala.Crim.App.1984), in support of her argument. She reserved the right to appeal the dismissal of her motion to dismiss the four-count indictment that contained the two counts of felony possession of which she was convicted.²

The parties stipulated to the facts and legal issues in this case as follows:

“On September 15, 2008, an arrest warrant for Tony Poole was executed at his residence for unlawful distribution of a controlled substance. In the process of serving this arrest warrant, narcotics evidence was observed in plain view. Tony Poole refused consent to search and a subsequent search warrant was obtained. This residence was the same residence from which Tony Poole had sold methamphetamine to a Confidential Informant (CI) at an earlier date and which led to the issuance of the arrest warrant for Tony Poole for unlawful distribution of a controlled substance. The defendant, Jennifer Ann Wells–Davis, was present when the methamphetamine was sold to the CI and was present when the arrest warrant for Tony Poole was executed. Ms. Wells–Davis had clothes and personal property at this residence indicating that this too was her place of residence.

“Methamphetamine was discovered in plain view as well as in Poole's pants lying on the floor beside the bed. The methamphetamine was in the same container from which Poole sold methamphetamine to the CI. There were unknown pills as well in plain view.

“Poole was arrested on the warrant for unlawful distribution of a controlled substance as well as two charges of unlawful possession of a controlled substance and unlawful possession of drug paraphernalia, Wells–Davis was arrested for the items found in plain view and was charged with unlawful possession of marijuana in the second degree, two counts of unlawful possession of a controlled substance and unlawful possession of drug paraphernalia.

“On February 3, 2009, Wells–Davis was indicted in a four count indictment on four charges of unlawful possession of a controlled substance: Count One—methamphetamine; Count Two—morphine; Count Three—diazepam; and Count Four—dihydrocodeine.

“It is undisputed that Wells–Davis's possession of the four controlled substances arise from the same incident and the same conduct of possession.

“On June 15, 2009, Wells–Davis, through counsel, filed a motion to dismiss the indictment alleging that Wells–Davis could not be convicted of multiple possession offenses based on the alleged possession of several types of controlled substances at one point in time. The motion was heard for argument on November 10, 2009, and Circuit Judge David A. Rains denied Wells–Davis's motion to dismiss on June 9, 2010. On June 11, 2010, Wells–Davis filed a motion to reconsider which was denied on July 8, 2010.

“On August 6, 2010, Wells–Davis pled guilty to two counts of unlawful possession of a controlled substance reserving her right to appeal the Circuit Court's denial of her motion to dismiss the indictment.”

(C. 10–11.)

The State argued in response to Wells's motion to dismiss that the Alabama Court of Criminal Appeals had misinterpreted the law and the legislative intent underlying § 13A–12–212 in Hollaway v. State, 979 So.2d 839 (Ala.Crim.App.2007). The State argued that, because the statute now indicated that possession of a controlled substance referred to “a” substance, possession of each controlled substance constituted a separate offense. In Vogel v. State, the forerunner statute to § 13A–12–212 had been in effect, which made criminal the possession of any controlled substance. The State then referred to the language in Girard v. State, 883 So.2d 717 (Ala.2003), quoting McKinney v. State, 511 So.2d 220, 224–25 (Ala.1987), concerning legislative intent when language is used to proscribe the unit of prosecution, as in this case.

The trial court denied Wells's motion to dismiss the indictment, finding that the State had correctly argued that the holding in Hollaway v. State, supra, had misinterpreted the legislative intent and thus had misapplied the law.

The forerunner to § 13A–12–212(a)(1), Ala.Code 1975, was § 20–2–70(a), Ala.Code 1975, which stated:

“(a) Except as authorized by this chapter, any person who possesses, sells, furnishes, gives away, obtains or attempts to obtain by fraud, deceit, misrepresentation or subterfuge or by the forgery or alteration of a prescription or written order or by the concealment of material fact or by use of false name or giving a false address controlled substances enumerated in schedules I, II, III, IV, and V is guilty of a felony and, upon conviction, may be imprisoned for not less than two nor more than 15 years and, in addition, may be fined not more than $25,000....”

(Emphasis added.) Thus, § 20–2–70(a), Ala.Code 1975, prohibited the possession of controlled substances. The language clearly states “controlled substances” in the plural. Several cases analyzed the intent of this statute in criminalizing the possession of varied controlled substances in the same transaction or at the same time.

In Vogel v. State, 426 So.2d 863 (Ala.Crim.App.1980), affirmed, 426 So.2d 882 (Ala.1982), cert. denied, 462 U.S. 1107, 103 S.Ct. 2456, 77 L.Ed.2d 1335 (1983), the co-defendants, Gerald Len Vogel and Robert Louis Vogel, were each indicted for 14 counts of possessing a number of different controlled substances that were seized at the same time from the same vehicle. Each defendant was convicted of 11 counts. Gerald Vogel was sentenced to consecutive terms of 15 and 5 years' imprisonment, respectively, on the first 2 counts, and to 15–year terms for each of the remaining counts, to run concurrently with the initial consecutive terms. Robert Vogel was sentenced to three 15–year terms of imprisonment and one 5–year term, to be served consecutively, on the first 4 counts of his indictment, and to 15–year terms for each of the remaining counts, to be served concurrently with the consecutive sentences. The Vogels alleged that their sentences were improper under § 20–2–70(a), because the court treated the simultaneous possession of 11 different types of drugs as 11 separate possessions although “the fact of possession” was the same. Vogel v. State, 426 So.2d at 878. The State, however, argued that because the drugs were listed on different schedules and therefore required different proof for each controlled substance, the possessions could be sentenced separately without violating Vogels' rights against double jeopardy.

In Vogel, this Court noted that a number of jurisdictions had adhered to the State's logic and had held that “ ‘demonstrating different chemical makeups among the prohibited substances' ” constituted different elements of proof in the offense. However, this Court determined that, according to § 20–2–70(a), only a single offense justifying a single sentence had occurred where, although several types of controlled substances were involved, they were possessed at the same single point in time and place. This Court stated:

“Our reading of § 20–2–70(a) does not disclose any such emphasis on the various schedules as a factor in the sentencing scheme, but instead only indicates that the statute prohibits the ‘possess[ion] ... of controlled substances enumerated in schedules I, II, III, IV and V’ and makes such possession ‘of controlled substances' to be ‘a felony’ with only one scheme of punishment [two to fifteen years, and a possible fine]. The focal point of the statute is thus the criminal act itself, whether it be possession, sale or any of the other offenses, and not in what schedules the drug or drugs are located. As our presentstatute reads, the only relevance of the schedules is to act as a definitional scheme for indicating what are ‘controlled substances,’ the possession of which is prohibited by the statute; this is further bolstered by the definition of a ‘controlled substance’ as a ‘drug, substance or immediate precursor in schedules I through V of article 2 of this chapter.’ § 20–2–2(5), Code of Alabama 1975. Clearly, the language of the statute indicates that the possession of such substances renders a defendant ‘guilty of a felony’ and not guilty of several felonies based upon how many drugs are simultaneously within the control of the defendant, or in which schedules they are listed. Once the presence of the first controlled substance is proven, the offense is complete, and the presence of other controlled substances at the...