Wilson v. State

CourtAlabama Court of Criminal Appeals
Citation830 So.2d 765
PartiesTheresa WILSON, alias Theresa Wilson Scoggins v. STATE.
Decision Date31 August 2001

830 So.2d 765

Theresa WILSON, alias Theresa Wilson Scoggins


Court of Criminal Appeals of Alabama.

August 31, 2001.

Rehearing Denied October 26, 2001.

Certiorari Denied April 12, 2002.

830 So.2d 767
William M. Bowen, Jr., Linda G. Flippo, and J. Mark White, Birmingham; Wendy L. Williams, Birmingham; and Debra Bennett Winston, Birmingham, for appellant

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

Alabama Supreme Court 1010312.

COBB, Judge.

This case was originally assigned to a judge on this court on October 22, 1998, but the submission was set aside pending resolution of postconviction proceedings. It was resubmitted on November 30, 1999.

Following a jury trial, Theresa Wilson was convicted of distribution of a controlled substance and of trafficking in morphine after she sold Valium, Fiorinal, and liquid morphine to an undercover police officer. See §§ 13A-12-211 and 13A-12-231(3)(d), Ala.Code 1975. In the distribution case, Wilson was sentenced to two years' imprisonment; that sentence was suspended. Two five-year enhancements were added to that sentence, because the sale occurred within three miles of a school campus and a public housing project. §§ 13A-12-250 and -270, Ala.Code 1975. In the trafficking case, Wilson was sentenced to a mandatory term of life imprisonment without parole. § 13A-12-231(3)(d), Ala.Code 1975.1 The sentences were to run concurrently.

830 So.2d 768
This is a case of first impression. Never before in this State has a first-time drug offender been sentenced to life in prison without the possibility of parole pursuant to § 13A-12-231(3)(d), Ala.Code 1975. Wilson's guilt is not at issue; her sentence is. The basic constitutional guarantee against cruel and unusual punishment is at issue

Both the State and Wilson rely on the same United States Supreme Court case, Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), as being dispositive of this important question. We conduct our review of this case with a full awareness that, "Few problems affecting the health and welfare of our population, particularly our young, cause greater concern than the escalating use of controlled substances." United States v. Mendenhall, 446 U.S. 544, 561, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (Powell, J., concurring in part and concurring in the judgment), quoted in Harmelin, 501 U.S. at 1003, 111 S.Ct. 2680 (Kennedy, J., concurring in part and concurring in the judgment).

The underlying facts in the case are not in dispute. Theresa Wilson sold Valium and Fiorinal tablets to an undercover police officer for $90. The officer asked Wilson whether she could obtain any other substances, and she asked the officer if he would be interested in liquid morphine. She told the officer that the morphine belonged to a neighbor, but that she was going to try to sell it for her. Wilson asked the officer how much the morphine might be worth on the street. They discussed price, and Wilson retrieved the bottle of liquid from her neighbor.2 When the officer asked Wilson how she knew what was in the bottle, she told him that the prescription label was still on the bottle, and that the label read "Morphine Eli."

The officer asked Wilson how much money she wanted for the morphine. Wilson said she would give $70 to the neighbor, and she wanted to make $80 on the sale, so she would sell it for $150. The officer gave Wilson $110, which was all he had in his possession, and he told her he would return to pay the remainder. Tests revealed that the tablets Wilson sold to the officer were diazepam and butalbital, which are controlled substances. The bottle was found to contain 97.8 grams of a liquid mixture containing morphine. Wilson testified at trial that she had been addicted to drugs since 1991, and she admitted selling the controlled substances to the undercover officer. She said that she first sold him medication that had been prescribed for her, and then she obtained the morphine from her neighbor and sold it to the officer.

While this appeal was pending, the appellate proceedings were stayed, and Wilson filed a Rule 32, Ala. R.Crim. P., petition challenging the mandatory sentence. Evidence presented at the hearing on the petition established that Wilson was the only inmate in Alabama's prison population serving a sentence of life imprisonment without parole for her first drug offense.

830 So.2d 769
(Supp.R.I-T. 24-25; Supp.R.II. 38, 77-83.)3 Testimony also established that data from the Sentencing Institute4 indicated that only three other people had been convicted of the same offense and, whether as the result of a plea bargain or some other arrangement, their sentences had been less than life imprisonment without parole. (Supp.R.I-T.34-36)

From its review of the evidence presented at trial and at the Rule 32 proceedings, the circuit court found that Wilson was 28 years old at the time of the offense, that she testified that she had been addicted to drugs since 1991, and that she was married and had two young children. (Supp. R.I-C.22-23.)5 The court further found that Wilson was the only person without a prior felony conviction who was serving a sentence of life imprisonment without parole in the Alabama prison system for a noncapital offense. Finally, the court found that only three other people were serving sentences for convictions violating § 13A-12-23(3)(d), Ala.Code 1975, and that each one had received a sentence of less than 25 years. The court stated that it was "sympathetic" to Wilson's argument, that her sentence of life imprisonment without parole for this first offense would have, under Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), constituted cruel and unusual punishment.6 The court determined, however, that it had no jurisdiction to review a sentence when the punishment imposed was within the limits set by the Legislature, as was the case here. It also stated that Solem had been overruled by Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). (Supp.R.I-C.24-26.) The circuit court denied the petition, and the case was resubmitted for appellate review. In this Court, Wilson continues to challenge the imposition of the mandatory sentence of life imprisonment without parole, imposed pursuant to § 13A-12-231(3)(d), Ala. Code 1975. She argues that the statute, as applied to her, violates Art. I, § 15, of the Alabama Constitution of 1901, and the Eighth Amendment to the United States Constitution.


The State of Alabama argues that the issue was not preserved for review and that it is, therefore, not now properly before this Court. We disagree.

Although this case is not before us in the typical procedural posture, it is before us in a procedural sequence that this Court has sanctioned. Wilson originally appealed from the mandatory sentence of life imprisonment without parole. While her appeal was pending, Wilson filed a Rule 32, Ala. R.Crim. P., petition in the circuit court challenging the mandatory sentence. She then filed in this Court a "motion to remand," requesting this Court to stay the pending appeal and transfer

830 So.2d 770
jurisdiction to the circuit court, pursuant to Barnes v. State, 621 So.2d 329 (Ala. Crim.App.1992), to enable the lower court to dispose of the Rule 32 petition. In Barnes, this Court established the procedure to be followed when a defendant files a Rule 32 petition while a direct appeal is pending in this Court. This Court determined that, in such circumstances, it could notify the circuit court to hold the Rule 32 petition in abeyance pending the outcome of the appeal
"Or the appellate court may remand, thus staying the appeal of the petitioner's conviction and transferring jurisdiction to the circuit court to adjudicate the Rule 32 petition. After adjudication, a return to remand would be submitted to this court, and the parties would be allowed to submit issues for review of the circuit court's action on the Rule 32 petition."

621 So.2d at 333.

Under the authority of Barnes, this Court granted Wilson's motion, stayed the appeal, and transferred jurisdiction of the cause to the circuit court for adjudication of the Rule 32 petition. This Court ordered the circuit court to dispose of the petition, and ordered the court reporter to supplement the record on appeal with a transcript of the Rule 32 proceedings. Following a hearing,7 the circuit court denied the petition, finding that it had no jurisdiction to review the sentence because the sentence was within the limits established by the statute.

After the record of the Rule 32 proceedings was filed, this Court, citing Barnes v. State, supra, entered an order granting Wilson seven days to advise this Court whether she intended to raise any Rule 32 petition issues in this appeal.8 Wilson notified this Court that she intended to raise Rule 32 issues in this appeal, and she requested that this Court set a briefing schedule, which it did. Wilson and the State filed supplemental briefs addressing the evidence and the claims raised in the Rule 32 proceeding.

Based on the foregoing, we find no support for the State's assertion that the issue raised on appeal was not properly preserved. Although the case did not follow the traditional course of an appeal following a conviction, the course it did follow was approved and sanctioned by this Court in Barnes9 and in this case. The parties were permitted to address fully in this Court all of the claims raised in the court below.10 Therefore, the issue regarding

830 So.2d 771
the propriety of Wilson's sentence was clearly preserved for this Court's review.


Wilson was convicted of violating § 13A-12-231(3)(d), Ala.Code 1975, which provides, in pertinent part:

"Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, four grams or more of any morphine

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