Wilson v. State, CR-02-0394.

• Decision Date: 29 April 2005
• Docket Number: CR-02-0394.
• Citation: 911 So.2d 40
• Parties: Joseph Michael WILSON v. STATE of Alabama.
• Court: Alabama Supreme Court

911 So.2d 40

Joseph Michael WILSON v. STATE of Alabama.

CR-02-0394.

Court of Criminal Appeals of Alabama.

April 29, 2005.

COPYRIGHT MATERIAL OMITTED

Stephen A. Strickland, Birmingham, for appellant.

William H. Pryor, Jr., and Troy King, attys. gen., and James R. Houts and Beth Jackson Hughes, asst. attys. gen., for appellee.

COBB, Judge.

Joseph Michael Wilson appeals from an order summarily dismissing the Rule 32, Ala. R.Crim. P., petition he filed seeking relief from his capital-murder conviction and death sentence. We reverse and remand for further proceedings.

Wilson was convicted of the capital offense of murder of two or more persons pursuant to one scheme or course of conduct, a violation of § 13A-5-40(a)(10), Ala.Code 1975, for his involvement in the deaths of Michael Beaudette, Johnny Couch, Brian Carter, and Lamar Hemphill. The trial court imposed a death sentence. He was also convicted of two counts of attempted murder, violations of §§ 13A-6-2 and 13A-4-2, Ala.Code 1975, for shooting Ashley Rutherford and Michelle Hayden. He was sentenced to 20 years in prison for each attempted-murder conviction. On appeal, this Court affirmed the capital-murder conviction and the death sentence. Wilson v. State, 777 So.2d 856 (Ala.Crim.App.1999).¹ The Alabama Supreme Court affirmed the judgment of this Court. Ex parte Wilson, 777 So.2d 935 (Ala.2000). This Court issued the certificate of judgment on September 20, 2000.

Wilson filed a Rule 32 petition on December 21, 2001. (C. 3-85.) On March 14, 2002, Wilson's attorney filed a motion seeking a status or scheduling conference and also seeking leave to amend the petition. In support of the request to amend the petition, the attorney alleged that he had been hired only a few days before the petition was filed; that, due to previous obligations, he had been unable to work on Wilson's case until the third week in January and that he had not met with Wilson until February 14, 2002. Counsel also alleged that several additional meritorious issues existed and needed to be raised in the petition and that the request to amend the petition was not made for purposes of delay. Also on March 14, 2002, Wilson filed an amendment to the Rule 32 petition. On March 18, 2002, the State, through the attorney general, filed the following documents: an answer to the original petition; the affidavit of Randall Gladden, the lead attorney who represented Wilson at trial; a motion for summary dismissal; and a proposed order dismissing the petition. (C. 124-78, Supp. II. C. 7-72.²) On March 26, 2002, the Madison County District Attorney filed a response to the original petition. The prosecutor alleged in that response that the petition was due to be summarily dismissed.

Although the record does not contain an order setting a hearing on the State's motion for summary dismissal, it appears that a hearing was set for May 23, 2002, because on April 23, 2002, Wilson filed a motion seeking a continuance of a hearing set for May 23, 2002. (C. 191.) The trial court granted the motion on April 24, 2002. (C. 191.) On May 6, 2002, the State filed a document opposing any further continuances and requesting that an evidentiary hearing be held on any motion to amend that Wilson might later file. (C. 193.)

On July 15, 2002, Wilson filed numerous documents. He filed a motion for leave to file a second amended petition and a memorandum of law in support of that motion; he also submitted an amended petition.³ He filed a motion for discovery, seeking production of the file that the prosecutor had provided to trial counsel and seeking any other documents that should have been, but were not, provided to trial counsel. He filed a motion for an evidentiary hearing and an objection to the trial court's adopting verbatim any orders submitted by the State. He also filed a response to the State's answer and argued in that response that the claims raised in the petition were not procedurally barred and that he was entitled to a hearing. On July 19, 2002, the trial court held a hearing on the State's motion for summary dismissal. (Supp.I. R. 1-41.) At that hearing, the parties presented their arguments regarding whether the original petition was due to be dismissed or whether a hearing on the merits of the petition should be held. The trial court reserved its ruling on the motion. On August 9, 2002, Wilson filed a motion for leave to file a third amendment to his petition and he submitted an amended petition;⁴ on August 21, 2002, Wilson filed a motion for leave to file a fourth amendment to the petition and he filed an amended petition; and on August 28, 2002, Wilson filed a motion for leave to file a fifth amendment to the petition and he filed an amended petition. In September 2002,⁵ Wilson filed a supplemental brief in support of his request for an evidentiary hearing, and he cited Ex parte MacEwan, 860 So.2d 896 (Ala.2002), in support of his request for an evidentiary hearing.

On October 16, 2002, the circuit court issued an order summarily dismissing the Rule 32 petition. (C. 463-532.) The court determined that a majority of the claims asserted in the petition were procedurally barred and that the few ineffective-assistance-counsel claims that were not procedurally barred had no merit. The trial court also denied all of Wilson's motions to amend the Rule 32 petition. This appeal followed.

I.

Wilson first argues that the trial court erred when it adopted the proposed order submitted by the State. The State contends that this Court has repeatedly held that verbatim adoption of a proposed order prepared by one of the parties is not improper. As a routine practice, the adoption of a proposed order submitted by one of the parties is subject to criticism. However, this Court has expressly held that the trial court's adoption of a proposed order prepared by one of the parties does not constitute error and that the findings of fact and conclusions of law in that proposed order, once adopted as the order of the court, are those of the trial court. See, e.g., Jenkins v. State, [Ms. CR-97-0864 Feb. 27, 2004] ___ So.2d ___, ___ (Ala.Crim.App.2004). The trial court's adoption of the proposed order does not, alone, constitute error, and Wilson is not entitled to relief on this ground.

II.

Wilson argues that the trial court erred when it "ignored" his repeated requests to amend the Rule 32 petition. (Wilson's brief at p. 43.) He notes that Rule 32.7(b), Ala. R.Crim. P., provides that amendments to postconviction petitions are permitted before the entry of judgment, and that Rule 32.7(d), Ala. R.Crim. P., provides that "[l]eave to amend shall be freely granted." He contends that the trial court should have permitted him to amend his original petition. The State contends that the trial court did not abuse its discretion when it refused to allow Wilson to amend his petition because "Wilson has not shown that the proposed amendment[s were] `based on surprise, newly discovered evidence, or changed circumstances.'" (State's brief at p. 21.)

The Alabama Supreme Court recently discussed the legal principles governing the grant or denial of a petitioner's attempt to amend a Rule 32 petition. Ex parte Rhone, 900 So.2d 455 (Ala.2004). The Court stated:

"This Court's statements concerning the amendment of Rule 32 petitions are supported by the plain language of Rule 32.7, Ala. R.Crim. P. Subsection (b) of that rule unambiguously grants discretion to the trial court, providing that `[a]mendments to pleadings may be permitted at any stage of the proceedings prior to the entry of judgment.' (Emphasis added.) Guiding the exercise of that discretion is the mandate of subsection (d) that `[l]eave to amend shall be freely granted.' (Emphasis added.) However, because the trial court has discretion to refuse an amendment to a Rule 32 petition, we must consider the nature of the factors that would provide a proper basis for such a refusal.

"In Ex parte Allen, [825 So.2d 271 (Ala.2002),] this Court cited Talley v. State, 802 So.2d 1106, 1107 (Ala.Crim.App.2001), in support of our statement of the principles relevant to the amendment of Rule 32 petitions. In Talley, the Court of Criminal Appeals stated:

"`"`[A]mendments should be freely allowed and ... trial judges must be given discretion to allow or refuse amendments.... The trial judge should allow a proposed amendment if it is necessary for a full determination on the merits and if it does not unduly prejudice the opposing party or unduly delay the trial.' Record Data International, Inc. v. Nichols, 381 So.2d 1, 5 (Ala.1979) (citations omitted). `The grant or denial of leave to amend is a matter within the sound discretion of the trial judge....' Walker v. Traughber, 351 So.2d 917 (Ala.Civ.App.1977)."

"`Cochran v. State, 548 So.2d 1062, 1075 (Ala.Crim.App.1989).'

"802 So.2d at 1107-08 (emphasis added). The statements in Talley are consistent with this Court's prior decisions, as well as with Rule 32.7. Thus, it is clear that only grounds such as actual prejudice or undue delay will support a trial court's refusal to allow, or to consider, an amendment to a Rule 32 petition."

900 So.2d at 457-58 (final emphasis added).

Wilson filed the petition on December 21, 2001. He filed motions to amend and he filed amendments to the petition from March 2002 through August 2002. The trial court summarily denied all of the motions to amend the petition in the same written order in which it denied relief on the original Rule 32 petition. All of Wilson's proposed amendments were filed before the expiration of the limitations period of Rule 32.2(c), Ala. R.Crim. P. The State's arguments in support of the denial of the motions to amend — that Wilson did not establish that the amendments were based on surprise, newly discovered evidence, or changed circumstances, and that Wilson failed to establish that his attorney acted diligently in filing the amendments — fail to acknowledge the...