Yocum v. State

• Decision Date: 04 November 2011
• Docket Number: CR-10-1271
• Parties: John Charles Yocum v. State of Alabama
• Court: Alabama Court of Criminal Appeals

John Charles Yocum

v.State of Alabama

CR-10-1271

ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 2011-2012

Dated: November 4, 2011

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from St. Clair Circuit Court

(CC-06-167.60)

WELCH, Presiding Judge.

John Charles Yocum appeals from the circuit court's summary dismissal of his Rule 32, Ala. R. Crim. P., petition seeking postconviction relief from his May 12, 2010, conviction for first-degree theft of property, a violation of§ 13A-8-3, Ala. Code 1975. Yocum pleaded guilty to the offense and was sentenced to 20 years' imprisonment. He did not appeal.

After the circuit court granted Yocum's in forma pauperis application,¹ Yocum, acting pro se, timely filed the instant petition, his first, on March 15, 2011.

Yocum filed the standard form appended to Rule 32, checking the following paragraphs of the standard form: 12A(1) (asserting that the guilty plea was not entered into voluntarily); 12A(9) (asserting ineffective assistance ofcounsel); and 12F (asserting entitlement to an out-of-time appeal).

Pursuant to instructions on the face of the Rule 32 form, Yocum attached a supplement to the petition setting out the details of his claims. In his supplement to the petition, Yocum asserted that his trial counsel was ineffective because, before advising Yocum to plead guilty, counsel had not filed motion to dismiss the indictment on the ground that Yocum's right to a speedy trial had been violated. Yocum did not provide factual support in the supplement for his out-of-time-appeal claim.

The State filed a motion to dismiss, asserting that the claims in Yocum's Rule 32 petition lacked specificity, that they were not meritorious, and that they were precluded under Rule 32.2(a)(3) because the claims could have been, but were not, raised at trial.

The circuit court issued an order dismissing the petition and stating that the petition lacked specificity, that Yocum's claim of ineffective assistance of counsel based on defense counsel's failure to file a speedy-trial motion wasinsufficiently pleaded, and that his claims were precluded under Rule 32.2(a)(3) and 32.2(a)(5).

On appeal, Yocum reiterates the ineffective-assistance-of-counsel claim raised in his petition and argues that he alleged sufficient facts in his petition to warrant an evidentiary hearing. Yocum did not pursue his claim regarding an out-of-time appeal in his brief on appeal. Therefore, this claim is deemed abandoned, and we will not consider it. See, e.g., Brownlee v. State, 666 So. 2d 91, 93 (Ala. Crim. App. 1995) ("We will not review issues not listed and argued in brief.").

In his petition Yocum pleaded the following facts. Yocum was arrested for the underlying first-degree-theft charge on May 26, 2006, and was indicted on August 18, 2006. At the time of his arrest for this offense, Yocum was serving a one-year probationary period on a federal sentence, and he was also on parole from a sentence of life imprisonment imposed by an Alabama state court. Because of his arrest for theft, his federal probation was revoked, and he served seven to eight months in federal prison completing that sentence. When he was released from federal prison, he was picked up by Alabamaauthorities who revoked his parole in the Alabama case, and he was incarcerated in Alabama. Yocum explained in his motion for an evidentiary hearing that in December 2008, because he had no outstanding warrants or detainers, the Alabama Department of Corrections reinstated his parole. He asserted that from that time until August 13, 2009, the date he was re-arrested on the instant theft charge, he reported to his parole officer, received Social Security, and attended church. His parole was not revoked after he made bond on the theft charge. On February 17, 2010, he pleaded guilty to the instant theft charge on advice of counsel. He was subsequently sentenced and denied probation on May 12, 2010, and began to serve his sentence.

Defense counsel did not investigate the speedy-trial issue. Before he was re-arrested on the theft charge, Yocum did not know that the theft charge was being prosecuted. The Department of Corrections would not initially place him on work release. The State did not enter the theft charge in the National Crime Information Center database. Because of the delay in the trial on the theft charge, Yocum lost the possibility to serve his sentence in the theft caseconcurrently with the sentence in his previous case, and his classification status was affected. Because three years had passed, Yocum could no longer remember the name of a witness who, Yocum says, knew that the money allegedly stolen by Yocum was Yocum's own money.

Yocum claimed that his counsel did not investigate the reasons for the delay in bringing him to trial and that he suffered prejudice because, had counsel filed a speedy-trial motion, it would have been granted, and the theft charge would have been dismissed.

To prevail on a claim of ineffective assistance of counsel, the petitioner must ultimately prove (1) that counsel's performance was deficient and (2) that the deficient performance actually prejudiced the defense. Strickland v. Washington, 466 U.S. 668 (1984).

"When an appellant's claim of ineffective assistance of counsel arises from alleged errors committed by counsel in the guilty plea process, the prejudice prong of the Strickland analysis is satisfied by the appellant's establishing 'that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would haveinsisted on going to trial.'" Culver v. State, 549 So. 2d 568, 572 (Ala. Crim. App. 1989), quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985). Yocum argued that counsel was ineffective for failing to raise a speedy-trial claim and that had counsel raised the speedy trial claim the charge against him would have been dismissed before he pleaded guilty. This sufficiently alleges that he was prejudiced by counsel's failure to raise the claim. The United States Supreme Court has held that if a claimant establishes a violation of the right to a speedy trial the only available remedy is dismissal. See Barker v. Wingo, 407 U.S. 514 (1972).

In order to determine if Yocum sufficiently pleaded facts entitling him to an evidentiary hearing on his Rule 32 petition we must examine the facts as pleaded, consider the facts necessary to establish a speedy-trial violation, and determine if an evidentiary hearing was warranted.

In determining whether a defendant has been denied his constitutional right to a speedy trial, the following four factors are considered: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of hisright to a speedy trial; and (4) the prejudice to the defendant. See Barker, supra.

In Ex parte Walker, 928 So. 2d 259, 263 (Ala. 2005), the Alabama Supreme Court stated:

"'"A single factor is not necessarily determinative, because this is a "balancing test, in which the conduct of both the prosecution and the defense are weighed."' Ex parte Clopton, 656 So. 2d [1243] at 1245 [(Ala. 1985)](quoting Barker, 407 U.S. at 530). We examine each factor in turn."

A. Length of the delay.

Yocum alleged that he was arrested on May 26, 2006, for first-degree theft; he pleaded guilty on February 17, 2010. The delay in this case was approximately 45 months.

"In Doggett v. United States, the United States Supreme Court explained that the first factor -- length of delay -- 'is actually a double enquiry.' 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). The first inquiry under this factor is whether the length of the delay is '"presumptively prejudicial."' 505 U.S. at 652, 112 S.Ct. 2686 (quoting Barker, 407 U.S. at 530-31, 92 S.Ct. 2182). A finding that the length of delay is presumptively prejudicial 'triggers' an examination of the remaining three Barker factors. 505 U.S. at 652 n. 1, 112 S.Ct. 2686 ('[A]s the term is used in this threshold context, "presumptive prejudice" does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry.'). See also, Roberson v. State, 864 So. 2d 379, 394 (Ala. Crim. App. 2002).

"In Alabama, '[t]he length of delay is measured from the date of the indictment or the date of the issuance of an arrest warrant -- whichever is earlier -- to the date of the trial.' Roberson, 864 So. 2d at 394. Cf. § 15-3-7, Ala. Code 1975 ('A prosecution may be commenced within the meaning of this chapter by finding an indictment, the issuing of a warrant or by binding over the offender.'); Rule 2.1, Ala. R. Crim. P. ('All criminal proceedings shall be commenced either by indictment or by complaint.')."

Ex parte Walker, 928 So. 2d at 263-64 (footnote omitted).

It is well settled that this Court has found delays substantially less than the 45-month delay here to be presumptively prejudicial requiring examination of the remaining Barker criteria. See Mansel v. State, 716 So. 2d 234, 236 (Ala. Crim. App. 1997); see also State v. Van Wooten, 952 So. 2d 1176 (Ala. Crim. App. 2006) (29-month delay held to be presumptively prejudicial); State v. Stovall, 947 So. 2d 1149 (Ala. Crim. App. 2006) (41-month delay held to be presumptively prejudicial); Vincent v. State, 607 So. 2d 1290 (Ala. Crim. App. 1992) (31-month delay held to be presumptively prejudicial). Cf. State v. Johnson, 900 So. 2d 482 (Ala. Crim. App. 2004) (28-month delay held not to be presumptively prejudicial); Payne v. State, 683 So. 2d 440 (Ala. Crim. App. 1995) (25-month delay held not to bepresumptively prejudicial...