Allen v. State

988 So. 2d 615, 2007 Ala. Crim. App. LEXIS 102, 2007 WL 1866253
CourtCourt of Criminal Appeals of Alabama
DecidedJune 29, 2007
DocketCR-06-0070
StatusPublished
Cited by1 cases

This text of 988 So. 2d 615 (Allen v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. State, 988 So. 2d 615, 2007 Ala. Crim. App. LEXIS 102, 2007 WL 1866253 (Ala. Ct. App. 2007).

Opinion

WELCH, Judge.

Gerry Lamar Allen appeals from the circuit court’s summary denial of his Rule 32, Ala. R.Crim. P., petition. The petition sought postconviction relief from his April 27, 2005, conviction, pursuant to a guilty plea, for unlawful distribution of marijuana and from his sentence to 25 years’ imprisonment. Allen did not seek review by direct appeal. Allen timely filed his Rule 32 petition on March 3, 2006.

[616]*616Allen presented the following claims in his petition:

1. That the trial court did not have jurisdiction to impose a 25-year sentence because that sentence exceeded the maximum allowed by law.
2. That the trial court did not have jurisdiction to enhance Allen’s 15-year base sentence where the record does not reflect that his sentence was enhanced pursuant to the Habitual Felony Offender Act (“HFOA”) § 13A-5-9, Ala.Code 1975, or that it was enhanced by §§ 13A-12-250 and -270, Ala.Code 1975, applicable when the sale occurred within three miles of a school or a public housing project.
3. That the trial court did not have jurisdiction to enhance Allen’s sentence pursuant to the HFOA because Allen was not given notice of the State’s intent to invoke the HFOA.
4. That the trial court did not have jurisdiction to enhance Allen’s sentence pursuant to the HFOA because properly certified copies of Allen’s alleged prior convictions were not submitted at his sentencing hearing in order to prove alleged prior felony convictions.
5. That the trial court did not have jurisdiction to render judgment or to impose sentence because Allen’s guilty plea was involuntarily entered. According to Allen, a) he was not advised of the minimum or the maximum punishment he was facing; b) the plea agreement does not reflect that Allen was sentenced as a habitual felon, nor does it state that the sentence is to be enhanced pursuant to § 13A-12-250 and § 13A-12-270, Ala.Code 1975; c) none of the requirements set forth in Rule 14.4, Ala. R.Crim. P., nor the mandates set forth in Boykin v. Alabama, 395 U.S. 238 (1969), were discussed with Allen before to the trial court accepted of his guilty plea.
6. That the trial court did not have jurisdiction to impose a 25-year sentence because the allegation that the distribution of marijuana took place within three miles of a school and a public housing project “was never proven and no factual evidence of this fact was presented by the State at sentencing.” (CR. 24.)
7. That Allen received ineffective assistance of trial counsel for the following reasons:
a. Trial counsel was ineffective for failing to challenge the trial court’s acceptance of Allen’s plea without his being advised of minimum and maximum possible punishment and for failing to apprise Allen of the consequences of his plea.
b. Trial counsel was ineffective for failing to object to the State’s failure to submit certified copies of alleged prior felony convictions.
c. Trial counsel was ineffective for failing to object to Allen’s being sentenced as a habitual felon when the State did not give Allen prior notice of its intent to invoke the HFOA.
d. Trial counsel failed to object to Allen’s receiving a 25-year sentence when the record is silent as to Allen’s being sentenced as habitual felon.
e. Trial counsel did not inform Allen that he would be sentenced as a habitual felon before petitioner entered his guilty plea.
f. Trial counsel was ineffective for failing to timely file a motion to withdraw Allen’s guilty plea on the grounds that Allen’s base sentence was enhanced beyond the maximum allowed by law where the record fails to show that his [617]*617sentence was enhanced pursuant to §§ 13A-12-250 and -270 and the HFOA.
g. Trial counsel was ineffective for failing to object to the State’s failure to prove that the distribution occurred within three miles of a school and public housing project.
h. Trial counsel was ineffective for failing to perfect a timely direct appeal.

On March 6, 2006, the circuit court ordered the State “to respond to [Allen’s] Rule 32 petition within thirty days.” (CR. 17.) The record does not reflect that the State responded. On September 19, 2006, without receiving a response from the State, the circuit court issued the following order.

“The Court has reviewed the Rule 32 Petition filed by [Allen] in this cause. [Allen] raises two issues: 1) that the sentence imposed exceeds the statutory maximum sentence, and 2) ineffective assistance of counsel. Both involve allegations that [Allen] was not properly put on notice of prior convictions for sentencing under the Habitual Offender Act.
“Both claims are without merit. The Plea Agreement in the cause clearly reflects the State’s notice that they could prove two prior felony convictions, and [Allen’s] admission that he had two prior felony convictions. Further, a transcript of the guilty plea before Hon. Tom F. Young, Jr., Circuit Judge, on April 27, 2005, reflects that [Allen] acknowledged that he voluntarily executed and understood the Plea Agreement in the cause.
“Accordingly, the sentence imposed is proper by law and [Allen’s] claims are without merit. The Rule 32 Petition is DENIED.”

(CR. 38.)

Allen appeals from the circuit court’s ruling. He reiterates the claims presented in his petition.

The instant Rule 32 petition represents Allen’s first opportunity to raise a claim of ineffective assistance of trial counsel. See Ex parte Ingram, 675 So.2d 863 (Ala.1996) (claims of ineffective assistance of trial counsel can be raised in a motion for a new trial or in a postconviction proceeding, whichever is the first reasonable opportunity to raise such a claim)

I.

The claims Allen presents concerning the application of the HFOA to his sentence are without merit. In his discourse regarding the State’s failure to offer certified copies to prove his prior convictions, Allen asserts in his brief that, “[Allen] shows in the record, he only stipulates to the fact of two prior felonies, this does not in no way negate the prior notice burden of the State.” (Allen’s brief at p. 7.) Contrary to Allen’s assertion, this Court has stated the following:

“ ‘ “The admission by a defendant of a prior conviction constitutes proper proof to enhance that defendant’s sentence under the Habitual Offender Act.” ’ Nix v. State, 747 So.2d 351, 357 (Ala.Crim.App.1999) (quoting Daniel v. State, 623 So.2d 438, 441 (Ala.Cr.App.1993)). ‘When an accused admits prior felony convictions, they are deemed proven for purposes of § 13A-5-9, Code 1975.’ Martin v. State, 687 So.2d 1253, 1256 (Ala.Crim.App.1996) (citations omitted).”

Brown v. State, 784 So.2d 371, 372 (Ala.Crim.App.2000). See also Martin v. State, 687 So.2d 1253, 1256 (Ala.Crim.App.1996); Hayes v. State, 647 So.2d 11 (Ala.Crim.App.1994); Connolly v. State, 602 So.2d 452 (Ala.1992); Tatum v. State,

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Related

Crews v. State
202 So. 3d 759 (Court of Criminal Appeals of Alabama, 2015)

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Bluebook (online)
988 So. 2d 615, 2007 Ala. Crim. App. LEXIS 102, 2007 WL 1866253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-state-alacrimapp-2007.