Derrick Lashawn Thompson v. State of Alabama.

92 So. 3d 801, 2011 WL 5252755, 2011 Ala. Crim. App. LEXIS 96
CourtCourt of Criminal Appeals of Alabama
DecidedNovember 4, 2011
DocketCR-10-0379
StatusPublished
Cited by4 cases

This text of 92 So. 3d 801 (Derrick Lashawn Thompson v. State of Alabama.) 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
Derrick Lashawn Thompson v. State of Alabama., 92 So. 3d 801, 2011 WL 5252755, 2011 Ala. Crim. App. LEXIS 96 (Ala. Ct. App. 2011).

Opinion

JOINER, Judge.

Derrick Lashawn Thompson was convicted of two counts of unlawful distribution of a controlled substance within a three-mile radius of a school and a housing project, a violation of §§ 13A-12-211, -250, -270, Ala.Code 1975, and one count of unlawful possession of a controlled substance, a violation of § 13A-12-212, Ala. Code 1975. The circuit court sentenced Thompson, as an habitual offender, to life in prison on each count, the sentences to be served concurrently. The circuit court imposed all fines, costs, and penalties mandated in drug cases. See §§ 13A-12-281, 15-23-17, and 36-18-7(a), Ala.Code 1975. Thompson did not file any posttrial motions. This appeal followed.

Thompson’s appellate counsel filed a motion to withdraw and a “no-merit” brief in substantial compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in which counsel argued that the record revealed no meritorious issues upon which to base an appeal. Thompson was then given an opportunity to present pro se issues to his counsel and to this Court. Thompson submitted a nine-page “motion to enter issues for review,” which presented the following issues for this Court to consider: (1) whether his trial counsel was ineffective because he failed to call witnesses for the defense and to prepare a reasonable defense, failed to object to the admission of untested drugs, failed to file a motion for a new trial based upon Thompson’s “absents [sic] from trial, a missing link in the chain of custody, prosecutor’s misconduct,” and failed to file a notice of appeal; (2) whether Thompson is entitled to a new trial because of his involuntary absence from trial; and (3) whether Thompson is entitled to a new sentencing hearing because the circuit court “was bias[ed] and prejudiced] against [Thompson], and sentenced [him] without the presence of counsel, pre-sen-tence investigation report, application of probation, or without allowing [him] to present witness or speak on his behalf.”

Initially, we note that Thompson’s claim that his trial counsel was ineffective was not first raised in the circuit court and is, therefore, not preserved for review. It is well settled that

“ineffective-assistance-of-counsel claims cannot be presented on direct appeal when they have not been first presented to the trial court. Montgomery v. State, 781 So.2d 1007 (Ala.Crim.App.2000). Thus, ‘ “[a]n ineffeetive-assistance-of-counsel claim must be presented in a new trial motion filed before the 30-day jurisdictional time limit set by Rule 24.1(b), Ala. R.Crim. P., expires, in order for that claim to be properly preserved [803]*803for review upon direct appeal.” ’ 781 So.2d at 1010, quoting Ex parte Ingram, 675 So.2d 863, 865 (Ala.1996).”

Shouldis v. State, 953 So.2d 1275, 1285 (Ala.Crim.App.2006). “ ‘[W]e will not make exception to the rule that a claim for ineffective assistance of counsel may not be considered on appeal if it was not first presented to the trial court.’ ” Brown v. State, 701 So.2d 314, 319-20 (Ala.Crim.App.1997) (quoting Ex parte Jackson, 598 So.2d 895, 897 (Ala.1992), overruled on other grounds, Ex parte Ingram, 675 So.2d 863, 865 (Ala.1996)).

We recognize that the Alabama Supreme Court in Ex parte Jefferson, 749 So.2d 406 (Ala.1999), created an exception to the preservation requirement when a defendant asserts a claim alleging ineffective assistance of counsel. The Court held that a general claim of ineffective assistance of counsel may be sufficient to preserve for appellate review a more specific claim of ineffective assistance of counsel “[w]here the record on appeal reflects that trial counsel’s performance was so deficient as to fall below an objective standard of reasonableness.” 749 So.2d at 408. In Montgomery v. State, 781 So.2d 1007 (Ala.Crim.App.2000), this Court recognized that the exception carved out by the Alabama Supreme Court in Jefferson would be applicable in “only a minute number of cases” — those cases where counsel’s error is “so blatant and clear on the face of the record that there [is] no room for interpretation.” 781 So.2d at 1011. We held in Montgomery that we would “not stretch to find ineffective assistance of counsel in cases where the claim has not been addressed by the trial court” and that, if the record on appeal does not reflect on its face that counsel’s performance was so deficient as to fall below an objective standard of reasonableness, the preservation exception carved out in Jefferson would not apply. 781 So.2d at 1011.

In this case, the claim of ineffective assistance of counsel raised by Thompson, which was not first presented to the circuit court, does not fall within the exception to the preservation requirement of Jefferson. The record does not reflect, on its face, that his counsel’s performance was so deficient as to fall below an objective standard of reasonableness. Therefore, Thompson’s claim is not properly before this Court for review. See, e.g., Flowers v. State, 799 So.2d 966 (Ala.Crim.App.2000); Montgomery, supra.

Thompson also contends that he is entitled to a new trial because, he says, he was involuntarily absent from trial. This argument, however, is without merit.

This Court has held:

“A trial court does not commit error in trying a defendant in his absence where that defendant knows the date of the trial and simply fails to appear, and there is no evidence suggesting that the defendant was involuntarily absent. United States v. Schocket, 753 F.2d 336, 339-340 (4th Cir.1985). A defendant may not unilaterally set the time or circumstances of his trial, see United States v. Bentvena, 319 F.2d 916 (2d Cir.), sub nom. Ormento v. United States, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963); rather, the defendant bears the burden of justifying his absence from a known proceeding against him.’ United States v. Sanchez, 790 F.2d 245, 249 (2d Cir.1986) (emphasis in [Sanchez ]). An acknowledgment from defense counsel that there is no evidence of the whereabouts of his client may support the conclusion of the trial judge that the accused has willfully absented himself without a reason. Sanchez, 790 F.2d at 250. See generally 21A Am.Jur.2d Criminal Law §§ 698-699 (1981).”

Gulledge v. State, 526 So.2d 654, 656-57 (Ala.Crim.App.1988). See also Wade v. [804]*804State, 497 So.2d 593, 595 (Ala.Crim.App.1986); Aldridge v. State, 278 Ala. 470, 179 So.2d 51 (1965).

Here, the record shows that Thompson’s trial began on May 11, 2010, and that both Thompson and his trial counsel were present in the courtroom for voir dire. After voir dire, the circuit court informed both Thompson and the jury that it was “not going to start trying the case [that] afternoon” and that the trial would resume “in the morning at 9:00 o’clock.” The next morning the following exchange occurred:

“[Thompson’s trial counsel]: Judge, at this time I would like the record to properly reflect [Thompson] has failed to appear at 9:40 [a.m.].

Free access — add to your briefcase to read the full text and ask questions with AI

Related

R.V.D. v. State
268 So. 3d 96 (Court of Criminal Appeals of Alabama, 2018)
Green v. State
200 So. 3d 677 (Court of Criminal Appeals of Alabama, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
92 So. 3d 801, 2011 WL 5252755, 2011 Ala. Crim. App. LEXIS 96, Counsel Stack Legal Research, https://law.counselstack.com/opinion/derrick-lashawn-thompson-v-state-of-alabama-alacrimapp-2011.