Kegler v. State

68 So. 3d 222, 2010 Ala. Crim. App. LEXIS 134, 2010 WL 5130832
CourtCourt of Criminal Appeals of Alabama
DecidedDecember 17, 2010
DocketCR-09-1442
StatusPublished

This text of 68 So. 3d 222 (Kegler 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
Kegler v. State, 68 So. 3d 222, 2010 Ala. Crim. App. LEXIS 134, 2010 WL 5130832 (Ala. Ct. App. 2010).

Opinions

PER CURIAM.

The appellant, Charles Anthony Kegler, appeals the circuit court’s summary denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P.

In February 1987, Kegler pleaded guilty to manslaughter and was sentenced to 25 years in prison. Kegler did not appeal his conviction.1

In May 2010, over 23 years after he pleaded guilty, Kegler filed his 7th post-conviction petition in the Jefferson Circuit Court. In this petition Kegler alleged that his sentence was illegal because, he argued, the State did not invoke the Habitual Felony Offender Act (“HFOA”) and that at the time of the offense manslaughter was a Class C felony with a range of punishment of not more than 10 years or less than 1 year and 1 day pursuant to § 13A-5-6(a)(3), Ala.Code 1975, and his 25-year sentence therefore exceeded the maximum authorized by law. Without receiving a response from the State, the circuit court denied the petition and made the following entry on the case-action-summary sheet:

“As he has alleged in numerous Rule 32 Petitions, [Kegler] again asserts that the State’s failure to give notice regarding the applicability of the Habitual Felony Offender Act should result in a new sentencing hearing. As [Kegler] is aware from previous rulings on the same issue, the ‘lack of notice of the State’s intent to seek sentence enhancement under the HFOA is not a jurisdictional issue and, therefore, is subject to the two-year limitations.’ Martin v. State, 687 So.2d 1253 (Ala.Crim.App.1996) (now a one year limitation period). Since the procedural bars do apply, this Petition is precluded by Rule 32.2(a)(3) Alabama Rules of Criminal Procedure, because it could have been raised at trial but was not. The claim is also precluded by Rule 32.2(a)(5), Alabama Rules of Criminal Procedure, because the claim could have been raised on appeal but was not. This is also precluded by Rule 32.2(b), Alabama Rules of Criminal Pro[224]*224cedure, because Kegler raised the same grounds in at least three Rule 82 Petitions. Finally, since this is not a jurisdictional issue and more than one year has passed since the time for filing an appeal, the claim is precluded by Rule 32.2(c), Alabama Rules of Criminal Procedure.”

(C. 6.) Kegler filed a motion for reconsideration. The circuit court denied that motion; this appeal followed.

Kegler argues on appeal that the circuit court erroneously mischaracterized his claim as a challenge to the State’s failure to provide notice of its intent to proceed under the HFOA, not that the State failed to invoke the HFOA; therefore, he argues, the circuit court erred in summarily denying him relief.

When reviewing a “circuit court’s rulings made in a postconviction petition, we may affirm a ruling if it is correct for any reason.” Bush v. State, [Ms. CR-03-1902, May 29, 2009] -So.3d -, - (Ala.Crim.App.2009).

This Court has taken judicial notice of our records related to Kegler’s appeals from the denial of his previous postconviction petitions attacking his manslaughter conviction. See Nettles v. State, 731 So.2d 626 (Ala.Crim.App.1998). Our records indicate that this is an appeal from the denial of Kegler’s seventh postconviction petition. We affirmed the denial of Kegler’s first postconviction petition in 1990, Kegler v. State, 572 So.2d 889 (Ala.Crim.App.1990) (table); of his second postconviction petition in, 1993, Kegler v. State, 639 So.2d 589 (Ala.Crim.App.1993) (table); of his third postconviction petition in 1996, Kegler v. State, 698 So.2d 805 (Ala.Crim.App.1996) (table); of his fourth postconviction petition in 2004, Kegler v. State, 910 So.2d 839 (Ala.Crim.App.2004) (table); of his fifth postconviction petition in 2005, Kegler v. State, 954 So.2d 1147 (Ala.Crim.App.2005) (table); and of his sixth postconviction petition in 2009, Kegler v. State, 46 So.3d 979 (table).

We stated the following in our unpublished memorandum denying Kegler’s sixth postconviction petition:

“The State’s alleged failure to invoke and apply the HFOA at sentencing was a jurisdictional issue. See Horn v. State, 912 So.2d 539 (Ala.Crim.App.2004)(the trial court lacks jurisdiction to impose an enhanced sentence if the State fails to invoke the HFOA prior to sentencing). However, even if an issue is jurisdictional, the defendant is not entitled to successive postconviction review of that issue if it was raised and rejected in a previous petition. Ex parte Trawick, 972 So.2d 782 (Ala.2007). In his fifth postconviction petition, Ke-gler asserted that ‘the circuit court imposed a sentence in excess of the maximum provided for a Class C felony.’ In an unpublished memorandum issued on February 20, 2004, this court affirmed the trial court’s denial of that petition and stated, in pertinent part:
“ ‘[I]n reviewing Kegler’s prior cases before this court, we note that Ke-gler’s fifth petition for post-conviction relief fails to mention two prior felony convictions: a 1981 conviction for second-degree theft and a 1985 conviction for second-degree receiving stolen property. Because application of the Habitual Felony Offender Act is mandatory, see Cunny v. State, 629 So.2d 693 (Ala.Crim.App.1993), the circuit court was required to sentence Kegler in accordance with the provisions of § 13A-5-9, Ala.Code 1975, even if the court ordered the manslaughter sentence to run concurrently with one or more of Kegler’s previous sentences.’
[225]*225“Kegler’s claims were precluded because they were nonjurisdictional and untimely or successive and previously rejected.”

The claim Kegler presents in his seventh postconviction petition has already been addressed and rejected on the merits. The Alabama Supreme Court in Ex parte Trawick, 972 So.2d 782 (Ala.2007), held that a jurisdictional claim that has been addressed on the merits in previous proceedings is procedurally barred in a subsequent postconviction proceeding. The Court stated:

“Rule 82.2(b), Ala. R.Crim. P., generally precludes a trial court from granting relief in response to a successive Rule 82 petition. Rule 32.2(b) defines a ‘successive petition’ as follows: ‘If a petitioner has previously filed a petition that challenges any judgment, all subsequent petitions by that petitioner challenging any judgment arising out of the same trial or guilty-plea proceeding shall be treated as successive petitions under this rule.’ Rule 32.2(b) creates a two-pronged approach to addressing successive petitions. The first inquiry, under Rule 32.2(b), is whether the grounds raised in the successive petition are du-plicative, that is, have the same grounds been raised in a prior petition. Under Rule 32.2(b), ‘[t]he Court shall not grant relief on a successive petition on the same or similar grounds on behalf of the petitioner.’
“The second prong of Rule 32.2(b) states that ‘[a] successive petition on different grounds shall be denied’ unless one of two exceptions apply. (Emphasis added.) The exception that Trawick attempts to invoke in this case allows the trial court to consider a successive petition when ‘the petitioner is entitled to relief on the ground that the court was without jurisdiction to render a judgment or to impose sentence.’ Rule 32.2(b), Ala. R.Crim. P. Trawick’s claim that his sentence is illegal under the HFOA presents a jurisdictional claim. See, e.g., Ex parte Robey,

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Related

Wallace v. State
959 So. 2d 1161 (Court of Criminal Appeals of Alabama, 2006)
Ex Parte Trawick
972 So. 2d 782 (Supreme Court of Alabama, 2007)
Kegler v. State
954 So. 2d 1147 (Court of Criminal Appeals of Alabama, 2005)
Kelley v. State
985 So. 2d 972 (Court of Criminal Appeals of Alabama, 2007)
Cunny v. State
629 So. 2d 693 (Court of Criminal Appeals of Alabama, 1993)
Martin v. State
687 So. 2d 1253 (Court of Criminal Appeals of Alabama, 1996)
Grady v. State
831 So. 2d 646 (Court of Criminal Appeals of Alabama, 2001)
Ex Parte Robey
920 So. 2d 1069 (Supreme Court of Alabama, 2004)
Nettles v. State.
731 So. 2d 626 (Court of Criminal Appeals of Alabama, 1998)
Ex Parte Sanders
792 So. 2d 1087 (Supreme Court of Alabama, 2001)
J.J.D. v. State
910 So. 2d 839 (Court of Criminal Appeals of Alabama, 2004)
Ex Parte Williams
510 So. 2d 135 (Supreme Court of Alabama, 1987)
Charles Anthony Kegler v. State
46 So. 3d 979 (Court of Criminal Appeals of Alabama, 2009)
Horn v. State
912 So. 2d 539 (Court of Criminal Appeals of Alabama, 2004)
Batey v. State
958 So. 2d 339 (Supreme Court of Alabama, 2006)

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Bluebook (online)
68 So. 3d 222, 2010 Ala. Crim. App. LEXIS 134, 2010 WL 5130832, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kegler-v-state-alacrimapp-2010.