Singleton v. State

209 So. 3d 529, 2015 Ala. Crim. App. LEXIS 71
CourtCourt of Criminal Appeals of Alabama
DecidedSeptember 18, 2015
DocketCR-14-0344
StatusPublished
Cited by6 cases

This text of 209 So. 3d 529 (Singleton 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
Singleton v. State, 209 So. 3d 529, 2015 Ala. Crim. App. LEXIS 71 (Ala. Ct. App. 2015).

Opinion

On Application for Rehearing

KELLUM, Judge.

This Court’s opinion issued on May 29, 2015, is withdrawn, and the following is substituted therefor.

The appellant, Carlos Benard Singleton, appeals from the circuit court’s revocation of his probation. On February 29, 2011, Singleton pleaded guilty to attempted sexual abuse of a child less than 12 years old, a violation of §§ 13A-4-2 and 13A-6-69.1, Ala.Code 1975. The circuit court sentenced Singleton to 15 years’ imprisonment; the sentence was split, and he was ordered to serve 1 year in prison followed by 5 years’ supervised probation. The circuit court ordered Singleton to pay $50 to the crime victims compensation fund and court costs.

On September 26, 2014, Singleton’s probation officer filed a delinquency report alleging that Singleton had violated the terms and conditions of his probation by testing positive for cocaine in June 2014, by fading to complete drug testing when ordered, by failing to report, by failing to participate in a scheduled “maintenance polygraph,”1 and by failing to notify his probation officer of a change of address. (C. 21.)

The circuit court conducted a probation-revocation hearing on November 6, 2014. At the hearing, Singleton’s probation officer, Laura Vandam, testified that Singleton tested positive for cocaine on June 30, 2014. According to Vandam, Singleton also failed to report for random drug screens in July 2014 and September 2014. Vandam testified that Singleton, who was homeless, failed to report weekly as required by law, refused to complete a scheduled “maintenance polygraph” as required by the Sex Offender Management Program, and failed to report a change of his address. Singleton testified that he was in poor health and had recently been [531]*531hospitalized. Singleton admitted that he had used cocaine once while on probation. Singleton stated that he had stayed with his mother, who was also in poor health, for a week and a half to help her but that he did not inform his probation officer of his location when he was there. After considering the evidence presented at the revocation hearing, the circuit court entered an order on November 6, 2014, in which it revoked Singleton’s probation and ordered Singleton to serve the balance of his sentence in the custody of the Alabama Department of Corrections. This appeal followed.

I.

Singleton contends that the 15-year sentence originally imposed by the circuit court is illegal because, he argues, the sentence exceeded the maximum sentence allowed by law and grants an unauthorized term of probation under the law. Citing this Court’s decision in Enfinger v. State, 123 So.3d 535 (Ala.Crim.App.2012), Singleton maintains that the circuit court’s revocation of his probation is due to be reversed based on the illegality of the original sentence.2

Initially, we note that, although the legality of Singleton’s sentence was not first argued in the circuit court, we have held that “[m]atters concerning unauthorized sentences are jurisdictional.” Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994). Thus, this Court may take notice of an illegal sentence at any time. See, e.g., McCall v. State, 794 So.2d 1243 (Ala.Crim.App.2000); Pender v. State, 740 So.2d 482, 484 (Ala.Crim.App.1999).

The record indicates that Singleton pleaded guilty to attempted sexual abuse of a child less than 12 years old and that he was sentenced to 15 years’ imprisonment. The 15-year sentence was split pursuant to the Split Sentence Act, § 15-18-8, Ala.Code 1975, and Singleton was ordered to serve 1 year in prison followed by 5 years’ supervised probation.

The crime of sexual abuse of a child less than 12 years old is a Class B felony. See § 13A-6-69.1(b), Ala.Code 1975. An attempt of a Class B felony is punishable as a Class C felony, see § 13A-4-2(d)(3), Ala.Code 1975, and a person convicted of a Class C felony may be sentenced to “not more than 10 years or less than 1 year and 1 day” in prison. § 13A-5-6(a)(3), Ala. Code 1975. Section 13A-5-2(d), Ala.Code 1975, provides:

“Every person convicted of a felony, misdemeanor, or violation, except for the commission of a criminal sex offense involving a child as defined in Section 15-20-21(5), may be placed on probation as authorized by law.”

Section 15-20-21(5), Ala.Code 1975, defines a “criminal sex offense involving a child” as “a conviction for any criminal sex offense in which the victim was a child under the age of 12 and any offense involving child pornography.”3 The Split Sen-[532]*532tenee Act prohibits splitting the sentence of an offender convicted of “a criminal sex offense involving a child as defined in Section 15-20-21(5), which constitutes a Class A or B felony.” § 15-18-8(a), Ala,Code 1975. Further, under the Split Sentence Act, “[probation may not be granted for a criminal sex offense involving a child as defined in Section 15-20-21(5), which constitutes a Class A or B felony.” § 15-18-8(b), Ala. Code 1975.

In this case, the record contains a pro se motion filed by Singleton in which he acknowledges that he was sentenced as a habitual felony offender. Even with one prior felony’ conviction, Singleton — who pleaded guilty to a Class C félony — could be sentenced to not more than 20 years or less than 2 years. See §§ 13A-5-9(a)(l) and 13A-5-6(a)(2), Ala.Code 1975. Therefore, contrary to Singleton’s contention on appeal, the circuit court’s 15-year sentence did not exceed the maximum authorized by law.

Furthermore, the circuit court’s imposition of a probationary term was proper. The circuit court sentenced Singleton under the Split Sentence Act. Section ‘16-18-8(b) of the Split Sentence Act prohibits the imposition of a split sentence in cases where a defendant is convicted of a criminal sex offense involving a child that constitutes a Class A or a Class B felony. However, the Split Sentence Act does not prohibit the imposition of a split sentence when the conviction os for an offense that is a Class C felony.

Although Singleton contends on appeal that the circuit court’s sentence granting him probation was illegal because § 13A-5-2(d) prohibits probation for a person convicted of a sex offense involving a child, this Court has previously recognized that the Split Sentence Act

“allows the circuit court to impose sentences that would, under other statutory sentencing schemes, be illegal. For example, under § 15-22-54(a), Ala.Code 1975, circuit courts do not have the aur thority in felony cases to impose terms of probation that exceed five years; the Split-Sentence Act, however, allows circuit courts to impose probationary terms that exceed five years. See, e.g., Hatcher v. State, 547 So.2d 905, 906 (Ala.Crim.App.1989)(Tt is clear to this Court that the legislature, in enacting the provision of § 15-18-8, intended to provide that a defendant could be sentenced to mandatory confinement for a period not exceeding three years, after which the defendant would be placed on probation for the remainder of his sentence, even if that sentence were 15 years.’).”

Mosley v. State, 187 So.3d 1194, 1202 n. 4 (Ala.Crim.App.2015).

In the instant case, Singleton was convicted of a Class C felony. See §§ 13A-6-69.1(b) and § 13A-4-2(d)(3), Ala.Code 1975.

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