Rel: March 28, 2025
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) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.
Alabama Court of Criminal Appeals OCTOBER TERM, 2024-2025 _________________________
CR-2024-0078 _________________________
Teresa Darwin Phillips
v.
State of Alabama
Appeal from DeKalb Circuit Court (CC-22-432)
COLE, Judge.
Teresa Darwin Phillips pleaded guilty to two counts of first-degree
theft of property, violations of § 13A-8-3, Ala. Code 1975, two counts of
first-degree theft by deception, violations of § 13A-8-3, Ala. Code 1975,
one count of first-degree financial exploitation of an elderly person, a CR-2024-0078
violation of § 13A-6-195, Ala. Code 1975, one count of second-degree theft
of property, a violation of § 13A-8-4, Ala. Code 1975, one count of second-
degree financial exploitation of an elderly person, a violation of § 13A-6-
196, Ala. Code 1975, one count of third-degree theft of property, a
violation of § 13A-8-4.1, Ala. Code 1975, and one count of third-degree
theft by deception, a violation of § 13A-8-4.1, Ala. Code 1975. 1 Phillips
was sentenced to 20 years' imprisonment, which was split for Phillips to
serve 4 years' imprisonment followed by 5 years' supervised probation,
for each count of first-degree theft of property, each count of first-degree
theft by deception, and the count of first-degree financial exploitation of
an elderly person; 10 years' imprisonment, which was split for Phillips to
serve 3 years' imprisonment followed by 5 years' supervised probation for
the count of second-degree theft of property and the count of second-
degree financial exploitation of an elderly person; and 5 years'
imprisonment, which was split for Phillips to serve 1 year of
imprisonment followed by 2 years' supervised probation, for the count of
1In exchange for Phillips's guilty pleas to those counts, the State
nol-prossed one count of first-degree theft by deception, see § 13A-8-3, Ala. Code 1975, two counts of third-degree forgery, see § 13A-9-3.1, Ala. Code 1975, and five counts of unlawful practice of law, see § 34-3-1, Ala. Code 1975. 2 CR-2024-0078
third-degree theft of property and the count of third-degree theft by
deception; all sentences were to run concurrently. On appeal, Phillips
argues that the trial court erred when it departed from the presumptive
sentencing standards because the State did not file its notice of
aggravating factors before she entered her guilty pleas and because, she
says, no good cause existed to excuse the State's late notice.
Facts and Procedural History
Phillips was previously a licensed attorney practicing law in the
State of Alabama. However, Phillips was suspended and subsequently
disbarred from the practice of law in the State of Alabama. The DeKalb
County District Attorney's Office, on February 28, 2020, received a report
from the Alabama Bar Association on Phillips that concerned " 'possible
misappropriation and theft of funds related to a real estate closing in
October of 2019.' " (R. 85.) This led to a more thorough investigation of
Phillips's law practice and the uncovering of multiple victims of Phillips's
deception.
On November 7, 2022, the State and Phillips entered into a written
plea agreement. While the State and Phillips did not agree upon
sentencing terms, the agreement did provide that Phillips would plead
3 CR-2024-0078
guilty to nine felony counts and, in exchange for those pleas, the
remaining counts Phillips faced would be dismissed. Phillips also agreed
to pay restitution to her victims in the following manner: $10,000 to L.
Ronald Pannell or Lance and Cynthia Kittle; $94,000 to Donna Schultz;
$777 to Ron Gifford; $1,050 to Janice Woo; $68,000 to Terri Cornett or
Carol Newsome, as personal representatives of the estate of Mary Helen
Slaton; and $7,600 to Janice Woo, as personal representative of the estate
of Anna Price.2 The parties agreed to postpone the sentencing hearing
for a minimum of 60 days to allow Phillips time before the sentencing
hearing to make payments toward restitution owed to the victims. The
written agreement stated:
"The Defendant understands that her payment of restitution pending sentencing shall be used as a determinative factor in the State's arguments related to sentencing. The State reserves the right to oppose Defendant's application for probation or community corrections, dependent in part upon her payment of restitution pending sentencing."
(C. 30-31.) The trial court also reviewed these provisions with Phillips
during the guilty-plea colloquy. The written plea agreement further
2An additional $56,000 in restitution was owed to Dale Chisholm,
but he died before the sentencing hearing and had no heir. Also, an additional $1,500 in restitution was owed to Howard Gant, but he also died and left no heir. (C. 131.) 4 CR-2024-0078
stated that Phillips did not reserve any issues for appeal except "the right
to appeal issues related to sentencing if said appeal should become
necessary." (C. 30-31; R. 8-10.) This agreement was signed by the State,
Phillips, and Phillips's attorney. On November 7, 2022, the trial court
accepted the plea agreement, and Phillips entered guilty pleas to the
aforementioned charges. (C. 32.)
At the time Phillips entered her guilty pleas, the State had not filed
any notice of aggravating factors. The presumptive sentencing standards
indicated a nonprison recommendation and a durational range of 24 to
46 months on a straight sentence and 6 to 12 months on a split sentence.
However, under the statutory sentencing scheme, Phillips faced, for her
Class B felonies, a range of 2 to 20 years' imprisonment; for her Class C
felonies, a range of 1 year and 1 day to 10 years' imprisonment; and for
her Class D felonies, a range of 1 year and 1 day to 5 years' imprisonment.
On the day that the sentencing hearing was originally scheduled,
February 2, 2023, the State filed its notice of aggravating factors. At the
sentencing hearing, Phillips "object[ed] to any aggravating factors being
considered" for sentencing because she "never agreed to any" aggravating
factors and none had been found by a jury. (R. 20.) The State argued
5 CR-2024-0078
that Phillips should have been on notice of some aggravating factors
based upon the offenses that she had pleaded guilty to, particularly, the
offenses involving victims with advanced age or who were unable to care
for themselves. The State also argued that the written plea agreement
expressly noted that its recommendation on sentencing was to be
determined by Phillips's payment of restitution pending sentencing.
Phillips indicated that if the trial court were to allow the State to proceed
with proving aggravating factors, she would likely move to withdraw her
guilty pleas. The trial court set a hearing to determine whether the State
had good cause for its late notice of aggravating factors and, if it did,
whether Phillips desired to withdraw her guilty pleas.
At a hearing on May 31, 2023, the State informed the trial court
that there had been extensive settlement negotiations between the
parties in the case. Those discussions centered around the victims'
concerns of getting restitution as soon as possible. Throughout the
discussions, the sentencing durational terms discussed were 15- to 20-
year terms because of the large amount of restitution owed to the victims;
however, a reverse split was suggested because the priority was "to make
sure [the victims] got paid back as much as possible as quickly as
6 CR-2024-0078
possible." (R. 51-52.) According to the State, Phillips suggested the blind
plea agreement with her sentencing determination being contingent
upon her payment of restitution pending sentencing in the hopes that she
could receive a more favorable sentence after showing "her good faith
effort to make things right." (R. 53-54.) That agreement and
postponement of sentencing to allow payment toward restitution "was
supposed to be to her benefit as well as to the benefit of the victims." (R.
53.) The State told the trial court that all the negotiations were based on
a 15-year or 20-year term of imprisonment and that there was no
discussion regarding a durational term "anywhere in the range of 46
months." (R. 54.) Based on the settlement discussions, the State did not
file its notice of aggravating factors before the date of the original
sentencing hearing, but it filed its notice on the date of the hearing, after
it confirmed that Phillips had paid nothing toward restitution. The State
explained that there was then "nothing left for us to do but to ask for her
to be sentenced at the maximum range" and argued that it had relied in
good faith on the discussions with Phillips, which it said provided good
cause for the late notice based on her not paying anything toward
restitution. (R. 57.) Phillips did not refute the State's assertions but
7 CR-2024-0078
simply argued that settlement negotiations are not admissible evidence,
alluding to Rule 410, Ala. R. Evid., 3 and that the State's failure to provide
proper notice of aggravating factors before Phillips pleaded guilty made
her pleas involuntary.
In finding that good cause existed for the late notice, the trial court
determined that, considering the extensive negotiations, the large
amount of restitution at issue, and the nature of Phillips's relationship
with her victims, 4 it was reasonable to assume that aggravating factors
would be considered at sentencing. Moreover, the trial court noted that
the plea discussions, which included statutory ranges of punishment,
also indicated that aggravating factors were to be considered. After
3While Rule 410, Ala. R. Evid., provides that settlement negotiations are not admissible "against the defendant who made the plea or was a participant in the plea discussions," it does not go so far as to preclude settlement negotiations from ever becoming relevant evidence in a hearing to determine whether there was an agreement and, if so, what the terms of the agreement were. See Ex parte Yarber, 437 So. 2d 1330, 1332-33 (Ala. 1983) (showing discussion of plea negotiations to determine whether a plea agreement was made and, if so, what its terms were). Likewise, the parties' settlement negotiations are relevant here to determine whether good cause existed for the State's late notice of aggravating factors.
4Phillipswas acting in her capacity as a lawyer for each victim when the offenses occurred. 8 CR-2024-0078
discussion, Phillips declined to withdraw her guilty pleas, and a jury trial
was set for the State to prove its aggravating factors.
On November 13, 2023, Phillips ensured that her objections to the
late notice of aggravating factors were noted and notified the court that
she was preserving and reserving her argument regarding the late notice
for appeal. (R. 68-69.) Thereafter, Phillips stipulated to three
aggravating factors: (1) "[e]ach of the offenses to which the Defendant
pled guilty involved a fiduciary relationship that existed between the
Defendant and the victim"; (2) "[t]he offenses to which the Defendant pled
guilty involved an attempted or actual taking or receipt of property of
great monetary value or damage causing great monetary loss to the
victim(s)"; and (3) "[f]our of the victims involved in the charges to which
the Defendant pled guilty were particularly vulnerable due to age,
infirmity, or reduced physical capacity that was known or should have
been known to the Defendant." (C. 111; R. 69-73.)
On January 25, 2024, Phillips was sentenced as outlined above. All
the sentences were ordered to run concurrently. This appeal follows.
9 CR-2024-0078
Discussion
On appeal, Phillips raises two arguments: (1) whether she properly
preserved for appellate review her argument regarding the State's late
notice of aggravating factors and (2) whether good cause existed for the
State's late notice of aggravating factors.
I. Preservation
We must first determine whether Phillips preserved her argument
for appellate review. Section 12-25-34.2(c), Ala. Code 1975, states:
"Durational and dispositional departures from the presumptive sentencing standards shall be subject to appellate review. Along with the modifications provided for in subsection (b), the Alabama Sentencing Commission shall recommend a narrowly defined scope of appellate review applicable to departures from presumptive sentencing recommendations. The scope of appellate review shall become effective upon approval by an act of the Legislature enacted by bill."
Therefore, a trial court's decision to depart from either a durational or
dispositional recommendation of "the presumptive sentencing standards
is, in fact, subject to appellate review." Hyde v. State, 185 So. 3d 501,
507 (Ala. Crim. App. 2015). Moreover, this Court applies "an abuse-of-
discretion standard of review" to departure sentences. Id. at 508.
10 CR-2024-0078
At the time Phillips entered her guilty pleas, Phillips reserved the
right to appeal any sentencing issue should it become necessary. Just
before Phillips's sentencing hearing, the State filed its notice of
aggravating factors to request sentences that departed from those
recommended under the presumptive sentencing standards. Phillips
objected to the State's late notice of aggravating factors and requested
that no aggravating factors be considered by the trial court. The trial
court set a hearing to determine whether there was good cause for the
State's late notice and, if there was good cause, whether Phillips desired
to withdraw her guilty pleas. The trial court determined that good cause
existed for the State's late notice and allowed Phillips an opportunity to
withdraw her guilty pleas. Phillips did not desire to withdraw her guilty
pleas; instead, Phillips preserved and reserved her argument regarding
whether the State had provided good cause to excuse its late notice of
aggravating factors to seek departure sentences.
We find that Phillips properly preserved her argument for appellate
review. At the time Phillips entered her guilty pleas, Phillips was not
aware, and could not have been aware, that the trial court would depart
from the presumptive sentencing standards. See Hyde, 185 So. 3d at 510-
11 CR-2024-0078
11 (discussing when timing is appropriate for notice of appeal of a
sentence that departs from a sentence recommended under the
presumptive sentencing standards). However, before she entered her
guilty pleas, Phillips expressly reserved the right to object to sentencing
matters. Then, once Phillips was aware of the trial court's decision to
depart from the presumptive sentencing standards, Phillips objected to
the State's late notice of aggravating factors and received an adverse
ruling. Those actions both reserved and preserved Phillips's argument
for appellate review. We now turn to the merits.
II. Good Cause
Phillips argues that the trial court erred when it found good cause
existed to excuse the State's late notice of aggravating factors to seek
sentences that departed from those recommended under the presumptive
sentencing standards. (Phillips's brief, pp. 15-26.)
We first note that when Phillips entered her guilty pleas on
November 7, 2022, Phillips's sentences were controlled by the
presumptive sentencing standards. See Presumptive and Voluntary
Sentencing Standards Manual, p. 26 ("Where a sentencing event includes
both a worksheet offense and a non-worksheet offense and both carry the
12 CR-2024-0078
same statutory maximum penalty as governed by the felony offense
classification, the worksheet offense is the most serious offense. The
other offense should be scored as an additional offense where
appropriate."). For instance, because Phillips pleaded guilty to Class B
worksheet offenses -- first-degree theft of property and first-degree theft
by deception -- and to a Class B nonworksheet offense -- first-degree
financial exploitation of an elderly person -- the presumptive sentencing
standards controlled Phillips's sentences. The presumptive sentencing
standards recommended a nonprison sentence and a durational sentence
of between 24 to 46 months, on a straight sentence, and 6 to 12 months,
on a split sentence. (C. 33-34.) However, the statutory range of
punishment for a Class B felony offense was a sentence of not less than
2 years' imprisonment and not more than 20 years' imprisonment. § 13A-
5-6(a)(2), Ala. Code 1975. The State did not file notice of aggravating
factors before Phillips entered, and the trial court accepted, Phillips's
guilty pleas.
On February 2, 2023, the day that Phillips's sentencing hearing was
initially set, the State filed its notice of aggravating factors seeking
sentences that departed from the presumptive sentencing standards.
13 CR-2024-0078
The procedure to depart from the presumptive sentencing standards is
as follows:
"1. In General -- Departures Should be Rare -- The Standards are designed to provide appropriate recommendations for sentences in covered cases and are presumptive for non- violent covered offenses as defined in Ala. Code § 12-25-32. However, in exceptional cases, upon a finding of aggravating and/or mitigating factors, the sentencing court may depart from either a dispositional or durational sentence recommendation or from both. Departure sentences should be rare, with the court following the presumptive recommendation in the vast majority of sentenced cases.
"Dispositional Departures are only allowed for Class D felony convictions if the offender has been previously convicted of any three or more felonies, or previously convicted of any two or more felonies that are Class A or Class B felonies.
"2. Two Decisions -- The disposition and the duration of sentence are two separate decisions requiring separate, although not necessarily different, aggravating and/or mitigating factors for each departure.
"3. Consideration of Aggravating and Mitigating Factors -- The Court must consider all aggravating and/or mitigating factors proven for a sentencing event, but the decision to depart from the presumptive sentence recommendation is the in the discretion of the court.
"-- Recognized aggravating and mitigating factors are provided below.
"-- Worksheet scoring factors for the most serious offense may not be used as aggravating factors for the sentencing event.
14 CR-2024-0078
"-- A necessary element of the most serious offense may not be used as an aggravating factor for the sentencing event.
"4. Burden of Proof -- Aggravating Factors -- The prosecutor bears the burden of proving beyond a reasonable doubt that an aggravating factor exists. The defendant is entitled to a jury trial on the existence of any aggravating factor, unless the aggravating factor is admitted by the defendant or both the defendant and the prosecutor waive a jury determination and request the judge alone to decide. It is within the discretion of the trial court whether to bifurcate the trial and sentencing phase of a covered case.
"5. Burden of Proof -- Mitigating Factors -- The defendant bears the burden of proving by a preponderance of the evidence that a mitigating factor exists. A jury is not required to determine the existence of a mitigating factor.
"6. Notice -- Aggravation -- The prosecutor shall give the defendant notice of aggravating factors no less than seven (7) days before trial. Once given, notice is deemed sufficient for any future trial settings. For good cause shown, notice may be given at any time with the consent of the trial court, provided the defendant is given an opportunity to research and rebut the aggravating factor. Notice can be waived.
"7. Notice Requirements -- Mitigation -- The defendant shall give the prosecutor notice of mitigating factors no less than seven (7) days before sentencing. Once given, notice is deemed sufficient for any future sentencing settings. For good cause shown, notice may be given at any time with the consent of the trial court, provided the prosecutor is given an opportunity to research and rebut the mitigating factor. Notice can be waived.
"8. Stating Reasons for Departure -- The aggravating and/or mitigating factors found as reasons for any departure must be
15 CR-2024-0078
stated in the written sentencing order, even if the departure sentence is the result of a plea agreement and the parties have agreed to the existence of the aggravating and/or mitigating factors."
Presumptive and Voluntary Sentencing Standards Manual, pp. 30-31
(footnote omitted). Contained within the list of aggravating factors are
the three aggravating factors that Phillips admitted to in this case: (1)
"[t]he offense involved a fiduciary relationship, including a domestic
relationship, which existed between the defendant and victim"; (2) "[t]he
victim was particularly vulnerable due to age, infirmity, or reduced
physical capacity that was known or should have been known to the
defendant"; and (3) "[t]he offense involved an attempted or actual taking
or receipt of property of great monetary value or damage causing great
monetary loss to the victim(s)." Presumptive and Voluntary Sentencing
Standards Manual, p. 32. The only issue presented here is whether the
State's notice of aggravating factors was timely and, if not, whether good
cause existed to allow the State's late disclosure.
The State was required to give Phillips "notice of aggravating
factors no less than seven (7) days before trial." Presumptive and
Voluntary Sentencing Standards Manual, p. 31. Phillips did not proceed
to trial in this case. Rather, a week before Phillips's scheduled trial,
16 CR-2024-0078
Phillips entered guilty pleas. (C. 27-28.) This Court has found, in a
speedy-trial analysis, that "where the defendant pleads guilty, the 'trial'
date is the date he or she pleads guilty." Horton v. State, 369 So. 3d 1128,
1132 (Ala. Crim. App. 2022). However, even if we use the initial date of
the sentencing hearing for this notice requirement, the State failed to
give timely notice. Yet, the State's untimely notice does not end our
inquiry. Notice can, "[f]or good cause shown, … be given at any time with
the consent of the trial court, provided the defendant is given an
opportunity to research and rebut the aggravating factor[s]."
Presumptive and Voluntary Sentencing Standards Manual, p. 31.
Although "good cause" is not defined in the manual, good cause is
generally defined as "[a] legally sufficient reason." Cause, Black's Law
Dictionary (12th ed. 2024). Moreover, "the presumptive sentencing
standards were implemented to '[a]llow judges to retain significant
discretion in arriving at a sentencing decision[]." Hyde, 185 So. 3d at 508;
see Presumptive and Voluntary Sentencing Standards Manual p. 18; see
also § 12-25-2(a)(5), Ala. Code 1975.
The State argued to the trial court that good cause existed because
the aggravating factors were clear from the nature of the offenses Phillips
17 CR-2024-0078
pleaded guilty to; it was agreed that the State's recommendation at
sentencing would be dependent upon Phillips's payments toward
restitution before sentencing; and, at the time the open pleas were
entered, the State expressly reserved the right to oppose Phillips's
"application for probation or community corrections dependent in part
upon [Phillips's] payment of restitution pending sentencing." (C. 30-31;
R. 8, 21, 25-26.) And a nonprison recommendation under the
presumptive sentencing standards encompasses sentences of probation,
community corrections, county jail or work release, a reverse split, and a
split sentence with a suspended split. 5 Presumptive and Voluntary
Sentencing Standards Manual, p. 29.
After hearing arguments, the trial court found that good cause
existed to excuse the State's late notice for the following expressly stated
reasons: (1) because Phillips and the State had conducted extensive
settlement negotiations, which included the State's reservation of the
5Likewise, a prison recommendation under the presumptive sentencing standards would encompass sentences to the Department of Corrections, community corrections, a split sentence to the Department of Corrections, a split sentence to community corrections, or high- intensity probation. Presumptive and Voluntary Sentencing Standards Manual, p. 29. 18 CR-2024-0078
right to oppose probation or community corrections; (2) because a large
amount of restitution (nearly $250,000) was at issue in the case; (3)
because of Phillips's relationship as a lawyer (a fiduciary) to the victims
when she committed the criminal acts against them; and (4) because the
plea negotiations between the parties discussed statutory ranges of
punishment, indicating that the State had relied, in good faith, upon
Phillips's desire to pay restitution, or as much as possible, before her
sentencing to get the most favorable sentencing outcome. Given these
circumstances, we cannot say that the trial court's finding of good cause
was an abuse of discretion.
Like the trial court, we note that the State should have provided its
notice of aggravating factors earlier, even though it intended to seek
sentencing based on whether, and to what extent, Phillips had paid
restitution by the time of sentencing. Nonetheless, the trial court's
finding that good cause existed to allow the State's late notice of
aggravating factors was not an abuse of discretion.
The most compelling evidence is the written plea agreement signed
by the parties and presented to the trial court. The written plea
agreement specifically states:
19 CR-2024-0078
"The Defendant understands that her payment of restitution pending sentencing shall be used as a determinative factor in the State's arguments related to sentencing. The State reserves the right to oppose Defendant's application for probation or community corrections, dependent in part upon her payment of restitution pending sentencing."
(C. 30-31.) The trial court reiterated this provision before accepting
Phillips's pleas. Phillips stated that she understood that her sentencing
determination would be dependent upon her payment of restitution and
that the State had reserved its right to oppose probation or community
corrections accordingly. Moreover, the State's reservation of the right to
oppose Phillips's request for probation or community corrections would
be, for the most part, meaningless if the State could not seek sentences
that departed from the presumptive sentencing standards. The plea
agreement itself refutes Phillips's insistence that she relied upon the
presumptive sentencing standards when she made her pleas. We do not
read the agreement as narrowly as Phillips requests. The State and
Phillips's discussion of statutory ranges of punishment and the failure to
agree to any specific sentencing terms all support the trial court's finding
that aggravating factors were, at a minimum, discussed during
settlement negotiations. Finally, we recognize the significance that, as
of the initial sentencing hearing on February 2, 2023, Phillips had not
20 CR-2024-0078
paid any amount toward restitution, which by the agreement determined
the sentences the State would seek and necessitated the notice of
aggravating factors. Interestingly, as of the sentencing hearing on
January 25, 2024, Phillips had still not paid any money toward
restitution. In sum, we hold that the trial court did not abuse its
substantial discretion in determining that good cause existed for the
State's late notice of aggravating factors when considering all the facts
and circumstances of this case.
We also note that our holding that the trial court did not abuse its
discretion by finding good cause to excuse the State's late notice in this
case is further supported by the great lengths the trial court went to
prevent any harm to Phillips. The trial court provided Phillips an
opportunity to withdraw her guilty pleas, which she declined, as well as
"an opportunity to research and rebut the aggravating factor[s]."
Presumptive and Voluntary Sentencing Standards Manual p. 31.
Phillips received the State's notice of aggravating factors on February 2,
2023, and the trial court held a hearing regarding whether good cause
existed for the late notice of those aggravating factors on May 31, 2023,
approximately four months later. After finding good cause, the trial court
21 CR-2024-0078
set a jury trial on the aggravating factors for November 13, 2023.
However, on the trial date, approximately nine months' later, Phillips
stipulated to three aggravating factors. Clearly, the trial court gave
Phillips ample "opportunity to research and rebut the aggravating
factor[s]," as well as the State's assertion of good cause.
For these same reasons, had there been error, it would have been
error without injury. Phillips was aware that the presumptive
sentencing standards recommended a nonprison sentence and provided
a durational range, but Phillips was also advised at her plea hearing of
the statutory range of punishment for each of her offenses. On February
2, 2023, after Phillips received the State's late notice of aggravating
factors, the trial court asked whether Phillips would like to withdraw her
guilty pleas, and the State was not opposed to the withdrawal. At the
May 31, 2023, hearing on whether good cause existed for the State's late
notice, Phillips argued that the State's failure to provide timely notice of
aggravating factors made her guilty pleas involuntary. After the trial
court ruled that it would allow the State to proceed with proving
aggravating factors, Phillips, after learning the range of punishment and
being given nearly four months to consider the withdrawal of her guilty
22 CR-2024-0078
pleas, informed the trial court that she did not desire to withdraw her
guilty pleas. Because Phillips was given an opportunity to withdraw her
guilty pleas and refused, the trial court did not err. See Andrews v. State,
12 So. 3d 728, 732 (Ala. Crim. App. 2009) (holding that, once defendant
had full understanding of the trial court's intention to not follow the plea
agreement, a defendant must be allowed an opportunity to withdraw his
or her guilty plea); see also Brooks v. State, 606 So. 2d 615, 616 (Ala.
Crim. App. 1991) (recognizing that a defendant must be apprised of the
range of punishment before pleading guilty but that erroneous
information renders the plea involuntary only if the defendant would
have changed her mind about pleading guilty once she understood the
proper range of punishment). In addition, Phillips later stipulated to the
three aggravating factors. Thus, even had the trial court abused its
discretion, which we hold it did not, any error from the State's late notice
was harmless. See Rule 45, Ala. R. App. P.
In sum, the trial court did not abuse its significant discretion in
finding that good cause existed to excuse the State's late notice of
aggravating factors to seek sentences that departed from those
recommended under the presumptive sentencing standards. This is an
23 CR-2024-0078
exceptional case that warrants departure sentences. Moreover, the late
notice does not appear to have injured Phillips, who, after learning of the
proper range of punishment applicable to the offenses for which she
pleaded guilty, declined to withdraw her guilty pleas. Phillips is due no
relief on this argument.
III. Illegal Sentences
Although not raised by either the State or Phillips, this Court must
take notice that the sentences imposed on four of the charges against
Phillips are illegal. Phillips's convictions and sentences for two counts of
first-degree theft of property, two counts of first-degree theft by
deception, and one count of first-degree financial exploitation of an
elderly person are proper. However, the split sentences imposed for
Phillips's convictions for one count of second-degree theft of property, one
count of second-degree financial exploitation of an elderly person, one
count of third-degree theft of property, and one count of third-degree theft
by deception are illegal. "It is well settled that '[m]atters concerning
unauthorized sentences are jurisdictional.' Hunt v. State, 659 So. 2d 998,
999 (Ala. Crim. App. 1994). Therefore, this Court may take notice of an
illegal sentence 'at any time and may do so even ex mero motu.' Moore
24 CR-2024-0078
v. State, 40 So. 3d 750, 753 (Ala. Crim. App. 2009)." Towns v. State, 293
So. 3d 975, 985 (Ala. Crim. App. 2019).
Second-degree theft of property, see § 13A-8-4, Ala. Code 1975, and
second-degree financial exploitation of an elderly person, see § 13A-6-
196, Ala. Code 1975, are classified as Class C felonies. A Class C felony
is punishable by imprisonment for "not more than 10 years or less than
one year and one day." § 13A-5-6(a)(3), Ala. Code 1975. Third-degree
theft of property and third-degree theft by deception, see § 13A-8-4.1, Ala.
Code 1975, are classified as Class D felonies. A Class D felony is
punishable by imprisonment for "not more than five years or less than
one year and one day." § 13A-5-6(a)(4), Ala. Code 1975. However,
" ' "[a] defendant's sentence is determined by the law in effect at the time of the commission of the offense." ' Moore[ v. State], 40 So. 3d [750,] 753 [(Ala. Crim. App. 2009)] (quoting Davis v. State, 571 So. 2d 1287, 1289 (Ala. Crim. App. 1990)). See also Minnifield v. State, 941 So. 2d 1000, 1001 (Ala. Crim. App. 2005) ('It is well settled that the law in effect at the time of the commission of the offense controls the prosecution.')."
Towns, 293 So. 3d at 986. At the time of Phillips's offenses, § 15-18-8(b),
Ala. Code 1975, stated, in pertinent part:
"Unless a defendant is sentenced to probation, drug court, or a pretrial diversion program, when a defendant is convicted of an offense that constitutes a Class C or D felony offense and receives a sentence of not more than 15 years, the judge
25 CR-2024-0078
presiding over the case shall order that the convicted defendant be confined in a prison, jail-type institution, treatment institution, or community corrections program for a Class C felony offense or in a consenting community corrections program for a Class D felony offense … for a period not exceeding two years in cases where the imposed sentence is not more than 15 years, and that the execution of the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary and that the defendant be placed on probation for a period not exceeding three years and upon such terms as the court deems best."
Phillips was not sentenced pursuant to the Habitual Felony
Offender Act, § 13A-5-9, Ala. Code 1975. She was sentenced to 10 years'
imprisonment, which was split for Phillips to serve 3 years' imprisonment
followed by 5 years' supervised probation for both second-degree theft of
property and second-degree financial exploitation of an elderly person,
which are Class C felonies. Alabama law, however, required that
Phillips's imposed sentences for her Class C felonies be probated for a
term of up to five years or split for her to serve a period of no more than
two years followed by a period of probation for no more than three years.
Because the execution of these two sentences is illegal, we must remand
this case to the trial court for it to impose sentences that comply with §
15-18-8(b). Because Phillips's underlying 10-year sentences are valid,
26 CR-2024-0078
the trial court cannot change those base sentences. See Born v. State,
331 So. 3d 626, 638 (Ala. Crim. App. 2020).
Additionally, Phillips was sentenced to five years' imprisonment,
which was split for Phillips to serve one year of imprisonment followed
by two years' supervised probation for both third-degree theft of property
and third-degree theft by deception, which are Class D felonies. The
duration of those sentences are valid and cannot be changed. See Born
v. State, 331 So. 3d at 638. However, Alabama law required that
Phillips's sentences for her Class D felonies be either probated or served
either in a community-corrections program or, if no program exists in
DeKalb County "and no alternative program options are available under
subsection (e) of Section 15-18-172," Ala. Code 1975, that she be
sentenced "to high-intensity probation under the supervision of the
Board of Pardons and Paroles in lieu of community corrections." § 15-18-
8(b) and (e), Ala. Code 1975. See, e.g., Laakkonen v. State, 293 So. 3d
439, 444 (Ala. Crim. App. 2019) (holding that the circuit court abused its
discretion by departing from the sentencing standards because § 15-18-
8(b) requires the defendant's sentence for a Class D felony be split and
"served in community corrections"). Thus, we must remand this case to
27 CR-2024-0078
the trial court for it to impose sentences on Phillips's convictions for third-
degree theft of property and third-degree theft by deception that comply
with § 15-18-8(b) and (e).
Conclusion
For these reasons, Phillips's convictions for two counts of first-
degree theft of property, two counts of first-degree theft by deception, and
one count of first-degree financial exploitation of an elderly person and
the resulting concurrent sentences of 20 years' imprisonment, which
were split for Phillips to serve 4 years' imprisonment followed by 5 years'
supervised probation, are affirmed. Phillips's convictions for one count
of second-degree theft of property, one count of second-degree financial
exploitation of an elderly person, one count of third-degree theft of
property, and one count of third-degree theft by deception are also
affirmed. However, this case is remanded to the trial court for that court
to resentence Phillips, in open court with Phillips and her attorney
present, in accordance with this opinion for her convictions of second-
degree theft of property, second-degree financial exploitation of an
elderly person, third-degree theft of property, and third-degree theft by
28 CR-2024-0078
deception. Due return shall be made to this Court within 42 days of the
date of this opinion.
AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.
Windom, P.J., and Kellum, Minor, and Anderson, JJ., concur.