source: Caselaw Access Project

author: YATES, Presiding Judge.

license: Public Domain

text:
    Cynthia RAVENEL v. Kenneth RAVENEL. Kenneth Ravenel v. Cynthia Ravenel.
    2010044.
    Court of Civil Appeals of Alabama.
    May 24, 2002.

      Dinah P. Rhodes of Lammons, Bell & Rhodes, Huntsville, for appellant/cross-ap-pellee Cynthia Ravenel.
    Jerry Lee Hicks, Huntsville, for appel-lee/cross-appellant Kenneth Ravenel.
   YATES, Presiding Judge.

Kenneth Ravenel (“the father”) and Cynthia Ravenel (“the mother”) were divorced by the Madison Circuit Court in September 1994. In the divorce judgment, the trial court awarded custody of the parties’ two children to the mother; that judgment also directed the father to pay $652.75 each month in support for the parties’ children and to “take all steps necessary” to ensure that the children were covered as dependents under insurance coverage to which the father was entitled as a member of the United States Army. In addition, the trial court awarded the parties’ 1992 model Mazda truck to the father:

“11. The [father] is hereby awarded all right, title, and interest in and to the 1992 Mazda truck, and the [mother] is hereby divested of any and all interest in and to the same. The [mother] agrees to assume and pay for the debt on said truck in favor of Redstone Federal Credit Union, and shall indemnify and hold harmless the [father] for the same. When the debt on said [truck] is fully satisfied, the [mother] shall immediately execute and sign [the certifícate of] title of said truck to the [father], conveying all of her interest in said truck to the [father].”

In March 1998, the father petitioned for a modification of his child-support obligation, claiming that a change in circumstances had occurred because, he said, his income was reduced after he retired from military service. He further alleged that the 1992 Mazda truck had been stolen and subsequently destroyed and that his automobile-insurance company had declared it a total loss; that his insurance company had discharged the remaining indebtedness on the truck; and that the mother should be required to pay to him the amount of that remaining indebtedness. The mother answered, denying the father’s allegations and counterclaimed, seeking a judgment in her favor in an amount sufficient to reimburse her for medical-insurance costs and uninsured-medical expenses that she had allegedly incurred on behalf of the children.

A hearing was not held on the parties’ claims until May 1999, primarily because of the untimely death of the circuit judge to whom the case had originally been assigned. After that hearing, the matter lay dormant for almost two years. In April 2001, the parties filed new income affidavits, and in May 2001, the trial court entered a judgment denying the father’s request for relief as to the indebtedness on the truck; entering a judgment for the mother on her request for reimbursement of health-insurance premiums and uninsured-medical expenses; and reducing the father’s monthly child-support obligation to $359.24, because “one of the parties’ two children ha[d] reached the age of majority since the trial of this matter.”

The mother filed a postjudgment motion, pursuant to Rule 59, Ala. R. Civ. P., alleging that neither of the parties’ children had reached the age of majority and that the father’s child-support obligation had therefore been incorrectly recalculated. The father also filed a Rule 59 motion; in that motion, he sought an order making the reduction in his child-support obligation retroactive, and he alleged that the trial court had erred in denying relief as to his request for payment of the indebtedness of the Mazda truck. The parties’ postjudgment motions were denied by operation of law without a hearing. Both parties appealed.

The mother contends that the trial court erred in modifying the father’s child-support obligation, because, she says, it incorrectly calculated the father’s obligation based upon there being only one minor child instead of two. The father agrees that neither of the two children has yet reached the age of majority, and the record reveals that the children are currently 11 and 9 years old. While we are cognizant of the presumption favoring a trial court’s findings of fact and its judgment when the evidence is taken ore tenus, as here, such a judgment will be reversed upon a showing that the trial court abused its discretion or that its determination is plainly and palpably wrong. Puckett v. Summerford, 706 So.2d 1257 (Ala.Civ.App.1997). There is no evidence to support the trial court’s determination that only one of the parties’ children is a minor; its conclusion that the father should pay $359.24 monthly to the mother, an amount based upon a child-support obligation for only one minor child (cf. Rule 32, Ala. R. Jud. Admin.), is likewise unsupported by the evidence.

We must, therefore, reverse the judgment modifying the father’s child-support obligation and remand the case. Our reversal as to this issue renders moot the first issue presented by the father’s cross-appeal (i.e., whether that modification should have been retroactive to the date he filed his petition to modify in March 1998). Romano v. Romano, 703 So.2d 374, 376 (Ala.Civ.App.1997). On remand, the matter of the effective date of any modification of the father’s child-support obligation will again be within the sound discretion of the trial judge. Id.; Rogers v. Sims, 671 So.2d 714, 716-17 (Ala.Civ.App.1995).

The remaining issue to be addressed is the father’s contention that the trial court erred in failing to require the mother to pay him a sum equal to the indebtedness remaining on the 1992 Mazda truck, which indebtedness amounted to approximately $3,349.

The evidence presented at trial indicated that the truck was destroyed in 1995 after it was stolen. After the truck had been determined by the father’s insurance company to be a total loss, the mother refused to make any further payments on the truck’s indebtedness, and the father’s own insurance company had had to discharge the outstanding indebtedness on the truck in settling the father’s insurance claim. According to the father, the mother viewed the father’s loss as being her benefit, and she told the father to “take [her] to court” if he wanted her to pay the debt.

In two cases, this court has considered, in similar contexts, the effect of an award of a vehicle to one spouse and an allocation of that vehicle’s indebtedness to the other spouse as components of a property division of a divorce judgment. In Johns v. Johns, 478 So.2d 517 (Ala.Civ.App.1985), this court considered a provision of a divorce judgment based on a settlement agreement providing that the wife would receive a certain automobile and that the husband would be responsible for paying all outstanding indebtedness on it; however, the husband wrecked that automobile, and insurance coverage paid for that loss. The trial court, on the wife’s petition, ordered the husband to pay the wife a sum equal to the value of the automobile, and this court affirmed that judgment, concluding that the trial court had properly “enforce[d] compliance” with the intent of the parties and with the judgment. 473 So.2d at 519.

In Marshall v. Marshall, 582 So.2d 571 (Ala.Civ.App.1991), this court interpreted a divorce judgment awarding a particular automobile to the wife and requiring the husband to be solely responsible for any indebtedness on that automobile and to maintain insurance on the automobile. The automobile was totally destroyed in an accident, and a third party’s insurance carrier paid approximately $15,000 for the automobile; the automobile’s lienholder received approximately $13,500 and the wife received the remainder. The wife then filed a petition requesting that the husband be ordered to pay her the money he would have been required to pay to the lienholder had the automobile not been destroyed. In affirming the trial court’s judgment in favor of the wife, we quoted the reasoning of the trial court that its divorce judgment had indicated an intent that “ ‘the Former Wife would be the owner of the automobile and ... [receive] that asset at the fair market value thereof at the time of the divorce without the indebtedness being deducted from said value.’ ” 582 So.2d at 573. Conversely, the husband in that case was said to have “ ‘assumed a liability ... to pay the same in full.’ ” Id. Notably, the trial court in Marshall relied principally upon Johns in reaching its decision. 582 So.2d at 572.

The judgment under review in this case, unlike those in Johns and Marshall, is in favor not of the owner of the automobile, but of the party made responsible for its indebtedness. While we acknowledge that trial courts are empowered to construe their own judgments (Johns, 473 So.2d at 519), the plain language of the divorce judgment indicates that the trial court envisioned that the father would receive the 1992 Mazda truck free and clear of all encumbering debt as of the September 1994 date of the divorce judgment. Moreover, the judgment directed the mother to “assume” and “pay for” the debt on the truck and to “indemnify” and “hold [the father] harmless” for the debt. However, it was only through the efforts of the father in securing and maintaining insurance coverage and making a claim for the loss of the vehicle upon its total loss that the indebtedness allocated to the mother was discharged. As between the two parties before the trial court in this case, the divorce judgment clearly requires the mother, not the father, to discharge the debt on the Mazda truck. We, therefore, reverse the judgment denying the father’s request that the mother be required to pay him an amount equal to the indebtedness on the truck as of the date the debt was discharged by the father’s insurer.

Based upon the foregoing facts and authorities, the judgment of the trial court is reversed, and the cause is remanded for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

      . We note that the divorce judgment awarded a second automobile, a 1991 Volvo 740 Turbo, to the mother and required the father to pay the outstanding indebtedness on that vehicle.


author: McMILLAN, Presiding Judge.

text:
    Jermaine Dejuan SOUTHALL v. STATE.
    CR-00-1503.
    Court of Criminal Appeals of Alabama.
    Nov. 30, 2001.

      Jermaine Dejuan Southall, pro se.
    Bill Pryor, atty. gen., and Joseph G.L. Marston III, asst atty. gen., for appellee.
   McMILLAN, Presiding Judge.

The appellant, Jermaine Dejuan Sout-hall, filed a Rule 32, Ala.R.Crim.P., petition in which he challenged his two convictions of assault in the first degree and sentences of 20 years’ imprisonment for each conviction. The appellant’s conviction was affirmed by this Court in an unpublished memorandum, Southall v. State, 741 So.2d 487 (Ala.Crim.App.1998) (table). In his petition, the appellant raised various claims of ineffective assistance of both trial and appellate counsel. Following an evidentiary hearing, the trial court' found that the appellant had failed to meet his burden of proof under the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), test and denied the petition.

On appeal, the appellant argues five of the claims identified in his petition. He is, therefore, deemed to have abandoned the remaining claims, and this Court need not address them on appeal. Burks v. State, 600 So.2d 374 (Ala.Crim.App.1991).

In his brief to this Court, the appellant contends that trial counsel failed to advise him of a plea-agreement offer made by the State on the day of trial and that counsel’s failure to so inform him constituted ineffective assistance. He further argues that he was denied effective assistance of appellate counsel because, he says, appellate counsel failed to argue in a motion for new trial that trial counsel had been ineffective in four instances: (1) trial counsel failed to request a jury instruction on the lesser-included offense of assault in the second degree; (2) trial counsel failed to obtain an independent analysis of bullet fragments; (3) trial counsel failed to personally appear at the appellant’s sentencing hearing; and (4) trial counsel failed to preserve the issue of the sufficiency of the evidence regarding whether the victim, Roderick Packer, suffered a “serious physical injury.”

It is well settled that the appellant must satisfy the two-prong test outlined in Strickland to successfully argue an ineffective-assistance-of-counsel claim. Williams v. State, 480 So.2d 1265 (Ala.Crim.App.1985). The Strickland test requires that the appellant prove not only that counsel’s performance was deficient, but also that the deficiency prejudiced the appellant.

I.

The appellant first argues that he was denied effective assistance of counsel at trial because, he claims, trial counsel failed to advise him of the plea offer made by the State on the day of trial. The appellant contends that he would have accepted the plea offer had trial counsel informed him of its existence. In his order denying the appellant’s Rule 32 petition, the trial judge found that the appellant had not proved this claim:

“Petitioner contends that on the day of trial the State offered to recommend a 15-year sentence in CC-97-1568 if he would plead to the charge of assault in the first degree, and to nolle prosequi CC-97-1567. He claims that his counsel failed to convey this offer to him and that he would have accepted it had he been apprised thereof. He offered the testimony of his father and of a friend to the effect that they had never heard the plea offer communicated to the Petitioner during any time that they were present.
“Petitioner’s trial counsel testified that on the morning of trial, he met in chambers with the assistant district attorney and the undersigned, but that he had no independent recollection of the offer extended by the State. He testified that it has always been his custom and practice to communicate offers from the State to his clients regardless of whether they are ‘good’ or ‘bad’ offers. Counsel testified that he was aware that Victim Roderick Packer did not come to court on the day of trial. He stated that Petitioner clearly felt that it was a case of self defense, and, inasmuch as the State had not performed any ballistics test, Petitioner continued to maintain that it was not his bullet that had felled the victim April Campbell. This turned out to be the centerpiece of the Petitioner’s defense.
“The assistant district attorney testified that up until the day of trial, the injuries on the case of April Campbell were so great, that no plea offer had ever been made. The State was seeking a conviction with substantial jail time. The defendant was out on bond. On the day of trial, Victim Roderick Packer failed to appear and the defendant was aware of this. At this point the State offered 15 years on the Campbell case and to nol pros the Packer case in exchange for the plea to assault first degree in the Campbell case. The offer was made in chambers before the judge and the defense attorney. Defense counsel left the room, returned five minutes later and stated, ‘We don’t have an agreement, we’ve got to go to trial.’ The Defendant’s strategy was to claim self defense, as he did from the minute he was arrested (both his testimony, noncustodial statement to the police, and taped confession, which are in the record, bear this out), and to deny responsibility for shooting April, laying blame for the shooting, instead, on the security guard.
“The Court finds that the Petitioner was conveyed the settlement offer but chose instead to proceed to trial, having been free on bond, and believing that he would prevail at trial inasmuch as he was represented by able counsel, and knowing there were no ballistics studies and that one of the victims had failed to appear.”

A review of the record and briefs on appeal indicates that the trial court’s ruling on this issue was proper, and we adopt the findings of the trial court on the appellant’s claim that he was denied effective assistance of counsel when trial counsel allegedly failed to advise him of the State’s plea offer. Ex parte Snell, 565 So.2d 271 (Ala.1990).

II.

Next, the appellant claims that appellate counsel was ineffective for failing to preserve for appeal the issue of trial counsel’s failure to request a jury instruction on the lesser-included offense of second-degree assault. However, the appellant’s appointed counsel conceded during the Rule 32 evidentiary hearing that the trial court instructed the jury on the offense of second-degree assault. Because the trial court instructed the jury on second-degree assault, the appellant cannot argue that trial counsel’s failure to request such an instruction, or appellate counsel’s failure to argue this claim, was error.

III.

The appellant further argues that appellate counsel should have raised on direct appeal a claim that trial counsel was ineffective for failing to conduct independent ballistics tests on the bullet fragments. The appellant acknowledged that the decision not to conduct independent ballistics tests was a key part of a defense strategy focusing on the State’s failure to perform any ballistics analysis. The law is clear that, in order to prevail on an ineffective-assistance-of-counsel claim, “the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland, supra, at 689, 104 S.Ct. 2052, quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955). The appellant has shown the Court no evidence that would tend to indicate that this defense strategy was an error, much less that it was an error that frustrated his defense at trial. Because the appellant has not shown that trial counsel’s failure to obtain independent ballistics tests constituted ineffective assistance of counsel, he has not proved that appellate counsel was ineffective for his failure to pursue this worthless issue on appeal.

IV.

The appellant further claims that appellate counsel was ineffective for failing to raise on direct appeal a claim that the appellant was prejudiced by trial counsel’s failure to appear at his sentencing hearing. The appellant contends that trial counsel was ineffective because he sent his law partner to the hearing instead of appearing personally. The appellant admits that his stand-in counsel argued for concurrent sentences, and he has not shown this Court that the trial court would have sentenced him differently had trial counsel been present for the hearing. Appellate counsel was not ineffective for failing to argue this meritless issue.

V.

The appellant’s claim that appellate counsel was ineffective for failing to argue that trial counsel was ineffective for his failure to preserve the issue of insufficient evidence regarding the nature of Roderick Packer’s injuries appears to be meritorious on its face. The appellant had argued on direct appeal before this Court that the State failed to prove the victim suffered serious physical injury because the victim did not appear at trial • and the physician who testified had been called as a witness only to determine if any of the bullet fragments had damaged the nerves or vascular systems of the victim’s leg, and he had concluded they had not. This Court held in an unpublished memorandum on direct appeal released August 14, 1998, that defense counsel’s specific grounds stated in his motion for acquittal waived this matter for purposes of appeal. The trial court must be afforded the first opportunity to determine whether the appellant was denied effective assistance of appellate counsel. Because the trial court’s order did not make findings as to this issue, we remand this matter to the Mobile Circuit Court for that court to make findings as to this claim. Due return shall be made to this Court within 60 days of the date of this opinion.

REMANDED WITH DIRECTIONS.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.

      . It should be noted that appointed counsel argued at the hearing that the trial court had improperly advised the jury that "a person commits the offense of assault in the second degree if he recklessly causes serious physical injury.” Appointed counsel contended that the jury charge was an incorrect statement of the law in that second-degree assault requires merely a physical injury, and not a serious physical injury. Appointed counsel was, however, mistaken in her belief, and the trial court correctly charged the jury on the offense of second-degree assault. Nonetheless, this argument was abandoned on appeal and is not properly before this Court.

       Note from the reporter of decisions: On February 22, 2002, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On March 22, 2002, that court denied rehearing, without opinion. On May 17, 2002, the Supreme Court denied certiorari review, without opinion (1011292).


author: COBB, Judge.

text:
    Robert Leon JOHNSON v. STATE of Alabama.
    CR-00-1845.
    Court of Criminal Appeals of Alabama.
    Nov. 30, 2001.

      Robert Leon Johnson, pro se.
    Bill Pryor, atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellee.
   COBB, Judge.

On October 13, 1998, Johnson was convicted of first-degree robbery. On October 16, 1998, the trial court sentenced him to life in prison without the possibility of parole. On March 26,1999, on appeal, this Court affirmed his conviction and sentence in an unpublished memorandum. Johnson v. State, (No. CR-98-0149) 767 So.2d 420 (Ala.Crim.App.1999) (table). The certificate of judgment was issued on April 13, 1999.

On March 28, 2001, Johnson filed his first Rule 32, Ala. R.Crim. P., petition and, on April 16, 2001, he filed an amendment to that petition. After the State responded, the circuit court summarily dismissed Johnson’s petition. This appeal followed.

In his petition, Johnson claimed that his trial and appellate counsel had rendered ineffective assistance. In particular, Johnson claimed that his trial counsel had rendered ineffective assistance by failing to file a pretrial motion to dismiss the indictment on the ground that it charged him with first-degree robbery, but alleged the theft of less than $1,000; by failing to object to the venire’s not being sworn; by failing to file a motion to suppress the identification of the petitioner by an eyewitness; by failing to investigate the chain of custody of the security videotape of the robbery; by failing to issue a subpoena duces tecum for the gun used in the robbery; by not filing a pretrial motion to have the appellant mentally evaluated; and by failing to issue a subpoena duces tecum for the arrest photographs taken of Johnson. Johnson also pleaded the eorre-sponding ineffective-assistance-of-appellate-counsel claims, stating that appellate counsel rendered ineffective assistance by failing to raise on direct appeal these same claims of ineffective assistance of trial counsel.

The circuit court, upon denying Johnson’s petition, initialed a line on a preprint-ed dismissal order that read, “This Court tried the case and finds that the petitioner has failed to meet his burden of proof regarding claim(s)_, which allege ineffective assistance of counsel.” (C.R. 3.)

On appeal, Johnson argues that he was entitled to an evidentiary hearing on his claims, and he reiterates his arguments from his petition to the circuit court. However, because we remand this case for the circuit court to address one of Johnson’s claims of ineffective assistance of trial and appellate counsel, the outcome of which could result in reversible error, we refrain from addressing the remaining claims until the court has resolved that issue and returned the cause to this Court.

Initially, it is important to distinguish between a petitioner’s burden to plead and a petitioner’s burden to prove.

“[A]t the pleading stage of Rule 32 proceedings, a Rule 32 petitioner does not have the burden of proving his claims by a preponderance of the evidence. Rather, at the pleading stage, a petitioner must only provide ‘a clear and specific statement of the grounds upon which relief is sought.’ Rule 32.6(b), Ala.R.Crim.P. Once a petitioner has met his burden of pleading so as to avoid summary disposition pursuant to Rule 32.7(d), Ala.R.Crim.P., he is then entitled to an opportunity to present evidence in order to satisfy his burden of proof.”

Ford v. State, 831 So.2d 641, 644 (Ala.Crim.App.2001). A claim may not be summarily dismissed because the petitioner failed to meet his burden of proof at the initial pleading stage, a stage at which the petitioner has only a burden to plead. See Smith v. State, 581 So.2d 1283, 1284 (Ala.Crim.App.1991) (“When the State does not respond to a petitioner’s allegations, the unrefuted statement of facts must be taken as true. Chaverst v. State, 517 So.2d 643, 644 (Ala.Cr.App.1987). Further, when a petition contains matters which, if true, would entitle the petitioner to relief, an evidentiary hearing must be held. Ex parte Boatwright, 471 So.2d 1257, 1258 (Ala.1985).”).

Rule 32.7(d), Ala. R.Crim. P., provides for the summary disposition of a Rule 32 petition only

“[i]f the court determines that the petition is not sufficiently specific [in violation of Rule 32.6(b)], or is precluded [under Rule 32.2, Ala. R.Crim. P.], or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under-this rule and that no purpose would be served by further proceedings.... ”

“[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court’s review in a Rule 32 proceeding is de novo.” Ex parte White, 792 So.2d 1097 (Ala.2001). “If the circuit court is correct for any reason, even though it may not be the stated reason, we will not reverse its denial of the petition. See Roberts v. State, 516 So.2d 936 (Ala.Cr.App.1987).” Reed v. State, 748 So.2d 231, 233 (Ala.Crim.App.1999).

“[T]o prevail on an ineffective assistance of counsel claim, a defendant must meet the two-pronged test set out by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
“ ‘First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.’
“Id. at 687, 104 S.Ct. at 2064.
“ ‘The performance component outlined in Strickland is an objective one: that is, whether counsel’s assistance, judged under “prevailing professional norms,” was “reasonable considering all the circumstances.” ’ Daniels v. State, 650 So.2d 544, 552 (Ala.Cr.App.1994) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2065). Once a defendant has identified the specific acts or omissions that allegedly were not the result of reasonable professional judgment on counsel’s part, the court must determine whether those acts or omissions fall outside the wide range of professionally competent assistance. Id.
“When reviewing a claim of ineffective assistance of counsel, we indulge a strong presumption that counsel’s conduct was appropriate and reasonable. Hallford v. State, 629 So.2d 6 (Ala.Cr.App.1992), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 491 (1994); Luke v. State, 484 So.2d 531 (Ala.Cr.App.1985).
“ ‘Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.’
“Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (citations omitted). See Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.1987).
“And, even if an attorney’s performance is determined to be deficient, the petitioner is not entitled to relief unless it is also established that ‘there is a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding-would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
“In an ineffective assistance of counsel claim, the burden is on the claimant to show that his counsel’s assistance was ineffective. Ex parte Baldwin, 456 So.2d 129 (Ala.1984), aff'd, 472 U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985).”

McNair v. State, 706 So.2d 828, 839 (Ala.Crim.App.1997).

Johnson claimed in his petition, among other things, that his trial counsel had rendered ineffective assistance by not objecting to the trial court’s failure to swear the jury venire prior to voir dire. He contended that the record is silent and that, therefore, he was due an evidentiary hearing to determine whether the jury ve-nire was sworn. This claim is facially meritorious, and summary disposition was therefore inappropriate. The failure to swear a jury venire is reversible error, and we will not assume from a silent record that the venire was sworn. Holland v. State, 668 So.2d 107 (Ala.Crim.App.1995) (cited with approval in Ex parte Hamlett, 815 So.2d 499 (Ala.2000)). Therefore, we remand this cause to the trial court in order for it to determine whether or not the venire was sworn. This determination is an integral part of the questions of whether trial or appellate counsel, or both, rendered ineffective assistance for failing to object to this error at trial or on appeal. We reserve ruling on the ineffective-assistance claims based on Johnson’s claim that the trial court failed to administer the oath to the venire until return has been made to this Court.

Due return shall be made to this court within 42 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ., concur.

      . In the amendment to his petition, which the trial court evidently allowed, Johnson claimed that trial court was without subject matter jurisdiction to adjudicate him guilty and to sentence him because, he argued, § 13A-8-41, Ala.Code 1975, violates the Alabama Constitution of 1901 in that it does not have an enacting clause or a title indicating the subject matter of the section.
      However, on appeal, Johnson does not address the claims in the amendment. Therefore, he has abandoned those claims regarding the constitutionality of § 13A-8-41, Ala. Code 1975. See Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App. 1995) (holding that "[w]e will not review issues not listed and argued in brief”).

      Note from the reporter of decisions: On April 19, 2002, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On May 17, 2002, that court denied rehearing, without opinion.


author: PER CURIAM.

text:
    Anthony Neal WASHINGTON, Appellant, v. STATE of Florida, Appellee. Anthony Neal Washington, Petitioner, v. Michael W. Moore, Respondent.
    Nos. SC00-1435, SC01-872.
    Supreme Court of Florida.
    Nov. 14, 2002.
    Rehearing Denied Jan. 10, 2003.

      Joseph T. Hobson, Assistant CCRC, Ruck P. DeMinico, Assistant CCRC, and Richard E. Kiley, Assistant CCRC, Capital Collateral Regional Counsel-Middle Region, Tampa, FL, for Appellant, Petitioner.
    Robert A. Butterworth, Attorney' General, and Robert J. Landry, Assistant Attorney General, Tampa, FL, for Appellee, Respondent. ■
   PER CURIAM.

Anthony Neal Washington appeals an order of the circuit court denying his first motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 following an evidentiary hearing. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm. Washington also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(9), Fla. Const. We deny the petition.

I. FACTS

The relevant facts are set forth fully in this Court’s opinion on direct appeal. Alice Berdat in 1989 was found beaten to death in her bedroom. Washington, who was an inmate in a local work release center, was arrested, tried, and convicted of first-degree murder, burglary with a battery, and sexual battery. Evidence supporting the convictions included the following: DNA test results matched his semen to that of semen found at the scene; microscopic test results matched his hair to that of hair found at the scene; he possessed and sold the victim’s watch the day after the crime; and he was placed in close proximity to the victim’s home at the time of the crime.

The trial court overrode the jury’s life recommendation and imposed a sentence of death based on four aggravating circumstances and three nonstatutory mitigating circumstances. Washington appealed, raising nine issues. We affirmed. Washington in 1997 filed in circuit court a “shell” motion for postconviction relief under Florida Rule of Criminal Procedure 3.850; he filed his present amended motion in 1999. The circuit court held a two-day evidentiary hearing on the issue of ineffective assistance of penalty phase counsel; the court then denied relief. Washington appeals, raising seven issues. He also has filed in this Court a petition for a writ of habeas corpus, raising two issues.

II. RULE 3.850 MOTION

During the penalty phase of the trial, Washington called one lay witness (his mother), who testified in personal terms concerning Washington’s character, and one expert (Dr. Merin), who testified as to Washington’s potential for rehabilitation. Washington now claims that trial counsel was ineffective in failing to present additional mitigating evidence and in failing to provide Dr. Merin with background information. He claims that' if counsel had been effective in these regards, the trial court would have been unable to override the jury’s life recommendation. At the evidentiary hearing, Washington presented nine witnesses, including relatives, friends, a psychiatrist, lead trial counsel (Franklyn Louderback), and trial co-counsel (Tom McCoun). The gist of their testimony was that Washington suffered from a drug problem that was never brought out at trial.

This Court in Bruno v. State, 807 So.2d 55 (Fla.2001), articulated the following standards:

The test to be applied by the trial court when evaluating an ineffectiveness claim is two-pronged: The defendant must show both that trial counsel’s performance was deficient and that the defendant was prejudiced by the deficiency. The standard of review for a trial court’s ruling on an ineffectiveness claim also is two-pronged: The appellate court must defer to the trial court’s findings on factual issues but must review the court’s ultimate conclusions on the deficiency and prejudice prongs de novo.

Bruno, 807 So.2d at 61-62 (footnotes omitted).

After hearing the testimony of the witnesses at the evidentiary hearing, the circuit court below denied this claim. The court explained:

This one aspect of defendant’s life— his serious drug addiction that provides these disorders, carries baggage that a sentencing jury would have to hear that his trial lawyer didn’t want them to hear. [Trial counsel] didn’t want the jury to know the defendant was a drug addict. He didn’t want them to know the defendant sold drugs, sometimes making $3,000 per week, robbed his girlfriend and others, and stole from his mother, his brother, and many others, to support his drug habit. He didn’t want the Pinellas County jury to know he committed a burglary, or sold drugs. The totality of all this may not have been considered mitigating by Mr. Washington’s jury. Had they known all this, they may well have recommended a death sentence. Counsel cannot be deemed ineffective for not explaining a background of drug addiction and presenting it to Dr. Merin and thus to the jury when he knew this may not produce a good result for his client. He knew about the defendant’s drug use — he simply elected not to explore and exploit it because he didn’t want to go there. Knowing what juries will accept as mitigating and what they won’t is not ineffectiveness. To the contrary, omitting all this from the jury’s knowledge proved to be effective. It got the defendant a life recommendation in a very aggravated case.

The court concluded that even if the additional evidence would have precluded the override, omission of the evidence still would not have constituted ineffectiveness:

In other words, if the defendant could convince this court, which he could not, that the additional evidence presented at the evidentiary hearing would have precluded this court’s override, the defendant is not entitled to relief. If the defendant can convince the Florida Supreme Court that the additional evidence presented at the evidentiary hearing would have resulted in that Court’s reversal of this court’s override, the defendant is not entitled to relief. The reason is that before the defendant is entitled to any relief, BOTH prongs of the Strickland test must be met. The defendant has not been able to establish either prong, but he clearly has failed to establish the first prong, that trial counsel’s performance was deficient. To do this, he must have established that counsel made “errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” This he has been unable to do. The defendant had effective counsel at the penalty phase of his trial.

Our review of the record shows that the circuit court’s findings of fact on this claim are supported by competent substantial evidence and its ultimate conclusions on the deficiency and prejudice prongs comport with the law. Penalty phase counsel made a strategic decision not to pursue drug addiction as a mitigating circumstance and in fact won a life recommendation from the jury. We find no merit to this claim.

Next, Washington claims that the trial court erred in summarily denying his claim of ineffective assistance of guilt phase counsel. We disagree. The Court in LeCroy v. Dugger, 727 So.2d 236 (Fla.1998), articulated the following standard: The standard for determining whether an evidentiary hearing is required on an ineffectiveness claim is as follows:

A motion for postconviction relief can be denied without an evidentiary hearing when the motion and the record conclusively demonstrate that the movant is entitled to no relief. A defendant may not simply file a motion for postconviction relief containing conclusory allegations that his or her trial counsel was ineffective and then expect to receive an evidentiary hearing. The defendant must allege specific facts that, when considering the totality of the circumstances, are not conclusively rebutted by the record and that demonstrate a deficiency on the part of counsel which is detrimental to the defendant.

LeCroy, 727 So.2d at 239 (quoting Kennedy v. State, 547 So.2d 912, 913 (Fla.1989)).

The circuit court below examined at length Washington’s claim of ineffectiveness of guilt phase counsel and ruled as follows:

Although no evidentiary hearing was ordered as to these guilt phase issues of ineffectiveness, at the evidentiary hearing that was held on ineffectiveness of counsel at the penalty phase, defendant’s trial counsel gave their credentials. Frank Louderback had been an attorney since 1975. Since 1980, he had a practice devoted to criminal defense. By 1990, he had tried 25 first-degree murder trials, and had been involved in 50 first-degree murder cases. Defendant’s co-counsel, Tom MeCoun is presently a Federal Magistrate Judge for the Middle District of Florida. He joined the Florida Bar in 1977. He was an assistant state attorney for three years, and then from 1980-1990 was in partnership with Mr. Louderback specializing in criminal defense work. At the time of defendant’s trial, he had participated in 20-30 first-degree murder trials. As a trial judge with over ten years experience on the criminal bench, and a prior criminal defense attorney for over eight years, I know that these two attorneys were two of the best Pinellas County had to offer. The Index to the record on appeal shows they prepared well for this case by deposing state’s witnesses, requesting expert witnesses of their own, filing appropriate motions, etc. The trial transcript shows they did an admirable job at defendant’s trial in advocating defendant’s claim that he was innocent of the crimes charged, and that he was at the Largo Work Release Center when the crimes were committed.
No singular claim made by the CCRC, nor the collective claims made warranted an evidentiary hearing, as they were either refuted by the record, were erroneous, or were not cognizable in a 3.850 motion. As to all claims ... dealing with ineffective assistance of counsel at the guilt phase of his trial, they are hereby denied. I specifically find defendant’s counsel, Frank Louderback and Tom MeCoun, were effective counsel. Further, this court is confident in the outcome of the guilt phase of the trial and is not persuaded that the issues claimed, singularly or collectively, undermine this court’s confidence in the outcome of the guilty verdicts. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), requires both ineffectiveness of counsel’s performance and prejudice to warrant relief. Defendant has not satisfied either prong of the Strickland v. Washington standard, and is therefore, not entitled to a new guilt/innocence determination.

Based on the foregoing and our review of the record, we conclude that the circuit court properly applied the law and did not err in summarily denying Washington’s claim that trial counsel was ineffective during the guilt phase of the trial.

As for Washington’s claim that trial counsel was ineffective for failing to request a Frye hearing on the DNA evidence, this issue is procedurally barred; it was not raised below in his rule 3.850 motion. Washington’s remaining rule 3.850 claims also are procedurally barred.

III. HABEAS CORPUS

The trial in the present case took place on July 14-17,1992. Lead defense counsel was Mr. Louderback, who hired Mr. McCoun to handle two aspects of the trial, i.e., the DNA issue (in the guilt phase of the trial), and the penalty phase of the trial. At the commencement of trial, the original judge in this case, Judge Downey, was replaced by Judge Susan Schaeffer. The FBI technician who performed the DNA tests, Anne Baumstark, did not testify at trial; her supervisor, Special Agent Dwight Adams, did testify. Appellate counsel was Mr. Moeller.

—(Feb. 12) Defense counsel filed a motion to compel the disclosure of records pertaining to DNA testing; (Feb. 25) the court held a hearing on the motion; (Feb. 28) the court entered an order requiring the State to furnish the following information within five days: the identity of the person who performed the DNA analysis, a statement of how the analysis was performed, the qualifications of the person performing the analysis, the database figures relied upon by the FBI, an indication of any problems encountered, and the computations, results, and conclusions in the present tests.
—(Mar. 17) Defense counsel filed a second motion to compel the disclosure of DNA records, noting that some FBI records had been received but that others -had not; (Mar. 17) the court held a hearing; (April 2) the court entered an order (a) noting that the parties had reached certain agreements concerning the request, and (b) requiring the State to furnish the name of each person performing any portion of the DNA testing.

Prior to trial, defense counsel filed four “motions to compel” concerning the State’s production of DNA evidence, and at the commencement of trial, counsel filed a “motion in limine” on the DNA issue. At trial, FBI Special Agent Adams testified for the State concerning DNA evidence. On appeal, appellate counsel claimed that the trial court erred in failing to. allow trial counsel to depose FBI technician Baumstark and in admitting the testimony of Adams without the laying of a proper predicate. This Court found no error in either regard. Washington now claims that appellate counsel was ineffective because he failed to argue that the trial court erred in not holding a Frye hearing concerning the admissibility of the DNA evidence. We disagree.

—(May 14) Defense counsel filed a motion to compel technician Baumstark to participate in a deposition and to compel the disclosure of Baumstark's and Adams’s bench notes; (May 20) the court held a hearing; (May 22) the court granted the motion to compel submission of the bench notes and the court noted that the request for deposition was withdrawn pending receipt of the bench notes.
—(June 3) Defense counsel filed a motion to compel the disclosure of the deposition of Baumstark; (June 9) the court held a hearing; (June 11) the court denied the motion because the State did not intend to call Baumstark as a witness.

The Court in Rutherford v. Moore, 774 So.2d 637 (Fla.2000), articulated the following standard:

When analyzing the merits of [an ineffective assistance of appellate counsel] claim, “[t]he criteria for proving ineffective assistance of appellate counsel parallel the Strickland standard for ineffective trial counsel.” Thus, this Court’s ability to grant habeas relief on the basis of appellate counsel’s ineffectiveness is limited to those situations where the petitioner establishes first, that appellate counsel’s performance was deficient because “the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance” and second, that the petitioner was prejudiced because appellate counsel’s deficiency “compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.”

Rutherford, 774 So.2d at 643 (footnote and citation omitted).

To satisfy the first, or “deficiency,” prong of the above standard, a defendant must show that counsel “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Counsel’s performance is judged by a general reasonableness standard: “[T]he proper standard for attorney performance is that of reasonably effective assistance.” Further, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”

In the present case, Washington has not shown that appellate counsel rendered deficient performance by failing to raise Frye on appeal. Trial counsel did not mention Frye in the proceedings below. First, as noted above, trial counsel’s four pretrial motions were all motions to compel, not motions to exclude. Neither Frye nor the principles underlying Frye were implicated in those motions or in the hearings on the motions. Second, although one paragraph in the motion in limine questioned the validity of the FBI’s DNA testing procedures and statistical analyses, trial counsel presented this issue to the trial court in the context of Baumstark’s unavailability for questioning, i.e., counsel claimed that he could not challenge the validity of the tests performed by Baumstark because she was unavailable for questioning. At

no point did trial counsel raise Frye as an issue or request a hearing on the general soundness of the FBI’s testing procedures. Thus, counsel did nothing to put the court on notice that Frye was at issue in this case.

Appellate counsel cannot be deemed deficient for failing to raise an issue that was not raised or preserved at trial. Further, Moeller, an assistant public defender in Bartow, filed in this Court both an exhaustive seventy-four page initial brief, raising nine issues, and a twenty-one page reply brief, addressing six of the original nine issues. (As noted above, Moeller raised the DNA issue in the context of Baumstark’s unavailability for questioning and the State’s failure to establish a predicate for Adams’s testimony, both matters that had been broached at trial.) He argued the appeal competently before this Court and prevailed on two of the issues. Based on this record, Moeller at a minimum rendered “reasonably effective representation” under Strickland. Thus, we find this claim to be without merit. Washington’s remaining habeas claim also is without merit.

IV. CONCLUSION

Based on the foregoing, Washington’s rule 3.850 claims are without merit or procedurally barred. His habeas claims are without merit. Accordingly, we affirm the circuit court’s denial of rule 3.850 relief and deny his petition for a writ of habeas corpus.

It is so ordered.

ANSTEAD, C.J., SHAW, WELLS, PARIENTE, and LEWIS, JJ, and HARDING, Senior Justice, concur.

QUINCE, J., recused.

      . See Washington v. State, 653 So.2d 362 (Fla.1994).

      . The court found that the following aggravating circumstances were established: Washington was under sentence of imprisonment at the time of the crime; he had a prior violent felony; he was engaged in a burglary and sexual battery at the time of the crime; and the crime was especially heinous, atrocious, or cruel (i.e., HAC).

      .The court found that the following nonstatu-tory mitigating circumstances were established: Washington loved his mother; he had a high school diploma; and he had engaged in sports during his high school years.

      .Washington raised the following issues on direct appeal: (1) the State improperly peremptorily excused a black prospective juror; (2) the trial court should have suppressed the blood sample; (3) the identification of Washington by Leacock (who bought the victim's watch from Washington) should have been suppressed; (4) the DNA evidence was improperly admitted; (5) there was insufficient evidence to support Washington's guilt; (6) the HAC aggravating circumstance was vague; (7) the death sentence was improperly imposed; (8) Washington should not have been sentenced as a habitual violent felony offender; (9) one of the two written judgments filed was extraneous and must be stricken.

      . Washington makes the following claims: (1) ineffective assistance of penalty phase counsel; (2) ineffective assistance of guilt phase counsel; (3) the jury override was unwarranted; (4) the jury instructions were invalid; (5) the death sentence rests on an automatic aggravating circumstance; (6) the trial proceedings were fraught with error; (7) Florida's capital scheme is invalid.

      . Washington makes the following claims: (1) appellate counsel should have requested a hearing on the admissibility of the DNA evidence under Frye v. United States, 293 F. 1013 (D.C.Cir.1923); (2) Washington may be incompetent at the time of execution.

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . See Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982) ("Except in cases of fundamental error, an appellate court will not consider an issue unless it was presented to the lower court.”); see also Bertolotti v. Dugger, 514 So.2d 1095, 1096 (Fla.1987) ("In order to preserve an issue for appellate review, the specific legal argument or ground upon which it is based must be presented to the trial court.”).

      . Washington’s remaining claims are allegations of trial court error; such claims generally are not cognizable in a rule 3.850 motion. See Bruno v. State, 807 So.2d 55, 63 (Fla.2001) ("A claim of trial court error generally can be raised on direct appeal but not in a rule 3.850 motion....”).

      . Defense counsel filed the following motions to compel; the trial court held the following hearings and disposed of the motions thusly:

      . At the beginning of the trial, defense counsel filed a motion in limine seeking to exclude DNA evidence on the following bases: DNA test information requested by defense counsel had been denied by order of the court; the FBI’s testing procedures and statistical analy-ses were defective and not generally accepted within the scientific community; the evidence was irrelevant and prejudicial; and introduction of the evidence would violate Washington’s Sixth Amendment right to confront his accusers. -The motion was denied following discussion of the issue at trial.

      . This Court ruled as follows on the DNA issue that was raised on appeal:
      In this fourth issue, Washington asserts that the trial court erred in not allowing him to depose Anne Baumstark, the DNA technician, and that the state, by not calling Baumstark as a witness, failed to lay a proper predicate for admission of the DNA test results. Florida Rule of Criminal Procedure 3.220 states that a defendant may not depose a person that the prosecutor does not, in good faith, intend to call at trial and whose involvement with the case and knowledge of the case is fully set out in a police report or other statement furnished to the defense. The record reflects that the state did not intend to call Baumstark as a witness; that Baumstark submitted an affidavit which stated that she had conducted over 1200 DNA tests, had no specific recollection of Washington’s test, and would have to rely on lab notes to discuss the testing procedure. Based on our review of the record, we find that the state satisfied the requirements of rule 3.220. We also find no abuse of discretion in the court’s admission of the DNA test results. When previously faced with this issue, we stated that:
      In admitting the results of scientific tests and experiments, the reliability of the testing methods is at issue, and the proper predicate to establish that reliability must be laid. If the reliability of a test’s results is recognized and accepted among scientists, admitting those results is within a trial court’s discretion. When such reliable evidence is offered, "any inquiry into its reliability for purposes of admissibility is only necessary when the opposing party makes a timely request for such an inquiry supported by authorities indicating that there may not be general scientific acceptance of the technique employed.”
      The DNA test results were presented through the testimony of FBI Special Agent Dwight Adams, Baumstark’s supervisor. Adams testified as to the scientific reliability of the tests, interpreted the DNA test results, worked as a team with Baumstark, and supervised her as she conducted the actual test. Adams’s familiarity with the test, his supervision over Baumstark's work, and Baumstark’s affidavit laid a proper predicate for admission of the DNA test results.

        Washington v. State, 653 So.2d 362, 365 (Fla.1994) (citations omitted).

      . Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

      . Id.

      . Id. at 689, 104 S.Ct. 2052.

      . The third paragraph in Washington's motion in limine reads as follows:
      3) The DNA analysis performed by the FBI, although purporting to be generally acceptable within the scientific community, is still insufficient and inadequate and not as yet acceptable within the scientific community as a basis for use as forensic evidence in a criminal prosecution. The FBI DNA procedures lack sufficient safeguards, quality control, and procedural regularity to allow the admission of any test results. Additionally, the FBI purports to provide statistical probabilities in relation to the testing procedures done. The databases which comprise the FBI’s statistical database are insufficient to allow for such statistical probability. The lack of sufficient subgroupings, for instance, in black male populations is a serious deficiency which destroys the reliability of any statistical probability conclusions as brought by the FBI. Similar to the actual testing itself, statistical probability analysis performed by the FBI is subject to substantial criticism within the scientific community and cannot be said to be substantially acceptable within the scientific community, nor, given the database deficiencies can it be found to be relevant.

      . The trial court noted the following: Baumstark was unavailable to defense counsel for deposition because the State did not intend to call her as a witness; she was unavailable to the defense as a witness because she was a non-resident of Florida and could not be compelled by a Florida court to appear as a witness in a Florida proceeding; and although the trial court issued a subpoena for her appearance, she declined to honor the subpoena. (According to the party’s briefs, FBI policy bars their DNA technicians from appearing in court as witnesses; the DNA supervisors, on the other hand, will voluntarily appear as witnesses.)

      . See, e.g., Rutherford v. Moore, 774 So.2d 637, 646 (Fla.2000) ("We have repeatedly held that appellate counsel cannot be considered ineffective for failing to raise issues which ... were not properly raised at trial.” (internal quotation marks omitted).

      . This Court concluded that Washington had been improperly sentenced as a habitual violent felony offender and that the trial court improperly entered two written judgments of conviction.

      . See Hall v. Moore, 792 So.2d 447, 450 (Fla.2001), cert. denied, 534 U.S. 1136, 122 S.Ct. 1082, 151 L.Ed.2d 982 (2002).

      . The United States Supreme Court in Ring v. Arizona, 536 U.S. 584, -, 122 S.Ct. 2428, 2443, 153 L.Ed.2d 556 (2002), recently held unconstitutional the Arizona capital sentencing statute "to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty.” Washington does not raise Ring as an issue in the present proceeding, and accordingly we do not decide whether Ring is applicable to Florida cases wherein the sentencing judge overrides a jury recommendation of life imprisonment.