source: Caselaw Access Project

author: WOODALL, Justice. JOHNSTONE, Justice

license: Public Domain

text:
    Ex parte Thomas Edwin BLANTON, Jr. (In re Thomas Edwin Blanton, Jr. v. State of Alabama).
    1030227.
    Supreme Court of Alabama.
    March 5, 2004.
    John C. Robbins of Poison & Robbins, Birmingham, for petitioner.
    William H. Pryor, Jr., atty. gen.; Nathan A. Forrester and Joseph G.L. Mar-ston III, deputy attys. gen.; and P. David Bjurberg, asst. atty. gen., for respondent.
   WOODALL, Justice.

WRIT DENIED.

HOUSTON, SEE, and LYONS, JJ., concur.

JOHNSTONE, J., concurs specially.

JOHNSTONE, Justice

(concurring specially).

I concur in denying the petition for a writ of certiorari. I note that the petition does not seek certiorari review of any of the jury-selection issues addressed by the Court of Criminal Appeals.


author: BASCHAB, Judge. COBB, Judge,

text:
    Horace BROWNING v. STATE of Alabama.
    CR-02-0904.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2003.
    Rehearing Denied Oct. 24, 2003.
    Certiorari Denied March 12, 2004 Alabama Supreme Court 1030225.
    Horace Browning, pro se.
    William H. Pryor, Jr., atty. gen., and James B. Prude, asst. atty. gen., for appel-lee.
   BASCHAB, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

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

COBB, J., dissents, with opinion.

COBB, Judge,

dissenting.

I respectfully dissent from the majority’s decision to affirm the denial of Horace Browning’s Rule 32, Ala. R.Crim. P., petition in its unpublished memorandum.

On December 13, 2001, Browning was convicted of second-degree assault and was sentenced to 20 years in prison. We affirmed his conviction and sentence on direct appeal by unpublished memorandum. Browning v. State (No. CR-01-0627, June 21, 2002), 860 So.2d 917 (Ala.Crim.App. 2002) (table). The certificate of judgment was issued on July 9, 2002.

On October 25, 2002, Browning filed a Rule 32, Ala. R.Crim. P., petition. After the State had responded, the circuit court summarily denied the petition on January 10, 2003.

In his petition, Browning claimed that he did not fully understand the consequences of his guilty plea because trial counsel was ineffective in failing to object to the trial court’s failure to follow the procedural requirements for accepting a guilty plea, specifically Rule 14.4(a)(l)(iii) and (iv), Ala. R.Crim. P.; that trial counsel was deficient for advising Browning to plead guilty when Browning was maintaining that he was innocent; and that appellate counsel’s conduct was deficient for presenting issues on appeal that had not been preserved for appellate review instead of addressing trial counsel’s failure to preserve these issues.

On appeal, Browning claims that the circuit court abused its discretion by dismissing his Rule 32 petition without a hearing.

“[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, 1098 (Ala.2001).

I would reverse the trial court’s judgment and remand this case based on Browning’s claims that his guilty plea was involuntarily entered and that his trial counsel failed to properly object to the involuntariness; I would pretermit discussion of his other claims.

As for Browning’s ineffective-assistanee-of-trial-counsel argument regarding the voluntariness of his plea, although he stated that his issue was with the trial court’s failure to abide by Rule 14.4(a) (1) (iii) and (iv), his argument does not address this rule, but rather centers on the trial court’s failure to split his sentence as, he says, he had expected it would do based on his agreement with the State and on his counsel’s failure to object to the lack of a split sentence. Therefore, I would address trial counsel’s alleged deficient conduct in terms of the voluntariness of Browning’s plea and the trial court’s sentencing of Browning.

“[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 ... 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 1870, 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).

Although the State maintained in its motion to dismiss the petition that “[t]here was no agreement as to a split sentence or probation” (C. 26), as this Court noted in its unpublished memorandum on direct appeal, the record indicated that,

“[i]n his ‘Motion to Allow Plea of Guilty Pursuant to Agreement,’ Browning agreed to enter a plea of guilty to the charge of assault in the second degree and he stipulated to ‘having at least 3 prior adult felony convictions which are valid convictions for enhancements purposes’ under the Habitual Felony Offender Act. (C. 12.) The State agreed to recommend a sentence of 20 years’ imprisonment to be served concurrently with the time currently being served, with the understanding that Browning would apply for a suspended sentence and/or probation and/or a split sentence. [(C. 12.)] During the guilty-plea proceeding,-the trial court stated that it was not bound by the State’s sentencing recommendation. At the sentencing hearing, the trial court advised Browning that he had ‘just talked [him]self right out of a split sentence’ with his ‘excuses’ and ‘blaming everything on everybody else.’ (R. 22-23.)”

Additionally, it is clear from the sentencing proceedings that the trial judge originally planned to split Browning’s sentence. During the sentencing proceedings, Browning asked to address the trial court. He discussed with the trial court the fact that he had been under psychiatric care, that he was taking a new medication, and that he felt “steady.” (A.R. 22.) Subsequently, as the trial court questioned him about a sentence he was currently serving, the following exchange occurred:

“THE COURT: Having accepted your plea of guilt, the court adjudicates you guilty of assault in the second degree.
“Do you have anything else to say as to why the sentence of the law should not be imposed on you?
“THE DEFENDANT: You know[,] I wasted most of my life probably because of [a] chemical imbalance in my brain.
“THE COURT: Horace, now you keep talking and I’m fixin[g] to undo what I was going to do. I’m tired of you coming in here blaming everything on everybody else for 20 years. Okay?
“THE DEFENDANT: Okay.
“THE COURT: You just keep going. Okay? Go ahead. Talk some more.
“THE DEFENDANT: No, sir.
“THE COURT: No, I haven’t got a problem with it. Keep going.
“THE DEFENDANT: No, sir.
“THE COURT: You just talked yourself right out of a split sentence, you know that.
“THE DEFENDANT: I’m sorry.
“THE COURT: Some folks don’t know when to shut up, you know that. You just keep on with your excuses. You haven’t owned up to [the fact that] it is your problem yet.
“THE DEFENDANT: Yes, sir.
“THE COURT: And you never have. That’s fine. I mean it is a whole lot easier on me to do it this way.
“THE DEFENDANT: Please.
“THE COURT: No. You just talked yourself right out of what I was going to do. Fine.
“Pursuant to your plea agreement with three prior felony convictions, the court sentences you to serve 20 years in the penitentiary. You get credit for time served....
‘You got any questions?
“(No response.)
“THE COURT: You have a right to an appeal
“THE DEFENDANT: I want to appeal my case.
“THE COURT: Well, go for it. File a notice. If you would have admitted some responsibility[] you would be out.”

(A.R. 22-24.)

Thus, I believe that the record indicates that there was a negotiated agreement pursuant to which Browning would receive a split sentence, and that his decision to plead guilty was based on his well-founded impression that he would receive a split sentence.

In a postjudgment motion, filed on January 4, 2002, and styled as a “Motion of Reconsideration of Imposed Sentence,” Browning stated, “The only reason I agreed to plead guilty was because my lawyer told me that all the [district attorney] wanted was a conviction and I would receive a split sentence.” (A.C. 32.) Thus, Browning timely complained to the trial court that he had pleaded guilty only because trial counsel had assured him he would receive a split sentence, and he asked the trial court to reconsider the sentence imposed on him.

“ ‘When the trial judge decides not to carry out an agreement reached between the prosecutor and defense counsel, the accused must be afforded the opportunity to withdraw his or her guilty plea on .motion promptly made.’ Ex parte Otinger, 493 So.2d 1362, 1364 (Ala.1986). See also Bland v. State, 565 So.2d 1240 (Ala.Crim.App.1990).”

Edivards v. State, 586 So.2d 1008, 1009 (Ala.Crim.App.1991).

Because the record on direct appeal reflects that Browning’s understanding of the negotiated plea agreement was that he would be given a split sentence, and that agreement was not upheld by the trial court, I believe Browning should have been allowed to withdraw his guilty plea, had trial counsel so moved. However, because trial counsel did not file a motion to withdraw Browning’s guilty plea, such a withdrawal was not considered. Therefore, trial counsel’s conduct was deficient, and that deficiency prejudiced Browning in that he was not allowed to withdraw his guilty plea, a withdrawal to which he was clearly entitled as a matter of law.

I believe that the judgment of the circuit court should be reversed and this case remanded for the circuit court to allow Browning to withdraw his guilty plea. Therefore, I must dissent.

      . Rule 14.4(a)(l)(iii) and (iv) state that the trial court must inform the defendant of the following:
      "(iii) If applicable, the fact that the sentence may run consecutively to or concurrently with another sentence or sentences;
      “(iv) The fact that the defendant has the right to plead not guilty, not guilty by reason of mental disease or defect, or both not guilty and not guilty by reason of mental disease or defect, and to persist in such a plea if it has already been made, or to plead guilty.''

      . "A.R.” indicates a citation to the trial transcript from the direct appeal, and “A.C.” indicates a citation to the clerk's record from the direct appeal.

      . It is worth mentioning that, during the guilty plea colloquy, Browning admitted that when a police officer tried to handcuff him, the officer locked the handcuffs too tightly on Browning, and, with the officer’s fingers caught in the handcuffs, Browning "jerked away” from the officer. The officer’s fingers were injured. (A.R. 16.)

      .Browning did not ask that the trial court allow him to withdraw his guilty plea.

      . The current state of the law also allows a petitioner to complain about the voluntariness of his guilty plea for the first time in a Rule 32 petition. See Cantu v. State, 660 So.2d 1026 (Ala.1995).


author: McMILLAN, Presiding Judge.

text:
    Tony Devaughn COLEMAN v. STATE.
    CR-02-0683.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2003.

      Tony Devaughn Coleman, pro se.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

The appellant, Tony Devaughn Coleman, filed a Rule 32, Ala. R.Crim. P., petition, attacking his convictions for felony murder, first-degree robbery, first-degree burglary, and first-degree kidnapping. He had been sentenced to life imprisonment on each conviction, the sentences to be served concurrently. On direct appeal, this Court affirmed Coleman’s convictions and sentences by an unpublished memorandum. Coleman v. State, 836 So.2d 999 (Ala.Crim.App.2001) (table).

In this, his second Rule 32 petition, Coleman argued the following: (1) that the indictment against him was void because, he says, it did not cite the correct statutes under which he was being charged; (2) that the trial court erred in instructing the jury on the lesser offense of felony murder when Coleman was charged with capital murder; (3) that the trial court improperly sentenced him after he was acquitted on the capital-murder charges; (4) that he was “subjected to selective prosecution” by the State because he is an African-American; (5) that the Alabama Constitution of 1901 is unconstitutional; and (6) that he was subjected to double jeopardy when the jury found him not guilty of capital murder but guilty of first-degree robbery, first-degree burglary, first-degree kidnapping, and felony murder. Without requiring a response from the State, the trial court summarily dismissed Coleman’s petition. The order of dismissal stated in part:

“1. At page 2 in his Brief, Petitioner claims that because he was found not guilty of Capital Murder, ‘the trial court illegally sentenee[d] him to life in prison.... ’
“FINDINGS: Petitioner was found guilty of lesser included offenses and properly sentenced. This non-jurisdictional claim is barred by the one-year period of limitations. Rule 32.2(c). The petition is successive and Petitioner has failed to show why it is not. Rule 32.2(b). This claim is also absolutely disingenuous and meritless. This claim is summarily dismissed.
“2. At page 2 in the Brief, Petitioner contends that Count 1 of his indictment is void because it reads as murder during a burglary yet cites the Code for Robbery.
“FINDINGS: Count 1 as it was amended by this Court clearly describes robbery and cites the correct Code section. Petitioner here is either mistaken or has a selective memory. He objected to these amendments at trial. Therefore, he is not entitled to relief on any jurisdictional grounds. The claim is barred by limitations. Rule 32.2(c). The petition is successive and Petitioner fails to show why it is not. Rule 32.2(b). This claim is summarily dismissed.
“3. At page 2 in the Brief, Petitioner contends that Count 2 of his indictment is void because it charges murder during a kidnaping yet cites ‘13A-7-5(a)(4).’ He states that ‘... there is no such statute as 13A-7-5(a)(4).... ’
“FINDINGS: Count 2 as it was amended by this Court clearly describes burglary and cites the correct Code section (T3A-7-5(a)(l)’)- Again, Petitioner is either mistaken or has a selective memory. He objected to these amendments at trial. Therefore, he is not entitled to relief on any jurisdictional grounds. The claim is barred by limitations. Rule 32.2(c). The petition is successive and Petitioner fails to show why it is not. Rule 32.2(b). This claim is summarily dismissed.
“4. At page 3 in the Brief, Petitioner basically re-states claim 1., above, but apparently adds the claim that this Court erred when it instructed the jury on lesser offenses and did not let him ‘walk.’
“FINDINGS: This nonsensical, non-jurisdictional claim is barred by the limitations period. Rule 32.2(c). It is also barred since the petition is successive. Rule 32.2(b). It is summarily dismissed. “5. Also at page 3, Petitioner basically claims that he is in prison because he is a ‘Negro,’ to use his term.
“FINDINGS: This even more nonsensical, non-jurisdictional claim is barred by the limitations period. Rule 32.2(c). It is also barred since the petition is successive. Rule 32.2(b). It is summarily dismissed.”

A review of the record reveals that Coleman challenged the trial court’s amendment of his indictment at trial; therefore, this claim is barred by Rule 32.2(a)(2). The remaining issues, other than the sixth issue, presented in the Rule 32 petition could have been, but were not, raised either at trial or on appeal. Rule 32.2(a)(3) and (5).

However, the appellant’s contention that he was subjected to double jeopardy has merit. He was properly indicted for murder made capital because it was committed during a robbery, murder made capital because it was committed during a burglary, and murder made capital because it was committed during a kidnapping. The jury was instructed on the lesser-included offenses of robbery, burglary, kidnapping, and felony murder. The jury was instructed as to the felony-murder charge as follows:

“[A] person commits the crime of a felony murder, in this particular case, if he commits or attempts to commit burglary in the first degree, kidnapping in the first degree, or in immediate flight from the commission of one of those crimes. That he is committing or attempting to commit, i.e., the robbery, burglary and/or kidnapping. Or, if another participant causes the death of that person under those circumstances, i.e., a felony was committed, robbery, burglary and/or kidnapping and he or another participant causes the death of any person.
“To convict under this felony murder the State must prove to you beyond a reasonable doubt that Joe Derossett is dead. Two, that the defendant, Tony Devaughn Coleman, or another participant caused the death of Joe Derossett. The Defendant or another participant was acting in the course of and in furtherance of the crime or the immediate flight from the crime of, as I have stated, burglary in the first degree, or kidnapping in the first degree, or robbery, or one of these felonies — and it does not have to be all three.”

The jury subsequently found Coleman guilty of robbery, burglary, kidnapping, and, without naming the included felony, felony murder. The trial court sentenced Coleman to life imprisonment for the felony-murder conviction, and to life imprisonment on each of the underlying convictions to run concurrently with the other convictions. Defense counsel objected that the felony convictions were encompassed by the felony-murder conviction and pointed out to the court that the convictions could have only one concurrent sentence in order to avoid violating due process; the court agreed. Defense counsel further objected that the felony convictions were encompassed by the felony-murder convictions.

The record is clear that at least one of the felonies must have been included in the felony-murder conviction and thus cannot stand. Coral v. State, 628 So.2d 954, 958 (Ala.Crim.App.1992). See also Crear v. State, 591 So.2d 530 (Ala.Crim.App.1991). Moreover, the fact that the felony-murder sentence was to run concurrently to the other sentences does not make this error harmless.

“The United States Supreme Court stated in Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985):
“ ‘The remedy of ordering one of the sentences to be served concurrently with the other cannot be squared with Congress’ intention. One of the convictions, as well as its concurrent sentence, is unauthorized punishment for a separate offense.
“ ‘The second conviction, whose concomitant sentence is served concurrently, does not evaporate simply because of the concurrence of the sentence. The separate conviction apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored. For example, the presence of two convictions on the record may delay the defendant’s eligibility for parole or result in an increased sentence under a recidivist statute for a future offense. Moreover, the second conviction may be used to impeach the defendant’s credibility and certainly carries the societal stigma accompanying any criminal conviction. Thus, the second conviction, even if it results in no greater sentence, is an impermissible punishment.’ ”
“Ball, 470 U.S. at 864-65, 105 S.Ct. at 1673.”

Rolling v. State, 673 So.2d 812, 814 (Ala.Crim.App.1995) (quoting Meyer v. State, 575 So.2d 1212, 1217 (Aa.Crim.App.1990)).

The trial court’s judgment finding the appellant guilty of all of these crimes was error. The felony-murder conviction and conviction or convictions for the encompassed felony or felonies cannot stand. Therefore, this cause is due to be remanded to the trial court for further proceedings consistent with this opinion. Due return should be made to this Court within 42 days, including the transcript of any hearings held as to this matter.

REMANDED WITH DIRECTIONS.

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

      . In his appellate brief, Coleman also alleges that he was denied effective assistance of counsel at trial and on appeal. Because this issue is raised for the first time on appeal, it is not properly before this Court. Lawhorn v. State, 756 So.2d 971 (Ala.Crim.App. 1999).

      . This Court may take judicial notice of its own records. Nettles v. State, 731 So.2d 626 (Ala.Crim.App.1998).

       Note from the reporter of decisions: On November 21, 2003, on return to remand, the Court of Criminal Appeals dismissed the appeal, without opinion. On January 16, 2004, that court denied rehearing, without opinion. On March 12, 2004, the Supreme Court denied certiorari review, without opinion (1030657).


author: WISE, Judge. SHAW, Judge,

text:
    William Joseph ANDERSON v. STATE of Alabama.
    CR-02-0181.
    Court of Criminal Appeals of Alabama.
    Sept. 26, 2003.
    Rehearing Denied Nov. 21, 2003.
    Certiorari Petitions Denied Feb. 27, 2004 Alabama Supreme Court 1030393 (Anderson’s petition) and 1030366 (State’s petition).
    Raymond L. Bell, Jr., Mobile, for appellant.

      William H. Pryor, Jr., atty. gen., and G. Ward Beeson III, asst. atty. gen., for ap-pellee.
   WISE, Judge.

The appellant, William Joseph Anderson, was convicted of one count of first-degree assault, a violation of § 13A-6-20, Ala.Code 1975, and one count of possession of a pistol after having been convicted of a crime of violence, a violation of § 13A-11-72, Ala.Code 1975. He was sentenced to 30 years’ imprisonment for each conviction, the sentences to run concurrently. This appeal followed.

The evidence elicited at trial tended to establish the following. On December 1, 2001, Phillip Davis and RoShawn Williams went to a nightclub in Mobile. Also present at the club that night were Anderson and his cousin, Ishmael Brooks. At some point, Davis and Brooks began to argue, and Anderson subsequently joined in the argument.

Davis and Williams stayed at the club until closing time. As they left the club and walked toward their car, they noticed Brooks and several of his friends near the car. A fight ensued. During the fight, Davis heard a gunshot; realizing he had been shot, he attempted to flee. As Davis ran from the scene, he looked back and saw Anderson chasing him and shooting at him. Anderson shot Davis two more times in the back. Surgeons removed three 9mm bullets from Davis’s back.

At trial, Detective David Evans of the Mobile Police Department testified that Anderson had a previous conviction for assault in the first degree, a “crime of violence.”

I.

Anderson was charged in separate indictments with one count of first-degree assault and one count of possession of a pistol after having been convicted of a crime of violence. On August 21, 2002, the State filed a motion to consolidate the two charges for trial. During the hearing on the State’s motion to consolidate, defense counsel objected. Counsel maintained that because the previous conviction for a crime of violence also involved assault with a gun, “the prejudice on my client is too overwhelming,” particularly in light of the fact that his client intended to raise the affirmative defense of self-defense. Thereafter, the trial court granted the State’s consolidation motion. On appeal, Anderson argues that the trial court erred in consolidating the charges against him for trial.

This Court addressed a virtually identical fact situation in Graves v. State, 632 So.2d 30 (Ala.Crim.App.1992). In Graves, the defendant was convicted of manslaughter and possession of a pistol after having been convicted of a crime of violence. On appeal, Graves argued that the trial court committed reversible error in granting the State’s motion to consolidate the two indictments for trial. Rejecting the State’s claim that the appellant’s objection to the consolidation motion was insufficient to preserve this matter for review, this Court stated:

“Under Alabama law, evidence of any offense other than that specifically charged is prima facie inadmissible. Nicks v. State, 521 So.2d 1018 (Ala.Cr.App.1987), aff'd, 521 So.2d 1035 (Ala.), cert. denied, 487 U.S. 1241, 108 S.Ct. 2916, 101 L.Ed.2d 948 (1988). However, Alabama law provides for the admissibility of evidence of collateral crimes or acts as part of the prosecution’s case-in-chief if the defendant’s collateral misconduct is relevant to show his guilt other than by suggesting that he is more likely to be guilty because of his past misdeeds. Brewer v. State, 440 So.2d 1155 (Ala.Cr.App.1983). The decision to allow or not to allow evidence of collateral crimes or acts as part of the state’s casein-chief rests in the sound discretion of the trial judge. McGhee v. State, 333 So.2d 865 (Ala.Cr.App.1976).
“The trial court may exclude relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice. Spellman v. State, 473 So.2d 618 (Ala.Cr.App.1985); C. Gamble, McElroy’s Alabama Evidence § 21.01(4) (4th ed.1991). Whether such evidence should be excluded because of its prejudicial nature is largely within the discretion of the trial court, and its determination in that regard will not be disturbed absent a clear showing of abuse. Spellman v. State; Ward v. State, 440 So.2d 1227 (Ala.Cr.App.1983).
“A prior conviction for a crime of violence is an element that must be proven by the state in order to obtain a conviction for the offense prescribed in § 13A-ll-72(a) (possession of a pistol after having been convicted of a crime of violence). The state’s evidence establishing the appellant’s prior conviction for manslaughter was therefore relevant and admissible in proving the pistol possession charge; however, it was not relevant and therefore was not admissible to prove the charge of murder. We agree with the appellant that the introduction of this evidence unfairly prejudiced him in his defense of the murder charge. We believe that a real probability existed that the jurors’ knowledge that the appellant had been previously indicted for murder and convicted of manslaughter in a case similar to the one being tried impaired their ability to impartially examine the evidence. We think it would have been extremely difficult, if not impossible, for the jurors to divorce from their minds the fact that the appellant had previously been convicted of a similar crime and to give the appellant a fair trial based solely upon the evidence pertaining to the instant murder charge. ‘[S]uch evidence of prior crimes has almost an irreversible impact upon the minds of the jurors.’ C. Gamble, McEl-roy’s Alabama Evidence § 69.01(1) (4th ed.1991). We find that allowing the prosecution to introduce evidence of the prior manslaughter conviction, which occurred approximately 10 years before the crime charged in the instant case, solely because of the consolidation of the charges, prevented the appellant from receiving a fair trial in the prosecution for murder. Thus, the manslaughter conviction must be reversed.
“While proof of the appellant’s prior manslaughter conviction unfairly prejudiced his defense of the murder indictment, that proof was relevant and admissible and not unfairly prejudicial in the prosecution of the pistol possession charge. Therefore, the conviction for the crime of possession of a pistol after committing a crime of violence was proper.”

632 So.2d at 31-32.

The State sought certiorari review of our decision in Graves. The Alabama Supreme Court determined that the appellant’s objection to the State’s consolidation motion was not sufficient to preserve the matter for appellate review, stating that counsel should have moved to sever the offenses. Graves v. State, 632 So.2d 33, 36 (Ala.1993). However, the Supreme Court noted:

“Nevertheless, this Court ‘will not deliberately invite a petition for post-conviction relief,’ see Johnson v. State, 528 So.2d 1167, 1168 (Ala.Cr.App.1987), by holding Graves’s meritorious claim — that his conviction for manslaughter is due to be reversed because his counsel failed to properly object to the consolidation— has not been preserved for review. Therefore, we affirm that portion of the judgment of the Court of Criminal Appeals reversing Graves’s conviction for manslaughter and remanding for a new trial.”

632 So.2d at 37 (footnote omitted).

This Court has subsequently held on numerous occasions that “ ‘claims regarding the consolidation of related cases must be raised at trial to be eligible for appellate review.’ ” Tolliver v. State, 814 So.2d 991, 993 (Ala.Crim.App.2000) (quoting Brown v. State, 701 So.2d 314, 316 (Ala.Crim.App.1997), citing in turn Thomas v. State, 587 So.2d 1248 (Ala.Crim.App. 1991)); see also Cole v. State, 721 So.2d 255, 260 (Ala.Crim.App.1998). Nevertheless, given the similarity between the facts in Graves and the facts before us today, it appears that the Supreme Court’s decision in Graves leaves us no choice but to reverse Anderson’s conviction for first-degree assault and remand this cause to the circuit court for a new trial. See § 12-3-16, Ala.Code 1975. However, in the interest of judicial economy, we urge the Supreme Court to revisit its decision in Graves.

II.

Anderson also contends that the trial court erred in denying his motion for a judgment of acquittal on the pistol-possession charge. Specifically, Anderson argues that the State failed to prove that he had a previous conviction for a “crime of violence.”

During the State’s case-in-chief, Detective Evans testified that following Anderson’s arrest on the assault charge he discovered that Anderson also had a previous conviction for a crime of violence. At this point, the State offered a certified copy of Anderson’s 1998 conviction for first-degree assault, which the trial court admitted into evidence. After the State rested, Anderson moved for a judgment of acquittal on the grounds that the State had failed to prove a prima facie violation of § 13A-ll-72(a), Ala.Code 1975. The trial court denied Anderson’s motion.

Citing Ex parte Johnson, 620 So.2d 665 (Ala.1993), Anderson argues that a certified copy of his 1998 first-degree assault conviction, together with Detective Evans’s testimony, was insufficient to establish that he had been convicted of a crime of violence, as that term is defined in § 13A-11-70, Ala.Code 1975.

Section 13A-11-72(a), Ala.Code 1975, provides that “No person who.has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence shall own a pistol or have one in his or her possession or under his or her control.” A “crime of violence” is defined as “murder, manslaughter[ ] (except manslaughter arising out of the operation of a vehicle), rape, mayhem, assault with intent to rob, assault with intent to ravish, assault with intent to murder, robbery, burglary, kidnapping and larceny,” or an attempt to commit any of these crimes. § 13A-ll-70(2), Ala.Code 1975. However, as the Supreme Court noted in Ex parte Johnson:

“Because what is now § 13A-ll-70(2) was enacted years before the new Criminal Code offenses were enacted, see Tit. 14, § 172(a), Code of Ala.1940, one cannot simply look to the name given an offense in the new Criminal Code provision and conclude that it is synonymous with an older term found in § 13A-11-70(2). See Doss v. State, 220 Ala. 30, 123 So. 231 (1929); Hudson v. Reed, 259 Ala. 340, 66 So.2d 909 (1953).”

620 So.2d at 667. Accord State v. Dunn, 767 So.2d 405, 407 (Ala.Crim.App.2000); Henry v. State, 714 So.2d 1002, 1005 (Ala.Crim.App.1998); Averhart v. State, 636 So.2d 1280, 1282 (Ala.Crim.App.1994).

However, as the State correctly points out, this line of cases is distinguishable from Anderson’s case in that each of those cases involved theft and burglary — offenses that are not commonly regarded as “violent” crimes. By contrast, Anderson’s previous conviction was for first-degree assault, an offense routinely regarded as violent. The Commentary to § 13A-6-20 through -22 notes that the Criminal Codé “eliminates the ‘assault with intent’ crimes which are now treated as attempts under § 13A-4-2.... Therefore, instead of prosecuting for assault with intent to murder, or assault with intent to ravish, it is proper to charge attempted murder or attempted rape.” Thus, although the five alternative methods of proving assault in the first degree in the current statute no longer contain the intent to rob, ravish, or murder, each requires the commission of a violent act, the causing of “serious physical injury” or serious permanent disfigurement. See § 13A-6-20(a)(1)-(5), Ala.Code 1975. Moreover, because this Court has previously recognized that second-degree assault was “undisputedly a crime of violence,” see Lewis v. State, 741 So.2d 452, 454 (Ala.Crim.App.1999), we may logically conclude that first-degree assault, a more serious offense, is also a crime of violence.

“It is a fundamental principle of judicial statutory construction that statutes should be read and construed in such a way as to give meaning to each of them, and to reconcile them if reasonable to do so.” Hunt v. State, 642 So.2d 999, 1014 (Ala.Crim.App.1993), aff'd, 642 So.2d 1060 (Ala.1994). Therefore, because § 13A-6-20 did not embrace an act that could not be deemed a crime of violence, the State presented sufficient evidence indicating that Anderson had been convicted of a prior crime of violence when it introduced the certified copy of his 1998 conviction for first-degree assault.

Based on the foregoing, we reverse Anderson’s conviction for first-degree assault and remand the cause for a new trial; we affirm the conviction for possession of a pistol after committing a crime of violence.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

COBB, J., concurs; SHAW, J., concurs in part and concurs in the result in part, with opinion, which McMILLAN, P.J., and BASCHAB, J., join.

SHAW, Judge,

concurring in part and concurring in the result in part.

I concur to affirm Anderson’s conviction for possession of a pistol after committing a crime of violence. However, I concur only in the result with respect to the decision to reverse Anderson’s conviction for first-degree assault. In Graves v. State, 632 So.2d 33 (Ala.1993), the Alabama Supreme Court opted to reach the consolidation issue even though it was clearly not preserved for appellate review either by a proper objection to the trial court’s consolidation order or by a motion to sever made pursuant to Rule 13.4(b), AIa.R.Crim.P.; it reached the consolidation issue apparently in order to avoid having to later reach the issue in the 'context of a postconviction challenge to counsel’s effectiveness. I am not persuaded that the Supreme Court’s decision in Graves to “ ‘not deliberately invite a petition for post-conviction relief,’ ” 632 So.2d at 37, quoting Johnson v. State, 528 So.2d 1167, 1168 (Ala.Crim.App.1987), effectively nullified the general rules of preservation with respect to consolidation issues and thereafter bound this Court always to reach an issue on direct appeal in order to avoid a possible Rule 32 Ala. R.Crim.P., challenge to the conviction based on ineffective assistance of counsel. However, based on my research, I am aware of no case holding that a specific objection to a trial court’s consolidation order is not sufficient to preserve the consolidation issue for appellate review. In fact, Graves strongly suggests that such a specific objection would have been sufficient. See 632 So.2d at 36.


author: McMILLAN, Presiding Judge. SHAW, Judge,

text:
    STATE v. Joseph STRONG.
    CR-02-1427.
    Court of Criminal Appeals of Alabama.
    Sept. 26, 2003.
    Rehearing Denied Nov. 21, 2003.
    Certiorari Denied Feb. 13, 2004 Alabama Supreme Court 1030340.
    William H. Pryor, Jr., atty. gen., and Stephanie N. Morman, asst. atty. gen., and Edgar W. Greene, Jr., district atty., Selma, for appellant.
    Christmas Y. Green, Selma; and Collins Pettaway, Jr., Selma, for appellee.
   McMILLAN, Presiding Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

BASCHAB, J., concurs in the result. SHAW, J., concurs in the result, with opinion, which COBB, J., joins. WISE, J., dissents, without opinion.

SHAW, Judge,

concurring in the result.

I concur to affirm the trial court’s suppression order, but not for the reasons stated in the unpublished memorandum. The record indicates that the affidavit submitted as support for the issuance of the search warrant was legally insufficient to supply probable cause for the issuance of the warrant because the affidavit did not state the date or the time the informant had allegedly observed the sale of marijuana and cocaine from the residence described. See Ex parte Parker, 858 So.2d 941 (Ala.2003), and the cases cited therein. If the trial court’s ruling on a suppression motion is correct for any reason it should not be reversed, Loggins v. State, 771 So.2d 1070, 1078 (Ala.Crim.App.1999), aff'd, 771 So.2d 1093 (Ala.2000).


author: WISE, Judge.

text:
    Larry David JOHNSON v. STATE of Alabama.
    CR-02-1237.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 2003.
    Rehearing Denied Dec. 12, 2003.
    Certiorari Denied March 12, 2004 Alabama Supreme Court 1030503.

      Charles C. Hart, Gadsden, for appellant.
    William H. Pryor, Jr., atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, Larry David Johnson, pleaded guilty to one count of third-degree burglary, a violation of § 13A-7-7, Ala. Code 1975, and one count of first-degree theft, a violation of § 13A-8-3, Ala.Code 1975. The trial court sentenced Johnson as a habitual offender with three prior felony convictions to 25 years’ imprisonment for each conviction, with the sentences to run concurrently.

The record reveals that Johnson had previously entered not-guilty pleas and on September 10, 2002, withdrew his not-guilty pleas and advised the circuit court that he wished to plead guilty to the charges. Pursuant to the plea agreement entered into between Johnson and the State, Johnson agreed to plead guilty to one count of third-degree burglary and one count of first-degree theft. In exchange, the State agreed to dismiss a third charge. Johnson stated that he understood his rights, that he understood the charges contained in the indictment, and that he understood the minimum and maximum sentences that could be imposed upon conviction. Johnson acknowledged that he had three prior felony convictions, and he waived further proof by the State of those convictions. Johnson also stated that he had discussed these matters with his court-appointed counsel and that he was satisfied with his attorney’s representation.

Because the plea agreement contained no recommended sentence, the trial court advised Johnson that he was entering a “blind” plea. However, the trial court advised Johnson that it was the court’s intention to impose concurrent 20-year sentences. The court explained that this was the minimum sentence allowed by law for first-degree theft, the more serious of the two charges against him. The trial court then accepted Johnson’s guilty pleas. Based on the foregoing, the trial court determined that Johnson’s guilty plea was knowingly and voluntarily entered, and it scheduled his sentencing hearing for November 13, 2002.

Johnson failed to appear on November 13, 2002, and the trial court issued a warrant for his arrest. Johnson was taken into custody on February 18, 2003, and was sentenced on March 6, 2003. At the sentencing hearing, the trial court noted that Johnson had failed to appear for his November 13, 2002, sentencing hearing; the court then sentenced Johnson to concurrent sentences of 25 years’ imprisonment. Defense counsel objected to the sentence and reminded the court of its previously stated intention to sentence Johnson to concurrent 20-year sentences. The court reminded counsel that Johnson had entered into a blind plea agreement that contained no sentence recommendation. Nevertheless, Johnson moved to withdraw his guilty pleas; the trial court denied Johnson’s motion. This appeal followed.

Johnson argues that the trial court, in refusing to impose the 20-year sentences originally contemplated and also refusing to allow him to withdraw his guilty pleas, abused its discretion. Therefore, he argues, the court’s judgment is due to be reversed. We disagree.

“Whether a defendant should be allowed to withdraw a guilty plea is a matter within the discretion of the trial court, whose decision will not be disturbed on appeal absent a showing of abuse of that discretion.” Ex parte Blackmon, 734 So.2d 995, 997 (Ala.1999) (citing Boykin v. State, 361 So.2d 1158, 1160 (Ala.Crim.App.1978)).

“ ‘[T]he trial court is not bound to accept an agreement between the defense and prosecution.’ Ex parte Yarber, 437 So.2d 1330, 1336 (Ala.1983). However, ‘ “[w]hen the trial judge decides not to carry out an agreement reached between the prosecutor and defense counsel, the accused must be afforded the opportunity to withdraw his or her guilty plea on motion promptly made.” ’ Bland v. State, 565 So.2d 1240, 1243 (Ala.Cr.App.1990), quoting Ex parte Otinger, 493 So.2d 1362, 1364 (Ala.1986).”

Bagley v. State, 681 So.2d 262, 265 (Ala.Crim.App.1995). See also Rule 14.3(c)(2)(iv), Ala.R.Crim.P.

Johnson entered a blind plea, meaning that he had no prior agreement with the State as to the length of the sentence to be imposed. See Duncan v. State, 838 So.2d 1064, 1065 (Ala.Crim.App.2000). Thus, the trial court did not fail to accept the terms of the agreement between the State and Johnson. Rather, there was no agreement concerning the sentence to be imposed. The fact that the trial court originally contemplated imposing concurrent 20-year sentences was not part of the plea agreement. Nor are we aware of any authority that prevents a trial judge from changing his or her decision regarding the sentence to be imposed before it imposes the sentence.

Here, the trial court sentenced Johnson within the range of punishment provided in § 13A-5-9(c), Ala.Code 1975. The fact that Johnson expected to receive concurrent 20-year sentences, rather than the 25-year sentences actually imposed, does not invalidate his guilty pleas. As this Court has previously stated:

“ ‘[t]he mere hope, subjective belief, or expectation of a defendant [and his counsel] regarding length of sentence, parole, conditions of confinement, and other similar matters which are not based upon a promise by the state are insufficient to warrant the withdrawal of a guilty plea as unknowingly or involuntarily made.’ Culver v. State, 549 So.2d 568, 571 (Ala.Cr.App.1989). Furthermore, ‘ “the fact that a defendant who has knowingly and intelligently pleaded guilty later becomes dissatisfied with the sentence he received does not, alone, constitute a ground for invalidating the guilty plea.” ’ Bland v. State, 565 So.2d 1240, 1242-43 (Ala.Cr.App.1990) (quoting State v. Holman, 486 So.2d 500, 503 (Ala.1986)).”

Alderman v. State, 615 So.2d 640, 647-48 (Ala.Crim.App.1992) (emphasis added).

Because Johnson entered blind pleas that contained no sentence recommendation by the State, the trial court did not abuse its discretion in denying Johnson’s request to withdraw his guilty pleas. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

McMILLAN, p.j., and COBB, BASCHAB, and SHAW, JJ., concur.

      . Because Johnson had three prior felony convictions, the minimum sentence allowed for third-degree burglary, a Class C felony, was 15 years' imprisonment, and for first-degree theft, a Class B felony, was 20 years' imprisonment. See § 13A-5-9(c)(l) and (2), Ala.Code 1975.

      . Indeed, such a holding would appear to be inconsistent with well-established precedent holding that a trial court retains jurisdiction to modify a sentence for 30 days after the sentence is pronounced. See, e.g., Ex parte Hitt, 778 So.2d 159 (Ala.2000); Massey v. State, 587 So.2d 448 (Ala.Crim.App.1991).