author: CRAWLEY, Judge. THOMPSON, Judge,

text:
    Florence Faye HORN v. Clifton Reed HORN and Gloria Wyatt and Jessie Wyatt.
    2011241.
    Court of Civil Appeals of Alabama.
    May 16, 2003.
    Certiorari Denied Oct. 3, 2003 Alabama Supreme Court 1021470.

      Jennifer Sellers, Legal Services Corporation of Alabama, Montgomery, for appellant.
    James D. Hamlett, Montgomery, for ap-pellees.
   CRAWLEY, Judge.

Florence Faye Horn (“the mother”) and Clifton Reed Horn (“the father”) married in May 1992. They had five children before they separated in May 2000. When the father left the mother, she was unemployed and destitute. She moved in with her mother, Gloria Wyatt (“the grandmother”), and her adoptive father, Jessie Wyatt (“the grandfather”) (referred to collectively as “the grandparents”). The mother began to suffer from depression because of the collapse of her marriage; as a result, she sought inpatient treatment in August or September 2001 at Meadha-ven, a treatment facility that offers, among other things, emotional-health counseling, and Griel Memorial Psychiatric Hospital. According to the mother’s pleadings, the grandparents voluntarily cared for the children during her treatment. The mother was released from treatment on September 26, 2001. The record does not reflect whether the mother returned to live with the grandparents and the children at that time.

However, the mother’s pleadings indicate that, on November 12, 2001, she informed the grandparents that she had made alternative living arrangements and that she planned to take the children with her. The grandparents refused to let her take the children; when the mother sought the aid of law enforcement, she was informed that she could take the children with her because the grandparents did not have custody. The mother attempted to take her three daughters home from school on November 13; however, the grandparents had instructed the school not to allow her to take the children. Only after law-enforcement officers arrived at the school was the mother permitted to leave with the children. The sons, who attended a different school, remained in the custody of the grandparents. 'The grandparents then filed a petition for involuntary commitment of the mother, which resulted in the mother being picked up by officers of the Elmore County sheriffs department on November 16, 2001, and being detained over the weekend in the Elmore County jail. The grandparents took custody of the three daughters while the mother was detained. After a hearing on November 19, 2001, the probate court denied the petition.

The mother filed for a divorce from the father in late November 2001, alleging, among other things, that the father had been physically abusive during the marriage. She stayed briefly with her biological father in the early part of December 2001, and then, after having another assessment at Meadhaven at the request of a local women’s shelter, she began living at the shelter. The grandparents intervened in the divorce action, seeking custody of the children. Pursuant to an agreement of the parties, the trial court awarded the grandparents temporary custody of the children in December 2001. The divorce proceeded to trial on August 5, 2002.

The trial court awarded custody of the children to the grandparents. In its judgment, the trial court determined that the mother was unfit. As a basis for this finding, the trial court noted that the mother had suffered and would continue to suffer from depression, had no driver’s license or vehicle, relied on friends for transportation to her job as a housekeeper at a motel, made $6.00 per hour, and received approximately $130 in food stamps per month. The judgment also stated that “[wjhile the [mother] has been treated at mental institutions for her depression, she has made serious efforts in improving her lifestyle and the Court commends her on the efforts she is making to change her lifestyle.” The mother appeals the judgment, arguing that the trial court’s finding of unfitness is not supported by the evidence.

As noted in the judgment, the mother has been employed as a housekeeper at a motel in Montgomery since late February 2002. She earns $6.00 per hour and works approximately 30 to 35 hours per week. She is considered a part-time employee and receives no employee benefits. She routinely receives a ride to her job from a friend. Since June 2002, she has lived in a house in Tallássee, Alabama; the house has three bedrooms and one bath. The mother also testified that she sometimes cleans houses on the side to make extra money or to trade for other services (for example, for rides to work or for babysitting).

The mother testified that she had voluntarily sought treatment for her depression in September 2001. She said that she had been prescribed medication for depression, but she had not. taken it for several months. She said that her situation had improved after she started her job and moved from the women’s shelter into her own home. She said that she felt like herself again. She also said that, were she to have feelings of depression or anxiety in the future, she would seek counseling either at the Family Guidance Center or the Center for Families.

When questioned about what she, who admittedly does not have a driver’s license or a vehicle, would do if she had an emergency with one of the children, the mother replied that she would dial 911 for emergency assistance if necessary or that she would seek help from her neighbors who had assisted her with transportation in the past. She explained that she had investigated the school system in Tallassee, and she noted that the system had several programs for both gifted students and special-education students. She also explained that, while she did not have insurance coverage available through her employer, she thought that she might qualify for Medicaid and that she had investigated the possibility of having the children covered under AIlKids, a state-sponsored children’s health-insurance program that provides coverage for little or no cost.

The mother testified that she was aware that one of her children might need special-education classes and that another one of her children might have special emotional needs that would require counseling. She testified that she would find a way to ensure that her children received any counseling they might need. The mother said that she had “thought and thought and planned and planned” about what she would need if she were to be awarded custody of her five children. She said she had researched the school system, its programs, and even counseling options, so that she would be prepared. Although she admitted that it would not be easy, she said that she felt that she could rear her children.

Although she noted the improvements the mother had made in the year before trial, the grandmother testified that she did not think that the mother was ready to take custody of the children. When questioned about whether, in the past, she had doubted the mother’s ability to care for the children, the grandmother commented that the mother “didn’t quite have it together then, but I see now that she does have it together a little bit more.” She said that the mother had not always “taken care” of the children because of her depression, noting, “I guess the depression caused her not to think straight.” The grandmother did not explain in detail the basis for her belief that the mother had failed to “take care” of the children.

The grandmother explained that the children — Dustin, age 11; twins Hope and Faith, age 8; Anna, age 7; and Tyson, age 5 — all had problems with their teeth; those problems varied from minor problems to more extensive problems that resulted in having teeth removed. However, the grandmother did not provide detailed testimony concerning the specific problems or of the likely cause of those problems. The mother, when questioned by the court about whether the children had been to see any doctors or dentists, commented that she had asked her lawyer to suggest to the grandparents that the children be taken to a dentist. We also note that the children and the mother lived with the grandparents from May 2000 until the mother entered treatment in September 2001 and that the children remained under the grandparents’ care between September 2001 and December 2001, when the grandparents were awarded temporary custody; as far as we can tell from the record, the children’s dental problems went undetected and untreated during that period.

The grandmother said that the sons, Dustin and Tyson, were very smart and would be in classes for gifted children at school. She said that Faith was also smart. Faith’s twin sister, Hope, however, according to the grandmother, is enrolled in special-education classes. Anna, the youngest daughter, has been diagnosed with bipolar disorder and is on medication. The grandmother stated that Tyson, the youngest son, had recently begun acting similarly to the way Anna had behaved before she was diagnosed with bipolar disorder, and the grandmother said that she thought that Tyson should be evaluated to determine whether he also suffers from bipolar disorder.

The grandmother does not have a driver’s license, but the grandfather does. He testified that he is employed by Bradley Plumbing, and he said that, if the grandmother needed him to drive the children somewhere, his work schedule was flexible and would allow him to come home if necessary. The children are presently on his insurance plan and have been since shortly after the grandparents were awarded custody of the children in December 2001. The trial court had ordered the grandfather to attend an anger-management program. Although the grandfather claimed that he had not completed the program at the time of trial because he had encountered some financial difficulties and because his inability to read hindered his progress, he stated that he planned to complete the program. The grandfather said that the mother was “doing pretty good,” but he did not believe that she was ready to rear her five children on her own.

“In a custody dispute between a parent and a nonparent, the parent has a prima facie right to custody of his or her child. Ex parte D.J., 645 So.2d 303 (Ala.1994). Unless the trial court finds that the parent is unfit, or that the parent has voluntarily relinquished custody of the child, or that the parent has lost custody of the child by virtue of a prior order, the law presumes that the ■best interests of the child will be served by giving the parent custody. Ex parte Terry, 494 So.2d 628 (Ala.1986); Ex parte Mathews, 428 So.2d 58 (Ala.1983); E.C.B. v. J.S., 612 So.2d 1243 (Ala.Civ.App.1992); Roden v. Colburn, 522 So.2d 290 (Ala.Civ.App.1988).”

D.P.M. v. D.B., 669 So.2d 191, 193 (Ala.Civ.App.1995). The grant of pendente lite custody to the grandparents in December 2001 was not considered a loss of custody that would overcome the presumption in favor of the mother. See D.P.M., 669 So.2d at 194 (“It is well settled that a pendente lite order changing custody does not shift the burden of meeting the [Ex parte] McLendon[, 455 So.2d 863 (Ala.1984),] standard to the parent who temporarily loses custody by virtue of that order.” (citing T.L.L. v. T.F.L., Jr., 580 So.2d 1359 (Ala.Civ.App.1991); Sims v. Sims, 515 So.2d 1 (Ala.Civ.App.1987))). Nor does the fact that the mother and the grandparents agreed that the grandparents would care for the children while the mother sought inpatient treatment for her depression in September 2001 overcome the presumption in favor of the mother on the basis that the mother “voluntarily relinquished” custody.

“Both ‘[t]his court and our Supreme Court have encouraged custodial arrangements during necessitous times.’ M.D.K. v. V.M., 647 So.2d 764, 765 (Ala.Civ.App.1994). We have recognized that a parent who ‘enlist[s] the aid of [grandparents] to care for the child during difficult times’ should not be deemed to have ‘voluntarily relinquished’ custody, because
“ ‘[t]o allow a grandparent to argue that this set of facts supports a finding that a parent voluntarily relinquished custody of a child would
promote family discord and would discourage parents from seeking assistance from grandparents to insure that the children have adequate care.’
“M.D.K v. V.M., 647 So.2d at 765.”

D.P.M., 669 So.2d at 194.

Therefore, the only basis upon which the trial court could have awarded custody of the children to the grandparents was its finding that the mother was unfit. That finding of unfitness must be supported by clear and convincing evidence. Ex parte Berryhill, 410 So.2d 416, 417 (Ala.1982); Ex parte Sullivan, 407 So.2d 559, 563 (Ala.1981); see also Griggs v. Barnes, 262 Ala. 357, 364, 78 So.2d 910, 917 (1955) (“ ‘ “The unfitness which deprives the parent of the right to the custody of a child must be positive, and not merely comparative or speculative, and must be shown by clear and satisfactory proof.” ’ ” (quoting Esco v. Davidson, 238 Ala. 653, 655, 193 So. 308, 309 (1940) (quoting in turn, 46 Corpus Juris, p. 1243))). The mother argues that the grandparents did not present clear and convincing evidence of her unfitness. We agree.

The evidence produced at the trial indicated that the mother was struggling financially, that she had no driver’s license and no vehicle, that some of her children have special needs, and that the children have some unspecified dental problems that have resulted in their having some teeth removed. Although a parent’s neglect of her children’s health is a factor to be considered when determining that parent’s fitness, J.W. v. D.W., 835 So.2d 206, 211 (Ala.Civ.App.2002) (affirming an award of custody to the grandparents when the mother had an unkempt home, had behaved irresponsibly by taking her child with her to parties at which alcohol was consumed, had spent an “ ‘inordinate amount of time on the Internet leaving the minor child unattended,’ ” and had failed to provide the child with necessary dental care, which resulted in a need for extensive dental work on a three-year-old child), we note that the children and the mother lived with the grandparents from May 2000 until September 2001, that from September 2001 to December 2001, the children were cared for solely by the grandparents, and that the children were not taken for any dental treatment until after the grandparents were awarded temporary custody in December 2001. The grandmother testified at trial that the children were not taken to any health-care professional until after the grandparents obtained insurance coverage for the children, presumably because the cost of any health care would have been more than the grandparents could or would pay. The mother, having been abandoned by her husband and having no employment at that time, presumably had no health insurance of her own, and also would have found it difficult to pay for dental treatment for five children. Since the children were in the home of the grandparents for approximately 20 months before they received dental treatment for what the grandmother characterized, in some cases, as rather severe problems, we find it rather disingenuous for the grandparents to argue that the failure to remedy the children’s dental problems should be laid solely at the feet of the mother without some evidence that the grandparents, like the grandmother in J.W., had urged the mother to remedy those emerging dental problems.

We do not find clear and convincing evidence of the mother’s unfitness in this record. At most, we find evidence that the grandparents, because of their intact marriage, their stable and greater income, and their experience as parents, are perhaps more fit than the mother. However, as our supreme court has stated, “ ‘[mjerely because some other person may be more fit should not be a basis for defeating the parent’s natural right.’ ” Griggs v. Barnes, 262 Ala. 357, 364, 78 So.2d 910, 917 (1955) (quoting In re Guardianship of Smith, 255 P.2d 761, 763 (Cal.1953), opinion vacated, 42 Cal.2d 91, 265 P.2d 888 (1954)). This mother is employed, she rents a home, and she has friends upon whom she can rely for assistance. She sought treatment for depression on her own initiative, and she stated at trial that she would seek assistance again, through counseling or other methods, were she to become depressed or overwhelmed by her situation. The trial court commended the mother for the steps she had taken to improve her life. We do so as well. However, in our opinion, the improvements the mother has made serve to indicate her fitness not her unfitness. Accordingly, because the mother has a superior right to the custody of her children and because the evidence has failed to clearly and convincingly establish that she is unfit, we reverse the trial court’s award of custody to the grandparents and remand this cause with instructions that the trial court enter a judgment awarding custody of the children to the mother.

REVERSED AND REMANDED WITH INSTRUCTIONS.

YATES, P.J., and PITTMAN and MURDOCK, JJ., concur.

THOMPSON, J., dissents.

THOMPSON, Judge,

dissenting.

It is well settled that this court is not permitted to reweigh the evidence on appeal and substitute its judgment for that of the trial court. Ex parte Patronas, 693 So.2d 473 (Ala.1997); Somers v. McCoy, 777 So.2d 141 (Ala.Civ.App.2000). Accordingly, I dissent.

      . The record does not reveal the exact date on which the mother entered treatment, but, based on the testimony about the length of the treatment, it is possible that the mother entered treatment as early as August 2001. However, for ease of reading we will refer to September 2001 as the month in which the mother sought treatment.

      . We do not cite Ex parte Terry, 494 So.2d 628, 632 (Ala.1986), for this particular proposition, because although the clear-and-convincing standard applicable to an unfitness determination in cases involving a custody dispute between a parent and a nonparent appears to be well settled, the language most often cited from Ex parte Terry, which quotes Ex parte Mathews, 428 So.2d 58, 59 (Ala.1983), contains the phrase " 'supported by competent evidence.' ” (some emphasis omitted). Despite this difference in wording, the Terry court did state that "[t]he standard to be applied ... is that applied ... in Ex parte Berryhill[, 410 So.2d 416 (Ala.1982).]” Ex parte Terry, 494 So.2d at 632. The Berryhill court applied the clear-and-convincing standard and relied on two other cases that also clearly utilized that standard in cases involving a determination of unfitness in a custody dispute between a parent and a nonparent. See Griggs v. Barnes, 262 Ala. 357, 364, 78 So.2d 910, 917 (1955), and Ex parte Sullivan, 407 So.2d 559, 563 (Ala.1981).


source: Caselaw Access Project

author: THOMPSON, Judge.

license: Public Domain

text:
    Roger CROWSON v. WOOLARD BROTHERS, INC.
    2020242.
    Court of Civil Appeals of Alabama.
    May 23, 2003.
    Certiorari Denied Oct. 3, 2003 Alabama Supreme Court 1021490.

      William V. Powell, Jr., of Powell & Denny, P.C., Birmingham, for appellant.
    James A. Rives and Emily C. Marks of Ball, Ball, Matthews & Novak, P.A., Montgomery, for appellee.
   THOMPSON, Judge.

On March 14, 2001, Roger Crowson sued Woolard Brothers, Inc. (“the employer”), seeking workers’ compensation benefits for injuries he received in the line and scope of his employment in October 1997 and December 2000. The employer answered and denied liability. Before the final hearing on this matter, the parties stipulated that Crowson was injured while performing his job-related duties. The parties further stipulated, among other things, that Crowson’s treating physician placed him on restrictions permitting him to work only four hours per day with a five-minute break every 30 minutes and preventing him from working at unprotected heights.

The trial court held an ore tenus hearing on September 24, 2002, and it entered a final judgment on October 4, 2002; it found Crowson to be permanently and totally disabled as a result of his work-related injuries and awarded him benefits accordingly. The case action summary reflects the trial court’s entry of the October 4, 2002, final judgment. No postjudgment motions were filed from the trial court’s October 4, 2002, judgment. On November 12, 2002, the trial court entered a second judgment purporting to find that Crowson suffered a 98% vocational disability as a result of his work-related injury. The case action summary does not reflect the entry of the November 12, 2002, judgment. No postjudgment motions were filed from the trial court’s November 12, 2002, judgment. On December 5, 2002, the trial court entered an order, ex mero motu, purporting to rescind its October 4, 2002, judgment and stating that the October 4, 2002, judgment was “entered inadvertently.” The trial court further stated that the November 12, 2002, judgment was the opinion of the trial court and the final judgment of the trial court. No postjudgment motions were filed. Crowson appealed from the trial court’s November 12, 2002, judgment and December 5, 2002, order.

Crowson contends on appeal that the trial court did not have jurisdiction to amend its October 4, 2002, judgment. Specifically, Crowson argues that the employer made no postjudgment motion pursuant to Rule 60(b), Ala. R. Civ. P.; therefore, he argues, the trial court had no authority to withdraw and amend its original October 4, 2002, judgment. Further, Crowson contends that the change made in the trial court’s November 12, 2002, judgment did not correct a clerical error pursuant to Rule 60(a), Ala. R. Civ. P. Based on the above arguments, Crowson asserts that the trial court’s October 4, 2002, order is a final judgment.

In its December 5, 2002, order rescinding the October 4, 2002, judgment, the trial court stated that the October 4, 2002, judgment was “inadvertently” granted. Although the trial court does not directly cite to Rule 60(b), Ala. R. Civ. P., in its December 5, 2002, order, it appears that the trial court attempted to use Rule 60(b) as a basis for its purported withdrawal of its original October 4, 2002, judgment. Rule 60(b) states, in pertinent part:

“On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... or (6) any other reason justifying relief from the operation of the judgment.”

(Emphasis added.)

The record indicates, and the employer admits on appeal, that the employer did not file a Rule 60(b) motion in the trial court. “Rule 60(b) requires that a party move for relief from a judgment, and does not provide for sua sponte relief by the trial court.” Ex parte P & H Constr. Co., 723 So.2d 45, 49 (Ala.1998)(footnote omitted). Accordingly, the trial court could not have, pursuant to Rule 60(b), rescinded its October 4, 2002, judgment by entering the December 5, 2002, order. We also note that neither party filed a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P., and that the trial court’s November 12, 2002, judgment was entered outside the 30 days allowed by that rule. No appeal was taken from the October 4, 2002, judgment.

In order for the trial court to have had jurisdiction to enter an order on its own initiative amending its prior judgment in this case, it would have had to amend its judgment pursuant to Rule 60(a), Ala. R. Civ. P. That rule provides that “[clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.” Rule 60(a), Ala. R. Civ. P. The “Committee Comments on 1973 Adoption” of Rule 60(a) state:

“[Rule 60(a)] deals solely with the correction of clerical errors. Errors of a more substantial nature are to be corrected by a motion under Rules 59(e) or 60(b). Thus, the Rule 60(a) motion can only be used to make the judgment or record speak the truth and cannot be used to make it say something other than %vhat ivas originally pronounced.”

(Emphasis added.)

This court has previously held that Rule 60(a) “contemplates the type of error associated with mistakes in transcription, alteration, or omission of any papers and documents—a mistake mechanical in nature which does not involve a legal decision or judgment.” Michael v. Michael, 454 So.2d 1035, 1037 (Ala.Civ.App.1984). Rule 60(a) “cannot be used to modify or enlarge a judgment nor to make the judgment say something other than what was originally pronounced.” Michael, 454 So.2d at 1037; Wilson v. Banks, 611 So.2d 1025 (Ala.1992); and McGiboney v. McGiboney, 679 So.2d 1066 (Ala.Civ.App.1995). Under the facts of this case, it is clear that the trial court’s November 12, 2002, judgment changed the trial court’s findings regarding the employee’s disability. We conclude that Rule 60(a) does not authorize changes of such a substantial nature. See generally Wilson v. Leck’s 66 Serv. Station, 513 So.2d 620, 621 (Ala.Civ.App.1987) (noting that the rule authorizing the correction of clerical errors “does not authorize the trial court to render a different judgment”). The trial court’s attempt to set aside its previous judgment had no legal effect; therefore, its judgment of October 4, 2002, remains its final judgment in this matter.

REVERSED.

YATES, P.J., and CRAWLEY and PITTMAN, JJ., concur.

MURDOCK, J., concurs in the result.


author: WISE, Judge.

text:
    Jimmy DAY v. STATE of Alabama.
    CR-02-0351.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2003.
    Jimmy Day, pro se.
    Andrew W. Redd, general counsel, Alabama Department of Corrections, for ap-pellee.
   WISE, Judge.

The appellant, Jimmy Day, an inmate at Bullock County Correctional Facility, appeals from the circuit court’s dismissal of his petition for a writ of habeas corpus. Specifically, he alleges that the Alabama Department of Corrections (“DOC”) improperly computed the expiration date of his sentence.

As best we are able to determine from the record before us, Day was convicted in 1977 of one count of second-degree burglary; he was sentenced to three years’ imprisonment. In 1978, he was convicted of one count of false pretenses and was sentenced to three years’ imprisonment. In 1979, Day was convicted of one count of grand larceny and sentenced to two years’ imprisonment. In 1982, Day was convicted of 23 counts of fraudulent use of a credit card. He was sentenced to 20 years’ imprisonment for each conviction, and the sentences were to run concurrently with each other but consecutively with the sentences imposed as a result of Day’s prior convictions. Thereafter, in 1983 Day was convicted of first-degree theft and was sentenced to two years’ imprisonment; his sentence was ordered to run concurrently with his previous two-year sentences. In 1986, Day escaped from custody; following his recapture, he was convicted of one count of third-degree escape and was sentenced to two years’ imprisonment; the sentence was to run concurrently with his previous 20-year sentences. Day was released on parole again in 1997, but his parole was again revoked. Finally, in 1999, Day was convicted of impersonating a peace officer and was sentenced to 15 years’ imprisonment; that sentence was to run concurrently with Day’s previous 20-year sentences.

Based on a statute in force at the time of Day’s 1977, 1978, and 1979 convictions, Day earned a deduction from the time he had to serve in prison under a system referred to as “statutory good time” (“SGT”). However, the Legislature repealed the SGT statutes in 1980 and enacted a new system by which to calculate deductions in inmate sentences; this method is entitled “correctional incentive time” (“CIT”). See § 14-9-41, Ala.Code 1975. However, inmates who had earned SGT continued to have that time computed by DOC and credited against the applicable sentences. As a result, part of Day’s sentence had to be calculated using SGT and part using CIT.

On September 13, 2002, Day petitioned for a writ of habeas corpus, alleging that DOC had miscalculated the time he was required to serve. Specifically, he argued that DOC had not credited him with all of the SGT time to which he was entitled, resulting in a miscalculation of his release date. The State responded, contending that Day’s release date had been properly calculated. Included in the State’s response were exhibits establishing how the length of Day’s sentence had been calculated. On October 23, 2002, the circuit court dismissed Day’s petition. This appeal followed.

A petition for a writ of habeas corpus is the proper method by which to test whether the State has correctly calculated the time an inmate must serve in prison. Breach v. State, 687 So.2d 1257 (Ala.Crim.App.1996); Swicegood v. State, 646 So.2d 158 (Ala.Crim.App.1993). On appeal, Day argues (1) that the circuit court erred in dismissing his petition without first conducting an evidentiary hearing; and (2) that DOC miscalculated the amount of time he was required to spend in prison. In its response to Day’s brief, DOC states:

“In reviewing this matter on appeal, [the State] determined that the computation of [Day’s] end of sentence date had been incorrectly calculated and this finding significantly affects the affidavit previously submitted to the trial court for its consideration.”

Accordingly, DOC requests that we remand this case to the circuit court for the entry of a new order. It argues that the circuit court should have the opportunity to review a new affidavit containing the correct information regarding Day’s sentence before rendering a decision on Day’s habeas corpus petition. We agree.

In light of the foregoing, we remand this cause to the circuit court with directions that that court allow DOC to file an amended response reflecting the correct calculation of Day’s SGT credit and his release date. The circuit court shall then enter a new order on the merits of Day’s petition. The court’s return to remand shall include a transcript of any proceedings conducted by the circuit court on remand, any supplemental filings submitted by the parties, together with any additional evidence submitted by the parties, and the circuit court’s new order on the merits of Day’s petition. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 42 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

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

      . It appears that Day escaped from custody in 1978, while serving his sentence for second-degree burglary; thus, his sentence was tolled. Day also appears to have been released on parole in .1980. However, his parole was subsequently revoked.

       Note from the reporter of decisions: On November 21, 2003, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: McMILLAN, Presiding Judge.

text:
    Michael Ray PATTERSON v. STATE.
    CR-02-1137.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2003.

      Michael Ray Patterson, pro se.
    William H. Pryor, Jr., atty. gen., and P. David Bjurberg, asst. atty. gen., for appel-lee.
   McMILLAN, Presiding Judge.

The appellant, Michael Ray Patterson, filed a Rule 32, Ala. R.Crim. P., petition, attacking his guilty-plea conviction for first-degree burglary and his sentence of 10 years’ imprisonment. He did not appeal his conviction.

In his petition, Patterson argued that his guilty plea was not knowingly and voluntarily entered and that he was denied the effective assistance of trial counsel. He predicated these two claims primarily on his allegation that trial counsel erroneously advised him that he would be eligible to earn incentive good time (“IGT”) credit if he pleaded guilty to this offense. Also, he argued that because he was not advised that he would be ineligible to receive IGT credits while he was incarcerated, he was not made aware of the minimum and maximum possible sentence. Finally, he claimed that he was not armed with a weapon at the time he committed the theft. Therefore, he argued, he was entitled to be charged with the lesser-included offense of third-degree burglary, but neither his attorney nor the trial court advised him of this right. Without requiring a response from the State, the trial court summarily denied Patterson’s petition.

The trial court’s order of dismissal stated, in part:

“The defendant first alleges that the Constitution of the United States or of the State of Alabama requires a new trial or a new sentencing proceeding because the conviction was obtained by a plea of guilt which was unlawfully induced or not made voluntarily with the understanding of the nature of the charge and the consequences of the plea. The defendant argues in support of this complaint that the plea was involuntarily entered because he was not informed of the correct minimum and maximum sentence he could receive in that he was not informed that he would not earn good-time credit while in the Department of Corrections. The defendant does not allege that the range of punishment for the offense of burglary in the first degree was not known to him at the time he entered his plea. The defendant does allege that his counsel was ineffective in not advising him that he would not receive good-time credit on his sentence.
“The defendant has failed to meet his burden of proof as to the ineffective assistance of counsel claim which burden is set forth in Strickland v. Washington, 466 U.S. 668, (1984), et al. Ineffective assistance of counsel involving the plea colloquy will not affect the voluntariness of the plea. Dubose v. State, [652 So.2d 340] (Ala.Crim.App.1994).
“After a full and fair consideration of all of the claims of the defendant this Court finds that the defendant was correctly advised of the proper range of punishment and fines as required by law and any and all of his complaints premised upon these claims are denied. An internal rule of the Alabama Department of Corrections as to the application of good-time credit on an inmate’s sentence is not a material part of the applicable range of punishment provided by law.
“The Court further finds that the defendant fails to set forth sufficient facts to support a claim for ineffective assistance of counsel. The defendant executed Court’s Exhibit ‘A’ and acknowledged to the Court that he fully understood his rights, the applicable range of punishment and fines and the consequences of his plea as well as his right to appeal. The defendant also acknowledged at the time of his plea that he was not coerced into entering his plea and this Court found specifically that the defendant’s plea was knowingly, intelligently and voluntarily entered. The defendant cannot now take a position inconsistent with the position he maintained in open court.”

As the State correctly notes in its brief on appeal, counsel’s failure to advise a defendant that he was “not” eligible to earn IGT credit while he was incarcerated does not constitute ineffective assistance of counsel nor does it render a guilty plea involuntary. Fearson v. State, 662 So.2d 1225 (Ala.Crim.App.1995). Moreover, the Court found that Patterson was advised of the correct sentencing range for the crime of first-degree burglary before he entered his guilty plea. Accordingly, he is not entitled to relief on his claim that his guilty plea was not knowingly and voluntarily entered.

However, Patterson contends that trial counsel told him that he would receive IGT credit if he pleaded guilty to this offense. It is unclear from the record whether counsel did in fact so misinform Patterson regarding his eligibility for IGT credit. This Court must remand this matter to the circuit court for a determination as to this issue, and the State has requested that we do so.

Therefore, this case is remanded to the Jefferson Circuit Court with directions for that court to conduct an evidentiary hearing if necessary and to make specific findings of fact as to Patterson’s claim that trial counsel erroneously advised him that he would receive IGT credit if he was convicted of first-degree burglary. The trial court shall make due return to this Court within 42 days from the date of this opinion.

REMANDED WITH DIRECTIONS.

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

      . On appeal, Patterson abandons his claim that he should have been allowed to plead guilty to the lesser offense of third-degree burglary. Therefore, this Court need not address this issue. Brownlee v. State, 666 So.2d 91 (Ala.Crim.App.1995).

       Note from the reporter of decisions: On November 21, 2003, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: McMILLAN, Presiding Judge. COBB, Judge,

text:
    Kenneth Bertrand TAYLOR v. STATE.
    CR-02-0823.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2003.

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

The appellant, Kenneth Bertrand Taylor, filed a Rule 32, Ala. R.Crim. P., petition, attacking his conviction for attempted murder and his sentence of 20 years’ imprisonment. He did not file a direct appeal from his conviction.

On the Rule 32 petition form, Taylor simply marked the following grounds for relief: (1) “Conviction obtained by plea of guilty which was unlawfully induced or not made voluntarily with understanding of the nature of the charge and the consequences of the plea”; (2) “[cjonviction obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant”; (3) “[djenial of effective assistance of counsel”; (4) “[tjhe court was without jurisdiction to render the judgment or to impose the sentence”; and (5) “[tjhe petitioner failed to appeal within the prescribed time and that failure was without fault on petitioner’s part.” However, he made no specific statement of allegations and provided no factual basis as to any of these five issues. See Rule 32.6(b). On a separate page, Taylor listed the following allegations against trial counsel:

“1. Petitioner’s counsel told him to cop out to a 20 year sentence, and according to parole board guidelines petitioner has to do 15 years on a 20 year sentence.
“2. Petitioner asserts that counsel was ineffective and did not inform petitioner on forensic evaluation from Melissa V. Clinger, Phy. doctor.
“3. Petitioner asserts that counsel was ineffective on informing him on his minimum and maximum range of punishment on sentencing.
“4. Petitioner asserts counsel was ineffective in all critical stages during arraignment and during sentencing.
“5. Upon petitioner’s plea agreement, counsel did not inform petitioner that he would be subjected to the 85% issue, which denied petitioner the right to a valid defense to refuse or dispute said enhancement during sentencing.”

The State moved to dismiss, arguing that Taylor had failed to comply with Rule 32.6(b) and that Taylor’s claims were barred by 32.2(a)(1) and (3). The trial court thereafter summarily denied the petition on the grounds pleaded by the State. Taylor then filed a “Notice of Appeal and/or Motion for Reconsideration,” in which he argued (1) that he had not been advised of his right to appeal; (2) that trial counsel had erroneously informed him that if he were tried and convicted by a jury, he could be sentenced to life imprisonment without parole; and (3) that the trial court abused its discretion in taxing the costs of this matter to him.

On appeal, Taylor reiterates the claims he raised in his Rule 32 petition and in his motion for reconsideration.

The trial court properly denied the petition as to Taylor’s claims asserted by checking boxes on the form petition without providing any substantiating or specific facts; specifically, the knowingness and voluntariness of his plea, the failure to disclose evidence, and the lack of jurisdiction of the trial court. Because “a full disclosure of the factual basis of those grounds” is not included, those mere conclusions of law are insufficient to satisfy the pleading requirements of Rule 32.6(b), Ala. R.Crim. P. Madden v. State, 864 So.2d 395 (Ala.Crim.App.2002). Additionally, Taylor’s argument that the trial court improperly taxed him with court costs is meritless. Pursuant to § 12-19-70, Ala. Code 1975, the trial court properly assigned the costs of this proceeding to Taylor.

However, this case is due to be remanded for the trial court to make specific findings of fact as to Taylor’s claims against trial counsel. Taylor has made allegations that he was denied effective assistance of counsel during his guilty plea proceedings. These issues could not have been presented at trial. Taylor further argues that his failure to appeal his conviction was through no fault of his own and that this Rule 32 petition was his first opportunity to raise the claims. The trial court’s order of dismissal did not address Taylor’s claims against trial counsel. Moreover, the State has requested that this Court remand this case to the circuit court for a review of those claims. Accordingly, this case is remanded to the Etowah Circuit Court for that court to hold an evidentiary hearing if necessary and to enter an order consistent with this opinion. Due return shall be made to this Court within 42 days from the date of this opinion.

REMANDED WITH DIRECTIONS.

SHAW and WISE, JJ„ concur. COBB, J., dissents, with opinion. BASCHAB, J., joins dissent.

COBB, Judge,

dissenting.

I respectfully dissent from the majority’s opinion, remanding with directions Kenneth Bertrand Taylor’s Rule 32, Ala. R.Crim. P., petition, for the trial court to make specific findings of fact regarding Taylor’s ineffective-assistance-of-counsel claims. Although this was Taylor’s first opportunity to challenge counsel’s performance, I do not believe that his claims satisfy either the pleading requirements of Rule 32.3, Ala. R.Crim. P., or the specificity requirements of Rule 32.6(b), Ala. R.Crim. P.

Before being heard on the claim, a petition must plead facts, which if true, entitle the petitioner to relief. See, Ex parte Boatwright, 471 So.2d 1257, 1258 (Ala.1985). Thus, a sufficiently pleaded petition alleging ineffective assistance of counsel must plead facts indicating (1) that counsel’s performance was deficient, and (2) that the petitioner was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the context of guilty-plea proceedings, as in the instant case, a petitioner must show that but for counsel’s errors, the petitioner would not have pleaded guilty but would have insisted on proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

In order to meet the burden of pleading, Rule 32.6(b), Ala. R.Crim. P., requires not only that a petitioner plead a “clear and specific statement of the grounds upon which relief is sought,” but also that the petitioner include a “jfull disclosure of the factual basis of those grounds.” (Emphasis added.) Rule 32.6(b), Ala. R.Crim. P., continues: “A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.” (Emphasis added.)

It has long been settled that when seeking postconviction relief “[o]ne of the threshold requirements for a meritorious petition for writ of error coram nobis [ ] is that the petition make ‘full disclosure of the facts relied on, not mere conclusions as to the nature and effect of facts [citation omitted].’ ” Todd v. State, 484 So.2d 528, 530 (Ala.Crim.App.1985)(quoting Corley v. State, 397 So.2d 223, 224 (Ala.Crim.App.1981)). “Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief.” Boyd v. State, 746 So.2d 364, 406 (Ala.Crim.App.1999). In other words, it is not the pleading of a conclusion “which, if true, entitle[s] the petitioner to relief.” Lancaster v. State 638 So.2d 1370, 1373 (Ala.Crim.App.1993). It is the allegation of facts in a pleading, which if true, that entitles a petitioner to relief. After facts are pleaded, which if true entitle the petitioner to relief, the petitioner is then entitled to an opportunity (as provided in Rule 32.9, Ala.R.Crim.P.) to present evidence proving those alleged facts.

Taylor’s claims regarding ineffective assistance of counsel asserted only conclusions; he provided no facts supporting those conclusions. Thus, Taylor’s ineffectiveness claim amounted to nothing more than a bare allegation, unsupported by any factual basis. The trial court’s summary dismissal of this claim is due to be affirmed. Therefore, I must dissent.

       Note from the reporter of decisions: On November 21, 2003, on return to remand, the Court of Criminal Appeals affirmed, without opinion.

      . The specific claims of ineffective assistance of counsel set forth in the majority opinion are quoted directly from Taylor's petition.

      . "The petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief. The state shall have the burden of pleading any ground of preclusion, but once a ground of preclusion has been pleaded, the petitioner shall have the burden of disproving its existence by a preponder-anee of the evidence.” Rule 32.3, Ala. R.Crim. P.

      . "The petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.” Rule 32.6(b), Ala. R.Crim. P.

      . Now a Rule 32, Ala. R.Crim. P., petition.


author: COBB, Judge.

text:
    James Terry FRANKLIN v. STATE of Alabama.
    CR-02-1497.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2003.
    James Terry Franklin, pro se.
    William H. Pryor, Jr., atty. gen., and Hense R. Ellis II, asst. atty. gen., for appellee.
   COBB, Judge.

On August 17, 1999, James Terry Franklin pleaded guilty to third-degree robbery and was sentenced, as a habitual offender with three prior felony convictions, to 35 years in prison. On appeal, this Court affirmed his conviction and sentence in an unpublished memorandum. (No. CR-98-2504, February, 18, 2000), 805 So.2d 791 (Ala.Crim.App.2000) (table). The certificate of judgment was entered on March 7, 2000.

On March 20, 2003, Franklin filed this, his second, Rule 32, Ala. R.Crim. P., petition. After the State responded, the circuit court summarily dismissed the petition on April 16, 2003. This appeal followed.

In his petition, Franklin claimed that his sentence was illegal because, he says, when the trial court sentenced him, he had only two prior convictions, rather than three. On appeal, Franklin reiterates his claim.

“[WJhen 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).

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.... ”

Franklin attached to his petition a copy of the notice where the state had indicated its intention to invoke the Habitual Felony Offender Act, which included a prior conviction numbered CC-82-841, and a copy of a case action summary sheet indicating that on March 2, 1983, that conviction was nol-prossed on motion of the assistant district attorney. The State argued, as it does on appeal, that the error, if any, in using that conviction, was harmless because Franklin’s sentence was nonetheless within the statutorily prescribed range for a Class C felony with only two prior felony convictions. This Court addressed a similar situation in Crenshaw v. State, 740 So.2d 478, 479 (Ala.Crim.App.1998):

“At the time of his robbery convictions, the appellant had three prior state felony convictions in addition to a federal conviction the specifics of which were unfamiliar to the State. He signed a guilty plea agreement that indicated that he would receive a minimum sentence of 15 years’ imprisonment and a maximum sentence of 99 years to life. Pursuant to the Habitual Felony Offender Act, the appellant’s sentences were enhanced, based on three prior convictions. The appellant admitted the prior convictions and stated that he was represented by counsel in all three proceedings. Subsequent to the trial court’s summary dismissal of the petition, this Court reversed the appellant’s theft of property conviction, which was one of the three felonies used for sentence enhancement. See Crenshaw v. State, 728 So.2d 722 (Ala.Cr.App.1998).
“An examination of the record reveals that at the time the appellant pleaded guilty to the robbery charges, he was given correct information by the trial court regarding sentence enhancement. See § 13A-5-9(c)(l), Ala.Code 1975. (‘In all cases when it is shown that a criminal defendant has been previously convicted of any three felonies and after such convictions has committed another felony, he must be punished as follows: (1) On conviction of a Class C felony, he must be punished for life or for any term not more than 99 years but not less than 15 years.’) The appellant’s sentences were for life imprisonment, and were therefore, legally authorized sentences, whether the appellant had two or three prior convictions. See § 13A-5-9(b)(1), Ala.Code 1975. (‘In all cases when it is shown that a criminal defendant has been previously convicted of any two felonies and after such convictions has committed another felony, he must be punished as follows: (1) On conviction of a Class C felony, he must be punished for a Class A felony.’)
“Nevertheless, this Court, out of an abundance of caution, finds that in the interest of fundamental fairness to both the appellant and the trial court, this cause must be remanded to the trial court to allow that court to address the appellant’s argument that he was improperly sentenced by the use of a conviction that was subsequently set aside. It is undisputed that ‘ “a conviction that has been set aside or reversed may not be used to enhance [a] penalty.” ’ Prock v. State, 471 So.2d 519, 521 (Ala.Cr.App.1985) (quoting 24B C.J.S. Criminal Law § 1960(6)(1962)). If the trial court finds that the appellant’s argument has merit, it will then have an opportunity to resen-tence the appellant in accordance with the Habitual Felony Offender Act.”

See also McClintock v. State, 773 So.2d 1057 (Ala.Crim.App.2000); Pickens v. State, 475 So.2d 637 (Ala.Crim.App.1985). The only difference in this case is that Franklin claimed that his third prior conviction was not valid and should never have been used to enhance his sentence, as opposed to his third prior conviction’s later becoming invalid. We see no relevance to the distinction.

Additionally, contrary to the State’s assertion, the fact that Franklin admitted to the three prior convictions during the guilty plea colloquy is of no consequence, see Crenshaw, supra; an illegal sentence, whether or not agreed to, is an illegal sentence.

Therefore, for the reasons above, we remand this cause for the circuit court to conduct an evidentiary hearing, or otherwise to take evidence, to determine the merit of Franklin’s claim. If, indeed, he only had two prior convictions, then the circuit court is to resentence him accordingly. If, however, Franklin did have three prior convictions, the circuit court is to deny Franklin relief. Either way, this Court requests that the circuit court make specific findings of fact and that due return shall be made within 42 days of the issuance of this opinion.

REMANDED WITH DIRECTIONS.

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

      . To the extent that Franklin attempts to couch this argument in terms of his guilty plea having been entered involuntarily, we note that Franklin has already attacked the voluntariness of his guilty plea in his first petition; therefore, those claims are precluded as being successive. Rule 32.2(b), Ala. R.Crim. P.

       Note from the reporter of decisions: On November 21, 2003, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


text:
    Marcus LUCIOUS v. STATE of Alabama.
    CR-02-1445.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2003.

      Marcus Lucious, pro se.
    William H. Pryor, Jr., atty. gen., and Andy Scott Poole, asst. atty. gen., for ap-pellee.
   COBB, Judge.

On February 4, 2002, Marcus Lucious, pursuant to a plea agreement, pleaded guilty to first-degree rape, a violation of § 13A-6-61, Ala.Code 1975. The plea agreement provided that in exchange for Lucious’s pleading guilty to the rape charge, the State would nol-pros a pending charge of first-degree robbery and Lucious would be sentenced as a habitual offender having two prior felony convictions to life imprisonment. The trial court sentenced Lucious to life imprisonment, in accordance with the plea agreement. No direct appeal was taken.

Lucious signed a Rule 32, Ala. R.Crim. P., petition on January 31, 2003. The petition was filed in the circuit clerk’s office on February 26, 2003. In his petition, Lu-cious alleged that he had been denied his right to effective assistance of counsel because, he says, his counsel did not object to the State’s using a youthful-offender adjudication as a prior felony conviction to enhance his sentence. See Hardy v. State, 709 So.2d 490 (Ala.Crim.App.1995)(a youthful-offender adjudication cannot be used as a prior conviction to enhance a sentence under the Habitual Felony Offender Act). Additionally, Lucious claimed that because the trial court improperly used a youthful-offender adjudication as a prior felony conviction to enhance his sentence, he was incorrectly informed of the potential minimum and maximum range of punishment, thereby rendering his guilty plea involuntary.

The State filed a motion to dismiss Lu-cious’s petition in which it denied the allegations made in the petition. The State claimed that the two prior convictions were felony convictions for which Lucious was sentenced to five years each. The trial court dismissed Lucious’s petition, stating that his claims were precluded, that his ineffective-assistance-of-counsel claim and his claim that his guilty plea was involuntarily entered were without merit because the explanation-of-rights form reflects that he admitted to two prior felonies. This appeal followed.

Lucious claims that the trial court erred when it summarily dismissed his petition. A petitioner in a Rule 32, Ala. R.Crim. P., proceeding has the burden of pleading grounds that, if true, would entitle him to relief. Johnson v. State, 835 So.2d 1077 (Ala.Crim.App.2001). Summary disposition of a Rule 32, Ala. R.Crim. P., petition is appropriate only

“[i]f the court determines that the petition is not sufficiently specific, or is precluded, 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 any further proceedings .... ”

Rule 82.7(d), Ala. R.Crim. P. When the facts are in dispute in a post-conviction proceeding, the trial court’s ruling will not be disturbed absent an abuse of discretion. Elliott v. State, 601 So.2d 1118 (Ala.Crim.App.1992).

In his petition, Lueious failed to offer documents or proof beyond his bare allegation that one of the prior convictions used to enhance his sentence was a youthful-offender adjudication. The State denied the allegation, claiming that both pri- or convictions were felony convictions for which Lueious received five-year sentences. The trial court denied the petition. However, the trial court did not address in its order the allegation that one of the prior convictions used to enhance his sentence was a youthful-offender adjudication and not a felony conviction. The State requests us to remand this case for a specific factual finding regarding the prior conviction.

Although Lucious’s claim does not pertain to an illegal sentence because his sentence is still within the range of punishment for a conviction for a Class A felony, even with only one prior felony conviction, whether one of the prior convictions used to enhance his sentence was a youthful-offender adjudication will affect whether Lueious was properly informed of the potential minimum and maximum range of punishment.

Because Lueious argued a fact that, if true, would entitle him to relief, we remand this case for the circuit court to determine and to make a specific finding as to whether one of the prior convictions used to enhance Lucious’s sentence was, in fact, a youthful-offender adjudication. If a youthful-offender adjudication was used as a prior felony conviction to enhance Lu-cious’s sentence, the trial court should allow Lueious the opportunity to withdraw his guilty plea, if he so desires. If he does withdraw his guilty plea, the State may reinstate the first-degree rape charge as well as the first-degree robbery charge that was nol-prossed as part of the plea bargain agreement. Due return shall be filed with this Court within 42 days from the date of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and SHAW and WISE, JJ„ concur; BASCHAB, J., concurs in the result.

      . The State does not argue, but it implies, that a sentence greater than three years could not result from a youthful-offender adjudication. See § 15-19-6(a)(4), Ala.Code 1975.

       Note from the reporter of decisions: On November 21, 2003, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: BASCHAB, Judge.

text:
    Carl Allen SIMMONS v. STATE of Alabama.
    CR-02-1477.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2003.

      Carl Allen Simmons, pro se.
    William H., Pryor, Jr., atty. gen., and Beth Slate Poe, asst. atty. gen., for appel-lee.
   BASCHAB, Judge.

On June 30, 2000, pursuant to a negotiated agreement, the appellant, Carl Allen Simmons, pled guilty to unlawful distribution of a controlled substance. The trial court sentenced him, as a habitual offender, to serve a term of twenty years in prison. See § 13A-5-9(c)(2), Ala.Code 1975. It then split his sentence and ordered him to serve a term of three years in prison followed by five years on probation. The trial court also enhanced his sentence by five years because the sale occurred within three miles of a school and an additional five years because the sale occurred within three miles of a public housing project. See §§ 13A-12-250 and 13A-12-270, Ala.Code 1975. The appellant did not appeal his conviction. On or about September 5, 2001, the appellant filed a Rule 32 petition, challenging his conviction, which the circuit court summarily denied. The appellant appealed that denial, and we affirmed the circuit court’s judgment in an unpublished memorandum. See Simmons v. State, (CR-01-0531, March 15, 2002) 854 So.2d 1227 (Ala.Crim.App.2002) (table). On March 10, 2003, the appellant filed the present Rule 32 petition, challenging his conviction. After the State responded, the circuit court summarily denied his petition. This appeal followed.

I.

The appellant argues that the trial court did not have jurisdiction to render a judgment and impose a sentence in his case because the facts upon which the schoolyard and public housing project enhancements were based were not alleged in the indictment. In Hale v. State, 848 So.2d 224, 232-33 (Ala.2002), the Alabama Supreme Court addressed a similar argument as follows:

“In Poole v. State, 846 So.2d 370, 373-87 (Ala.Crim.App.2001), the Court of Criminal Appeals discussed and analyzed Apprendi [v. New Jersey, 530 U.S. 466 (2000)] as follows:
“ ‘... Apprendi pleaded guilty to two counts of second-degree possession of a firearm for an unlawful purpose and to one count of unlawfully possessing an “antipersonnel bomb.” A New Jersey statute provided that a sentence could be enhanced if the crime was motivated by “bias.” New Jersey sought to invoke this statute. After a hearing, the trial court, based on the testimony from the witness stand, found by a preponderance of the evidence that the crime was motivated by racial bias. The trial court then enhanced Apprendi’s sentence. Ap-prendi specifically reserved the right to challenge this enhancement on appeal. Apprendi argued that due process required that the question whether the crime was motivated by bias be presented to a jury and proven beyond a reasonable doubt. The New Jersey Supreme Court upheld the enhanced sentence. The United States Supreme Court reversed. Citing earlier decisions, the United States Supreme Court stated:
“ ‘ “... Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: ‘[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.’ [Jones v. United States,] 526 U.S. [227], at 252-253, 119 S.Ct. 1215 [ (1999) ] (opinion of Stevens, J.); see also id., at 253, 119 S.Ct. 1215 (opinion of Scalia, J.).”
“ ‘530 U.S. at 485-90 (emphasis added; footnotes omitted)....
“ ‘... [Constitutional defects must be objected to in the trial court before we may review them on appeal. See Barrett v. State, 705 So.2d 529 (Ala.Crim.App.1996); Puckett v. State, 680 So.2d 980 (Ala.Crim.App.1996); Andersen v. State, 418 So.2d 967 (Ala.Crim.App.1982); Hansen v. State, 598 So.2d 1 (Ala.Crim.App.1991); Cagle v. State, 504 So.2d 1225 (Ala.Crim.App.1987); Crosslin v. State, 540 So.2d 98 (Ala.Crim.App.1988). Therefore, before this Court will review an alleged Apprendi violation, the defendant must object in the trial court. ...
“ ‘... [T]he Apprendi holding implies that the failure to allege in the indictment the location of the crime does not affect the validity of the indictment, i.e., does not rise to the level of a jurisdictional defect. Had the defect in Apprendi amounted to a jurisdictional defect that would invalidate the indictment, a reviewing court would, ex mero motu, be charged with noticing the defect. See Ex parte Hargett, 772 So.2d 481 (Ala.Crim.App.1999). The Supreme Court did not hold in Apprendi that the underlying conviction was due to be vacated.’
“Poole, 846 So.2d at 373-87 (emphasis added). Thus, Poole holds that the absence of sentence enhancement allegations from the indictment does not deprive the trial court of jurisdiction to impose the enhancements. We approve and adopt this holding and the rationale of the Poole court for this holding.”

Also, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), does not apply retroactively to cases on collateral review. See Poole v. State, 846 So.2d 370 (Ala.Crim.App.2001); Sanders v. State, 815 So.2d 590 (Ala.Crim.App.2001). Accordingly, the appellant is not entitled to post-conviction relief on this ground.

II.

The appellant also appears to argue that the State did not give him adequate notice that it intended to invoke the schoolyard and public housing project enhancements. However, this claim is precluded because he could have raised it at trial and on appeal, but did not, and because it is time-barred. See Rules 32.2(a)(3), (a)(5), and (c), Ala. R.Crim. P. Further, this claim is successive because the appellant did not raise it in his previous Rule 32 petition and he has not shown that this ground was “not known or could not have been ascertained through reasonable diligence when the first petition was heard.” Rule 32.2(b), Ala. R.Crim. P. See also Whitt v. State, 827 So.2d 869 (Ala.Crim.App.2001).

III.

The appellant also argues that he did not knowingly, voluntarily, and intelligently enter his guilty plea. Specifically, he contends that “it was his understanding that when he accepted the plea, that all of the sentences would be concurrent and all suspended with the exception of three (3) years, but at the outcome, the petitioner is serving a thirteen (13) year sentence rather than three (3) as agreed to in his plea.” (C.R.90.) However, this claim is successive because the appellant did not raise it in his previous Rule 32 petition and he has not shown that this ground was “not known or could not have been ascertained through reasonable diligence when the first petition was heard.” Rule 32.2(b), Ala. R.Crim. P. See also Whitt v. State, 827 So.2d 869 (Ala.Crim.App.2001). This claim is also time-barred. See Rule 32.2(c), Ala. R.Crim. P.

Nevertheless, we conclude that the execution of the appellant’s sentence is illegal. “ ‘This Court has consistently treated sentences imposed pursuant to §§ 13A-12-250 and 13A-12-270, Ala.Code 1975, as enhancements to a base sentence and, thus, as part of a single aggregate sentence for an offense.’ State v. Corley, 831 So.2d 59, 61 (Ala.Crim.App.2001).” Calloway v. State, 860 So.2d 900, 902 (Ala.Crim.App.2002). Therefore, the appellant’s aggregate sentence was thirty years in prison. Section 15-18-8, Ala.Code 1975, as amended effective May 25, 2000, provides, in pertinent part:

“(a) When a defendant is convicted of an offense and receives a sentence of 20 years or less in any court having jurisdiction to try offenses against the State of Alabama and the judge presiding over the case is satisfied that the ends of justice and the best interests of the public as well as the defendant will be served thereby, he or she may order:
“(1) That the convicted defendant be confined in a prison, jail-type institution, or treatment institution for a period not exceeding three years in cases where the imposed sentence is not more than 15 years, and that the execution of the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary and that the defendant be placed on probation for such period and upon such terms as the court deems best. In cases involving an imposed sentence of greater than 15 years, but not more than 20 years, the sentencing judge may order that the convicted defendant be confined in a prison, jail-type institution, or treatment institution for a period not exceeding five years, but not less than three years....”

Because the appellant’s aggregate sentence was thirty years in prison, the trial court did not have jurisdiction to split his sentence. See Calloway, supra.

“ ‘Matters concerning unauthorized sentences are jurisdictional,’ Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994); therefore, we may take notice of an illegal sentence at any time. See, e.g., Pender v. State, 740 So.2d 482 (Ala.Crim.App.1999).”

Id. at 902. Accordingly, we remand this case to the circuit court with instructions that that court set aside the split portion of the appellant’s sentence. Because the split sentence was a term of the appellant’s plea agreement, if the appellant moves to withdraw his guilty plea, the circuit court should grant the motion. See Austin v. State, 864 So.2d 1115 (Ala.Crim.App.2003). The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion.

REMANDED WITH INSTRUCTIONS.

McMILLAN, PM., and COBB, SHAW, and WISE, JJ., concur.

      . The appellant raised additional arguments in his petition. However, he does not raise them on appeal. Therefore, we deem those arguments abandoned. See Brownlee v. State, 666 So.2d 91 (Ala.Crim.App.1995).

       Note from the reporter of decisions: On November 14, 2003, on return to remand, the Court of Criminal Appeals affirmed, without opinion.