author: PER CURIAM. THOMPSON, Judge, YATES, Presiding Judge, CRAWLEY, Judge,

text:
    In the matter of ANONYMOUS, a minor.
    2010728.
    Court of Civil Appeals of Alabama.
    May 3, 2002.
   PER CURIAM.

A 17-year-old unemancipated minor filed a petition, pursuant to § 26-21-1 et seq., Ala.Code 1975, seeking a judicial waiver of parental consent for an abortion. She testified at the hearing on her petition that she was then 14 weeks pregnant. The minor, a high school student, testified that she is active in extracurricular activities, that she is a straight-A student, and that she plans to attend college and to study medicine in college. She testified that she had discussed the pregnancy and her alternatives with her boyfriend, who is the father; with a 29-year-old female neighbor; with a counselor at her school; and with a nurse at the abortion clinic where the procedure would be performed. She testified that her parents are opposed to abortion on religious grounds and that she does not consider delivering the baby and placing the baby for adoption to be an acceptable alternative.

Following the hearing, the trial court entered a judgment denying the petition; the judgment was entered on a printed form used for denying judicial waiver. The printed language on the form states, in pertinent part, “that the minor is not mature and well informed enough to make the abortion decision and the performance of the abortion is not in the best interests of the minor.” The court also made the following additional handwritten findings:

“The minor is not well enough informed of all of the consequences of the procedure and entire situation and has not taken sufficient steps to become informed. Also, the delay from the time that the minor discovered that she is pregnant to the time of filing the petition indicates that the minor is not mature enough to make the decision.”

The minor appeals to this court from the judgment denying her request for a waiver of parental consent to an abortion. Section 26-21-4(a), Ala.Code 1975, provides, in part:

“A minor who elects not to seek or does not or cannot for any reason, obtain consent from either of her parents or legal guardian, may petition, on her own behalf, the juvenile court, or the court of equal standing, in the county in which the minor resides or in the county in which the abortion is to be performed for a waiver of the consent requirement of this chapter.”

Sections 26 — 21—4(f) and (g) provide, in pertinent part:

“(f) The required consent shall be waived if the court finds either:
“(1) That the minor is mature and well-informed enough to make the abortion decision on her own; or
“(2) That performance of the abortion would be in the best interest of the minor.
“(g) A court that conducts proceedings under this section shall issue written and specific factual findings and legal conclusions supporting its decision ..."

The ore tenus rule directs an appellate court to affirm a trial court’s judgment that is based on factual findings unless those findings are “plainly erroneous or manifestly unjust.” Ex parte Anonymous, 803 So.2d 542, 546 (Ala.2001) (quoting Noland Co. v. Southern Dev. Co., 445 So.2d 266, 268 (Ala.1984)).

The trial court’s judgment clearly makes express factual findings as to both the maturity/well-informed prong of § 26-21-4(f)(l)and the best-interest prong of § 26-21 — 4(f)(2). The trial court’s judgment expressly states both that “the minor is not mature and well informed enough to make the abortion decision” and that “the performance of the abortion is not in the best interests of the minor.”

The minor in this case contends, however, that in order to deny her petition for a waiver of parental consent, the trial court was required to make specific, written factual findings of some nature not included in the trial court’s judgment. In essence, the minor urges this court to impose on the trial court requirements not prescribed by the statute.

In Ex parte Anonymous, 595 So.2d 497 (Ala.1992), our Supreme Court stated:

“In her petition for review before this Court, the minor contends that the juvenile court failed to follow the procedure prescribed by the Parental Consent Act, Ala.Code 1975, § 26-21-4(0 and (g). These subsections provide:
“ ‘(f) The required consent shall be waived if the court finds either:
“ ‘(1) That the minor is mature and well-informed enough to make the abortion decision on her own; or
“ ‘(2) That performance of the abortion would be in the best interest of the minor.
“ ‘(g) A court that conducts proceedings under this section shall issue written and specific factual findings and legal conclusions supporting its decision and shall order that a confidential record of the evidence be maintained for at least four years.’
“(Emphasis added.) Thus, under this section, the petition for waiver of parental consent may be denied only if the court specifically finds both [ (1) that] the minor is immature and not well enough informed to make the abortion decision on her own, and (2) that performance of the abortion would not be in her best interests.”

595 So.2d at 498 (emphasis on “specifically finds” added; other emphasis added in Ex parte Anonymous). The Supreme Court remanded the case for the trial court to make findings of fact related to the maturity/well-informed prong of § 26-21-4(f)(1). On return to remand, the Supreme Court stated:

“[T]he legislature clearly intended that in order to deny a minor a waiver of her parents’ consent to obtain an abortion, the court must specifically find two things: that the minor is not mature and well enough informed to make the abortion decision, and that the performance of the abortion is not in the best interest of the minor.”

Ex parte Anonymous, 595 So.2d 499, 500 (Ala.1992) (first emphasis added; second emphasis original). See also, e.g., In re Anonymous, 711 So.2d 475, 476 (Ala.Civ.App.1998), opinion on return to remand (reversing a trial court’s refusal to grant a waiver, but failing to find fault with the lack of specificity in the trial court’s order, entered on remand, that stated merely that “the performance of the abortion is not in the best interest of [the] minor”).

Further, the burden of proof with respect to both the maturity/well-informed prong and the best-interest prong of § 26-21-4(f) lies with the minor. See, e.g., Ex parte Anonymous, 664 So.2d 882, 884 (Ala.1995) (finding “that the minor met her burden of proof’ as to the first prong of § 26-21-4(0). Based on the evidence presented in this case — which consists of nine transcript pages of testimony given by the minor — we cannot conclude that the trial court erred in finding that the minor failed to meet her burden of proof as to either prong of § 26-21-4(0.

In order for the trial court to have been required to grant the minor a judicial waiver under § 26-21-4(0(1), it would have had to have been persuaded “[t]hat the minor is mature and well informed enough to make the abortion decision on her own.” (Emphasis added.) When asked by her attorney if she had talked with a “counselor about the procedure,” the minor answered that she had talked to her “school counselor” about it. The minor also testified that she had talked to her boyfriend about it and to a 29-year-old neighbor who was a close friend. The only other information gathered by the minor, and apparently the only information from a medical provider, was a talk with a nurse at the clinic where the abortion would be performed. In response to her attorney’s question as to whether she had talked with anyone about “setting up [the] procedure,” the minor testified as follows: ‘Tes, ma’am. I was there yesterday for about 30-45 minutes and the nurse talked to me and told me about everything that goes on, I mean, the whole procedure.” When asked if the nurse had “discuss[ed] with you any of the potential complications that may occur,” the minor responded in a conclusory manner as follows: “Yes, she did, she made me fully aware of everything that goes on and everything that could happen.” The minor’s counsel asked no other questions concerning how informed the minor was.

Given the lack of specifics provided by the minor on direct examination by her attorney, the trial court evidently had concerns regarding how informed the minor was. The court further questioned the minor as follows:

“THE COURT: Have you also considered any kind of psychological, you know, impact that the entire situation might—
“THE WITNESS: You mean after?
“THE COURT: — would have?
“THE WITNESS: I have set up meetings with my counselor — I mean, I told her I was gonna come here and do this and if I got it I was gonna get it done next week. And we have set up meetings, you know, after for counseling and stuff afterwards just to help me in case I have any, like, problems. Like, I don’t think I will be, like, depressed, or anything, but we have talked about setting up some meetings and stuff after-wards.”

In response to a later question by the trial court inquiring as to what information the minor had obtained from the clinic nurse, the minor described in general terms some aspects of the abortion procedure itself and then added that she and the nurse had talked about “alternatives and stuff and what would happen — or what could happen, what could possibly happen, like, you know, what could go wrong and stuff, we talked about all that, too.” She testified that she had not been provided any written information by the abortion clinic or by any other source.

With the exception of a brief reference to depression, the minor failed to demonstrate a knowledge of any specific immediate or long-term physical, emotional, or psychological risks of having an abortion. Except for conclusory statements that she was well-informed, the record in this case contains relatively little evidence indicating that the minor was aware of, appreciated, or had seriously considered those risks. Compare, e.g., Ex parte Anonymous, 806 So.2d 1269 (Ala.2001), and Ex parte Anonymous, 803 So.2d 542 (Ala.2001), with the present case. See generally Planned Parenthood v. Casey, 505 U.S. 833, 882-83, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (recognizing that “[i]n attempting to ensure that a woman apprehends the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed”).

In § 26-21-l(a)(l), Ala.Code 1975, the Legislature expressed its intent to further what it called “the important and compelling state interest” in protecting minors against their own immaturity. The Legislature likewise made express findings that

“(1) immature minors often lack the ability to make fully informed choices that take account of both immediate and long-range consequences, (2) the medical, emotional and psychological consequences of abortion are serious and can be lasting, particularly when the patient is immature, (3) the capacity to become pregnant and the capacity for mature judgment concerning the wisdom of an abortion are not necessarily related, (4) parents ordinarily possess information essential to a physician’s exercise of his best medical judgment concerning the child, and (5) parents who are aware that their minor daughter has had an abortion may better insure that she receives adequate medical attention after her abortion.”

Ala.Code 1975, § 26 — 21—1(b) (emphasis added). Section 26-21-1 (b) thus concludes by stating that “[t]he legislature further finds that parental consultation is usually desirable and in the best interests of the minor.”

Based on the testimony of the minor in this case, the trial court was not persuaded that the minor was “sufficiently mature and well enough informed” to intelligently decide whether to have an abortion without the consent of her parents. After reviewing that testimony, we cannot conclude that the trial court’s judgment was “plainly erroneous or manifestly unjust” in this regard. See generally Ex parte Anonymous, 803 So.2d 542.

We turn now to the best-interests prong of § 26 — 21—4(f)(2). The minor argues that this second prong “was not even addressed by the [trial] court in its findings.” The minor is incorrect in this regard.

As noted, the trial court’s judgment contains an express written finding “that performance of the abortion is not in the best interest of the minor.” Following this statement, which is included in a printed portion of the trial court’s judgment, appears the phrase “The court further finds that” (emphasis added), followed by additional handwritten statements regarding the court’s findings as to the maturity/well-informed prong.

In Ex parte Anonymous, 808 So.2d 1025 (Ala.2001), our Supreme Court found deficient the trial court’s judgment in a parental-consent case, entered on the same printed form as used by the trial court in the present case. In Ex parte Anonymous, however, the handwritten additions to the form suggested that the trial court had based its judgment only on the maturity/well-informed prong found in § 26-21-4(f)(1). Specifically, the judgment at issue in Ex parte Anonymous stated, in pertinent part:

“ ‘Based on the ruling of the Alabama Court of Civil Appeals in In the Matter of Anonymous, a minor, [803 So.2d 529 (Ala.Civ.App.2001) ], ... this petition is denied as the child did not consult with the doctor performing the abortion when offered the opportunity, has not been informed regarding psychological effects of abortion and states no basis for failing to inform her father of her predicament..’ ”

808 So.2d at 1026 (emphasis added). The suggestion of this particular language— that the trial court based its decision on the maturity/well-informed prong alone— was bolstered by the fact that, although both the maturity/well-informed prong and the best-interest prong were included in the printed portion of the trial court’s judgment, the trial court had underlined only the printed language indicating that it found the minor not to be sufficiently mature and informed to make a decision. See Ex parte Anonymous, 808 So.2d at 1027 n. 1 (Ala.2001). As Justice Lyons explained in his special concurrence:

“The record before this Court reflects that the trial court underlined only that portion on the form indicating a negative finding as to the minor’s maturity and the adequacy of the minor’s information to make a decision on her own, i.e., the grounds stated in § 26-21-4(f)(l), Ala. Code 1975. I cannot be certain whether the trial court also found that an abortion would not be in the best interest of the minor. See § 26-21-4(f)(2).”

Ex parte Anonymous, 808 So.2d at 1028 (Lyons, J., concurring specially).

In contrast, in the present case, neither the printed clause indicating a negative finding as to the maturity/well-informed prong, nor the printed clause indicating a negative finding as to the minor’s best interests, were underlined so as to suggest that the trial court might have focused on only one of those two grounds in making its ruling. Moreover, nothing in the handwritten portion of the judgment indicates that the trial court was not simply adding “further” findings to those already stated in the printed portion of the judgment. The judgment in the present case does not suggest in the same manner as did the judgment in Ex parte Anonymous, 808 So.2d 1025, that the trial court based its judgment only on a finding under § 26-21-4(f)(1).

As previously discussed, § 26 — 21—4(f)(2) states that the required consent shall be waived if the court finds “[t]hat performance of the abortion would be in the best interest of the minor.” Judge Crawley’s dissent points out that the quoted wording is found in the printed portion of the trial court’s judgment and concludes that the trial court merely reached a “legal conclusion” as opposed to a factual finding. As previously discussed, however, (1) whether the minor is sufficiently mature and well-informed enough to intelligently make the abortion decision without input from her parents or guardian and (2) whether it would be in her best interest for the court to waive parental consent are facts that must be found by the trial court. As the Supreme Court stated in Ex parte Anonymous, 806 So.2d 1269, 1273:

“The first question that ... we ask, is whether the determination of maturity, of whether the minor is well-informed, and of whether an abortion is in the minor’s best interest are questions of law or fact. The parental-consent statute itself provides sufficient guidance to answer this question. Section 26-21-4, Ala.Code 1975, specifically requires a hearing and requires the trial court to ‘issue written and specific factual findings’ at the conclusion of the hearing.”

As to the issue of best interests, specifically, the Supreme Court stated:

“ ‘[T]he question of what is or is not in the “the best interests of the child” is a question of fact....’ Schotz v. Oliver, 361 So.2d 605, 607 (Ala.Civ.App.1978). ‘The determination of the best interests of the child is a question for the trier of fact. “We do not overturn the decision of the trial court unless we are persuaded of an abuse of discretion or the presence of a violation of some legal principle.” ’ Pace v. Pace, 22 P.3d 861, 865 (Wyo.2001). The ‘best interests of a child is a matter or question of ultimate fact reviewable under the clearly erroneous standard of review.’ In re Doe, 89 Hawai'i 477, 487, 974 P.2d 1067, 1077 (Haw.Ct.App.1999).”

806 So.2d at 1274.

It is the trial court’s responsibility to weigh the evidence before it and to make factual findings. This is true both in those cases that involve credibility issues and those cases that do not. “The trial court’s factual findings have the effect of a jury’s verdict. A judgment, grounded on such findings, is accorded, on appeal, a presumption of correctness which will not be disturbed unless plainly erroneous or manifestly unjust.” Noland Co. v. Southe rn Dev. Co., 445 So.2d 266, 268 (Ala.1984). Further, our Supreme Court has held that when a trial court’s judgment in a judicial-waiver case such as this is based on oral testimony, the ore tenus rule applies. Ex parte Anonymous, 803 So.2d 542 (Ala.2001). Moreover, the presumption of correctness that attaches to a trial court’s factual findings is not dependent on the degree of detail included in those findings.

It was the minor’s burden to explain and prove why, in this case, contrary to the Legislature’s general finding that it is in the best interest of a minor not to obtain an abortion without parental consent (§ 26 — 21—1(b)), it was in her best interest to do so. The trial court’s judgment plainly indicates that the court concluded that the minor did not meet her burden of proof. Again, based on the limited record before us in this particular case, we cannot conclude that the trial court erred to reversal in this regard. See Ala.Code 1975, § 26 — 21—1(b). See generally Ex parte Anonymous, 595 So.2d 497, 498-99 (Ala.1992); Bellotti v. Baird, 443 U.S. 622, 642-43, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (plurality opinion).

AFFIRMED.

PITTMAN and MURDOCK, JJ., concur.

THOMPSON, J., concurs in the result.

YATES, P.J., and CRAWLEY, J., dissent.

THOMPSON, Judge,

concurring in the result.

The trial court made the express finding that having an abortion was not in the petitioner’s best interests and that the petitioner was not sufficiently mature and well-informed to make the abortion decision. The trial court did not specifically detail, in separate handwritten findings, how it arrived at its determination that an abortion was not in the petitioner’s best interests. However, under the particular facts of this case, I conclude that such detailed factual findings as to that issue were not necessary to the resolution of this appeal.

The transcript of the testimony taken in the proceeding below comprises a total of nine double-spaced pages in the record on appeal. In her brief testimony, the petitioner presented very little evidence regarding the issue whether an abortion would be in her best interest: she testified only that she hoped to go to medical school, that she was too young to marry, that she could not give a baby up for adoption, and that, if she consulted her parents, she believed they would refuse to consent to her having an abortion. In explaining her belief that her parents would not consent to an abortion, the petitioner testified: “They are very — I mean, they are Christian people and they would — they would not — they just do not believe in it. They just think it is wrong.” In this case, this court can readily discern from the evidence in the record, or, more accurately, from the lack of evidence submitted in support of the petition, the basis for the trial court’s finding that having an abortion was not in the petitioner’s best interest.

A review of the record on appeal clearly demonstrates that the petitioner simply did not meet her stringent burden under § 26-21^1, Ala.Code 1975. The judges who dissent to today’s opinion would remand the case to the trial court to enter a more detailed judgment. There is no benefit, under the particular facts of this case, in creating a further delay. Given the time-sensitive nature of this case, the lack of evidence in support of the petition, and the need for judicial economy, I agree with the main opinion’s affirmance of the trial court’s judgment.

YATES, Presiding Judge,

dissenting.

I dissent from the majority’s order of affirmance in this case. Section 26-21-3(a), Ala.Code 1975, a portion of the Parental Consent Act, prohibits any person from performing an abortion “upon an un-emancipated minor unless he or his agent first obtains the written consent of either parent or the legal guardian of the minor,” except as otherwise provided in the Act. Section 26-21-3(e) provides:

“A minor who elects not to seek or does not or cannot for any reason, including unavailability or refusal by either or both parents or legal guardian, obtain consent from either of her parents or legal guardian under this section, may petition, on her own behalf, the juvenile court, or court of equal standing, in the county in which the minor resides or in the county in which the abortion is to be performed for a waiver of the consent requirement of this section pursuant to the procedure of Section 26-21-4.”

Section 26 — 21—4(f) provides:

“The required consent shall be waived if the court finds either:
“(1) That the minor is mature and well-informed enough to make the abortion decision on her own; or
“(2) That performance of the abortion would be in the best interest of the minor.”

Section 26-21-4(g) provides:

“A court that conducts proceedings under this section shall issue urritten and specific factual findings and legal conclusions supporting its decision and shall order that a confidential record of the evidence be maintained for at least four years. A transcript of the proceedings shall be recorded and if there is an appeal as provided in subsection (h), a transcript of the proceedings shall be prepared forthwith.” (Emphasis added.)

In the present case, the trial court entered a “Denial of Waiver of Consent Order” on a preprinted form provided for such denials. The preprinted form contains blanks in which the trial court is to make findings as to the minor’s age and the length of the pregnancy. The section of the form concerning findings then states: “that the minor is not mature and well informed enough to make the abortion decision and the performance of the abortion is not in the best interest of the minor.” There is a large blank space on the form (preceded by the phrase “The Court further finds that”), wherein the trial court in this case wrote:

“The minor is not well enough informed of all of the consequences of the procedure and entire situation and has not taken sufficient steps to become informed. Also, the delay from the time that the minor discovered that she is pregnant to the time of filing the Petition indicates that the minor is not mature enough to make the decision.”

Clearly, the trial court’s judgment fails to comply with the mandate of § 26-21-4(g), Ala.Code 1975, and is flawed in that the only express factual findings are directed to the prong of § 26-21-4(f) addressing the minor’s maturity and knowledge. Ex parte Anonymous, 808 So.2d 1025 (Ala.2001); In re Anonymous, 771 So.2d 1043 (Ala.Civ.App.2000). Specifically, the trial court did not make any factual findings to support its decision that an abortion is not in the best interest of the minor.

Moreover, the express factual findings by the trial court that refer to maturity and the minor’s degree of knowledge about the abortion procedure are contrary to the evidence in the record. The trial court found that the minor had not “taken sufficient steps to become informed,” despite her testimony that she had received information from a nurse and a counselor, that she was fully aware of the procedure and its possible complications, and that she had already made appointments for additional counseling after the procedure. The trial court also found that “the delay from the time that the minor discovered that she is pregnant to the time of filing the petition indicates that the minor is not mature enough to make the decision.”

In Ex parte Anonymous, 664 So.2d 882 (Ala.1995), our supreme court disagreed with the trial court’s finding that the 17-year-old minor was not mature enough to understand the consequences of an abortion where she was 17 to 20 weeks into her pregnancy. The court held that there was ample evidence in the record indicating that the minor was mature and well-informed about the procedure, including the fact that she had considered a number of options and had received information and advice from a number of sources. The court noted that there had been no specific medical testimony that an abortion would be unsafe for the minor at that stage in her pregnancy and that the health concerns arising from the length of the pregnancy should be a matter for the minor and her physician, who presumably would follow state regulations related to protecting a woman’s health.

Just as in Ex parte Anonymous, 664 So.2d 882, there is ample evidence in the present case that the minor is mature: she has an excellent academic record and participates in several extracurricular activities; she has charted her career path; she works at a part-time job; and she stated that although her boyfriend had offered to pay for the procedure, she felt it was her responsibility to share the costs. A period of approximately six weeks elapsed from the time the minor discovered she was pregnant until she filed her petition. She obviously contemplated the seriousness of her situation, because during that six-week period she discussed her options with an adult female friend “many times”; she discussed her situation with her boyfriend “for hours”; and she administered three at-home pregnancy tests in an attempt to confirm the results. Additionally, as noted above, she had scheduled appointments after the procedure for counseling in the event she needed it. The minor testified, “I’ve thought about this for a long time and I feel like this is what I need to do.”

While I recognize that the ore tenus rule now applies to a trial court’s findings of fact in abortion cases, the trial court’s judgment in this case is plainly erroneous and manifestly unjust. Principal factors that must be considered by the trial court in this case and that support a decision to grant a waiver (factors that, incidentally, survive the adoption of the ore tenus standard in abortion-waiver cases, see Ex parte Anonymous, 810 So.2d 786 (Ala.2001)) are as follows:

(1) The minor’s decision to seek a judicial waiver and to request the advice of counsel (In re Anonymous, 770 So.2d 1107, 1110 (Ala.Civ.App.2000));

(2) The fact that the minor had a plan for paying for the abortion procedure (id.);

(3) The fact that the minor consulted a nurse at the abortion clinic where she plans to undergo the procedure and received information concerning the procedure and its potential complications (id.);

(4) The minor’s general knowledge of the abortion process and her having planned for potential adverse physical and psychological effects stemming from the abortion (id.); and

(5) The minor’s excellent academic record (she is a straight-A student) and the fact that she participated in cheerleading, which may indicate physical maturity and good health (see In re Anonymous, 650 So.2d 923 (Ala.Civ.App.1994)).

These cases are extremely difficult for all involved — the petitioner, the trial court, and the appellate judges who must carefully review all the evidence presented. The trial court should have made specific findings as to whether an abortion would be in the minor’s best interest. The trial court must meet its responsibility; this case should be remanded for the trial court to enter those findings, or as stated by Judge Crawley in his dissenting opinion, the case should be rendered outright for the trial court’s failure to follow § 26-21-4(g). Cf. Ex parte Anonymous, supra, 810 So.2d 786 (rendering a judgment for the minor because the trial court failed to make specific factual findings to support its determination that the minor was immature). See also In re Anonymous, 812 So.2d 1221 (Ala.Civ.App.2001), aff'd, 812 So.2d 1234 (Ala.2001); In re Anonymous, 711 So.2d 475 (Ala.Civ.App.1998).

CRAWLEY, Judge,

dissenting.

I join Presiding Judge Yates’s dissent insofar as it concludes that this case should be remanded for the trial court to issue written and specific factual findings as to whether or not the performance of an abortion would be in the best interest of the minor.

In Ex parte Anonymous, 806 So.2d 1269 (Ala.2001), Chief Justice Moore, writing for the Alabama Supreme Court, held that the “best-interest” determination is one of fact. 806 So.2d at 1274. The trial court’s reliance on a preprinted form stating the legal conclusion that an abortion would not be in the minor’s best interest does not satisfy the statutory mandate of § 26-21-4(g), Ala.Code 1975, that the trial court “shall issue written and specific factual findings and legal conclusions supporting its decision.” (Emphasis added.)

“Section 26-21-4, Ala.Code 1975, specifically requires a hearing and requires the trial court to ‘issue written and specific factual findings’ at the conclusion of the hearing. These requirements are not without meaning.”

Ex parte Anonymous, 806 So.2d at 1273 (emphasis added). A trial court does not “issue” written and specific findings by relying solely on the conclusion recited in a preprinted form. Although one “might infer” from a finding that the minor is not sufficiently mature and well informed that an abortion would not be in her best interest, see Ex parte Anonymous, 808 So.2d 1025, 1029 (Ala.2001) (Moore, C.J., concurring in the result), such an inference on the part of the trial court is foreclosed by the requirement in § 26-21-4(g) that the trial court enter “specific factual findings” as to the best-interest criterion. Id.

In Ex parte Anonymous, 806 So.2d at 1276, Chief Justice Moore explained the reason for requiring the trial judge to make specific findings in a judicial-waiver-of-parental-consent case:

“In these types of cases, the usual vigorous and competing advocacy, which typically makes the adversary system an effective means for discovering the truth, is conspicuously absent. As a result, the need for a perceptive, intuitive, and discerning trial judge, as well as his or her specific factual findings, is arguably more necessary than in other cases where opposing advocacy ultimately reveals the facts.”

806 So.2d at 1276 (emphasis added).

The trial court’s reliance on the conclusions in a preprinted form not only fails to satisfy the statutory mandate of § 26-21-4(g), but it also frustrates the purpose underlying the application of the ore tenus presumption to judicial-waiver determinations. If the most recent abortion decisions stand for anything, they stand for the proposition that an appellate court must accord considerable deference to a trial court’s decision in a judicial-waiver case precisely because that decision is based on credibility and demeanor determinations that are impossible for an appellate court to second-guess. However, the deference to be accorded the trial court’s decision is directly proportional to the specificity of the factual findings that support it.

In Ex parte Anonymous, 812 So.2d 1234 (Ala.2001), our supreme court cautioned about the necessity for genuine and individualized findings of fact in an abortion case:

“The trial court’s findings based upon ‘the minor’s composure, analytic ability, appearance, thoughtfulness, tone of voice, expressions and her ability to articulate her reasons and conclusions’ are subjective judgments.... Such findings, by their nature, in many instances elude any meaningful elaboration. Nevertheless, we note that in an appropriate case a remand might be necessary for illustrations to support the trial court’s findings, to the extent practicable, so as to allay concerns that the mere recitation by a trial court of these terms or similar descriptive terms will be a talismanic mantra, the use of which will result in the affirmance of the trial court’s judgment in these cases.”

812 So.2d at 1238-39. The mere recitation of the best-interest determination on a preprinted form in this case — and the trial court’s failure to make specific findings on this issue — renders this court “unable to determine whether the trial court has abused its discretion” by denying the waiver. See Ex parte Anonymous, 808 So.2d at 1028. For this reason, we should, at the least, remand this case for the trial court to comply with § 26-21-4(g), if not render a judgment for the petitioner outright for the court’s failure to follow § 26-21-4(g). Cf. Ex parte Anonymous, 810 So.2d 786 (Ala.2001) (rendering a judgment for the minor because the trial court failed to make specific factual findings to support its determination that the minor was not mature enough to make such a decision).

YATES, P.J., concurs.

      1. To satisfy the pleading requirement corresponding to § 26-21-4(f)(2), a minor must allege “[t]hat one or both of her parents or her guardian has engaged in a pattern of physical, sexual, or emotional abuse against her, or that the consent of her parents, parent or legal guardian otherwise is not in her best interest.” § 26-21-4(d)(4)b, Ala.Code 1975.

      2. The Legislature obviously considered that information alone, without the maturity to assess that information and to make a considered judgment based on that information, was not enough to require a waiver of consent. Likewise, the Legislature evidently concluded that the maturity to make a judgment, without the information upon which to base that judgment, was not sufficient to require a waiver.

      . Neither this court nor our Supreme Court has ever held that a "de novo” standard applies to appellate review of trial courts’ decisions in such cases. E.g., In re Anonymous, 770 So.2d 1107, 1110 (Ala.Civ.App.2000) (applying a "plainly and palpably wrong” standard).

      . Ex parte Anonymous, 808 So.2d 1025 (Ala.2001), dealt primarily with the issue of maturity. The issue of maturity is, by its very nature, not one that is susceptible to a wholly objective measurement. In this sense, much of the "testimony” presented in the courtroom typically will be in the form of the witness’s bearing, demeanor, mannerisms, physical appearance, and voice inflection. Words that may, in print, suggest maturity, may in fact be "disputed” by the witness’s nonverbal "testimony.” Thus, that which may appear undisputed on the printed page, may very well be disputed by other information known to the trial judge, but not to a reviewing appellate court, because the trial judge was at the hearing and the appellate court was not. Ex parte Anonymous recognized that, where a trial court makes a finding as to maturity based on a witness's credibility or demeanor, an appellate court typically cannot determine whether a trial court’s judgment as to the issue of maturity is supported by the record. In contrast, in order to prove to the trial court that she is well-informed, a minor generally must provide reviewable testimony — that is, testimony that will be reviewable by the appellate court from the transcript of her testimony — evidencing knowledge of objective facts. Likewise, to establish that a waiver of parental consent would be in her best interest, the minor generally must testify on the record as to the reasons she believes it would be in her best interest. In most cases, in other words, we can determine from the record whether the record supports the trial court’s findings as to the issues of how well-informed the minor is and what her best interests are.


source: Caselaw Access Project

author: COBB, Judge. WISE, Judge

license: Public Domain

text:
    Mark Durrell CADDELL v. STATE of Alabama.
    CR-00-2037.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 2002.
    Kyla L. Groff Kelim, Alexander City, for appellant.
    Bill Pryor, atty. gen., and Cedric B. Colvin, asst. atty. gen., for appellee.
   COBB, Judge.

On May 25, 2000, pursuant to a negotiated plea agreement, Mark Caddell pleaded guilty to failing “to register [as a convicted adult sex offender] with the Sheriff of the County of his legal residence within thirty days” and to giving a false name to a police officer. (C.R.8.) The trial court sentenced him, as a habitual felony offender, to five years for violating the Community Notification Act and to one year for the conviction for giving a false name; the sentences were to run concurrently. As part of his plea agreement, Caddell did not appeal. On September 15, 2000, Caddell filed a Rule 32, Ala. R.Crim. P., petition. After the State had responded, the circuit court held an evidentiary hearing on November 3, 2000. On May 2, 2001, the circuit court denied Caddell’s petition. This appeal followed.

Although Caddell does not contest on appeal the legality of his sentence, we must nonetheless review the legality of his sentence. Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994) (“Matters concerning unauthorized sentences are jurisdictional and, therefore, can be reviewed even if they have not been preserved.”).

As far as we can determine from the limited record before us, Caddell was convicted in Illinois of aggravated criminal sexual abuse and was sentenced to prison there. Upon release from prison in Illinois, Caddell, who had been an Alabama resident before he was arrested and incarcerated in Illinois, returned to Alabama. In 1999, Caddell was arrested and charged with failing to abide by the Community Notification Act, §§ 15-20-20 et seq., Ala. Code 1975 (hereinafter “the Act”). Cad-dell was indicted as follows:

“The Grand Jury of said County further charge[s] that before the finding of this Indictment Mark Caddell, alias Mark Durrell Caddell, alias Mark Ca-dell, the true or Christian name of whom being otherwise unknown to the Grand Jury, a resident of Alabama who has heretofore been convicted in the Criminal Court of Ir[o]quois County, Illinois of the crime of Aggravated Criminal Sexual Abuse did fail or refuse to register with the Sheriff of the County of his legal residence within thirty days following his move of residence within Talla-poosa County, in violation of Section 15-20-22(d) of the Code of Alabama, against the peace and dignity of the State of Alabama.”

(C.R.8.)

We note that § 15-20-22(d), Ala. Code 1975, was not a part of the version of the Act that was in effect at the time Caddell was indicted and pleaded guilty. Caddell was indicted on September 17, 1999, and the Act had been amended effective September 1, 1999. Before the September 1, 1999, amendment, the Act provided that the type of offense for which Caddell was indicted was a Class C felony. However, the amendments provided that the type of offense for which Caddell was indicted was a Class A misdemeanor. If Caddell was sentenced under the version of the Act effective before the September 1, 1999, amendments, his five-year sentence for a felony conviction would be appropriate; however, if he was sentenced under the Act as amended effective September 1, 1999, his five-year sentence — imposed for a misdemeanor conviction — would be illegal. See §§ 13A-5-6(a)(3) and 13A-5-7(a)(1), Ala.Code 1975. Thus, whether Cad-dell’s five-year sentence is illegal depends upon which version of the Act was in effect at the time he committed the offense. Davis v. State, 571 So.2d 1287, 1289 (Ala.Crim.App.1990).

Although it is likely that Caddell was charged, convicted, and sentenced under the version of the Act in effect before the 1999 amendments, we cannot determine which version of the Act was in effect at the time of the commission of the offense because, after reviewing the limited record before us, we cannot determine the date the offense occurred. Because this information is necessary to determine whether the appellant was properly sentenced, we remand this cause for the circuit court to determine when the offense occurred and which version of the Act dictated Caddell’s sentence. The circuit court may review its own record of the guilty plea proceedings, or it may hold an evidentiary hearing, if necessary. If the circuit court determines that the offense occurred after the September 1, 1999, amendments became effective, it may of its own accord hold proceedings to resentence Caddell according to the sentencing guidelines for a Class A misdemeanor, or it may order CaddelPs release if he has served his time. Due return shall be made to this Court within 21 days of the release of this opinion.

We pretermit discussion of the other issues presented by Caddell on appeal until due return of this cause has been made to this Court.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and SHAW, J., concur. WISE, J., dissents, with opinion, which BASCHAB, J., joins.

WISE, Judge

(dissenting).

I dissent from the majority opinion remanding this case to the circuit court for that court to determine when Caddell’s offense occurred. Rule 32.3, Ala.R.Crim. P., provides that “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.” Because Caddell does not allege in his Rule 32 petition that his sentence is illegal and because the record before us does not affirmatively establish that Cad-dell’s sentence is illegal, I do not believe that this Court should remand this case for additional findings of fact, which may or may not entitle Caddell to relief. See Robinson v. State, 444 So.2d 884, 885 (Ala.1983) (“A reviewing court cannot predicate error on matters not shown by the record.”).

If Caddell’s sentence is, in fact, illegal, then Caddell may file another Rule 32 petition challenging the legality of his sen-fence. Claims involving unauthorized sentences are jurisdictional. See Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994). Therefore, any claims regarding the legality of Caddell’s sentence would not be subject to the procedural bars of Rule 32.2, Ala.R.Crim.P. Based on the record before us, I would affirm the trial court’s denial of Caddell’s petition. Therefore, I must dissent.

BASCHAB, J., joins.

      . Caddell states in his brief on appeal that he is not taking issue with his false-name conviction; rather, in his petition, he collaterally attacked only his conviction for failing to register.

      . In fact, § 15-20-22 was repealed and a new § 15-20-22 was added as part of that amendment of the Act. See Act No. 99-572, Ala. Acts 1999.

      . See, e.g., § 15-20-24, Ala.Code 1975.


author: PER CURIAM.

text:
    Leon Readshaw MOFFETT v. STATE.
    CR-00-1253.
    Court of Criminal Appeals of Alabama.
    Dec. 21, 2001.
    Rehearing Denied Feb. 22, 2002.
    Certiorari Denied April 19, 2002 Alabama Supreme Court 1011112.

      Vader A1 Pennington, Mobile; and John Douglas Rivers, Mobile, for appellant.
    Bill Pryor, atty. gen., and P. David Bjur-berg, asst. atty. gen., for appellee.
   PER CURIAM.

The appellant, Leon Readshaw Moffett, appeals the circuit court’s dismissal of his de novo appeal from his conviction in the Mobile County District Court for harassment. Moffett was initially convicted in the district court for sexual abuse in the second degree. Before he was sentenced, Moffett reached an agreement with the State to plead guilty to the lesser charge of harassment.- Moffett then filed a notice of appeal in the circuit court for a trial de novo. The State moved that the de novo appeal be dismissed because Moffett had agreed not to appeal his conviction de novo to circuit court. The trial court held a hearing on the motion, determined that Moffett had waived his right to appeal, and dismissed the de novo appeal. This appeal followed.

We have previously held in Jones v. State, 675 So.2d 69 (Ala.Crim.App.1995), that a defendant may waive his right to file a de novo appeal from a district court’s ruling. In Jones, we stated:

“ ‘The right to appeal is by the grace of statute,’ Pettway v. State, 519 So.2d 548 (Ala.Civ.App.1987), and this court will not differentiate between a defendant’s decision to waive this right as part of plea negotiation in district court or in circuit court....
“... [A] defendant may waive his right to appeal to circuit court for a trial de novo as part of a negotiated plea agreement in district court. See Gwin v. State, 456 So.2d 845 (Ala.Cr.App.1984).”

675 So.2d at 71.

Moffett argues on appeal that his waiver of the right to appeal to the circuit court was not voluntary. He also argues that even if his plea was voluntary, the State violated the terms of his agreement, and that, therefore, he was not bound by the agreement.

Here, the plea was entered in the district court — a court that is not a court of record. We have no copy in the record of the plea colloquy or the plea agreement. However, there is a copy of the case action summary sheet completed by the district court. The case action summary indicates that Moffett did not file any post-plea motion challenging the voluntariness of his plea. As we recently stated in Watson v. State, 808 So.2d 77 (Ala.Crim.App.2001), before a reviewing court can consider the voluntariness of a plea waiving the right to appeal that issue must first be presented to the trial court. Moffett never attacked the voluntariness of the plea in the district court. As we stated in Watson:

“Because a plea waives all nonjurisdic-tional defects and because it is a longstanding principle that an appellate court cannot consider the issue of the voluntariness of a plea unless that issue is preserved by proper objection, we will consider the issue of the voluntariness of the waiver of the right to appeal only if that issue is properly presented to the trial court, either by way of a motion to withdraw the plea or a motion for new trial.”

Watson, 808 So.2d at 81.

The problem presented in this case is that the documents completed by the district court do not indicate that Moffett waived his right to appeal as part of his negotiated plea agreement. The judgment entry states the following:

“By agreement the finding of guilty is set aside. State’s motion to amend charge to harassment is granted by agreement. Defendant pleaded guilty and is sentenced to 90 days suspended with one year of formal probation. Defendant to pay costs, avoid violations of the law, seek anger management counseling, and evaluation re counseling regarding matters alleged in the affidavit. Defendant and attorney to confer with counselor.”

We stated in Jones v. State, 675 So.2d 69 (Ala.Crim.App.1995), that a presumption of reliability attaches to a judgment entry. We relied on the Alabama Supreme Court case of Howard v. State, 280 Ala. 430, 194 So.2d 834 (1967), for that proposition. In Howard, the Supreme Court noted that the presumption of reliability could be “overcome.” That presumption was overcome in this case. The trial court made the following findings when addressing this issue:

“All right. I find that the Jones v. State case does not — does not make a conclusive disposition of an appeal based upon the district court written entries. The Jones case says there is a presumption of reliability which attaches to the recital in a judgment entry. A presumption of reliability. We do not think, it says, that ordinarily that presumption can be overcome by the mere statement of a petitioner that the judgment entry is incorrect.
“To me that [implies] that there is— there are circumstances whereupon the judgment recitals in district court may be overcome.
“Now applying that to this case, I find that the setting aside of a conviction for sexual abuse second degree and entry of a lesser offense of harassment is a powerful consideration for the Defendant to make a number of agreements. The testimony of Mr. Phillips, his retained attorney, today — the testimony today was that back in September 2000 a number of points relative to disposition were discussed and agreed to between the district attorney and Mr. Phillips — including the type of probation; the nonpayment of a fíne; the payment of costs; the completion of an anger-management course; of course, the amendment of the charge to something less; and, it has been testified to, the waiver of the right to appeal.
“Mr. Phillips testified that he consulted with his client about those potential elements of disposition and eventually there was a disposition made based upon all of those elements except the judgment entry does not show a waiver of appeal.
“But I think that the evidence is sufficient to show that the waiver of appeal was one of those elements. And that, given the fact that Mr. Phillips represented his client at that time, and testified that he consulted with the client, that raises to me an inference that the client was advised of the details of the negotiation and anticipated disposition, and agreed to that.”

(R. 28-30). At the hearing Moffett’s attorney testified that Moffett had waived his right to appeal as part of his negotiated plea agreement.

Because there are no issues properly before this Court, this appeal is due to be, and is hereby, dismissed.

APPEAL DISMISSED.

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


author: COBB, Judge.

text:
    Billy Ray BISHOP v. STATE.
    CR-00-2560.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 2002.
    Bill Ray Bishop, pro se.
    Bill Pryor, atty. gen., and Melissa K. Atwood, asst. atty. gen., for appellee.
   COBB, Judge.

On January 29, 2001, Bishop pleaded guilty to first-degree receiving stolen property. The trial court sentenced him to serve five years in prison, but the trial court split the sentence and ordered Bishop to serve 90 days in prison, during which he was to complete the Disciplinary Rehabilitation Program. Upon Bishop’s successful completion of the rehabilitation program, the trial court was to hold a probation hearing. Bishop did not appeal. On August 3, 2001, Bishop filed a Rule 32, Ala. R.Crim. P., petition, which the circuit court summarily dismissed. This appeal followed.

In his petition, Bishop claimed that the trial court did not have jurisdiction to accept his guilty plea. In an amendment to his petition, he clarified his claim; he contended that his sentence was illegal because, he said, he had pleaded guilty as a youthful offender, but the trial court had sentenced him to five years in prison, a sentence that violated the three-year maximum sentence for a youthful offender established in § 15-19-6, Ala.Code 1975. The circuit court dismissed the claim without making specific findings of fact, but amended the plea on the case action summary on August 8, 2001, as follows:

“AMENDMENT to plea of 1/29/01. The plea was not a Youthful Offender plea as the court had denied Youthful Offender status on 11/15/00. The defendant changed his plea from not guilty to guilty of Receiving Stolen Property in the first degree as charged in Count II of the indictment; whereupon, the court adjudged the defendant guilty of Receiving Stolen Property in the 1st degree with respect to Count II. The sentence is correct and the orders that follow in the plea are correct.”

On appeal, Bishop claims that the circuit court is mistaken and that he pleaded guilty as a youthful offender. In its brief on appeal, the State requests that this Court remand this cause to the circuit court because of several alleged problems in the circuit court’s “amendment” to the plea. The State has attached a copy of the case action summary containing the relevant information necessary to review Bishop’s claims on appeal. However, the record before us on appeal does not contain a copy of the case action summary of Bishop’s underlying guilty plea. See Etherton v. City of Homewood, 700 So.2d 1374 (Ala.1997), and King v. Garrett, 613 So.2d 1283 (Ala.1993) (holding that appellate review is restricted to the record before the appellate court on appeal and that the appellate court cannot consider evidence or a contention not supported by the record). See also Jenkins v. State, 516 So.2d 944 (Ala.Crim.App.1987) (holding that the record on appeal cannot be supplemented by an appendix to an appellant’s brief). Rather, the record contains only a scant case action summary of Bishop’s current Rule 32 petition.

“The appellate court may, on motion of a party or on its own initiative, order that a supplemental or corrected record be certified and transmitted to the appellate court if necessary to correct an omission or misstatement. ...” Rule 10(g), Ala. R.App. P. Therefore, because the circuit court did not make any specific findings of fact when it dismissed this petition, we remand this cause for the circuit court to clarify the record in order so that we may review on appeal Bishop’s claims and the “amendment” to the plea. We direct that the circuit court supply this Court with a complete record, including the case action summary reflecting the denial of Bishop’s youthful offender status before his guilty plea and the charge to which Bishop pleaded guilty on January 29, 2001. We also direct the circuit court to indicate whether its “amendment” to the guilty plea corrected a clerical error or a substantive error in its original sentencing order. Due return shall be made to this court within 42 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

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

BASCHAB, J., concurs in the result.

      . Entries on the case action summary dated August 10, 2001, state, “See .00 for Order Denying Petition,” and “Order Attached on Page 2." Bishop filed his notice of appeal on August 22, 2001. However, no order was included in the record on appeal. On October 25, 2001, while Bishop’s appeal on the dismissal of this petition was pending, the circuit court supplemented the record with an order dismissing Bishop's petition dated October 19, 2001.


author: WISE, Judge. SHAW, Judge, COBB, Judge,

text:
    Moises Diaz NIETO v. STATE of Alabama.
    CR-00-2528.
    Court of Criminal Appeals of Alabama.
    March 1, 2002.
    Rehearing Denied April 19, 2002.

      Mark Thompson Conradi, Birmingham, for appellant.
    Bill Pryor, atty. gen., and Elizabeth Ray Butler, asst. atty. gen., for appellee.
   WISE, Judge.

Pursuant to a negotiated plea agreement, the appellant, Moisés Diaz Nieto, pleaded guilty to trafficking in marijuana, a violation of § 13A-12-231, Ala.Code 1975. The trial court sentenced the appellant to 11 years’ imprisonment; that sentence was split and he was ordered to serve 3 years’ imprisonment. In addition, the trial court ordered the appellant to pay a $50 assessment to the Crime Victims Compensation Fund, a $1000 assessment pursuant to § 13A-12-281, Ala.Code 1975, a $100 assessment pursuant to § 36-18-7(a), Ala.Code 1975, and a $25,000 fíne. This appeal followed.

The appellant contends that the trial court erred by finding that the “border-patrol agent” who stopped the appellant’s vehicle had reasonable suspicion to stop and search the vehicle. Specifically, the appellant argues that evidence obtained as a result of the search of his vehicle should be suppressed because, he says, no reasonable suspicion existed to stop the vehicle. We disagree.

In United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), the Supreme Court held:

“[0]fficers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.”

(Footnote omitted.)

When stopping a vehicle, border-patrol agents must consider (1) the vehicle’s proximity to the border; (2) the usual patterns of traffic on the particular road; (3) the agent’s previous experience with alien traffic; (4) recent illegal alien border crossings in the area; (5) aspects of the vehicle; (6) the agent’s training; and (7) characteristics of the person’s appearance. United States v. Brignoni-Ponce, 422 U.S. at 885, 95 S.Ct. 2574.

Because the facts of the instant case are not in dispute with regard to the appellant’s participation in trafficking in marijuana, we review de novo the trial court’s ruling with regard to the appellant’s motion to suppress and the trial court’s interpretation of the term “reasonable suspicion” as applied to the undisputed facts. See State v. Hill, 690 So.2d 1201 (Ala.1996); Barnes v. State, 704 So.2d 487 (Ala.Crim.App.1997).

At the appellant’s suppression hearing, Alabama border-patrol officer, Laurence Weinbrenner, testified that on June 13, 1995, he was stationed on Interstate 20 observing traffic when he saw a 1985 purple Chevy Blazer sport utility vehicle with heavily tinted glass and Texas tags approach his stationary location. He observed a Hispanic male in the driver’s seat.

Upon catching up to the vehicle in his marked border patrol sedan, Agent Wein-brenner observed the vehicle weaving in the right-hand lane of traffic. He attributed this pattern of driving to nervousness caused by his pursuit. The driver appeared to be stiff and rigid and he looked straight ahead. When his vehicle was parallel to the Blazer, Officer Weinbrenner observed the silhouette of a passenger in the front seat and observed a subject in the backseat duck in an apparent attempt to avoid detection.

Agent Weinbrenner also testified that in his 11 years’ experience as an agent with the border patrol, he has become very familiar with Interstate 20 as a popular route for smugglers of illegal aliens to transport their smuggling loads. He further testified that the route from Texas to the Carolinas was popular and that cities in Texas were a major source for staging smuggled aliens before their departure to a work site.

Based on the observations he made, Agent Weinbrenner stopped .the appellant’s vehicle. After speaking to the appellant in Spanish, Agent Weinbrenner determined that the appellant and his wife were Mexican nationals and their two children traveling in the backseat were United States citizens. The appellant consented to a search of the vehicle, as a result of which approximately 13 pounds of marijuana were detected and found inside the driver’s door by a drug-sniffing dog.

“Reasonable suspicion is a less demanding standard than probable cause.” Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). However, “ ‘reasonable suspicion exists only if the officer has “specific, particularized, and articulable reasons indicating that the person [stopped] may be involved in criminal activity.” ’ ” Owen v. State, 726 So.2d 745, 747 (Ala.Crim.App.1998) (quoting State v. Washington, 623 So.2d 392, 395 (Ala.Crim.App.1993)).

In a recent decision, United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), the Supreme Court addressed a similar suppression issue involving roving border patrols. In Arvizu, a border-patrol agent followed behind a minivan after receiving reports of activity on backroads drug smugglers typically used to circumvent border checkpoints. Based on the timing and not seeing other vehicles on the road, the agent proceeded to pull off the road, and he watched a minivan as it approached his vehicle.

The agent observed the minivan’s speed slow dramatically. As it passed, he observed an adult man driving, an adult woman in the front passenger seat, and three children in the back. The border-patrol agent then proceeded to follow the vehicle. The driver appeared stiff and nervous. He did not acknowledge the agent as the agent passed beside the minivan. The agent further observed that the knees of two of the children were raised, as if they were resting on cargo. Following a closer look, the children began to wave in an abnormal pattern at the agent as though they were being instructed. After stopping the vehicle, the agent searched the vehicle with the driver’s consent. He discovered approximately 128 pounds of marijuana in a black duffel bag. The driver moved to suppress the marijuana evidence, arguing that the agent did not have reasonable suspicion to stop the vehicle.

In upholding the lower court’s denial of Arivzu’s motion to suppress, the Supreme Court stressed the importance of proper enforcement of federal drug and immigration laws stating:

“Because the ‘balance between the public interest and the individual’s right to personal security,’ United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer’s action is supported by reasonable suspicion to believe that criminal activity ‘ “may be afoot,” ’ United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)(quoting Terry [v. Ohio, 392 U.S. 1] at 30, 88 S.Ct. 1868 [, 20 L.Ed.2d 889 (1968]).
“... [W]e have said repeatedly that they must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.”

Arvizu, 534 U.S. at 273, 122 S.Ct. at 750.

The Supreme Court’s analysis in Arvizu is applicable in the instant case. Before Agent Weinbrenner stopped the appellant, he made special note of the age of the vehicle — a 1985 Chevy Blazer; the Texas state tags; the heavily tinted windows; and the driving pattern of the vehicle. He also observed the rigid appearance of the driver and the sudden way the passenger in the backseat ducked after noticing that a border agent was near. Relying on knowledge gained through training and 11 years’ experience as a border-patrol agent, Weinbrenner suspected criminal activity was afoot, and he stopped the appellant.

Further, Weinbrenner testified that he knew Interstate 20 was a popular route for alien smugglers and that Texas was a major source for smuggled aliens. He also testified that older model cars were more likely to be used in smuggling because of the risk the vehicle would be forfeited if the driver was caught transporting illegal aliens. Agent Weinbrenner was able to cite “specific, particularized, and articula-ble” grounds, other than mere nervousness, for reasonably suspecting that the appellant was engaged in criminal activity. The trial court’s evaluation of the totality of the circumstances supported Agent Weinbrenner’s decision to stop the appellant’s vehicle based on reasonable suspicion. Therefore, the trial court did not err in denying the appellant’s motion to suppress.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

McMILLAN, P.J., and BASCHAB, J., concur. SHAW, J., concurs in the result, with opinion. COBB, J., dissents, with opinion.

SHAW, Judge,

concurring in the result.

This is admittedly a difficult case, because we are called upon to “ ‘balance between the public interest and the individual’s right to personal security.’ ” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750, 151 L.Ed.2d 740, 750 (2002), quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). I agree with much of what Judge Cobb says in her dissent; however, I decline to join her special writing because I believe that it treads too heavily on the totality-of-the-circumstances analysis reaffirmed in Arvizu. In criticizing the analysis of the United States Court of Appeals for the Ninth Circuit, the Court in Arvizu noted:

“The court’s evaluation and rejection of seven of the listed factors in isolation from each other does not take into account the ‘totality of the circumstances,’ as our cases have understood that phrase. The court appeared to believe that each observation by Stoddard that was by itself readily susceptible to an innocent explanation was entitled to ‘no weight.’ See 232 F.3d, at 1249-1251. Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)], however, precludes this sort of divide-and-conquer analysis. The officer in Terry observed the petitioner and his companions repeatedly walk back and forth, look into a store window, and confer with one another. Although each of the series of acts was ‘perhaps innocent in itself,’ we held that, taken together, they ‘warranted further investigation.’ 392 U.S., at 22, 88 S.Ct. 1868. See also [United States v.] Sokolow, [490 U.S. 1], at 9, 109 S.Ct. 1581[, 104 L.Ed.2d 1 (1989)] (holding that factors which by themselves were ‘quite consistent with innocent travel’ collectively amounted to reasonable suspicion).”

534 U.S. at 274-75, 122 S.Ct. at 751.

Judge Cobb is right, however, that the factual scenario underlying the trial court’s reasonable-suspicion determination in this case provides a far weaker basis than the one underlying the district court’s determination in Arvizu. However, the ultimate, and inevitably elusive, question is whether the facts presented here are at least sufficient to support the trial court’s finding that Officer Weinbrenner’s investigatory stop was reasonable under the circumstances. My decision to concur in the judgment turns on the following language in Arvizu, with special emphasis on the emphasized portion:

“When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing. See, [United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ]. This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person. Id., at 418, 101 S.Ct. 690. See also Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (reviewing court must give ‘due weight’ to factual inferences drawn by resident judges and local law enforcement officers ). Although an officer’s reliance on a mere ‘ “hunch” ’ is insufficient to justify a stop, Terry [v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ], the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard, [United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) ].
“Our eases have recognized that the concept of reasonable suspicion is somewhat abstract. Ornelas, supra, at 696, 116 S.Ct. 1657 (principle of reasonable suspicion is not a ‘ “finely-tuned standard]” ’); Cortez, supra, at 417, 101 S.Ct. 690 (the cause ‘sufficient to authorize police to stop a person’ is an ‘elusive concept’). But we have deliberately avoided reducing it to ‘ “a neat set of legal rules,” ’ Ornelas, supra, at 695-696, 116 S.Ct. 1657 (quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).”

534 U.S. at 273-74, 122 S.Ct. at 750-51, (emphasis added).

Based upon Officer Weinbrenner’s 11 years’ experience as a border-patrol agent; his knowledge concerning the apparent use of Interstate 20 through the Birmingham area as a popular route for smugglers of illegal aliens; and his personal observations — aging vehicle, Texas license plate, heavily-tinted windows, Hispanic driver, nervousness on the part of the driver, and the silhouette of a passenger in the backseat ducking in an apparent attempt to avoid being seen (it is my understanding from the record that Officer Weinbrenner could not tell at the time he decided to stop the vehicle that the subject in the backseat was a child) — I cannot conclude that the trial court erred in denying the appellant’s motion to suppress. To paraphrase the Court in Arvizu:

“A determination that reasonable suspicion exists ... need not rule out the possibility of innocent conduct.... Undoubtedly, each of these factors alone is susceptible to innocent explanation, and some factors are more probative than others. Taken together, [I] believe they sufficed to form a particularized and objective basis for [Officer Weinbrenner’s] stopping the vehicle, making the stop reasonable within the meaning of the Fourth Amendment.”

534 U.S. at 277-78, 122 S.Ct. at 753.

COBB, Judge,

dissenting.

I agree with the majority’s recitation of the legal standards applicable in this case. However, I disagree with the majority’s interpretation of the standards and with the majority’s application of the law to the facts presented. I believe that the trial court erred when it denied Nieto’s motion to suppress, and I would reverse the judgment in this cause.

A review of the totality of the circumstances is required to determine whether Agent Weinbrenner had a “particularized and objective basis” for suspecting criminal activity. Appellate review in a case such as this one should be de novo. United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). The facts in Arvizu were that the appellant was in an area on the United States-Mexico border, “driving on an unpaved road in a remote area of southeastern Arizona.” Id. at 268, 122 S.Ct. at 747-48. The road was described as “very rarely traveled except for use by local ranchers and forest service personnel.” Id. at 269, 122 S.Ct. at 748. Smugglers “commonly” attempted to avoid a border-patrol checkpoint by traveling on the road, and agents knew that smugglers sometimes drove minivans. A magnetic sensor indicating passage of a vehicle on the road was triggered one afternoon, when border-patrol agents were preparing for a shift change and when the area would be unpatrolled. The agent who responded to the sensor had been told that the same sensor had gone off several weeks earlier and that the agent on duty “had apprehended a minivan using the same route and witnessed the occupants throwing bundles of marijuana out the door.” Id. at 270, 122 S.Ct. at 749. When the agent responded to the scene where the sensor had been triggered, he observed a minivan with two adults and three children. The minivan slowed from 50-55 miles per hour to 25-30 miles per hour as it approached the agent’s vehicle. The agent stated that the driver appeared stiff, and he did not look at the agent. He also observed that the knees of the children sitting in the backseat were “unusually high, as if their feet were propped up on some cargo on the floor.” Id. at 270, 122 S.Ct. at 749. The children, although facing forward, put their hands up at the same time and waved in an abnormal pattern for four to five minutes, as if they had been instructed to do so. The minivan abruptly turned onto a road that is normally traveled only by four-wheel-drive vehicles. The agent did not recognize this minivan as one of the local vehicles that agents encountered on patrol, and he knew it was unlikely that the minivan’s occupants were on a picnic outing, because no picnic grounds were accessible by that road. When the agent radioed for a registration check on the vehicle, he learned that it was registered to an address four blocks from the border, “in an area notorious for alien and narcotics smuggling.” Id. at 271, 122 S.Ct. at 749. The agent stopped the vehicle and, after the appellant gave his consent, searched the vehicle. A duffle bag under the feet of the children in the backseat contained marijuana, and another bag of marijuana was found behind the seat. Id. at 272, 122 S.Ct. at 750.

The Supreme Court upheld the denial of the appellant’s motion to suppress based on its review of the totality of the circumstances. The Court stated:

“[W]e hold that [Agent] Stoddard had reasonable suspicion to believe that respondent was engaged in illegal activity. It was reasonable for Stoddard to infer from his observations, his registration check, and his experience as a border patrol agent that respondent had set out from Douglas along a little-traveled route used by smugglers to avoid the 191 checkpoint. Stoddard’s knowledge further supported a commonsense inference that respondent intended to pass through the area at a time when officers would be leaving their backroads patrols to change shifts. The likelihood that respondent and his family were on a picnic outing was diminished by the fact that the minivan had turned away from the known recreational areas accessible to the east on Rucker Canyon Road. Corroborating this inference was the fact that recreational areas farther to the north would have been easier to reach by taking 191, as opposed to the 40-to-50-mile trip on unpaved and primitive roads. The children’s elevated knees suggested the existence of concealed cargo in the passenger compartment. Finally, for the reasons we have given, Stoddard’s assessment of respondent’s reactions upon seeing him and the children’s mechanical-like waving, which continued for a full four to five minutes, were entitled to some weight.”

United States v. Arvizu, 534 U.S. at 277, 122 S.Ct. at 752-53.

The facts in this case are more dissimilar from those in Arvizu than the majority has acknowledged in its opinion. Nieto was driving an older vehicle on an interstate highway near Birmingham, Alabama, hundreds of miles from the border between the United States and Mexico, which at once distinguishes this case from Arvizu. In this situation, the fact that the vehicle had Texas state tags was of little consequence. Agent Weinbrenner testified that the driver appeared to be of Hispanic descent, that the vehicle had heavily tinted windows, and that it had a Texas license plate. Nieto was not violating any criminal laws when he was stopped by the agent. Rather, the agent testified that all of the vehicle stops he made were “based on immigration purposes.” (R. 14.) Weinbrenner said he knew that Texas has “major source cities for smuggled aliens,” and that he had personal knowledge that Interstate 20 “is an extremely popular route for smugglers of illegal aliens.” (R. 8.) To find that these circumstances created a reasonable suspicion sufficient to justify a stop of this appellant, the agent and a majority of this Court are painting with far too broad of a brush. In Arvizu, the evidence indicated that the minivan was registered to a town four blocks from, the border “in an area notorious for alien and narcotics smuggling.” 534 U.S. at 271, 122 S.Ct. at 749. I find it unreasonable to attribute any suspicions to every vehicle registered in the state of Texas and traveling along a major interstate highway in Alabama. Moreover, the majority noted that the driver was weaving within the right-hand lane of traffic, which the agent attributed to the driver’s nervousness at being pursued by a border-patrol agent. I cannot agree that weaving within the right-hand lane of traffic, even when that factor is combined with others, supports a finding of reasonable suspicion of criminal activity. That the driver appeared stiff and rigid is likewise of little significance, because nervousness in the presence of a law-enforcement officer “and/or failure to make eye contact do not establish reasonable suspicion to believe that the person is engaged in criminal activity.” State v. Washington, 623 So.2d 392, 398 (Ala.Crim.App.1993). As the United States Supreme Court stated in Arvizu:

“We think it quite reasonable that a driver’s slowing down, stiffening of posture, and failure to acknowledge a sighted law enforcement officer might well be unremarkable in one instance (such as a busy San Francisco highway) while quite unusual in another (such as a remote portion of rural southeastern Arizona).

534 U.S. at 275-76, 122 S.Ct. at 752 (emphasis added).

I also do not find that a child in the backseat of a vehicle “ducking down” warrants suspicion that criminal activity is afoot. While I am aware that heavily tinted windows, particularly on an older model vehicle, might suggest that the driver wishes to conceal the interior, I am also aware that some vehicle owners, particularly those who live in states with warm climates, like Texas, tint their windows to deflect the sun’s rays.

Even when the allegedly suspicious factors are considered in their totality, as an appellate court is required to do, I cannot agree that Agent Weinbrenner had reasonable suspicion for suspecting that Nieto was engaged in criminal activity. I find the following analysis, which this Court quoted in an earlier case, highly relevant to this case:

“ ‘Nevertheless, we find that the factors cited by the district court in this case, e.g., being Mexican, having few pieces of luggage, being visibly nervous or shaken during a confrontation with a state trooper, or traveling on the interstate with Texas license plates (not yet a crime in Alabama), do not provide a minimal, particularized basis for a conclusion of reasonable suspicion on the part of Officer Guthrie. Even when considered together and in light of all the facts, such observations fail to suggest that the [occupants of the vehicle] were engaged in any criminal activity other than speeding on the highway. Neither, for that matter, do any of the other allegedly “suspicious” facts urged by the government, such as [the driver’s] looking away quickly as he passed the officer on the highway, the [defendants’] possessing valid San Antonio driver’s licenses, or the bare fact of the car being insured by a third party.’ ”
“[United States v. Tapia,] 912 F.2d [1367,] at 1370-71 [(11th Cir.1990)].”

State v. Washington, 623 So.2d 392, 397 (Ala.Crim.App.1993). Significantly, in United States v. Tapia, 912 F.2d 1367 (11th Cir.1990), and in Washington, law-enforcement officers stopped the defendants’ vehicles for speeding, and the reviewing courts held that the subsequent detentions were not supported by reasonable suspicion. In State v. Washington, we further stated:

“We also decline to accept the State’s suggestion that we consider the defendant to have been detained in a high crime area. Trooper Eller’s statement that ‘people haul[] drugs up and down the interstate’ is far from ‘evidence’ that the interstate is ‘an area ... known for crime.’ State’s brief at 18. As the Utah Supreme Court has observed, ‘[although the density of the traffic ... varies, travelers use the interstate highway[s] at all times of the day and night and at all times of the year.’ State v. Mendoza, 748 P.2d 181, 183-84 (Utah 1987). Tt seems unlikely that [drug traffickers] comprise [such] a significant portion of interstate traffic’ that we may categorize the interstates as high crime areas. Id. at 183.”

623 So.2d at 397.

None of the factors relied on by the majority are inherently suspicious, and all of the factors considered together do not establish reasonable suspicion. The factors amount to no more than a hunch, and a mere hunch is insufficient to justify a stop. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “Having considered the totality of the circumstances and given due weight to the factual inferences drawn by the law enforcement officer,” Arvizu, 534 U.S. at 277, 122 S.Ct. at 752, I cannot agree that the agent’s decision to stop the appellant’s vehicle was based on reasonable suspicion. Nor do I believe that the facts presented in this case are as similar to those in Arvizu, as the majority appears to suggest. For all of the foregoing reasons, I believe that the trial court erred when it denied the motion to suppress. Accordingly, I dissent.

      . The agent testified that the driver's weaving within the right-hand lane seemed to indicate either that the driver was nervous upon seeing the officer "and/or that the vehicle was in a state of disrepair.” (R. 6.)


author: McMILLAN, Presiding Judge.

text:
    Ezekiel REED v. STATE.
    CR-00-2674.
    Court of Criminal Appeals of Alabama.
    March 1, 2002.
    Walter M. Merrell III, Andalusia, for appellant.
    Bill Pryor, atty. gen., and Robin Blevins, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

In 1996, the appellant, Ezekiel Reed, was convicted of escape and was sentenced to 15 years’ imprisonment. The trial court split Reed’s sentence, ordering him to serve 3 years in the custody of the Department of Corrections, followed by supervised probation for a period of 12 years. While he was on probation, the appellant’s probation officer filed delinquency reports, alleging that Reed had violated the conditions of his probation in that: (1) he had failed to report to his probation officer; (2) he had failed to pay his court costs; (3) he had been arrested for two new offenses: second-degree possession of marijuana and possession of drug paraphernalia; and (4) he had been convicted of third-degree domestic violence. After conducting a revocation hearing, the trial court revoked Reed’s probation.

The appellant has raised two issues on appeal: (1) whether the revocation order adequately stated the evidence relied on and the reasons for revocation, and (2) whether the evidence presented at the revocation hearing was sufficient to support the revocation of his probation. The State has requested us to remand this case to the trial court for that court to amend its revocation order.

The general rules of preservation apply in revocation proceedings. Puckett v. State, 680 So.2d 980 (Ala.Crim.App.1996). This Court has recognized the following exceptions to the general rules: (1) the requirement of an adequate order of revocation, and (2) the requirement that a revocation hearing actually be held. Id. This Court has also held that a defendant can argue for the first time on appeal the trial court’s failure to inform him of his right to request counsel for probation-revocation proceedings. Law v. State, 778 So.2d 249 (Ala.Crim.App.2000).

In the instant case, the revocation order does not contain a statement of the evidence relied on and the reasons for revocation. This matter is therefore remanded to the Covington Circuit Court for that court to issue a sufficient order of revocation. Due return shall be made to this Court within 60 days of the date of this opinion.

REMANDED WITH DIRECTIONS.

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


author: PATTERSON, Retired Appellate Judge.  BASCHAB, Judge

text:
    K.J.A., G.A., and J.A. v. STATE.

    CR-00-0926.
    Court of Criminal Appeals of Alabama.
    March 22, 2002.
    Rehearing Denied April 19, 2002.
    Rodney L. Ward, Gadsden, for appellants. .
    Bill Pryor, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.

      . G.A. and J.A. are the parents of K.J.A. The notice of appeal states that they are also appealing the judgment of the juvenile court. They appeal from that portion of the juvenile court's judgment ordering them to pay part of the restitution assessed against their son.

   PATTERSON, Retired Appellate Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and COBB, SHAW, and WISE, JJ., concur. BASCHAB, J., dissents, with opinion.

BASCHAB, Judge

(dissenting).

For the reasons set forth below, I must respectfully dissent from the majority’s unpublished memorandum.

First, the majority incorrectly concludes that the juvenile court had jurisdiction to order the appellant’s parents to pay restitution in this case. Rule 31(F), Ala. R. Juv. P., specifically states, in pertinent part, that “[t]he parentfs] ... joinder as a party makes the parent ... subject to orders to pay ... restitution.” As the majority notes, the juvenile court did not order that the appellant’s parents be made parties to the proceeding. Because the juvenile court did not follow the procedure set forth in Rule 31, Ala. R. Juv. P., for making a parent a party to a juvenile proceeding, that court did not have jurisdiction to order the appellant’s parents to pay restitution in this case. To hold otherwise would allow courts to hold a person responsible for acts with which he has not been properly charged.

Second, the majority incorrectly concludes that the court’s observation in D.W.L. v. State, 821 So.2d 246 (Ala.Crim.App.2001), that “[t]he due process afforded D.W.L.’s father in this case put him on notice of his potential liability in the case and provided him with a forum for presenting evidence to rebut the testimony regarding the value of the property destroyed by [the two juveniles]” applies to this case. Although the petitions against the appellant included a notice that a parent could be made a party to the proceeding and could be ordered to pay restitution, the juvenile court did not ever actually make the appellant’s parents parties to the proceeding. Also, during the restitution hearing, the juvenile court did not indicate that it was going to order the appellant’s parents to pay restitution. Nevertheless, when it issued its order nearly one month later, it ordered the appellant’s parents to pay $1,000 in restitution. Under these facts, the juvenile court did not afford the appellant’s parents due process.

For the above-stated reasons, I would reverse that portion of the juvenile court’s order that requires the appellant’s parents to pay restitution in this case.