author: LYONS, Justice. STUART, Justice MURDOCK, Justice

text:
    Ex parte Eugene Milton CLEMONS II. (In re Eugene Milton Clemons II v. State of Alabama).
    1041915.
    Supreme Court of Alabama.
    May 4, 2007.

      Anne W. Stakes and Ryan S. Spiegal of Winston & Strawn, LLP, Washington, D.C.; Daniel G. Grove of Jackson Kelly, PLLC, Lexington, Kentucky; and Anne R. Yuengert of Bradley Arant Rose & White, LLP, Birmingham, for petitioner.
    Troy King, atty. gen., and J. Clayton Crenshaw and Henry M. Johnson, asst, attys. gen., for respondent.
   LYONS, Justice.

Eugene Milton Clemons II petitioned this Court for a writ of certiorari to review the judgment of the Court of Criminal Appeals affirming the trial court’s denial of his Rule 32, Ala. R.Crim. P., proceeding, and we issued the writ as to three issues. We now quash the writ in part and reverse and remand.

I. Facts and Procedural Background

Clemons was convicted in September 1994 of capital murder in the death of Robert Althouse, an officer with the Drug Enforcement Administration, a federal agency, during the course of a robbery. Clemons had already been convicted of the same offense in federal court and sentenced to life imprisonment without the possibility of parole. In the sentencing phase of Clemons’s trial in state court, the jury unanimously recommended that he be sentenced to death. The trial court followed the jury’s recommendation and sentenced Clemons to death. The Alabama Court of Criminal Appeals and this Court affirmed Clemons’s conviction and sentence on direct appeal. See Clemons v. State, 720 So.2d 961 (Ala.Crim.App.1996), aff'd, 720 So.2d 985 (Ala.1998). The United States Supreme Court denied certiorari review, 525 U.S. 1124, 119 S.Ct. 907, 142 L.Ed.2d 906 (1999).

Clemons then filed a timely Rule 32, Ala. R.Crim. P., petition. After the trial court held a hearing on the petition, it summarily dismissed some of Clemons’s claims, pursuant to Rule 32.7(d) and Bishop v. State, 608 So.2d 345 (Ala.1992). The trial court then denied the remaining claims. Clemons appealed the denial of his Rule 32 petition to the Court of Criminal Appeals. While Clemons’s appeal was pending, the United States Supreme Court decided Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), holding unconstitutional the execution of mentally retarded defendants. After the opinion in Atkins was issued, the Court of Criminal Appeals remanded Clemons’s case for the trial court to determine whether Clemons is mentally retarded. See Clemons v. State, 55 So.3d 314 (Ala.Crim.App.2003). After an extensive evidentiary hearing, the trial court on remand determined that Clemons falls “in the borderline range of intellectual functioning [but] ... is not mentally retarded.”

On return to remand, the Court of Criminal Appeals upheld the trial court’s finding that Clemons is not mentally retarded and unanimously affirmed the trial court’s judgment denying Clemons’s Rule 32 petition. See Clemons v. State, 55 So.3d 314, 322 (Ala.Crim.App.2003) (opinion on return to remand). Although the State did not assert as a defense the preclusion of Clemons’s claims of ineffective assistance of trial counsel, the Court of Criminal Appeals determined, sua sponte, that “any claims related to the performance of trial counsel are proeedurally barred in this postconviction proceeding.” 55 So.3d at 333. Clemons then filed his petition for a writ of certiorari.

II. Standard of Review

The plain-error standard of review applicable in a death-penalty case does not apply in a Rule 32 proceeding in such a case, and all the procedural bars of Rule 32 apply. Ex parte Dobyne, 805 So.2d 763, 766-67 (Ala.2001); Siebert v. State, 778 So.2d 842, 847 (Ala.Crim.App.1999). We apply the standards set out in Rule 39(c), Ala.R.App. P. See Dobyne, 805 So.2d at 767. However, “when the facts are undisputed and an appellate court is presented with pure questions of law, the court’s review in a Rule 32 proceeding is de novo.” Ex parte White, 792 So.2d 1097, 1098 (Ala.2001).

III. Analysis

This Court issued the writ of certiorari to review the following issues:

A. Whether the trial court erred in failing to consider Clemons’s borderline intellectual capacity as a mitigating factor in the sentencing phase of his trial;

B. Whether the Court of Criminal Appeals erred in sua sponte applying a procedural bar to preclude Clemons’s ineffective-assistance-of-trial-counsel claims; and

C. Whether Clemons’s appellate counsel rendered ineffective assistance.

A. Borderline Retardation as Mitigating Evidence

We note that Clemons did not present in his Rule 32 petition the issue whether his sentence of death should be reversed on the basis that the trial court failed to consider his borderline intellectual capacity as a mitigating factor, independent of a claim of ineffective assistance of trial counsel. However, in his brief to the Court of Criminal Appeals on his appeal from the denial of his Rule 32 petition, he argued that, under Atkins, supra, “Dr. [Charles] Golden[, a clinical neuropsychologist whose testimony the trial court excluded,] could have provided evidence that would have established ⅛ reasonable probability that the jury would have found that [Clemons] suffered from mild or borderline mental retardation or that a non-statutory mitigating circumstances existed.’” Further, in his petition and briefs to this Court, Clemons argues that, under cases decided subsequent to Atkins, supra, such as Tennard v. Dretke, 542 U.S. 274, 287, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004), and Smith v. Texas, 543 U.S. 37, 125 S.Ct. 400, 160 L.Ed.2d 303 (2004), evidence of borderline mental retardation is “inherently mitigating.” See Tennard, 542 U.S. at 287. See also Wiggins v. Smith, 539 U.S. 510, 535, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (noting that where the defendant had an IQ of 79, “his diminished mental capacities ... augment his mitigation case”).

We cannot, however, consider the issue whether the trial court erred in failing to consider Clemons’s borderline intellectual capacity as a mitigating factor in the sentencing phase of his trial because the issue was not presented to the trial court in Clemons’s Rule 32 petition. See Ex parte Linnell, 484 So.2d 455, 457 (Ala.1986) (“[T]he rule against raising an issue for the first time at the appellate level applies even if the issue raised would present constitutional questions.”). As to the claims based on Tennard and Smith, Clemons could not have raised such claims under Tennard before the trial court or the Court of Criminal Appeals, because that line of cases had not yet been decided when Clemons’s case was pending in those courts. We are not at liberty to consider claims in a Rule 32 petition that are raised for the first time on appeal. Ex parte Linnell, supra.

Whether Clemons may raise any of these issues in a successive Rule 32 petition is not before us. See Rule 32.2(b)(2) (“A successive petition on different grounds shall be denied unless .... the petitioner shows both that good cause exists why the new ground or grounds were not known or could not have been ascertained through reasonable diligence when the first petition was heard, and that failure to entertain the petition will result in a miscarriage of justice.”). We therefore quash the writ as improvidently granted as to this issue.

B. Sua Sponte Application of Rule 32.2(a)

We now turn to Clemons’s second issue — whether the Court of Criminal Appeals erred in sua sponte applying a Rule 32.2(a) procedural bar to preclude Clemons’s ineffective-assistance-of-trial-counsel claims. This issue presents us with a question of first impression. Despite the State’s failure to assert any procedural bars to Clemons’s Rule 32 petition in the trial court or on appeal, the Court of Criminal Appeals, in its opinion on return to remand, held:

“Because the appellant was represented by different counsel at trial and on appeal and because the [Ex parte ] Jackson [, 598 So.2d 895 (Ala.1992),] procedure was in effect at the time of the appellant’s conviction, any ineffective-assistance-of-trial-counsel claims should have been raised in a motion for a new trial and on direct appeal. In fact, he did raise ineffective-assistance-of-trial-counsel claims in his motion for a new trial and on direct appeal. Therefore, the appellant’s ineffeetive-assistance-of-trial-counsel claims are precluded pursuant to the provisions of Rule 32.2(a), Ala. R.Crim. P.”

55 So.3d at 333.

In its brief before this Court, the State conceded that it “waived that non-jurisdictional procedural bar.” In fact, the State agreed with Clemons’s contention that the Court of Criminal Appeals erred in sua sponte applying the nonjurisdictional procedural bars of Rule 32.2(a), and it initially asked this Court to “remand Clemons’s case to the Alabama Court of Criminal Appeals with instructions to consider the merits of each of his ineffective assistance of trial counsel claims.” However, in oral argument before this Court, the State reversed course, without prior notice to this Court or to Clemons, and argued that the procedural bars of Rule 32.2(a) are jurisdictional and cannot be waived. Accordingly, the State contended, the Court of Criminal Appeals correctly applied those bars sua sponte to Clemons’s ineffective-assistance-of-trial-counsel claims, despite the State’s failure to assert the procedural bars in the trial court.

The State attempted to justify its change in position on the ground that, at the time it waived the procedural bars of Rule 32.2(a), the Court of Criminal Appeals had not yet decided Davis v. State, 9 So.3d 514 (Ala.Crim.App.2006), which, the State contends, supports the State’s most recent position. In Davis, the State similarly failed to assert any procedural bar to claims asserted in Davis’s Rule 32 petition, and the Court of Criminal Appeals applied the procedural bars of Rule 32.2(a) sua sponte to those claims. In his application for rehearing to the Court of Criminal Appeals, Davis contended that the sua sponte application of the procedural bars deprived him of notice of, and an opportunity to disprove, any of the Rule 32.2(a) procedural bars, as required by this Court’s decision in Ex parte Rice, 565 So.2d 606 (Ala.1990). On rehearing, the Court of Criminal Appeals held that the procedural bars of Rule 32.2(a) were mandatory and that any error in its sua sponte application of a Rule 32.2 procedural bar to preclude claims in Davis’s petition was harmless under Young v. State, 600 So.2d 1073 (Ala.Crim.App.1992). The State now claims that it could not have waived any procedural bars to Clemons’s ineffective-assistanee-of-trial-counsel claims because, under this rationale, those bars are jurisdictional.

We begin by noting that the Court of Criminal Appeals in Davis never characterized the Rule 32.2(a) procedural bars as jurisdictional. Instead, it described them as “mandatory” but treated them as jurisdictional, holding that they may be applied sua sponte. In support of this conclusion, the Court of Criminal Appeals quoted State v. Osborne, 329 Mont. 95, 98, 124 P.3d 1085, 1087 (2005), which in turn quoted Peña v. State, 323 Mont. 347, 361, 100 P.3d 154, 163 (2004), and noted that “ ‘ “the statutory rules which circumscribe the postconviction process are jurisdictional in nature.” ’ ” Davis, 9 So.3d at 533 (emphasis added). After noting its ability to “sua sponte apply the limitations provision contained in Rule 32.2(c) ... because it is a mandatory provision,” the Court of Criminal Appeals then concluded that the Rule 32.2(a) procedural bars are likewise mandatory. Although the Court of Criminal Appeals characterized the procedural bars of Rule 32.2(a) as mandatory, its holding in Davis eliminates any meaningful distinction between a mandatory rule of preclusion and one that is jurisdictional.

The State’s most recent position in this case confirms that the Court of Criminal Appeals ascribed to the Rule 32.2(a) preclusive bars a jurisdictional field of operation while characterizing them as “mandatory”; the State now argues that, under Davis, the Rule 32.2(a) procedural bars are jurisdictional and could not have been waived by the State. We disagree.

Rule 32.3 states:

“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 preponderance of the evidence.”

(Emphasis added.) Rule 32.3 expressly imposes upon the State the burden of pleading an affirmative defense. Rule 32.7(d), “Summary Disposition,” authorizes sua sponte action by “the court.” Rule 1, Ala. R.Crim. P., provides: “These rules shall govern the practice and procedure in all criminal proceedings in all courts of the State of Alabama, and political subdivisions thereof, except as otherwise provided by court rule.” However, the context of the reference to “the court” in Rule 32.7(d) clearly limits the applicability of the rule to proceedings in the trial court. See, e.g., the last sentence of Rule 32.7(d), providing that “[ojtherwise [under circumstances where the petition is not summarily dismissed], the court shall direct that the proceedings continue and set a date for hearing.” (Emphasis added.) Whether the trial court’s authority continues after service of an answer omitting a defense is a question not before us.

The question before us in this proceeding is whether the State may waive the affirmative defense of the procedural bars of Rule 32.2(a) and thereby enable the trial court to entertain the proceeding on its merits. Rule 32.2(a), Ala. R.Crim. P., provides:

“(a) Preclusion of Grounds. A petitioner will not be given relief under this rule based upon any ground:
“(1) Which may still be raised on direct appeal under the Alabama Rules of Appellate Procedure or by posttrial motion under Rule 24; or “(2) Which was raised or addressed at trial; or
“(3) Which could have been but was not raised at trial, unless the ground for relief arises under Rule 32.1(b); or
“(4) Which was raised or addressed on appeal or in any previous collateral proceeding not dismissed pursuant to the last sentence of Rule 32.1 as a petition that challenges multiple judgments, whether or not the previous collateral proceeding was adjudicated on the merits of the grounds raised; or
“(5) Which could have been but was not raised on appeal, unless the ground for relief arises under Rule 32.1(b).”

(Emphasis added.) Although the rule is written in the passive voice, if it were converted to the active voice it would read: “A court will not give relief to a petitioner.” If we apply Rule 32.2 strictly according to its terms, no court could grant relief in a setting where preclusion is available as a defense.

The Montana court in State v. Osborne, 329 Mont. at 98, 124 P.3d at 1087, the case the Court of Criminal Appeals relied on in Davis, treated a similar requirement of Montana law as a limitation on the jurisdiction of the court. However, the Montana court was interpreting an act of the Montana Legislature that provided for postconviction relief, not a rule of procedure. See 329 Mont. at 100, 124 P.3d at 1088 (“Thus the legislature intended the statutory language as a limit on the courts’ authority to hear and decide, in the context of postconviction proceedings, issues that were, or could have been, raised on direct appeal. Because there is no other source of law granting courts jurisdiction over such issues, § 46-21-105(2), MCA, effectively prohibits the courts from exercising jurisdiction over grounds for relief that could reasonably have been raised on appeal.” (emphasis added)). Here, we are interpreting a rule of procedure promulgated by this Court pursuant to authority conferred by Ala. Const.1901, Art. VI, § 150 (Official Recomp.) (Amendment No. 328, § 6.11). Section 150 provides:

“The supreme court shall make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts; provided, however, that such rules shall not abridge, enlarge or modify the substantive right of any party nor affect the jurisdiction of circuit and district courts

(Emphasis added.)

If we were to read Rule 32.2(a) as a limitation upon the jurisdiction of the circuit court to grant relief in instances where preclusion is available as a defense, thereby enabling an appellate court to invoke the defense sua sponte, we will have construed a rule of procedure in a manner contrary to the authority conferred upon this Court by the Alabama Constitution. This we simply cannot do. The fact that adherence to the constitutional limitation upon our rule-making power will result in practical difficulties cannot justify our disregarding that limitation. Of course, the State can avoid most of the issues created by an appellate court’s sua sponte application of a Rule 32 procedural bar by exercising due diligence and care when answering a postconviction petition. If that burden proves to be too great, then the legislature is the appropriate forum in which relief should be sought.

However, our holding that the procedural bars in Rule 32.2(a) are not jurisdictional does not lead to the conclusion that an appellate court can never assert them sua sponte. Federal courts of appeals have, sua sponte, overcome waiver of the defense of preclusion in postconviction proceedings under extraordinary circumstances. In United States v. Guess, 203 F.3d 1143, 1145-46 (9th Cir.2000), for example, the United States Court of Appeals for the Ninth Circuit stated:

“However, the government failed initially to argue the default issue. It first raised Appellant’s potential default in its response brief to this court. In United States v. Barron, 172 F.3d 1153 (9th Cir.1999) (en banc), we declared, ‘[This court] ... will usually not allow the government to raise a petitioner’s default for the first time on appeal, when it did not take the opportunity to do so before the district court.’ 172 F.3d at 1156. When the government raises a petitioner’s default for the first time on appeal, this court usually finds that the government has ‘waived’ its default defense. Id. Barron thus requires that the government show ‘extraordinary circumstances’ which suggest that ‘justice would be served by overlooking the government’s omission [at the district court]’ in order for the government to avoid waiver. Id.”

(Emphasis added.)

In Rosario v. United States, 164 F.3d 729, 732-33 (2d Cir.1998), the United States Court of Appeals for the Second Circuit dealt with this issue in considerable detail:

“We may, nevertheless, raise these issues [not asserted below by the government] sua sponte. See, e.g., United States v. Talk, 158 F.3d 1064, 1067 (10th Cir.1998); see also Washington v. James, 996 F.2d 1442,1448 (2d Cir.1993) (raising defendant’s procedural default sua sponte on state prisoner’s § 2254 petition). We believe that consideration of these issues is appropriate here for three reasons.
“First, it is necessary to protect the finality of federal criminal judgments. See United States v. Allen, 16 F.3d 377, 379 n. 2 (10th Cir.1994) (‘the important interests served by the principle of finality [of criminal judgments] cannot always be foreclosed by waiver’); see also United States v. Frady, 456 U.S. 152, 166, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Raising the issue of defendants’ procedural default is particularly appropriate where, as here, the movants pled guilty. We recognize that ‘the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas.’ United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979); see Bousley [v. United States, 523 U.S. 614, 621], 118 S.Ct. [1604] at 1610 [ (1998) ]. ‘The impact of inroads on finality is greatest in the context of guilty pleas because the vast majority of criminal convictions result from such pleas and because the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea.’ Lucas v. United States, 963 F.2d 8, 14 (2d Cir.1992) (internal quotation omitted).
“In addition, the unique circumstances of this case compel the conclusion that the government was not blameworthy in failing to raise this issue. Because dictum in Triestman v. United States, 124 F.3d 361, 369 n. 8 (2d Cir.1997), indicated that a § 2255 movant’s Bailey [v. United States, 516 U.S. 137 (1995),] claim could easily hurdle a procedural bar challenge, the government may well have concluded that it would be subject to criticism for raising a frivolous argument. It was only in May 1998 — one month after the government submitted its brief in this appeal — that the Supreme Court suggested in Bousley that the Triestman dictum might be incorrect. See De Jesus v. United States, 161 F.3d 99, 102-03 (2d Cir.1998).
“Finally, the procedural default is manifest from the record and, hence, resolution of this defense does not require further fact-finding. Thus, additional scarce judicial resources need not be expended by remanding this case to the district court. See Washington, 996 F.2d at 1449.
“Granted, appellate courts should not lightly raise the issue of a defendant’s procedural default sua sponte. We are aware that prisoners seeking habeas corpus relief lack the resources available to the government. We should hesitate to lend the weight of the judiciary to this already uneven fight, lest we be cast in the role of a second line of defense, protecting government prosecutors from their errors. We are satisfied, however, that this appeal warrants the exercise of our inherent power to raise the previously unaddressed issue. We now turn to it.”

164 F.3d at 732-33.

We agree that an appellate court “should not lightly raise the issue of a defendant’s procedural default sua sponte.” Rosario v. United States, 164 F.3d at 733. Suffice it to say that the State has not shown extraordinary circumstances that suggest that justice would be served by overlooking its failure to assert in the trial court the affirmative defense of preclusion. We are not here dealing with a proceeding in which the defendant pleaded guilty, which militates against concerns with the finality of criminal judgments that would be otherwise implicated in a collateral proceeding. The State’s “blameworthiness” is not in serious question here, as it is clear that the State intentionally waived the defense. Because of the foregoing circumstances we need not reach the question of the ease with which the issue could be resolved at the appellate level without the necessity for further fact-finding.

In summary, the preclusive provisions of Rule 32.2(a) cannot be read as jurisdictional. Because those procedural bars are nonjurisdictional, they may, as they were here, be waived. Only in extraordinary circumstances may such waiver be overcome by an appellate court acting sua sponte. Those circumstances do not exist here. We therefore reverse the judgment of the Court of Criminal Appeals and remand this case for consideration of Clemons’s claim of ineffective assistance of trial counsel.

C. Ineffective Assistance of Post-Trial/Appellate Counsel

We note that Clemons also raises claims of ineffective assistance of post-trial/appellate counsel, but because any relief on those claims could be rendered moot by a finding by the Court of Criminal Appeals on remand of ineffective assistance of trial counsel, we defer consideration of the claims of ineffective assistance of post-trial/appellate counsel until such time as may be necessary. We therefore quash the writ as improvidently granted as to the issue of ineffective assistance of post-trial/appellate counsel.

IV. Conclusion

We quash the writ as to the issues whether the trial court erred by failing to consider borderline mental retardation as a mitigating factor and whether post-trial/appellate counsel’s assistance was ineffective. Because the State waived the pre-clusive bars of Rule 32.2(a) by not raising them in the trial court, it may not raise those bars here as a defense to Clemons’s ineffective-assistance-of-trial counsel claims. Because the preclusive bars of Rule 32.2(a) are nonjurisdictional in nature, the Court of Criminal Appeals may not raise them sua sponte, except in extraordinary circumstances, and such circumstances are not present here. We therefore reverse the judgment of the Court of Criminal Appeals and remand the case to that court for consideration of Clemons’s claims of ineffective assistance of trial counsel.

WRIT QUASHED IN PART; REVERSED AND REMANDED.

SEE, WOODALL, BOLIN, and PARKER, JJ., concur.

STUART, J., concurs in the result.

MURDOCK, J., concurs in the rationale in part and concurs in the result.

COBB, C.J., and SMITH, J., recuse themselves.

STUART, Justice

(concurring in the result).

I agree with the main opinion’s holding that the procedural bars in Rule 32.2(a), Ala. R.Crim. P., are not jurisdictional. I also agree that remand of this case to the Court of Criminal Appeals is proper to allow that court to further analyze Clemons’s claims of ineffective assistance of trial counsel. I, however, believe that in addition to the “exceptional circumstances” recognized by the main opinion that permit an appellate court to sua sponte apply a procedural bar that has been waived, sua sponte application of the waived procedural bar by an appellate court is also appropriate if that application is harmless, i.e., if the sua sponte application of the waived procedural bar does not “probably injuriously affect[ ] substantial rights” of the petitioner or the State. See Rule 45, Ala. R.App. P. Therefore, I concur in the result.

I agree with the main opinion that the procedural bars set forth in Rule 32.2(a) are not jurisdictional. The main opinion, however, implies that there is not a meaningful distinction between a rule of procedure that is mandatory and one that is jurisdictional. I disagree. A mandatory rule is not the equivalent of a jurisdictional rule.

This Court has long recognized that although the failure of a court or a party to comply with a mandatory rule of criminal procedure may be reversible error, the failure to comply with such a rule does not divest a court of jurisdiction. For example, Rule 14.4, Ala. R.Crim. P., provides that before a trial court can accept a plea of guilty from a defendant the trial court must address the defendant personally in the presence of counsel and advise the defendant of the consequences of his guilty plea. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In Cantu v. State, 660 So.2d 1026 (Ala.1995), this Court held that the failure of a trial court to properly advise a defendant and determine that the defendant knowingly, intelligently, and voluntarily entered his plea — i.e., a trial court’s failure to comply with Rule 14.4 — is not a jurisdictional defect. Therefore, even though a rule of criminal procedure may be mandatory and the failure to comply with the rule may be reversible error, a trial court’s failure to comply with the mandatory rule does not necessarily create a jurisdictional defect.

“Jurisdiction” is “‘[a] court’s power to decide a case or issue a decree.’ ” Ex parte Seymour, 946 So.2d 536, 538 (Ala.2006) (quoting Black’s Law Dictionary 867 (8th ed.2004)). Rule 32.1, Ala. R.Crim. P., states: “Subject to the limitations of Rule 32.2, any defendant who has been convicted of a criminal offense may institute a proceeding in the court of original conviction to secure the appropriate relief .... ” See also Smith v. State, 918 So.2d 141, 161 (Ala.Crim.App.2005) (“By virtue of §§ 12-11-30(2) and 12-12-51, Ala.Code 1975, and Rule 32.1, Ala. R.Crim. P., the court of original conviction has subject matter jurisdiction to entertain a Rule 32 petition.” (Baschab, J., concurring in the result)). Thus, a court’s jurisdiction to entertain a Rule 32 petition rests upon whether the petitioner files the petition in the court in which he was originally convicted and whether the petition satisfies “the limitations of Rule 32.2.”

A plain reading of Rule 32.2(a) establishes that the jurisdictional reference in Rule 32.1 to “the limitations of Rule 32.2” does not include the procedural bars set forth in Rule 32.2(a). Rule 32.2(a), Ala. R.Crim. P., provides:

“(a) Preclusion of Grounds. A petitioner will not be given relief under this rule based upon any ground:
“(1) Which may still be raised on direct appeal under the Alabama Rules of Appellate Procedure or by posttrial motion under Rule 24; or
“(2) Which was raised or addressed at trial; or
“(3) Which could have been but was not raised at trial, unless the ground for relief arises under Rule 32.1(b); or
“(4) Which was raised or addressed on appeal or in any previous collateral proceeding not dismissed pursuant to the last sentence of Rule 32.1 as a petition that challenges multiple judgments, whether or not the previous collateral proceeding was adjudicated on the merits of the grounds raised; or
“(5) Which could have been but was not raised on appeal, unless the ground for relief arises under Rule 32.1(b).”

Rule 32.2(a) addresses the grounds upon which a court can or cannot base its decision; it does not address the court’s jurisdiction to decide. Therefore, the plain language of Rule 32.2(a) unequivocally establishes. a mandatory rule that a trial court must apply the procedural bars of Rule 32.2(a) to claims in a Rule 32 petition; the language does not establish that the court loses its jurisdiction to entertain a petition if it fails to apply the mandatory rule. Consequently, I disagree with the conclusion in the main opinion that there is not a meaningful distinction between a mandatory rule and a jurisdictional one.

Because the application of, or the failure to apply, the procedural bars of Rule 32.2(a) does not impact the court’s jurisdiction to address a Rule 32 petition, the question presented by this particular case is whether an appellate court can sua sponte apply the Rule 32.2(a) procedural bars to claims in a petition when the State has failed to plead the procedural bars in its response. In other words, can an appellate court sua sponte recognize the applicability of the mandatory procedural bars to claims in a Rule 32 petition, apply those bars to the claims, and refuse to address the merits of the claims?

In Ex parte Rice, 565 So.2d 606 (Ala.1990), this Court held that Temp. Rule 20, Ala. R.Crim. P. (now Rule 32.3, Ala. R.Crim. P.), which requires the State to plead in its response the applicability of any of the procedural bars provided in Rule 32.2 (then Temp. Rule 20.2) to the claims in the petition, is a mandatory rule of procedure. In Ex paHe Rice, the Court explained that due process required the State to plead the procedural bars that it maintains apply to the claims in a Rule 32 petition to give “the petitioner the notice he needs to attempt to formulate arguments and present evidence to ‘disprove [the] existence [of those grounds] by a preponderance of the evidence.’ ” 565 So.2d at 608. See also Nicks v. State, 783 So.2d 895 (Ala.Crim.App.1999). Thus, the State must comply with the pleading requirement of Rule 32.3.

The main opinion concludes that because the State’s compliance with Rule 32.3 is mandatory, if the State fails to comply with the rule, it waives application of the procedural bars and an appellate court cannot sua sponte apply the procedural bars to claims in the petition, unless “exceptional circumstances” are present. I maintain that, in addition to these “exceptional circumstances,” if sua sponte application of the waived procedural bar by an appellate court is harmless, i.e., if the sua sponte application of the waived procedural bar does not “probably injuriously affect[ ] substantial rights” of the petitioner or the State, it is appropriate for the appellate court to apply the procedural bar.

Rule 45, Ala. R.App. P., states:

“No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of misdirection of the jury, the giving or refusal of special charges or the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

(Emphasis added.)

A harmless-error analysis is proper in this case. Here, the State admits that it did not plead the applicability of the procedural bars of Rule 32.2(a) to Clemons’s claims of ineffective assistance of trial counsel, and the trial court did not apply the procedural bars when it addressed those claims. The Court of Criminal Appeals, however, applied these mandatory procedural bars and thus did not address the merits of Clemons’s ineffective-assistance-of-trial-counsel claims. Therefore, we are presented with the question whether the sua sponte application of the procedural bars by the appellate court has “probably injuriously affected substantial rights” of the State or Clemons. See Rule 45, Ala. R.App. P. I believe that if it is obvious from the record that the procedural bars are applicable and nothing in the record establishes that Clemons’s or the State’s substantial rights will probably be injuriously affected, then the sua sponte application of the Rule 32.2(a) procedural bars by the Court of Criminal Appeals is harmless.

The Court of Criminal Appeals conducted such a harmless-error analysis in Young v. State, 600 So.2d 1073, 1075-76 (Ala.Crim.App.1992), stating:

“Young contends that this cause must be remanded because the prosecutor failed to file a response in compliance with Rule 32.7(a). The attorney general has offered no response to this argument. In Ex parte Rice, 565 So.2d 606 (Ala.1990), our supreme court held that the prosecutor’s failure to file a statement of the specific grounds of preclusion upon which he relies violates the petitioner’s right to due process and falls short of the prosecutor’s burden of pleading set forth in Rule 20.3, A.R.Cr.P.Temp. (now Rule 32.3, AR.Cr.P.).
“We conclude, under the narrow facts before us, that the prosecutor’s failure in this case is harmless error. The purpose of Rule 32.3 is to ‘giv[e] the petitioner the notice he needs to attempt to formulate arguments and present evidence to “disprove [the] existence [of those grounds] by a preponderance of the evidence.” ’ 565 So.2d at 608 (quoting language in Rule 20.3, A.R.Cr. P.Temp., which is identical to Rule 32.3, A.R.Cr.P.). Under the present circumstances, had Young been given adequate notice of the applicable grounds of preclusion, Young could not have formulated any plausible argument or presented any evidence to overcome the facts supporting application of the limitations period, to dispute the fact that one issue had previously been decided on its merits, or to overcome the legal requirement that Young could attack only the validity of the murder conviction and sentence in the present petition, not the validity of the prior convictions used to enhance his sentence. The facts upon which the preclusion grounds are founded — the date of issuance of certificate of judgment, the date of the filing of the instant petition, and the trial court’s finding that Young’s prior convictions are adult convictions — are beyond dispute; we have discerned them from records before us.”

600 So.2d at 1075-76.

I agree with the Court of Criminal Appeals that the State’s failure to plead the procedural bars may, under certain circumstances, be considered harmless.

Because I believe that a harmless-error analysis is appropriate in this case, I have thoroughly reviewed the record to determine whether “the error complained of has probably injuriously affected substantial rights of’ Clemons. Rule 45, Ala. R.App. P. The facts of this case with regard to trial counsel are unusual. The record reflects that the State recognized the unusual circumstances and made an affirmative decision to waive, on the record, the application of the Rule 32.2(a) procedural bars to Clemons’s claims of ineffective assistance of trial counsel. It appears from the State’s actions and representations to the court that the State believed that application of the procedural bars would probably injuriously affect the substantial rights of either Clemons or the State, if not in the State postconviction proceeding then in the federal habeas proceedings. Therefore, in light of the unusual circumstances with regard to Clemons’s trial and appellate counsel and the State’s actions and representations during the Rule 32 proceedings, I cannot conclude that the State’s failure to plead application of the procedural bars in this case and the Court of Criminal Appeals’ sua sponte application of the procedural bars to Clemons’s claims of ineffective assistance of trial counsel were harmless. Therefore, I agree that remand to the Court of Criminal Appeals for that court to address Clemons’s claims of ineffective assistance of trial counsel is proper.

MURDOCK, Justice

(concurring in the rationale in part and concurring in the result).

I concur in the analysis of the main opinion in all respects except one. I am not at this time fully persuaded of the merit of the so-called extraordinary-circumstances exception to the general rule we announce today regarding the inability of an appellate court to raise sua sponte a Rule 32.2(a) preclusive bar that has been waived by the State or, if such an exception is to exist, precisely what its parameters should be. Moreover, I see no need to decide these issues in this case. These issues have not been briefed to this Court, and, as the main opinion itself notes, the facts of this particular case would not appear to lend themselves to such an exception. I, therefore, would not go so far as does the main opinion in affirmatively recognizing and defining such an exception in the present case.

      . Although the State concedes that Clemons “functions in the borderline range of intellectual ability,” it contends that Clemons is not borderline mentally retarded. Because we quash the writ as to the issue whether Clemons’s borderline intellectual capacity should have been considered as a mitigating factor, it is not necessary for us to elaborate upon the significance of any such distinction.

      . The order entered by the trial court denying Clemons’s Rule 32 petition was an order proposed by the State; it states:
      “The State of Alabama could have asserted a procedural bar to the consideration of the current petition as these allegations [of ineffective assistance of trial counsel] could have been raised or addressed during the Motion for New Trial hearing and on direct appeal. The State waived this procedural bar ....’’

      . "From a practical standpoint, this Court’s ability to handle the ever-increasing number of appeals from Rule 32 petitions would be greatly impeded if we could not sua sponte apply the procedural bars set out in Rule 32.2, Ala. R.Crim. P.” Davis v. State, 9 So.3d at 535 (opinion on application for rehearing).

      . The main opinion finds confirmation for its conclusion in the State's position at oral argument that the procedural bars of Rule 32.2(a) are jurisdictional. In my opinion, the State, like the main opinion, is erasing the distinction between the meanings of the terms jurisdictional and mandatory.


source: Caselaw Access Project

author: PER CURIAM. BASCHAB, Presiding Judge,

license: Public Domain

text:
    Eugene Milton CLEMONS II v. STATE of Alabama.
    CR-01-1355.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 2007.
    Rehearing Denied Jan. 18, 2008.
    Certiorari Denied Aug. 13, 2010 Alabama Supreme Court 1070535.
    James S. Christie, Jr., Birmingham; Anne R. Yuengert, Birmingham; Daniel G. Grove, Washington, D.C.; and Marc Z. Michael, Washington, D.C. (withdrew 04/01/2005); and Anne W. Stakes, Washington, D.C., for appellant.
    William H. Pryor, Jr., and Troy King, attys. gen., and Anne C. Adams, James Clayton Crenshaw, and Henry Mitchell Johnson, asst, attys. gen., for appellee.
   On Remand from the Alabama Supreme Court

PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, SHAW, WISE, and WELCH, JJ., concur.

BASCHAB, P.J., concurs specially, with opinion.

BASCHAB, Presiding Judge,

concurring specially.

I concur with the majority’s decision in the unpublished memorandum in this case. However, I am compelled to write specially to address the Alabama Supreme Court’s holding in this case that, “[bjecause the preclusive bars of Rule 32.2(a) are nonju-risdictional in nature, the Court of Criminal Appeals may not raise them sua sponte, except in extraordinary circumstances, and such circumstances are not present here.” 55 So.3d 348, 356 (Ala.2007).

I question the supreme court’s reliance on the concept of “jurisdiction” to reach its decision. I first suggested that the Alabama appellate courts were overusing the terms “jurisdiction” and “jurisdictional” in Smith v. State, 918 So.2d 141, 155 (Ala.Crim.App.2005) (Baschab, J., concurring in the result), stating:

“It appears that this court and the Alabama Supreme Court have used the terms ‘jurisdiction’ and ‘jurisdictional’ as umbrella terms that encompass the concepts of subject matter jurisdiction and personal jurisdiction. As a result, the distinction between subject matter jurisdiction and personal jurisdiction has been blurred, and both circuit and appellate courts are confused as to the definition and scope of both concepts.

In recent opinions, the supreme court has attempted to limit the use of those terms. See e.g., Ex parte Gunn, 993 So.2d 433 (Ala.2007); Ex parte Ward, 46 So.3d 888 (Ala.2007); Ex parte Seymour, 946 So.2d 536 (Ala.2006). However, in its efforts to narrow the scope of the term “jurisdictional,” the court has failed to recognize years of precedent and created a procedural quagmire.

I certainly agree that Alabama appellate courts need to be more circumspect when using the terms “jurisdiction” and “jurisdictional.” Nevertheless, I do not believe it was necessary for the supreme court to address the concept of jurisdiction when interpreting Rule 32.2(a), Ala. R.Crim. P. In this case, the supreme court went to great pains to justify the following statement: “If we were to read Rule 32.2 as a limitation upon the jurisdiction of the circuit court to grant relief in instances where preclusion is available as a defense, thereby enabling an appellate court to invoke the defense sua sponte, we will have construed a rule of procedure in a manner contrary to the authority conferred upon this Court by the Alabama Constitution.” 55 So.3d at 354. However, Rule 32, Ala. R.Crim. P., is a creation of the Alabama Supreme Court rather than the legislature. Thus, as I pointed out in Smith, the court could have simply concluded that the Rule means that neither a circuit court nor an appellate court has the “authority,” pursuant to that Rule, to grant relief on a claim that is clearly precluded by that Rule.

The supreme court’s opinion in this case creates more questions than it answers. It ignores those situations in which a circuit court rules on a petition without requiring a response from the State. It indicates that an appellate court may sua sponte apply the procedural bars in Rule 32.2(a), Ala. R.Crim. P., in extraordinary circumstances, but it does not clearly define what those extraordinary circumstances might be. The decision will very likely open the floodgates to baseless petitions by petitioners who hope they can slip through a procedural crack and get an obviously barred claim heard on the merits. Finally, it could have the effect of creating inequities between or among inmates because one district attorney pleads a bar and another does not.

Surely, this was not the intent of either the members of the Alabama Supreme Court when the Rules were drafted or the members of the current Alabama Supreme Court. Therefore, I write specially to urge that court to revisit its decision in this case.

      “6 It also appears that the courts have sometimes used these terms when the more appropriate term would be ‘authority.’ ”


author: WISE, Judge.

text:
    Robert Marshall STAPLES v. STATE of Alabama.
    CR-05-1923.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 2007.
    Stephen A. Strickland, Birmingham, for appellant.
    Troy King, atty. gen., and Marc A. Star-rett, asst. atty. gen., for appellee.
   WISE, Judge.

Robert Marshall Staples was convicted of one count of second-degree arson, a violation of § 13A-7-42, Ala.Code 1975. He was sentenced to 10 years’ imprisonment. However, pursuant to the Split Sentence Act, § 15-18-8, Ala.Code 1975, Staples’s sentence was suspended, and he was ordered to serve 18 months in prison, followed by 5 years of supervised probation. He was also ordered to pay a $50 assessment to the crime victims compensation fund, all court costs, and perform 120 hours of community service upon his release from incarceration.

Staples’s trial began on September 12, 2005, and the jury returned a verdict of guilty on September 15, 2005. Staples was sentenced on November 1, 2005. After he was sentenced, Staples retained new counsel to represent him. On November 80, 2005, Staples’s new counsel filed a motion for a judgment of acquittal or, in the alternative, a motion for a new trial. Counsel later requested that an evidentiary hearing be held on that motion. On January 3, 2006, a notation on the case-action summary indicated that Staples’s motion for a new trial had been continued to January 30, 2006, “at the request of the defendant.” However, there was no indication that the prosecutor had consented to the continuance. A subsequent notation on the case-action summary dated January 18, 2006, stated:

“Motion for New Trial is set for 1-30-06 [at] 9 a.m. The attorneys for defense and State have agreed on the record that the hearing may be continued thereafter to the next motion docket for ruling by the Court as specified by Rule 24, Ala. R.Crim.P.”

(C. 10.)

On February 28, 2006, the trial court conducted a hearing on all pending motions, including the motion for a new trial. Although evidence was presented in support of Staples’s new-trial motion— particularly his various claims of ineffective assistance of counsel — the court denied Staples’s motion for a new trial without making any specific findings of fact. Staples filed a notice of appeal on March 7, 2006. However, on April 11, 2006, this Court dismissed Staples’s appeal as untimely, given that the notice of appeal was not filed within 42 days of January 3, 2006 — the day Staples’s motion for a new trial was denied by operation of law. Staples v. State (No. CR-05-1110), 978 So.2d 84 (Ala.Crim.App.2006) (table).

On April 26, 2006, Staples filed a petition for postconviction relief, pursuant to Rule 32, Ala.R.Crim.P., seeking an out-of-time appeal. The trial court entered an order dated June 15, 2006, noting that “Staples’s Rule 32 petition is granted so that he can file his reinstated appeal so he can resolve the claims that he could have raised in the initial timely appeal, which includes all issues raised in the motion for new trial.” (C. 68.) This appeal followed.

Staples presents a single argument for this Court’s review: whether the trial court erred in denying his motion for a new trial on the ground that trial counsel rendered ineffective assistance. The State maintains that this Court should not address Staples’s various claims of ineffective assistance of counsel until such time as the trial court renders specific findings of fact on each of the grounds that were argued in the hearing on Staples’s motion for a new trial and are now argued to this Court on appeal. We agree.

This Court addressed virtually the same fact situation in Stinson v. State, 964 So.2d 684 (Ala.Crim.App.2006). We remanded that case for the trial court to enter a new order on Stinson’s claims, noting:

“Because the motion for new trial was deemed to be denied by operation of law on March 8, 2005, i.e., the sixty-first day after Stinson was sentenced, every action taken in the trial court from that date forward, including the March 29, 2005, hearing on the motion for a new trial and the parties’ waiver and consent to extend the 60-day period was void, and the trial court’s order purporting to deny the motion was a nullity. See Similton v. State, 672 So.2d 1363 (Ala.Crim.App.1995). Therefore, based on the circumstances of this case, the trial court was correct in granting the out-of-time appeal. See Dedeaux v. State, 976 So.2d 1045 (Ala.Crim.App.2005) (Tf the failure to file a timely notice of appeal is through no fault of the appellant’s, the appellant is entitled to an out-of-time appeal.’).
“Here, we have a situation similar to the one in Edgar v. State, 646 So.2d 683, 685 (Ala.1994), in which the trial court held a hearing on the motion for a new trial after the 60-day period; therefore, it did not take evidence until after the motion had already been denied by operation of law. Although the trial court, in Edgar, denied the motion, it failed to include in its order any specific findings. The Alabama Supreme Court held:
“‘We hold that where, as here, a criminal defendant’s motion for a new trial is denied under the provisions of Rule 24.4, Ala.R.Crim.P., without an affirmative statement by the trial judge giving the ruling a presumption of correctness and the defendant supports his new trial motion by evidence that was not presented at trial, and that evidence, if not controverted by the State, will entitle him to a new trial, the denial by operation of law should be reversed and the case remanded for the trial court to conduct a hearing on his motion for new trial and then enter an order either granting or denying the motion.’
“Edgar v. State, 646 So.2d at 687.
“Additionally, this Court in Banks v. State, 845 So.2d 9 (Ala.Crim.App.2002), addressed a situation similar to the case at bar, having before it an affirmative response from the trial court denying a motion to withdraw a guilty plea, over which it no longer had jurisdiction because the motion had been denied by operation of law. Here, as in Banks, the trial court’s written order has no legal significance, because the trial court no longer had jurisdiction to rule on the motion for a new trial. Because this Court cannot consider any proceedings in the trial court that occurred beyond the 60-day limit, a remand is necessary to bestow jurisdiction on the trial court. Moreover, we are confident that the trial court, which presided over the trial and the hearing on the motion for a new trial, is in the best position to make any findings of fact regarding Stinson’s claims. See, e.g., Vinnie v. State, 866 So.2d 1175, 1176 (Ala.Crim.App.2002).”

964 So.2d at 685-86.

Based on the foregoing, the trial court is directed to review the transcript of the hearing on Staples’s motion for a new trial and enter an order, making specific findings of fact regarding Staples’s ineffective-assistance-of-counsel claims, or to conduct any additional proceedings it deems necessary.

The trial 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 56 days of the release of this opinion. The return to remand shall include a transcript of the proceedings, if any, conducted by the trial court on remand and the trial court’s specific written findings of fact.

REMANDED WITH DIRECTIONS.

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

      . Although Staples argued a number of grounds for relief in his motion for a new trial, those claims are deemed abandoned based on Staples’s failure to argue these grounds on appeal. See Slaton v. State, 902 So.2d 102, 109 (Ala.Crim.App.2003) (citing Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim. App.1995)).


author: McMILLAN, Judge.

text:
    Jerome Eric WILLIAMSON v. STATE of Alabama.
    CR-07-0264.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 2008.
    Jerome Eric Williamson, pro se.
    Troy King, atty. gen., and Marc A. Star-rett, asst. atty. gen., for appellee.
   McMILLAN, Judge.

The appellant, Jerome Eric Williamson, appeals from his conviction for the unlawful possession of a controlled substance, a violation of § 13A-12-212, Ala.Code 1975. He was sentenced as a habitual offender to 40 years’ imprisonment, his sentence to run concurrently with two other sentences imposed on convictions in Madison County. (CC-99-1773 and CC-99-1038). Williamson was ordered to pay a $1,000 fine, a $100 victims compensation assessment, a $100 fee to the Alabama Forensic Sciences Trust Fund, a $1,000 drug user fee, and assessed court costs.

Williamson argues that the trial court erroneously allowed his motion for a new trial to be denied by operation of law. In his motion, he alleged that his trial counsel had rendered ineffective assistance by depriving him of his right to testify at trial on his own behalf. Williamson submitted this claim in his “supplement” to the motion for a new trial and in his attached affidavit. In his affidavit, he stated that trial counsel “would not permit me to testify at my criminal trial ... He said I could not testify because of my prior convictions. I expressed to him that my priors were not drug cases but he would not listen. My trial was very short and he rested the defense without allowing me to testify, as was my wish.” Although the motion for a new trial and its “supplement” were denied by operation of law, pursuant to Rule 24.4, Ala. R.Crim. P., the trial court, without making specific findings of fact, purported to deny the motion after it had already been denied under Rule 24.4. The State did not file a response to the motion for a new trial or its supplement.

In Edgar v. State, 646 So.2d 683, 687 (Ala.1994), the Alabama Supreme Court addressed a similar situation as follows:

“We hold that where, as here, a criminal defendant’s motion for a new trial is denied under the provisions of Rule 24.4, Ala. R.Crim. P., without an affirmative statement by the trial judge giving the ruling a presumption of correctness and the defendant supports his new trial motion by evidence that was not presented at trial, and that evidence, if not controverted by the State, will entitle him to a new trial, the denial by operation of law should be reversed and the case remanded for the trial court to conduct a hearing on his motion for new trial and then enter an order either granting or denying the motion.”

Based on the Alabama Supreme Court’s holding in Edgar, this case is remanded to the trial court with instructions that the court make specific written findings of fact as to Williamson’s ineffective-assistance-of-counsel claim raised in the supplement to his motion for a new trial. On remand, the trial court may require the State to respond to the motion and/or may conduct a hearing on the motion. If the trial court determines that Williamson is entitled to relief, it may grant such relief as it deems necessary. The trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and with 56 days after the release of this opinion. The return to remand shall include the State’s response, if any; a transcript of the remand proceedings, if any, conducted by the trial court; and the trial court’s specific written findings of fact.

We pretermit any discussion of the remaining issues raised by Williamson until the return to remand is filed with this Court.

REMANDED WITH INSTRUCTIONS

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


author: MAIN, Judge.

text:
    Maxine WILLIAMS v. STATE of Alabama.
    CR-08-2016.
    Court of Criminal Appeals of Alabama.
    May 28, 2010.
    Rehearing Denied July 16, 2010.

      Billy Shaun McGhee, Dothan, for appellant.
    Troy King, atty. gen., and Michael G. Dean, asst. atty. gen. for appellee.
   MAIN, Judge.

Maxine Williams was convicted of one count of unlawful possession of a controlled substance, see § 13A-12-212, Ala. Code 1975, and one count of chemical endangerment of a child, see § 26-15-3.2, Ala.Code 1975. The trial court sentenced Williams, as a habitual offender, to concurrent terms of 15 years’ imprisonment on each count. Williams filed a motion for a new trial, which the trial court denied. This appeal followed.

On January 31, 2008, Officer Jason Adkins of the City of Dothan Police Department, accompanied by other officers of the Dothan Police Department, obtained and executed a search warrant at 626 Chickasaw Street because a confidential informant, who had been at the residence earlier that day, had informed Officer Adkins that drugs were being sold from the house and that guns were being kept there.

As the officers approached the house, they saw two African-American males standing near the rear of the house. Officer Adkins and another officer moved toward the side door of the house, and two other officers headed in the direction of the men in the backyard, who fled. Officers apprehended one of the men, who was later identified as Anthony Hamilton. During a search of Hamilton, the police found what appeared to be a crack pipe containing cocaine residue.

While the other officers pursued Hamilton and the other male, Officer Adkins knocked on the door and announced his presence. Approximately 15 seconds after he knocked and heard movement inside the house, Officer Adkins broke through the door. Williams, two other adult women, a 10-year-old girl, and an infant were in the living room when the officers entered. After securing everyone, the officers searched the house.

In the rear bedroom of the house, Officer Adkins found Williams’s purse near the nightstand. He also noticed women’s clothing lying about the room and photographs of Williams posted on the mirror. During his search of the rear bedroom, Officer Adkins found hidden between the mattress and the box springs a DVD case containing two pieces of crack cocaine.

In the kitchen, Officer Adkins discovered a prescription bottle with Williams’s name on it that contained more crack cocaine. Outside the back door, which led from the kitchen to the backyard, officers found another DVD case on a table and another on the ground near where the two males had been when the officers first approached. The case on the table contained crack cocaine.

In addition to the drug evidence in the bedroom and in Williams’s prescription bottle, Officer Adkins found a loaded shotgun under a window near the backdoor. On the window sill above the shotgun, Officer Adkins found an off-white powdered substance lodged between the window sill and the wall. Officer Adkins also found more off-white powdered substance inside a cabinet in the kitchen, wedged between the cabinet and the wall. Finally, the officers found a second shotgun inside the house as well as additional pills around the house.

Although the physical evidence at the residence indicated that Williams had some connection to it and Officer Adkins testified that he knew that Williams lived there, she denied that she lived there when she spoke with Officer Adkins. Officer Adkins testified that the utilities for the house were registered in the name of Maggie Johnson. However, neither of the two women with Williams were identified as Maggie Johnson, and there was no evidence indicating that Johnson actually lived there. Williams did not testify.

I.

Williams first argues that the trial court erred in denying her Batson motion because she contends that she made a prima facie case of racial discrimination based on the State’s striking all but two of the African-American veniremembers from the jury. Specifically, she claims error because the State struck potential juror no. 133, R.N.J., an African-American female, who, Williams argued, had not provided any negative responses to the prosecutor’s questioning during voir dire. Williams maintains that she established a prima fa-cie case of discrimination and that the trial court erred in not requiring the State to articulate race-neutral reasons for its strikes.

During jury selection, the defense made a Batson motion after the State struck R.N.J. Specifically, the following exchange occurred:

“[DEFENSE COUNSEL]: Ms. Maxine Williams is a black female. She is part of the minority. Juror Number 133 is also a minority class. The State struck her as their last strike. I am not aware of any negative response with the State in reference to Juror Number 133, so I will ask that they be ordered to give a race-neutral reason for striking.
“THE COURT: It is the State’s last strike?
“[DEFENSE COUNSEL]: Yes, Your Honor.
“THE COURT: How many black jurors are on the actual jury panel? “[DEFENSE COUNSEL]: Two. Well, three counting her.
“THE COURT: I’m going to find that the Defense has failed to make a prima facie case of a Batson violation. So I will not require the State to give any reasons for the strike of this particular juror.”

(R. 18.)

Initially, we note that Williams failed to provide a complete record on appeal. The recoi'd indicates that the jury venire was composed of 36 persons. One person failed to report for jury duty, leaving 35 in the jury venire. The State had 12 peremptory strikes; Williams had 11 peremptory strikes. (C. 36.) Although the jury strike list is a part of the record and the trial court stated for the record the names of the jurors who were empaneled, the record does not include, a transcription of the voir dire of the venire by the State and Williams or of the actual striking of the jury. The record, however, does show that two African-Americans remained on the jury. Regardless, nothing in the record indicates the actual race of any of the other prospective jurors. As we stated in Johnson v. State, 823 So.2d 1 (Ala.Crim. App.2001):

“Initially, we note that the record does not contain any documents that show the race of the prospective jurors on the venire or of the members of the jury itself. The jury strike list is not in the record, nor is the striking of the jury included in the trial transcript.... Other than defense counsel’s assertions in support of the Batson motion, there is simply no evidence in the record of the race of prospective jurors on the venire, of which prospective jurors were struck by the State and which were struck by the defense, or even of the identity or race of the jurors who ultimately sat on Johnson’s jury. ‘It is the appellant’s duty to provide this Court with a complete record on appeal.’ Knight v. State, 621 So.2d 394, 395 (Ala.Crim.App.1993). ‘ “Where the record is silent on appeal, it will be presumed that what ought to have been done was not only done, but rightly done.” ’ Owens v. State, 597 So.2d 734, 736 (Ala.Crim.App.1992), quoting Jolly v. State, 405 So.2d 76, 77 (Ala.Crim.App.1981). ‘This court will not presume error from a silent record.’ Frazier v. State, 758 So.2d 577, 600 (Ala. Crim.App.), aff'd, 758 So.2d 611 (Ala. 1999), cert. denied, 531 U.S. 843, 121 S.Ct. 109, 148 L.Ed.2d 66 (2000). See also Roberts v. State, 627 So.2d 1114, 1116 (Ala.Crim.App.1993).”

823 So.2d at 18-19. See also Finney v. State, 860 So.2d 367, 376-77 (Ala.Crim.App.2002).

Moreover, “[w]e will reverse the circuit court’s ruling on the Batson motion only if it is ‘clearly erroneous.’ Jackson v. State, 549 So.2d 616 (Ala.Cr.App.1989).” Cooper v. State, 611 So.2d 460, 463 (Ala.Crim.App.1992). “ ‘ “[A] finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” ’ ” Fletcher v. State, 703 So.2d 432, 436 (Ala.Crim.App.1997), quoting Davis v. State, 555 So.2d 309, 312 (Ala.Crim.App.1989), quoting in turn Powell v. State, 548 So.2d 590, 594 (Ala.Crim.App.1988). “‘The party alleging racially discriminatory use of peremptory challenges bears the burden of establishing a prima facie case of discrimination.’ ” Rogers v. State, 819 So.2d 643, 648-49 (Ala.Crim.App.2001), quoting Burgess v. State, 811 So.2d 557, 572 (Ala.Crim.App.1998). A determination regarding a moving party’s showing of intent to discriminate under Batson is “ ‘a pure issue of fact subject to review under a deferential standard.’” Armstrong v. State, 710 So.2d 531, 534 (Ala.Crim.App.1997), quoting Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). “After the appellant makes a timely Batson motion and establishes a prima facie showing of discrimination, the burden shifts to the State to provide a race-neutral reason for each strike.... See, e.g., Ex parte Bird, 594 So.2d 676 (Ala.1991).” Cooper, 611 So.2d at 463. Once the prosecutor has articulated race-neutral reasons for the strike, the moving party can then offer evidence showing that those reasons are merely a sham or pretext. Ex parte Branch, 526 So.2d 609, 624 (Ala.1987).

In this case, there was simply no evidence presented indicating that any of the factors set out in Ex parte Branch, supra, which may be used to establish a prima facie case, existed. Regarding potential juror no. 133, R.N.J., the trial court denied Williams’s Batson motion without requiring a response from the State. With respect to this challenge, Williams argued only that R.N.J. had not provided an adverse response to voir dire questioning and speculated as to the State’s reasons for striking R.N.J., and further asserted generally that the jury was composed of too few minority ethnic groups. “ ‘[I]t is important that the defendant come forward with facts, not just numbers alone, when asking the [trial] court to find a prima facie case.’ ” Mitchell v. State, 579 So.2d 45, 48 (Ala.Crim.App.1991), quoting United States v. Moore, 895 F.2d 484, 485 (8th Cir.1990). The record indicates that, along with the rest of the veniremembers, R.N.J. was asked general questions by the trial court before voir dire by the State and Williams, although she failed to respond to any of these questions. (R. 9-17.) Because the record does not contain the voir dire by either party, we do not know what questions were asked by the State or Williams nor do we know how R.N.J. responded. Williams’s arguments alone were not sufficient to prove a prima facie evidence of a Batson violation. Accordingly, we cannot say that the trial court erred in denying Williams’s Batson motion with respect to potential juror no. 133.

II.

Williams next argues that the trial court erred in denying her motion to suppress. She contends that there was a lack of probable cause for the issuance of the search warrant that yielded the evidence because, she says, the confidential informant was not reliable and the supporting affidavit contained false information.

At the suppression hearing on Williams’s oral motion to suppress, which occurred on the day of trial, Officer Adkins testified that he obtained a search warrant on the evening of January 31, 2008 for the house where Williams was residing based on information he had received approximately two hours earlier from a confidential informant. Specifically, the confidential informant, whom he had used at least five times before and who had proven to be reliable, told Officer Adkins that drugs were being sold from the back door of the house at 626 Chickasaw Street in Dothan and that guns were also in the house. Officer Adkins testified that, although he did not have a copy of the supporting affidavit and he did not believe that the supporting affidavit specifically listed Williams, he knew that Williams resided at that house. In denying the motion to suppress, the trial court said:

“THE COURT: I’m going to deny the motion to suppress. I believe there was a factual basis for the informant’s knowledge, and I also find that there is testimony which I find that he was a reliable informant.
“And as far as the affidavit, or the allegation that the affidavit did not support the issu[anc]e of the search warrant, of course, I haven’t been presented with that affidavit so I can’t review that. But based on what I’ve heard concerning the factual basis and the reliability of the informant, I find that the search warrant would have been proper, so I deny the motion to suppress.”

(R. 37-38.)

In this case, during the suppression hearing, Williams never presented any evidence of either the contents of the affidavit or of any other information that may have been presented to the judge issuing the search warrant. The affidavit and search warrant were not presented to the trial court below and, thus, are not a part of the record on appeal. We cannot review the merits of Williams’s allegation concerning the sufficiency of the affidavit supporting the search warrant because Williams did not offer the affidavit into evidence below. See Andujar v. State, 572 So.2d 1319, 1321 (Ala.Crim.App.1990) (holding that “[t]his Court cannot review the merits of the defendant’s allegation concerning the insufficiency of the affidavit to support the search warrant because the affidavit was not admitted into evidence in the trial court and is not contained in the record on appeal”). See also Jolly v. State, 858 So.2d 305, 309 (Ala.Crim.App.2002) (providing that “the affidavit and search warrant [the appellant] complains of are not included in the record on appeal; therefore, this issue is not properly before this Court on appeal”); Williams v. State, 794 So.2d 441, 442 (Ala.Crim.App.2000) (“Because the search warrant and the accompanying affidavit were not made a part of the record, [this Court] cannot consider the appellant’s argument.”). Thus, because this issue is not properly before us, Williams is not entitled to a reversal on this claim.

III.

Lastly, Williams challenges the sufficiency of the evidence on the possession-of-cocaine conviction and the chemical-endangerment-to-a-child conviction.

As to the sufficiency of the evidence,

“[i]n deciding whether there is sufficient evidence to support the verdict of the jury and the judgment of the trial court, the evidence must be reviewed in the light most favorable to the prosecution. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). Conflicting evidence presents a jury question not subject to review on appeal, provided the state’s evidence establishes a prima facie case. Gunn v. State, 387 So.2d 280 (Ala.Cr.App.), cert. denied, 387 So.2d 283 (Ala.1980). The trial court’s denial of a motion for a judgment of acquittal must be reviewed by determining whether there existed legal evidence before the jury, at the time the motion was made, from which the jury by fair inference could have found the appellant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978). In applying this standard, the appellate court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala.Cr.App.1983); Thomas v. State, When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for a judgment of acquittal by the trial court does not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969); Willis v. State.”

Breckenridge v. State, 628 So.2d 1012, 1018 (Ala.Crim.App.1993).

“Tn determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider the evidence in the light most favorable to the prosecution’ Faircloth v. State, 471 So.2d 485, 489 (Ala.Cr.App.1984), affirmed, Ex parte Faircloth, [471] So.2d 493 (Ala.1985).
“ ‘ “The role of appellate courts is not to say what the facts are. Our role, ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision to the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978). An appellate court may interfere with the jury’s verdict only where it reaches “a clear conclusion that the finding and judgment are wrong.” Kelly v. State, 273 Ala. 240, 244, 139 So.2d 326 (1962).... A verdict on conflicting evidence is conclusive on appeal. Roberson v. State, 162 Ala. 30, 50 So. 345 (1909). “[W]here there is ample evidence offered by the state to support a verdict, it should not be overturned even though the evidence offered by the defendant is in sharp conflict therewith and presents a substantial defense.” Fuller v. State, 269 Ala. 312, 333, 113 So.2d 153 (1959), cert. denied, Fuller v. Alabama, 361 U.S. 936, 80 S.Ct. 380, 4 L.Ed.2d 358 (I960).’ Granger [v. State ], 473 So.2d [1137,] 1139 [ (Ala.Crim.App.1985) ].”

White v. State, 546 So.2d 1014, 1017 (Ala.Crim.App.1989). Also,

“ ‘[c]ircumstantial evidence is not inferior evidence, and it will be given the same weight as direct evidence, if it, along with the other evidence, is susceptible of a reasonable inference pointing unequivocally to the defendant’s guilt. Ward v. State, 557 So.2d 848 (Ala.Cr.App.1990). In reviewing a conviction based in whole or in part on circumstantial evidence, the test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979).’
“Ward [v. State], 610 So.2d [1190] at 1191-92 [ (Ala.Crim.App.1992) ].”

Lockhart v. State, 715 So.2d 895, 899 (Ala.Crim.App.1997).

“““Whether circumstantial evidence tending to connect the defendant with the crime excludes, to a moral certainty, every other reasonable hypothesis than that of the defendant’s guilt is a question for the jury and not the court.’ [Cumbo v. State, 368 So.2d 871 (Ala.Crim.App.1978) ]; Cannon v. State, 17 Ala.App. 82, 81 So. 860 (1919). Our function is not to be factfinders, however tempting that may sometimes be. We must not substitute ourselves for jurors, nor play their role in the criminal process. Jury verdicts should not be disturbed unless they are not based upon evidence sufficient to meet the test set out above.” ’ ”

Gissendanner v. State, 949 So.2d 956, 973 (Ala.Crim.App.2006), quoting Parker v. State, 589 So.2d 773, 776 (Ala.Crim.App.1991), quoting in turn Linzy v. State, 455 So.2d 260, 262 (Ala.Crim.App.1984).

Additionally, it is well settled that “[t]he weight and probative value to be given to the evidence, the credibility of the witnesses, the resolution of conflicting testimony, and inferences to be drawn from the evidence are for the jury.” Smith v. State, 698 So.2d 189, 214 (Ala.Crim.App.1996), aff'd, 698 So.2d 219 (Ala.1997).

“In Johnson v. State, 555 So.2d 818, 819-20 (Ala.Cr.App.1989), this court noted the difference in ‘sufficiency’ and ‘weight’ as follows:
“ ‘The weight of the evidence is clearly a different matter from the sufficiency of the evidence. The sufficiency of the evidence concerns the question of whether, “viewing the evidence in the light most favorable to the prosecution, [a] rational factfinder could have found the defendant guilty beyond a reasonable doubt.” Tibbs v. Florida, 457 U.S. 31, 37, 102 S.Ct. 2211, 2215, 72 L.Ed.2d 652 (1982). Accord, Prantl v. State, 462 So.2d 781, 784 (Ala.Cr.App.1984).
“ ‘In contrast, “[t]he ‘weight of the evidence’ refers to ‘a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other.’ ” Tibbs v. Florida, 457 U.S. at 37-38 [102 S.Ct. at 2216] (emphasis added). We have repeatedly held that it is not the province of this court to reweigh the evidence presented at trial. E.g., Franklin v. State, 405 So.2d 963, 964 (Ala.Cr.App.), cert. denied, 405 So.2d 966 (Ala.1981); Crumpton v. State, 402 So.2d 1081, 1085 (Ala.Cr.App.), cert. denied, 402 So.2d 1088 (Ala.1981); Nobis v. State, 401 So.2d 191, 198 (Ala.Cr.App.), cert. denied, 401 So.2d 204 (Ala.1981). ‘“[T]he credibility of witnesses and the weight or probative force of testimony is for the jury to judge and determine.’ ” Harris v. State, 513 So.2d 79, 81 (Ala.Cr.App.1987) (quoting Byrd v. State, 24 Ala.App. 451, 136 So. 431 (1931)).[’]
“(Emphasis in original.) See Smith v. State, 604 So.2d 434 (Ala.Cr.App.1992); Pearson v. State, 601 So.2d 1119 (Ala.Cr.App.1992); Curry v. State, 601 So.2d 157 (Ala.Cr.App.1992).”

Zumbado v. State, 615 So.2d 1223, 1240-41 (Ala.Crim.App.1993).

A.

Williams asserts that the State offered insufficient evidence to convict her of unlawful possession of a controlled substance.

To establish a prima facie case of possession of a controlled substance, the State must prove that Williams possessed one of the controlled substances enumerated in Schedules I through V, in this case, cocaine. §§ 20-2-20 through 20-2-31, Ala. Code 1975; see § 13A-12-212, Ala.Code 1975. Pursuant to § 13A-1-2(13), Aa. Code 1975, in order to possess, one must “have physical possession or otherwise exercise dominion or control over tangible property.” Because Williams was not in actual possession of the cocaine in this case, the question becomes whether she was in constructive possession. Regarding constructive possession, the Aabama Supreme Court has stated:

“ ‘In order to establish constructive possession, the State must prove “(1) [a]ctual or potential physical control,
(2) intention to exercise dominion and
(3) external manifestations of intent and control.” ’
“Ex parte Fitkin, 781 So.2d 182, 183 (Aa.2000) (quoting Bright v. State, 673 So.2d 851, 852 (Ala.Crim.App.1995)). Where contraband is seized inside a residence, ‘constructive possession can only arise “where the prohibited material is found on the premises owned or controlled by the appellant.” ’ Crane v. State, 401 So.2d 148, 149 (Ala.Crim.App.1981) (quoting Williams v. State, 340 So.2d 1144, 1145 (Ala.Crim.App.1976)). ‘ “When constructive possession is relied on, the prosecution must also prove beyond a reasonable doubt that the accused had knowledge of the presence of the controlled substances.” ’ Ex parte Tiller, 796 So.2d [310] at 312 [(Ala.2001) ] (quoting Posey v. State, 736 So.2d 656, 658 (Ala.Crim.App.1997)).
“ “While non-exclusive possession may raise a suspicion that all the occupants had knowledge of the contraband found, a mere suspicion is not enough. Some evidence that connects a defendant with the contraband is required. Generally, the circumstances that provide that connection include:
“ ‘ “(1) evidence that excludes all other possible possessors; (2) evidence of actual possession; (3) evidence that the defendant had substantial control over the particular place where the contraband was found; (4) admissions of the defendant that provide the necessary connection, which includes both verbal admissions and conduct that evidences a consciousness of guilt when the defendant is confronted with the possibility that illicit drugs will be found; (5) evidence that debris of the contraband was found on defendant’s person or with his personal effects; (6) evidence which shows that the defendant, at the time of the arrest, had either used the contraband very shortly before, or was under its influence.” ’
“Grubbs v. State, 462 So.2d 995, 997-98 (Ala.Crim.App.1984) (quoting Temple v. State, 366 So.2d 740, 743 (Ala.Crim.App.1978)).”

Ex parte J.C., 882 So.2d 274, 277-78 (Ala.2003). “Furthermore, knowledge is usually established by circumstantial evidence.” Mitchell v. State, 713 So.2d 981, 984 (Ala.Crim.App.1997), citing Rowell v. State, 666 So.2d 830 (Ala.1995), and Ward v. State, 484 So.2d 536 (Ala.Crim.App.1985). Moreover, constructive possession of a controlled substance may be established by circumstantial as well as direct evidence. Knight v. State, 622 So.2d 426, 430-31 (Aa.Crim.App.1992). Finally, “ ‘[t]he kinds of circumstances which may provide a connection between a defendant and the contraband are unlimited and will naturally depend on the facts of each particular case.’ ” McGruder v. State, 560 So.2d 1137, 1140 (Ala.Crim.App.1989), quoting Temple v. State, 366 So.2d 740, 743 (Ala.Crim.App.1978).

In the present case, the State presented evidence indicating that cocaine was found in a bedroom that appeared to be Williams’s bedroom because the authorities found her purse and other personal items in that room. The State also presented evidence indicating that a prescription bottle bearing Williams’s name found in the kitchen contained cocaine. The evidence also indicated that Williams was known to reside at the residence located at 626 Chickasaw Street in Dothan. Thus, given the evidence in this case, the jury could have concluded that Williams was connected with the cocaine so that reasonable inferences could be drawn that she had knowledge of the existence of the cocaine, that she had control over the cocaine, and that she had the necessary intent to exercise dominion over the cocaine.

This Court must consider the evidence in a light most favorable to the State and determine “whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt.” Cumbo v. State, 368 So.2d 871, 874 (Ala.Crim.App.1978). Here, the evidence established a connection between Williams and the cocaine sufficient to meet the State’s burden of presenting evidence of constructive possession, and the trial court properly submitted the case to the jury for it to resolve any conflicts in the evidence. The jury resolved any conflicts adversely to Williams, and this Court will not go behind that verdict.

B.

With regard to the conviction for chemical endangerment of a child, Williams asserts that the State did not establish that she was a “responsible person.” We agree.

Section 26-15-3.2, Ala.Code 1975, provides:

“(a) A responsible person commits the crime of chemical endangerment of exposing a child to an environment in which he or she does any of the following:
“(1) Knowingly, recklessly, or intentionally causes or permits a child to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia as defined in Section 13A-12-260. A violation under this subdivision is a Class C felony.”

A “responsible person” is defined as:

“[A] child’s natural parent, stepparent, adoptive parent, legal guardian, custodian or any other person who has .the permanent or temporary care or custody or responsibility for the supervision of a child.”

§ 26-15-2(4), Ala.Code 1975.

In this case, the State did not present sufficient evidence indicating that Williams was a “responsible person” as that term is defined in the statute. At most, it presented evidence indicating that 2 children, one an infant and the other a 10-year-old female, were in the front room of the house with Williams and two other adult females when officers executed the search warrant. Thus, we conclude that the evidence was insufficient to prove that Williams was a responsible person. Therefore, her conviction and sentence for chemical endangerment of a child are due to be reversed.

Based on the foregoing, we affirm Williams’s conviction for unlawful possession of a controlled substance. However, we remand this case to the trial court for that court to vacate Williams’s conviction and sentence for chemical endangerment of a child.

AFFIRMED AS TO CONVICTION FOR UNLAWFUL POSSESSION OF A CONTROLLED SUBSTANCE; REVERSED AS TO CONVICTION FOR CHEMICAL ENDANGERMENT OF A CHILD; AND REMANDED.

WISE, P.J., and WELCH, WINDOM, and KELLUM, JJ., concur.

      . The record appears to identify the case as a CD case; however, it was in fact a DVD case.

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . Claim IV in Williams’s brief to this Court.

      . Claims III in Williams’s brief to this Court.


author: KELLUM, Judge.

text:
    STATE of Alabama v. Eric Lashawn BETHEL.
    CR-09-0881.
    Court of Criminal Appeals of Alabama.
    July 30, 2010.
    Troy King, atty. gen., and Tracy M. Daniel, asst. atty. gen., for appellant.
    Roianne Houlton Conner, Montgomery, for appellee.
   KELLUM, Judge.

Eric Lashawn Bethel was indicted for escape in the first degree, a violation of § 13A-10-31, Ala.Code 1975. During a hearing held for the purpose of accepting Bethel’s guilty plea to escape in the first degree as charged in the indictment, the circuit court dismissed the indictment against Bethel. Pursuant to Rule 15.7, Ala. R.Crim. P., the State appeals the circuit court’s judgment dismissing Bethel’s indictment.

The record indicates that during the guilty-plea hearing held on March 4, 2010, the following occurred:

“THE COURT: Where were you sentenced to?
“[BETHEL]: Sir?
“THE COURT: You were serving time where?
“[DEFENSE COUNSEL]: He was in Community Corrections.
“THE COURT: You were serving time in Community Corrections?
“[BETHEL]: Yes, sir.
“THE COURT: What did you do?
“[BETHEL]: Sir, my cousin committed suicide and I relapsed and didn’t report, Your Honor.
“THE COURT: Okay. How many months were you gone before they arrested you?
“[BETHEL]: I was gone like a week.
“THE COURT: Okay. You didn’t report where?
“[BETHEL]: Didn’t report to Mr. Smith.
“THE COURT: How many months did you miss?
“[BETHEL]: I didn’t miss a month. I just missed a week. I was reporting once a week.
“THE COURT: You were reporting once a week and you only missed one week?
“[BETHEL]: Yes, sir.
“THE COURT: Is that right?
“[DEFENSE COUNSEL]: That’s what this shows.
“THE COURT: Is that right, one week?
“[PROSECUTOR]: He was contacted on January 22nd, ‘09 and told to report. Didn’t report. Wednesday the 28th, the defendant failed to report again as required.
“[DEFENSE COUNSEL]: He was actually absent two weeks.
“[PROSECUTOR]: I’m sure of the actual arrest date.
“THE COURT: So two weeks, it’s escape in the first degree. And if you are on probation, you can be gone months and we don’t put an escape charge on you. That seems to be a little unfair to me.
“[DEFENSE COUNSEL]: When were you picked back up?
“[BETHEL]: A week. A week after I talked to Mr. Smith. It was a week. It was one week. It wasn’t two weeks. It was one week.
“THE COURT: Escape in the first degree on a week’s failure to appear or report?
“[PROSECUTOR]: I can’t speak for — I don’t know.
“THE COURT: Since I know about Community Corrections, and I believe they should have escape clauses — escape cases. And I know what I am about to do to — you’re going to have to do a lot of work. But I am not going to take a plea on escape for one week because I don’t view that as an escape. I am going to dismiss this case. And I know what you got to do. But not to report for one week in Community Corrections is not escape. So I am going to dismiss this case and send him back to the penitentiary to serve his time....”

(R. 4-6.)

The State contends on appeal that the circuit court erred in dismissing the indictment against Bethel because, it argues: (1) a dismissal based on the insufficiency of the evidence was inappropriate; and (2) contrary to the court’s finding, the failure to report to the community-corrections program could constitute escape in the first degree.

Rule 13.5(c)(1), Ala. R.Crim. P., lists the grounds that will support a pretrial motion to dismiss an indictment:

“A motion to dismiss the indictment may be based upon objections to the venire, the lack of legal qualifications of an individual grand juror, the legal insufficiency of the indictment, or the failure of the indictment to charge an offense.”

In State v. Foster, 935 So.2d 1216 (Ala.Crim.App.2005), we stated:

“Rule 13.5(c)(1) does not provide for the dismissal of an indictment based on the insufficiency of the evidence or, as in this case, a possible lack of evidence. See State v. Edwards, 590 So.2d 379 (Ala.Crim.App.1991) (establishment of the corpus delicti requires proof of facts by the State so entwined with the merits of the case that a decision as to whether it had been proved should not be made before trial but should be postponed until trial); State v. McClain, 911 So.2d 54 (Ala.Crim.App.2005)(trial court cannot dismiss the indictment based on a lack of evidence).”

935 So.2d at 1216-17. See State v. Anderson, 8 So.3d 1033 (Ala.Crim.App.2008). See also United States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir.2006) (“It is well-settled that ‘a court may not dismiss an indictment ... on a determination of facts that should have been developed at trial.’ United States v. Torkington, 812 F.2d 1347, 1354 (11th Cir.1987).”)

Furthermore, in State v. Wright, 976 So.2d 1053 (Ala.Crim.App.2007), this Court held that an inmate sentenced to a community-corrections program may be charged with escape in the first degree under the appropriate circumstances. In so holding, we explained:

“[I]n deeming an inmate’s failure to remain within the extended limits of his confinement under the community corrections program an escape from a state penal institution, [§ 15-18-175(d)(3)e, Ala.Code 1975,] defines the inmate’s status for purposes of invoking the escape offenses set forth in Alabama’s Criminal Code. In other words, if a person fails to remain within the extended limits of his confinement as those limits are defined by the community corrections program, then his status is that of an inmate who has escaped from a state penal institution or from the custody of the county sheriff, depending upon the underlying conviction.
“Just as a ‘traditional’ inmate (that is, an inmate incarcerated within prison walls) who escapes from a penal institution can be charged with first-degree escape if he uses physical force, threat of physical force, or a deadly weapon or instrument in escaping, § 13A-10-31(a)(1), or if he escapes after having been convicted of a felony, § 13A-10-31(a)(2), an inmate in the community corrections program who fails to stay within the parameters of the dictates of the program can also be charged with first-degree escape if, in escaping, he uses physical force, the threat of physical force, or a deadly weapon or instrument, or if he was in custody because of a felony conviction. Accordingly, an inmate who escapes from a community corrections program can, under the appropriate circumstances, properly be charged with and convicted of first-degree escape.”

State v. Wright, 976 So.2d at 1055-56.

The circuit court impermissibly dismissed the indictment against Bethel for two reasons. As this Court has previously held, Rule 13.5 does not permit the dismissal of an indictment based on insufficient evidence. Thus, the circuit court erred when it dismissed the charge against Bethel based on the insufficiency of the evidence. Further, because an inmate taking part in the community-corrections program may be charged with first-degree escape under the appropriate circumstances, the circuit court likewise could not dismiss the indictment against Bethel on this ground. In reaching this determination, however, we do not express an opinion as to the efficacy of the first-degree-escape charge against Bethel. That determination is best left to a jury or other finder of fact.

Based on the foregoing, the judgment of the circuit court is reversed and this case is remanded for the circuit court to set aside its order dismissing the first-degree-escape charges and to restore Bethel’s case to its active docket.

REVERSED AND REMANDED.

WISE, P.J., and WELCH, WINDOM, and MAIN, JJ., concur.