author: BOLIN, Justice.

text:
    Ex parte James Henry BORDEN, Jr. (In re James Henry Borden, Jr. v. State of Alabama).
    1050042.
    Supreme Court of Alabama.
    Aug. 17, 2007.

      Bryan A. Stevenson and Angela L. Set-zer of Equal Justice Initiative of Alabama, Montgomery, for petitioner.
    Troy King, atty. gen., and Henry M. Johnson, asst. atty. gen., for respondent.
   BOLIN, Justice.

James Henry Borden, Jr., was convicted of capital murder for intentionally causing the death of Nellie Ledbetter after he had been convicted of another murder within the 20 years before that offense. See § 13A-5-40(a)(13), Ala.Code 1975. The jury, by a vote of 10 to 2, recommended a sentence of death, and the trial court accepted the jury’s recommendation and sentenced Borden to death by electrocution. The Court of Criminal Appeals affirmed his conviction and sentence. Borden v. State, 769 So.2d 935 (Ala.Crim.App.1997). This Court affirmed the Court of Criminal Appeals’ decision, Ex parte Borden, 769 So.2d 950 (Ala.2000), and the United States Supreme Court denied certiorari review. Borden v. Alabama, 531 U.S. 961, 121 S.Ct. 389, 148 L.Ed.2d 299 (2000).

On October 18, 2001, Borden timely filed a Rule 32, Ala. R.Crim. P., petition for postconviction relief, challenging his conviction and sentence of death. Among other things, Borden argued that he should not be executed because, he alleged, he is mentally retarded, death by electrocution violates the prohibition in the Eighth Amendment to the United States Constitution against cruel and unusual punishment, his trial counsel did not render reasonably effective legal representation, and the jury-engaged in misconduct. The State filed its initial response and supporting affidavits. On July 17, 2002, the State filed a motion for leave to amend its answer, included additional affidavits, and also filed a motion to dismiss. On June 20, 2002, the United States Supreme Court released its decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d '335 (2002), holding that the execution of mentally retarded capital offenders violates the prohibition against cruel and unusual punishment in the Eighth Amendment to the United States Constitution. On July 1, 2002, the Alabama Legislature modified Alabama law to provide for execution of capital offenders by lethal injection unless a death-row inmate elects electrocution as a means of execution. Subsequently, the trial court allowed the State to amend its response to reflect those two developments in the law. On August 21, 2002, Borden filed a response to the State’s motion to dismiss and a motion to vacate his death sentence, in which he set out specific facts supporting his claim that he is mentally retarded and thereby ineligible for the death sentence. He also filed a motion to amend his Rule 32 petition setting out, among other things, in more detail his argument regarding his claims of juror misconduct. The trial court summarily dismissed Borden’s petition, without ruling on Borden’s motion to amend.

Borden appealed, and the Court of Criminal Appeals remanded the case for the trial court to make specific findings of fact as to Borden’s claim that he is mentally retarded and therefore could not be sentenced to death as a matter of law. Borden v. State, 60 So.3d 935 (Ala.Crim.App.2004). The trial court then found that Borden was mentally retarded. On return to remand, the Court of Criminal Appeals again remanded the case to the trial court for Borden to be sentenced to life imprisonment without the possibility of parole. Borden v. State, 60 So.3d 935, 937 (Ala.Crim.App.2004) (opinion on return to remand). The trial court sentenced Borden to life imprisonment without the possibility of parole.

On the return to the second remand, the Court of Criminal Appeals in an unpublished memorandum issued on August 19, 2005, dismissed the remainder of Borden’s Rule 32 claims. We granted certiorari review to address the following two issues: (1) Whether, in its unpublished memorandum, the Court of Criminal Appeals correctly held that Borden failed to comply with Rule 28(a)(10), Ala. RApp. P., and thereby waived his ineffective-assistance-of-counsel claims, and (2) whether the Court of Criminal Appeals correctly held that Borden failed to preserve for appellate review his juror-misconduct claims.

Were Ineffective-Assistance-of-Counsel Claims Waived?

The trial court summarily dismissed Borden’s Rule 32, Ala. R.Crim. P., petition, which included his claims of ineffective assistance of counsel. The Court of Criminal Appeals concluded that Borden waived the issue of ineffective assistance of counsel on appeal by failing to comply with Rule 28(a)(10), Ala. R.App. P. The Court of Criminal Appeals’ unpublished memorandum of August 19, 2005, states, in pertinent part:

“In Part 11(A) of his brief, Borden contends that the circuit court erred in summarily dismissing his claim that trial counsel were ineffective at the guilt and penalty phases of trial. Because Borden has been resentenced to life imprisonment without the possibility of parole, his claims of ineffective penalty-phase representation are moot. His claims of ineffective guilt-phase representation are waived on appeal because his argument does not comply with the requirements of the Alabama Rules of Appellate Procedure.
“Rule 28(a)(10), Ala. R.App. P., requires the argument section of an appellant’s brief to set out ‘the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on.’ Borden’s argument consists of a single paragraph of general propositions of law; a lengthy recitation of the facts of his life and the facts of the offense; and an eleven-page list of ineffective-assistance-of-counsel allegations. The list of claims is unsupported by legal authority, and it is almost entirely devoid of citations to the record.
“ ‘This type of “scattergun” approach to appellate argument is forbidden by Rule 28(a)[ (10) ], Ala. RApp. P.’ Hamm v. State, 913 So.2d 460, 490-91 (Ala.Crim.App.2002). ‘Recitation of allegations without citation to any legal authority and without adequate recitation of the facts relied upon has been deemed a waiver of the arguments listed.’ Hamm, 913 So.2d at 491, citing Gay v. State, 562 So.2d 283, 289 (Ala.Crim.App.1990). ‘By failing to include any citation to the record on this issue, [the appellant] has failed to comply with Rule 28(a)(10), Ala. R.App. P., and has waived this claim for purposes of appellate review.’ Hart v. State, 852 So.2d 839, 848 (Ala.Crim.App.2002).
“In Part 11(B) of his petition, Borden contends that the trial court erred in summarily dismissing his ineffective-counsel claim for the following reasons: (1) His petition clearly exceeded .the specificity requirements of Rule 32.2(b), Ala. R.Crim. P.; (2) the affidavits submitted by his counsel created an issue of fact, and the court’s reliance on them to summarily dismiss his petition was improper; (3) the court was wrong to refuse to consider parts of his claim; (4) the court improperly dismissed his claim without permitting him to obtain discovery to prove the merits of his claim; and (5) the trial court improperly adopted the State’s proposed order ‘without scrutiny or modification.’
“The first four arguments fail to state a claim for relief because they address the same ineffective-counsel claims that are not properly before this court for review. This court is not required to review arguments which fail to meet the requirements of Rule 28(a). Hallford v. State, 629 So.2d 6 (Ala.Crim.App.1992). Borden’s fifth argument must fail because this court does not find error simply because the trial court has adopted an order proposed by the State.
“ ‘While the practice of adopting a State’s proposed findings of fact and conclusions of law is subject to criticism, the general rule is that even when the court adopts findings and conclusions verbatim, the findings are those of the court and may be reversed only if clearly erroneous.’ Wood v. State, 891 So.2d 398, 420 (Ala.Crim.App.2003). Here, the order of dismissal specifically stated that ‘[t]he Court further has reviewed the record and the supporting affidavits and finds that the State’s proposed order submitted herein accurately reflects the findings and conclusions of the Court.’ The record fully supports the findings and conclusions of the court.

The purpose of Rule 28, Ala. R.App. P., outlining the requirements for appellate briefs, is to conserve the time and energy of the appellate court and to advise the opposing party of the points he or she is obligated to make. United States v. Levy, 391 F.3d 1327 (11th Cir.2004) (discussing the rule that issues not briefed are waived and Rule 28, Fed. R.App. P., which sets out the requirements for appellate briefs in the federal courts). Rule 28(a)(10), Ala. R.App. P., provides that the argument section of the appellant’s brief shall set out “the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on.” Additionally, “ ‘[i]t is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.’ ” Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003) (quoting Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)).

Borden argues that the Court of Criminal Appeals erred in holding that his brief failed to comply, with Rule 28(a)(10), Ala. R.App. P. Borden’s brief to the Court of Criminal Appeals regarding his ineffective-assistance-of-counsel claims included 22 pages of facts addressing why the trial court erred in summarily dismissing the ineffective-assistance-of-counsel claims in his Rule 32 petition. Borden’s brief included 11 pages of argument regarding ineffective assistance of counsel, including some 25 citations to caselaw, along with explanations and quotations from the cited cases. Although another attorney may have treated the ineffective-assistance-of-counsel argument differently, Borden’s brief is sufficient to apprise the Court of Criminal Appeals of Borden’s contentions with regard to his ineffective-assistance-of-counsel claims. Accordingly, Borden did not fail to comply with the Rule 28(a)(10) and therefore did not waive his claims of ineffective assistance of counsel.

We note that waiver of an argument for failure to comply with Rule 28(a)(10), Ala. R.App. P., has been limited to those cases where there is no argument presented in the brief and there are few, if any, citations to relevant legal authority, resulting in an argument consisting of undelineated general propositions. See Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1 (Ala.2007) (appellant’s argument was insufficient to invoke review of the allegedly excessive compensatory-damages award to plaintifl/appellee in a personal-injury action where the appellant’s three-sentence argument cited only a single case in support of a general proposition of law and offered no discussion of the nature and extent of the plaintiffs injuries); Davis v. Sterne, Agee & Leach, Inc., 965 So.2d 1076 (Ala.2007)(appellant’s lone citation to a general principle of law without specific relevance to her action against financial services company was insufficient to meet the requirements of Rule 28(a)(10) to cite relevant authority in support of arguments); Hall v. Hall, 903 So.2d 78 (Ala.2004) (the appellant cited no authority for the proposition that the checking account should have been included as an asset of the estate and presented no argurri'erit and cited no authority to support his conclusion that the ore tenus rule did not require an affirmance on this issue); and Ex parte Gonzalez, 686 So.2d 204 (Ala.1996) (petitioner did not show a clear legal right to having capital-murder indictment quashed on the ground that the district attorney testified as a witness in front of the grand jury when the petitioner cited only a federal district court case that was not binding authority and that was distinguishable).

Were Borden’s Juror-Misconduct Claims Preserved for Appellate Review?

Borden alleged juror misconduct in his Rule 32 petition filed on October 18, 2001. On August 21, 2002, Borden filed a motion for leave to amend his Rule 32 petition, specifically to add more details in support of his juror-misconduct claims. The trial court did not rule on Borden’s motion for leave to amend his Rule 32 petition.

On March 14, 2003, the trial court entered its final order dismissing Borden’s Rule 32 petition. With regard to Borden’s juror-misconduct claims, the trial court stated:

“In his claim, Borden asserts error because, he alleges, his ‘right to a fair and impartial jury was violated due to several jurors’ failure to respond truthfully to multiple questions on voir dire.’ (Borden’s Rule 32 pet. pp. 76-77.) The members of the jury were dismissed from serving on the jury on December 1, 1994, after recommending that Borden be sentenced to death. (C.R. 4, R. 1175-1177.) The hearing on Borden’s motion for a new trial was conducted on, or about, June 22, 1995. (SR. 2.) Thus, Borden, or his counsel, had more than six months to interview members of the jury to discover whether anyone on the jury failed to respond truthfully to any questions during voir dire. As such, Borden could have, but did not, raise this claim at trial or on direct appeal. This claim is, therefore, summarily dismissed pursuant to Rule 32.7(d), A.R. Cr. P., because it is procedurally barred. Rule 32.2(a)(3), (5), A.R. Cr. P.
“In his claim, Borden asserts error because, he alleges, the jury considered extraneous evidence during its deliberation. (Borden’s Rule 32 pet., pp. 77-78.) The members of the jury were dismissed from serving on the jury on December 1, 1994, after recommending that Borden be sentenced to death. (CR. 4, R. 1175-1177.) The hearing on Borden’s motion for new trial was conducted on, or about, June 22, 1995. (SR. 2.) Thus, Borden, or his counsel, had more than six months to interview members of the jury to discover whether anyone on the jury considered extraneous evidence during deliberations. As such, Borden could have, but did not, raise this claim at trial or on direct appeal. This claim is, therefore, summarily dismissed pursuant to Rule 32.7(d), A.R. Cr. P., because it is procedurally barred. Rule 32.2(a)(3), (5), A.R. Cr. P.”

The trial court did not address Borden’s amended petition in which he set out specific facts regarding the two claims of juror misconduct. On April 4, 2003, Borden filed a “motion for reconsideration.” In that motion, Borden stated that the trial court in its March 14, 2003, order failed to take into account any of the facts alleged in his amended Rule 32 petition.

The Court of Criminal Appeals concluded that Borden had failed to preserve the issue of juror misconduct for appellate review. That court’s unpublished memorandum states:

“The appellant contends that he was denied his right to a fair trial by virtue of several jurors’ failure to disclose information and the jury’s consideration of extraneous evidence. He argues, citing Ex parte Pierce, 851 So.2d 606 (Ala.2000), and Ex parte Dobyne, 805 So.2d 763 (Ala.2001), that the trial court erred in finding that these claims were procedurally defaulted under Rule 32.2(a)(3) and (5), Ala. R.Crim. P.
“In his original petition, Borden asserted that ‘several’ jurors failed to respond truthfully to ‘multiple ... critical questions’ during voir dire. He also asserted that unidentified ‘extraneous information’ was introduced into the jury deliberations. In addition to pleading that these claims were precluded under Rule 32.2(a)(3) and (5), the State specifically pleaded that the claims were insufficient under Rule 32.6(b). Rule 32.6(b), Ala. R.Crim. P., provides:
“ ‘The petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.’
“In his August 22, 2002, motion to amend his petition, Borden attempted to add the necessary factual basis for his juror-misconduct claims. However, in its order dismissing Borden’s petition, the circuit court did not address the requested amendments, and Borden did not object to the court’s failure to rule. Therefore, these matters are not properly before this court on appeal. Appellate review is limited to rulings invoked on the trial level. Cross v. State, 536 So.2d 155 (Ala.Crim.App.1988). ‘[T]he trial court may not be put in error in the absence of any attempt to invoke a ruling of the court in the matters complained of.’ Bush v. State, 717 So.2d 438, 441 (Ala.Crim.App.1998) (citations omitted).

It is well settled that an appellate court’s review is limited to matters seasonably raised in the trial court. Ross v. State, 581 So.2d 495 (Ala.1991). “The trial court may not be put in error for failure to rule on a matter which was not presented to it or decided by it.” City of Rainbow City v. Ramsey, 417 So.2d 172, 174 (Ala.1982). “[I]t is familiar law that an adverse ruling below is a prerequisite to appellate review. We generally cannot consider arguments raised for the first time on appeal.” CSX Tramp., Inc. v. Day, 613 So.2d 883, 884 (Ala.1993). However, the Court of Criminal Appeals’ reliance on this well settled principle is misplaced in the present case; there is an adverse ruling from the trial court regarding Borden’s juror-misconduct claims.

The trial court clearly ruled that both of Borden’s juror-misconduct claims were procedurally barred by Rule 32.2(a)(3) and (a)(5), Ala. R.Crim. P. Rule 32(a)(3) provides that ⅛ petitioner is precluded from postconviction relief if the ground the petitioner asserts as a basis for relief could have been, but was not,' raised at trial, and Rule 32(a)(5) bars postconviction relief if the ground could have been, but was not, raised on appeal. Borden’s brief to the Court of Criminal Appeals addresses the trial court’s application of Rule 32(a)(3) and (a)(5) to his claims of juror misconduct. Accordingly, there is an adverse ruling regarding Borden’s juror-misconduct claims for the Court of Criminal Appeals to review.

' Further, the Court of Criminal Appeals’ holding that appellate review of Borden’s juror-misconduct claims is barred because Borden failed to obtain a ruling from the trial court on his motion to amend his Rule 32 petition appears to conflict with this Court’s decision in Ex parte Rhone, 900 So.2d 455 (Ala.2004). In Rhone, the defendant sought postconviction relief pursuant to Rule 32, Ala. R.Crim. P., from his capital-murder conviction and his sentence of life imprisonment without the possibility of parole. As grounds for relief, the defendant alleged that he had been denied the effective assistance of counsel in several respects at trial and on appeal. He subsequently filed a motion to amend his Rule 32 petition. The amended petition presented 10 additional grounds to support his ineffective-assistance-of-counsel claims. The trial court entered no ruling on the defendant’s motion to amend. The State filed a response, addressing only the allegations asserted in the original petition. The trial court entered a written order denying the petition; that order did not address the claims asserted in the proposed amendment. The Court of Criminal Appeals affirmed the trial court’s judgment, holding that the trial court had not exceeded its discretion in failing to address the claims in the defendant’s amended petition because, it reasoned, the defendant “failed to meet his initial burden of showing diligence in filing the amendment or that the facts underlying the amendment were unknown to him before filing his original petition.” Rhone v. State, 900 So.2d 448, 448 (Ala.Crim.App.2004).

This Court in Ex parte Rhone held that the Court of Criminal Appeals had erred in imposing upon a Rule 32 petitioner an initial burden to show that he had been diligent in filing an amendment or that the facts underlying the amendment were unknown when the original petition was filed. The defendant is entitled to amend his petition for postconviction relief to assert additional claims of ineffective assistance of counsel when the amendment is necessary for a full determination on the merits and there would be no undue delay in the hearing because of the amendment or undue prejudice to the State by the filing of the amendment. In the present case, the Court of Criminal Appeals’ unpublished memorandum places a burden on Borden to secure a ruling on his proposed amendment to his Rule 32 petition when the amendment should be freely allowed if it is necessary for a full determination on the merits and if the amendment does not unduly prejudice the opposing party or unduly delay the hearing.

Conclusion

We conclude that Borden did not fail to comply with Rule 28(a)(10) Ala. R.App. P., and, thus, that he did not waive his ineffee-tive-assistance-of-counsel claims. We also conclude that Borden’s juror-misconduct claims were preserved for appellate review. Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand the case to that court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

SEE, LYONS, WOODALL, STUART, SMITH, and MURDOCK, JJ., concur.

PARKER, J., concurs in the result.

COBB, C.J., recuses herself.

      "2 Issues I and II in Borden’s Rule 32 petition.

      "3 The court erred in finding one of Borden's claims [ineffective counsel resulting from inadequate compensation] procedurally barred under Rule 32.2(a)(3) and (5), Ala. R.Crim. P. However, the court properly found that this claim also was barred under Rules 32.6(b) and 32.7(d). When the circuit court’s denial of a Rule 32 petition is correct for any reason, it will be affirmed by this court on appeal. Long v. State, 675 So.2d 532 (Ala.Crim.App.1996).”

      . At least three members of the Court of Criminal Appeals have questioned the scope and application of Rule 28, Ala. R.App. P.L.J.K. v. State, 942 So.2d 854, 869 and 871 (Ala.Crim.App.2005)(Shaw, J., concurring specially, and Baschab, J., concurring in the result, with Cobb, J., joining).

        "4 Issue VII in the Rule 32 petition.

      "5 Issue VIII in the Rule 32 petition.

      "6 The State erroneously states in its appellate brief that 'the trial court accepted Borden’s amendments to both of the other claims he sought to amend.1 The court’s order of dismissal addresses the two claims as they were set out in the original petition, and it does not address Borden’s requested new claim.”

      . The Court of Criminal Appeals' unpublished memorandum indicates that the trial court could have dismissed Borden's Rule 32 peti- ' tion on the grounds of lack of specificity under Rule 32.6(b), Ala. R.Crim. P. However, the trial court did not dismiss Borden’s argument regarding juror misconduct for lack of specificity. Furthermore, there is a question as to whether the State adequately asserted a lack of specificity.


source: Caselaw Access Project

author: McMILLAN, Judge.

license: Public Domain

text:
    James Henry BORDEN, Jr. v. STATE of Alabama.
    CR-02-1314.
    Court of Criminal Appeals of Alabama.
    Oct. 17, 2008.
    Angela L. Setzer and Bryan A. Stevenson, Montgomery, for appellant.
    William H. Pryor, Jr., and Troy King, attys. gen., and A. Vernon Barnett IV, asst. atty. gen., for appellee.
   After Remand by the Alabama Supreme Court

McMILLAN, Judge.

The opinion issued on September 26, 2008, is withdrawn, and the following opinion is substituted therefor.

In Ex parte Borden, 60 So.3d 940 (Ala.2007), the Alabama Supreme Court reversed the judgment of this court and remanded the case for further proceedings. The Supreme Court held that Borden’s ineffective-assistanee-of-eounsel claims were not waived for failure to comply with Rule 28(a)(1), Ala. R.App. P., and that his juror-misconduct claims were preserved for appellate review. The Supreme Court stated that this court’s judgment with regard to the juror-misconduct claims appeared to conflict with Ex parte Rhone, 900 So.2d 455 (Ala.2004), and “place[d] a burden on Borden to secure a ruling on his proposed amendment to his Rule 32 petition when the amendment should be freely allowed if it is necessary for a full determination on the merits and if the amendment does not unduly prejudice the opposing party or unduly delay the hearing.”

Because the trial court dismissed Borden’s petition without considering the additional facts set out in his amendment, we reverse the trial court’s judgment and remand this case for proceedings consistent with the Supreme Court’s opinion. See Ex parte Rhone, 900 So.2d at 458 (stating that “only grounds such as actual prejudice or undue delay will support a trial court’s refusal to allow, or to consider, an amendment to a Rule 32 petition”).

On remand, the trial court should allow the State the opportunity to answer the juror-misconduct allegations in the amendment and should conduct any proceedings necessary to address these claims. In light of our disposition of this case, we pretermit consideration of Borden’s ineffective-assistance-of-counsel claims. A return should be filed with this court within 35 days from the date of this opinion.

ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; REMANDED WITH INSTRUCTIONS.

BASCHAB, P.J., and WISE and WELCH, JJ., concur. SHAW, J., concurs in the result.


author: WISE, Judge.

text:
    Kenneth Kevin HENDERSON v. STATE of Alabama.
    CR-05-2222.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2008.

      Mark John Christensen, Andalusia; and Christopher M. Sledge, Andalusia, for appellant.
    Troy King, atty. gen., and Audrey K. Jordan, asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, Kenneth Kevin Henderson, was convicted of murder made capital by the use of a deadly weapon fired from outside a dwelling while the victim was in a dwelling, see § 13A-5-40(a)(16), Ala.Code 1975; murder made capital by the use of a deadly weapon fired from inside a vehicle, see § 13A-5-40(a)(18), Ala.Code 1975; attempted murder, see §§ 13A-4-2 and 13A-6-2, AIa.Code 1975; and the unlawful discharge of a firearm into an occupied dwelling, see § 13A-11-61, Ala.Code 1975. Henderson was sentenced to life imprisonment without parole for each capital-murder conviction, to life imprisonment for the attempted-murder conviction, and to 20 years’ imprisonment for the unlawful-discharge-of-a-firearm-into-an-oecupied-dwelling conviction; the sentences were to run concurrently. On July 20, 2006, Henderson filed a motion for a new trial. The trial court summarily denied the motion on July 24, 2006.

In his motion for a new trial, Henderson raises numerous allegations of error, including:

1. That the trial court erroneously prevented the defense from introducing evidence that Jerry Phelps, the surviving victim who testified at trial for the State, was a registered sex offender who was in violation of the Community Notification Act § 15-20-20, Ala.Code 1975, as evidence of Phelps’s character, evidence that the police did a poor job of investigating the case, and/or evidence of Phelps’s bias.
2. That the State’s forensic expert, Dr. Emily Ward, provided improper and incorrect testimony that conflicted with established medical findings and with the opinions she had provided for the State in other cases.
3. That juror misconduct occurred when a prospective juror failed to indicate on the juror questionnaire that his cousin had been convicted of capital murder; Henderson further averred that defense counsel had since learned that the juror commented to other jurors that because his cousin had been convicted of capital murder and sentenced to death for just being present at a murder scene, he was going to vote to convict Henderson. Henderson attached an affidavit from trial counsel wherein counsel stated that he would have struck that prospective juror from the jury had he known of the juror’s family-member’s conviction.
4. That Dr. Michael D’Errico should have been allowed to testify for the defense about the fallibility of eyewitness testimony and the undue weight afforded on such testimony by the authorities, prosecutors, and jurors.
5. That testimony by Joe Saloom, the State’s forensic expert witness, that he discovered copper particles on a lead fragment recovered from the deceased victim’s body, conflicted with his written report and handwritten notes and was improper.
6. That the prosecutor committed misconduct because the prosecutor and authorities knew of Phelps’s alleged poor reputation for truthfulness but failed to corroborate his claims or investigate other leads that supported the defense’s theory that Phelps himself may have killed Miller several hours earlier and then staged the scene to frame Henderson. That the prosecution was aware, or should have been aware, of the inconsistencies and falsities in Ward’s and Saloom’s testimony but elicited said testimony regardless. That authorities and prosecutors attempted to coerce a witness to testify that the shotgun shell he found was red rather than yellow. That the prosecution, during closing arguments, mischaracterized or misquoted a number of statements and/or testimony by witnesses and by Henderson, made a number of improper comments regarding matters that were not pertinent to the facts of the case, improperly vouched for witnesses for the State, and improperly belittled defense witnesses. That the prosecution improperly directed several witnesses for the State to refrain from testifying about things they claim to have seen at the scene before and after the shooting.
7. That the verdict is contrary to law.
8. That the verdict is contrary to the weight of the evidence.

In support of his motion for a new trial, Henderson attached affidavits from a number of individuals and both of Henderson’s trial attorneys, excerpts from the record, medical reports concerning the victim, and assorted medical opinions, findings, and journals. In total, Henderson’s motion for a new trial and attachments thereto encompassed approximately 177 pages. The trial court did not conduct an evidentiary hearing on Henderson’s claims, nor did the trial court indicate any deficiencies in Henderson’s allegations that would have warranted summary denial of the new-trial motion or issue written findings of fact as to the merits, or lack thereof, of Henderson’s claims. Rather, the circuit court merely stamped “denied” on the first page of Henderson’s motion for a new trial.

“ ‘ “A defendant is not entitled to a hearing on a motion for new trial without a special basis therefor.” ’ Clark v. State, 621 So.2d 309, 327 (Ala.Crim.App.1992), quoting Smelcher v. State, 520 So.2d 229, 232 (Ala.Crim.App.1987). See also Arrington v. State, 757 So.2d 484 (Ala.Crim.App.1999). ‘[B]are allegations that the trial court had erred’ are not sufficient to warrant an evidentiary hearing on a motion for a new trial. Meeks v. State, 697 So.2d 60, 61 (Ala.Crim.App.1996).”

Washington v. State, 922 So.2d 145, 176-77 (Ala.Crim.App.2005).

Here, Henderson did not assert bare allegations; rather, he made specific assertions in his motion for a new trial and supported those allegations with affidavits and other documentary evidence. For example, with regard fir his allegation that he was denied a fair jury when a prospective juror failed to respond to the jury questionnaire that his cousin had been convicted of capital murder, Henderson attached an affidavit from trial counsel in which counsel indicated that he would have exercised a peremptory strike to remove the prospective juror, and that when defense counsel interviewed jurors after the trial he learned that the juror in question “told other jurors that he had a cousin who was convicted of capital murder and sentenced to death just for being present at a murder scene and that because of that he was going to convict Kenneth Kevin Henderson in this case.” (C. 3018.) Thus, he is entitled to an evidentiary hearing on his motion for a new trial. The circuit court, having presided over the trial and associated proceedings, is in the best position to make findings of fact regarding these claims. Therefore, we remand this case for the circuit court to conduct an evidentiary hearing on Henderson’s motion for a new trial. We pretermit discussion of Henderson’s claims pending the circuit court’s return to our remand.

On remand, the circuit court should require the State to respond to the motion and should conduct a hearing on the motion. If the circuit court determines that Henderson is entitled to relief on his claims, then the court may grant such relief as it deems appropriate.

The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 90 days of the release of this opinion. The return to remand shall include the State’s response, a transcript of the proceedings on remand, and the circuit court’s specific written findings of fact.

REMANDED WITH DIRECTIONS.

BASCHAB, P.J., and McMILLAN and WELCH, JJ., concur. SHAW, J., concurs in the result.


author: MAIN, Judge.

text:
    Eugene Legon ELLIOTT III v. STATE of Alabama.
    CR-08-1721.
    Court of Criminal Appeals of Alabama.
    March 26, 2010.

      Eugene Legón Elliott III, pro se.
    Troy King, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
   MAIN, Judge.

Eugene Legón Elliott III appeals the circuit court’s summary dismissal of his Rule 32, Ala.R.Crim.P., petition for post-conviction relief, in which he challenged his February 27, 2007, guilty-plea convictions for four counts of possession of a forged instrument, one count of theft of property in the first degree, one count of burglary in the first degree, one count of kidnapping in the first degree, and one count of attempted rape in the first degree. Elliott was sentenced, as a habitual offender, to 30 years’ imprisonment for each of the possession-of-a-forged-instrument convictions and for the theft conviction, and to life imprisonment for the burglary conviction, the kidnapping conviction, and the attempted-rape conviction. The trial court ordered that the five 30-year sentences run concurrently and that the three life sentences run consecutively to each other and to the 30-year sentences. This Court affirmed Elliott’s convictions and sentences on appeal in an unpublished memorandum issued on August 22, 2008. Elliott v. State, 27 So.3d 628 (Ala.Crim.App.2008) (table). This Court issued a certificate of judgment on September 10, 2008. On October 10, 2008, Elliott filed his Rule 32 petition. After receiving a response from the State, the circuit court summarily dismissed the petition on July 27, 2009. We remand for further proceedings on two of the claims in Elliott’s Rule 32 petition.

In his petition, Elliott alleged, among other things, that his guilty pleas were involuntary because, he said, he was not informed of the correct minimum and maximum sentences he could receive. Elliott asserted that the trial court did not advise him of the sentencing ranges during the guilty-plea colloquy but merely questioned his trial counsel as to whether counsel had advised Elliott of the sentencing ranges, to which counsel replied that he had. Elliott, however, attached to his petition a letter he purportedly received from his trial counsel dated March 11, 2008, in which counsel stated that he had received no correspondence from the State regarding the State’s invocation of the Habitual Felony Offender Act (“the HFOA”), that he was unaware at the time of the plea and sentencing that Elliott was going to be sentenced as a habitual offender, and that he was surprised at the sentences. His counsel being unaware of the application of the HFOA, Elliott concluded, counsel could not have informed him of the correct sentencing ranges. The State argued in its response, and the circuit court found in its order, that this claim was refuted by the record and is, therefore meritless. However, the record from Elliott’s direct appeal does not refute Elliott’s claim; rather it supports it. The transcript of the guilty-plea colloquy reflects that the trial court asked Elliott’s counsel if he had advised Elliott of the sentencing ranges for his crimes and that counsel responded in the affirmative. At no point did the trial court advise Elliott of the sentencing ranges. In addition, no mention was made during the colloquy of an Ireland form setting forth the sentencing ranges, and no Ireland form is contained in the record from Elliott’s direct appeal. Moreover, the record from Elliott’s direct appeal also contains no written notice by the State to invoke the HFOA nor any mention of the HFOA during the guilty-plea colloquy. At the sentencing hearing, the prosecutor made a brief reference to Elliott’s having prior felony convictions but did not specifically mention the HFOA. The only mention of the HFOA is in the trial court’s written sentencing order. Other than its reliance on the record, the State did not otherwise refute this claim. See, e.g., Palmer v. State, 842 So.2d 751 (Ala.Crim.App.2002) (where the State does not refute a Rule 82 petitioner’s allegations, those allegations must be accepted as true), and the cases cited therein. In addition, this claim is pleaded with sufficient specificity to satisfy the requirements in Rule 32.3 and Rule 32.6(b), is not subject to the procedural bars in Rule 32.2, and, if true, may entitle Elliott to relief. Therefore, Elliott is entitled to an opportunity to prove this claim. See, e.g., Ford v. State, 831 So.2d 641 (Ala.Crim.App.2001).

Elliott also alleged in his petition that his trial counsel was ineffective for various reasons. First, Elliott alleged that his trial counsel was ineffective for not filing a motion to withdraw Elliott’s pleas after, Elliott said, he was not sentenced in accordance with the plea agreement with the State. Specifically, Elliott asserted that he had agreed to plead guilty to the charges in exchange for receiving 15-year sentences for each of the possession-of-a-forged-instrument convictions and for the theft conviction, and life sentences for the burglary conviction, for the kidnapping conviction, and for the attempted-rape conviction, and that all the sentences were supposed to run concurrently. According to Elliott, when he did not receive the sentences he was supposed to receive under the agreement, his counsel should have filed a motion to withdraw his pleas or, at the least, advised him of his right to withdraw his pleas. See, e.g., Andrews v. State, 12 So.3d 728 (Ala.Crim.App.2009), and the cases cited therein. Second, Elliott alleged that his trial counsel was ineffective for not objecting to the State’s failure to provide him with notice of its intent to invoke the HFOA and for not objecting to the State’s failure to prove any prior convictions for purposes of enhancing his sentence. The State argued in its response, and the circuit court found in its order, that Elliott’s claims of ineffective assistance of counsel were barred by Rule 32.2(d) because they could have been raised in a motion to withdraw his pleas. Rule 32.2(d) provides, in pertinent part, that “[a]ny claim that counsel was ineffective must be raised as soon as practicable, either at trial, on direct appeal, or in the first Rule 32 petition.” However, this Rule 32 petition was the first practicable opportunity for Elliott to challenge his trial counsel’s effectiveness. The record from Elliott’s direct appeal reflects that he was sentenced on September 20, 2007, but that new counsel was not appointed to represent Elliott on appeal until December 13, 2007, almost three months later, and that the record was not certified as complete until January 8, 2008. A motion for a new trial must be filed within 30 days of sentencing. During the time for filing a motion for a new trial in this case, Elliott was represented by his trial counsel. Counsel cannot be expected to challenge his own effectiveness in a postjudgment motion. See, e.g., Flowers v. State, 672 So.2d 1382 (Ala.Crim.App.1995). Therefore, these claims are not barred by Rule 32.2(d). In addition, these claims were pleaded with sufficient specificity to satisfy the requirements in Rule 32.3 and Rule 32.6(b); they were not refuted by the State; and, if true, they may entitle Elliott to relief. Therefore, Elliott is entitled to an opportunity to prove these claims.

Based on the foregoing, we remand this case for the circuit court to allow Elliott an opportunity to present evidence to support those claims listed above. The circuit court shall either conduct an evidentiary hearing or accept evidence in the form of affidavits, written interrogatories, or depositions. See Rule 32.9(a). After receiving and considering the evidence presented, the circuit court shall issue specific written findings of fact regarding Elliott’s claims and may grant whatever relief it deems necessary. Due return shall be filed within 56 days of the date of this opinion, and shall include the circuit court’s written findings of fact, a transcript of the eviden-tiary hearing, if one is conducted, and any other evidence received or relied on by the court in making its findings.

REMANDED WITH INSTRUCTIONS.

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

      . This court may take judicial notice of its own records. See Hull v. State, 607 So.2d 369, 371 (Ala.Crim.App.1992).

      . Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971).

      . Although before this Court on direct appeal Elliott did challenge the voluntariness of his plea, we held that his claim was not properly before us because it had not been raised and preserved in the trial court. Therefore, it is not, as the circuit court alternatively found, barred by Rule 32.2(a)(4). See, e.g., Riley v. State, 892 So.2d 471 (Ala.Crim.App.2004).

      . Because of our disposition of this case, we pretermit discussion of the remaining claims Elliott raises in his brief to this Court.


author: PER CURIAM.

text:
    In re CERTIFICATION OF NEED FOR ADDITIONAL JUDGES.
    No. SC11-182.
    Supreme Court of Florida.
    Feb. 17, 2011.
   PER CURIAM.

This opinion fulfills our constitutional obligation to determine the State’s need for additional judges in Fiscal Year 2011/2012 and to certify our “findings and recommendations concerning such need” to the Legislature. Certification is “the sole mechanism established by our constitution for a systematic and uniform assessment of this need.” In re Certification of Need for Additional Judges, 889 So.2d 734, 735 (Fla.2004).

TRIAL COURTS

The Florida Supreme Court continues to use a weighted caseload system as a primary basis for assessing judicial need for the trial courts. Using objective standards, this Court has examined case filing and disposition data, analyzed various judicial workload indicators, applied a sustained net need analysis, and considered judgeship requests submitted by the lower courts. Applying this methodology, this Court certifies the need for eighty additional trial court judgeships statewide, twenty-six in circuit court and fifty-four in county court.

As we make this certification, we also are aware that difficulties in our economic situation continue to have a severe impact on both the private and public sectors in Florida. With over one million Floridians unemployed and significant deficits in the state budget, we recognize that funding new judgeships will compete with other critical state priorities. Nonetheless, the reality is that Florida’s circuit and county judges are overloaded with new filings, have substantial caseloads, and have fewer support staff to assist with the disposition of cases. Taken together, these factors continue to hamper the effective administration of justice in Florida.

The trial court chief judges have provided us with ample justification to certify new judgeships to the Legislature. First, the chief judges have identified a number of workload trends that are affecting court operations throughout the state. Several chief judges have cited filing increases across multiple divisions, slower case processing times, increases in pending caseloads, and higher jury trial rates. Dropping clearance rates, a key barometer of the relationship between court filings and dispositions, were also cited by many chief judges.

Second, the ongoing challenges to state government associated with the current economic crisis have resulted in considerable reductions in trial court funding. Trial court expense budgets and support staff have been significantly reduced. Judges are absorbing the work previously performed by magistrates, law clerks, case managers, and other supplemental support staff lost in the budget reductions of the last several years. As noted in last year’s certification opinion, we have lost a total of 249 trial court staff positions due to reductions to our budget. Most of these positions provided direct case management, legal research, and adjudicatory support to our judges. The loss of staff translates into slower case processing times, crowded dockets, and long waits to access judicial calendars. Another consequence of high caseloads and reduced staff support is less judicial time spent on hearings. Some of our judges believe that the quality of justice being delivered today is suffering because they do not have adequate time to devote to each case. We find that observation troubling. Over time, these factors can result in a weakening of the effective administration of justice throughout the state.

Third, several of the trial court chief judges also note the significant increases in pro se (i.e., self-represented litigants) filings for multiple divisions of court. This observation is not surprising given the state of our economy. Many citizens cannot afford to hire an attorney and choose to represent themselves in court. Pro se litigants are often unprepared for the rigors of presenting evidence, following rules of procedure, and representing themselves in court. Cases involving pro se litigants frequently require enhanced judicial involvement which entails lengthier or rescheduled hearings, which can result in litigant frustration and court delay.

Fourth, the mortgage foreclosure crisis continues to challenge every judicial circuit in Florida. The attendant workload associated with the total volume of foreclosure filings far outweighs current judicial capacity, notwithstanding the additional senior judge and case manager resources provided by the Legislature to assist with this crisis.

And fifth, the loss of the civil traffic infraction hearing officers in county court continues to impact county judges throughout the state. In many counties, county judges are hearing traffic cases previously processed by these hearing officers. This additional workload greatly expands county court dockets, creating case processing delays. As we have noted in previous certification opinions, having county court judges perform work that could be processed by civil traffic infraction hearing officers is not the best use of valuable judicial time.

Trial court judges have responded admirably by doing more with less and staying focused on managing their caseloads using available resources. Where possible, they have sought efficiencies by applying various management techniques such as differentiated case management, alternative dispute resolution, jury selection backup during trial weeks, and improved scheduling and calendaring. Their unwavering commitment to advancing the administration of justice during these difficult economic times is laudable, and we commend them.

The Court also takes notice that while the trial courts have identified their need for the additional supplemental resources necessary to ensure the efficient and effective flow of cases, their legislative budget request to the Legislature for Fiscal Year 2011/2012 was significantly scaled back due to the forecasted revenue deficits the State is facing. The Court would support a request for additional resources and, at the very least, the restoration of lost resources in the lower courts but respects the trial courts’ willingness to continue to make do with less in acknowledgment of the tremendous demands on state government.

DISTRICT COURTS OF APPEAL

No district court of appeal requested additional judgeships for Fiscal Year' 2011/2012. Consequently, the Court is not addressing the need for additional district court judges in this opinion.

CONCLUSION

We have conducted both a quantitative and qualitative assessment of judicial workload. Using the case weighted methodology required by the Legislature and the application of other factors identified in Florida Rule of Judicial Administration 2.240, we certify the need for eighty additional trial court judges in Florida. At the same time, we recognize that our State is caught in a period of protracted economic difficulties which are impacting all sectors of state government and that the Legislature will be confronted with extraordinarily challenging funding decisions in the upcoming session. We are hopeful, however, that the demonstrated need for additional judges in Florida can be addressed when the State’s fiscal condition improves.

In the difficult fiscal circumstances confronting the Legislature, we respectfully urge that the Legislature consider the priority of maintaining adequate funding for the courts which provide justice for the people of Florida.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

APPENDIX

      .Article V, section 9 of the Florida Constitution provides in pertinent part:
      Determination of number of judges.— The supreme court shall establish by rule uniform criteria for the determination of the need for additional judges except supreme court justices, the necessity for decreasing the number of judges and for increasing, decreasing or redefining appellate districts and judicial circuits. If the supreme court finds that a need exists for increasing or decreasing the number of judges or increasing, decreasing or redefining appellate districts and judicial circuits, it shall, prior to the next regular session of the legislature, certify to the legislature its findings and recommendations concerning such need.

      . Our certification methodology relies primarily on case weights and calculations of available judge time to determine the need for additional trial court judges. See Fla. R. Jud. Admin. 2.240.

      . The needed judgeships in the circuit and county courts are set forth in the table in the attached appendix.

      . In re Certification of Need for Additional Judges, 29 So.3d 1110 (Fla.2010).