author: PITTMAN, Judge.

text:
    MONTGOMERY COUNTY BOARD OF EDUCATION v. Sondra MOON-WILLIAMS.
    2100790.
    Court of Civil Appeals of Alabama.
    June 15, 2012.
    Rehearing Denied Aug. 3, 2012.
    Certiorari Denied Oct. 12, 2012 Alabama Supreme Court 1111492.

      Ramadanah S. Jones, Montgomery County Board of Education, Montgomery, for appellant.
    William F. Patty and Hilary Y. Parks of Jackson, Anderson & Patty, P.C., Montgomery, for appellee.
   PITTMAN, Judge.

This is a discretionary appeal by the Montgomery County Board of Education (“the Board”) from a hearing officer’s decision, pursuant to former § 16 — 24—10(a), Ala.Code 1975, overturning the Board’s 20-day suspension without pay of Sondra Moon-Williams, a tenured special-education teacher at Carver High School in Montgomery. We reverse.

Facts and Procedural History

Special education for public-school students with disabilities is governed by the Individuals with Disabilities in Education Act (“the IDEA”), 20 U.S.C. §§ 1400-1491. The IDEA requires that each student with a disability have an Individualized Education Program (“IEP”) designed to meet his or her unique needs. The hearing officer’s decision explained:

“The IEP is developed, reviewed, and revised by an IEP Team comprised of one or both of the child’s parents, a representative of the school district (not the child’s teacher) who is qualified to provide or supervise special education, the child’s teacher(s), in some cases a general education teacher, and professionals who are qualified to explain the results of testing — for example, a psychologist and/or an educational evaluator. The IEP includes the child’s present level of academic and functional performance, measurable annual academic and functional goals, the special-education services, related services, and supplementary aids to be provided to the child.
“The IEP team is responsible for conducting an annual review to ensure that the student is meeting goals and/or making progress on benchmark objectives.”

At the time of the hearing in this case, Moon-Williams had been a special-education teacher at Carver for six years. Every year, she had been responsible for developing an IEP for each of her students. The IEPs were developed on a calendar-year basis rather than an academic-year basis. Thus, the term of a student’s IEP could begin on any date during the school year and end on the corresponding date the following year. During the 2010-2011 school year, Moon-Williams taught 19 special-education students. The IEP for student D.M. ran from February 9, 2010, to February 8, 2011.

On March 30, 2010, Yolanda Gracie, the county special-education director, and Diann Jones, the county special-education zone coordinator, met with the special-education teachers at Carver and informed them that the State Department of Education had issued a new directive, mandating that all IEPs begin on the first day of the academic year and end on the last day of the academic year. That meant, for example, that Moon-Williams was required to develop under the “new process” an IEP for D.M. that extended from February 9, 2010, through the end of the 2009-2010 school year on May 26, 2010, and then to create another IEP for D.M. that extended from the beginning of the 2010-2011 school year on August 18, 2010, through the close of school in May 2011. Moon-Williams testified that she had told Gracie and Jones that it was impossible to comply with the March 30 directive before the end of the school year.

On March 30, 2010, Moon-Williams had 11 IEPs to complete under the new process before the end of the school year on May 26, 2010. She did not complete all the IEPs, including the IEP for D.M., by the end of the 2010 school year. When the special-education teachers returned to school for the 2010-2011 academic year on August 17, 2010, they received an e-mail from Jones, with a list of the IEPs (including the IEP for D.M.) that had not been placed in the new process according to the March 30, 2010, directive. On August 18, 2010, Bernice Floyd, the special-education facilitator at Carver, sent a letter to the Carver special-education teachers, setting a 10-day deadline for completion of the IEPs on Jones’s list. At that point, Moon-Williams had seven IEPs to complete, including the IEP for D.M.

At the hearing, Moon-Williams testified that it had been her understanding that, because the information contained in D.M.’s February 9, 2010, IEP was still accurate, she could import the information from the February IEP into a new document with a new icon and have the individuals who had signed the February IEP sign the new IEP. Therefore, she said, she had copied and pasted the substance of the February IEP into a new document that indicated that an IEP meeting had been held on May 18, 2010, after which, she said, she had contacted the individuals who had signed the February IEP. According to Moon-Williams, she had telephoned Kristen Dial, the guidance counselor at Carver who was at home on maternity leave, and had received permission to sign Dial’s name. Then, Williams had signed the name of Lorraine Johnson, the job coach at Carver, because, she said, Johnson had taken part in the first IEP meeting and no information had changed since the time of that meeting. Moon-Williams explained that she and Johnson were friends and she had thought that Johnson would not mind if Moon-Williams signed her name.

Following an audit of the IEP records at Carver, Jones determined that, although D.M.’s IEP indicated a meeting date of May 18, 2010, the document containing that date had not been created until August 18, 2010. In addition, Jones determined that Lorraine Johnson, whose purported signature indicated that she had attended an IEP meeting on May 18, 2010, was not at work on May 18, 2010, and could not have signed the IEP document on that day. Jones reported her findings to Gracie, who determined, after meeting with Dial and Johnson, that Dial and Johnson had neither signed the IEP document nor given Moon-Williams permission to sign their names.

On September 27, 2010, Gracie issued a letter of reprimand to Moon-Williams, stating that Moon-Williams had committed a major violation of the IDEA by forging signatures on a document, by denying D.M. a free and appropriate public education “by not having an IEP meeting but having signatures on the IEP as if a meeting was held,” and by “caus[ing] the school district to be out of compliance with federal and state guidelines.” The letter advised Moon-Williams that she had the right to submit a response within seven days. Moon-Williams did not acknowledge receipt of the letter or submit a response.

After receiving a copy of Gracie’s reprimand, Veverly Arrington, the human-resources director for the county school system, recommended to Superintendent Barbara Thompson that Moon-Williams be suspended without pay for 20 days. Arrington testified that she had based that recommendation on the fact that forgery is a criminal offense; that Moon-Williams’s conduct had exposed the school system to legal liability; that the Board’s progressive-discipline guidelines indicated that “falsification of documents, applications, and other official records may warrant suspension on the first occurrence”; and that another teacher who had committed an act of forgery on an IEP had been suspended for 20 days.

On November 1, 2010, Superintendent Thompson sent Moon-Williams the following notice of suspension:

“This is notice, in writing, that I intend to recommend a major suspension of your employment as a teacher at Carver Senior High School with the Montgomery County Board of Education. The reasons for the proposed suspension are as follows: immorality, failure to perform duties in a satisfactory manner, and other good and just cause. The specific facts supporting the grounds showing that the suspension is taken for one or more of the reasons are as follows:
“1. On September 27, 2010, Yolanda Gracie, Director of Special Education reprimanded you and reported to the Office of Human Resources that you falsified and forged portions of a student’s Individual Education Plan (TEP).
“2. Gracie reported that you dated a signature page for an IEP for May 18, 2010, but it was actually created on August 18, 2010.
“3. Gracie also reported that the signatures of Kristen Dial, Counselor, and Lorraine Johnson, Job Coach, were forged. Dial and Johnson verified that their signatures were not authentic on the signature page that you created.
“4. Additionally, forging the signatures on the IEP gave the appearance that an IEP meeting was held when in fact no meeting took place. This is a violation of the Individuals with Disabilities in Education Act.
“5. Because of the severity of your actions, a suspension of 20 days without pay is warranted.”

On November 29, 2010, the Board voted to adopt the superintendent’s recommendation. Moon-Williams contested the suspension pursuant to former § 16-24-10(a), and a hearing was held on March 11, 2011. On May 3, 2011, the hearing officer rendered his decision, concluding that the Board had “substantive just cause,” but not “procedural just cause,” to suspend Moon-Williams and that “no action” should be taken against her. See former § 16-24-10(a) (stating that “[t]he hearing officer shall determine which of the following actions should be taken relative to the employee: Cancellation of the employment contract, a suspension of the employee, with or without pay, a reprimand, other disciplinary action, or no action against the employee”). The Board timely appealed, and this court exercised its discretion to hear the appeal based on the “special and important reasons” outlined by the Board.

Standard of Review

Former § 16-24-10(b) provided that “Itjhe decision of the hearing officer shall be affirmed on appeal unless the Court of Civil Appeals finds the decision arbitrary and capricious, in which case the court may order that the parties conduct another hearing consistent with the procedures of this article.” If this court determines that the hearing officer’s decision failed to follow the applicable law, however, it “ha[s] the authority to reverse the decision ... because the failure to follow the applicable law renders the hearing officer’s decision arbitrary and capricious.” Ex parte Wilson, 984 So.2d 1161, 1170 (Ala.2007). See also Ex parte Webb, 53 So.3d 121, 127 (Ala.2009).

Discussion

The Board argues that the hearing officer failed to follow applicable law by applying a two-pronged “just-cause” standard to the review of Moon-Williams’s suspension. The hearing officer explained his reasoning as follows:

“ ‘Just cause’ is an employment law concept that hearing officers experienced in employment law regularly interpret and apply. They commonly parse ‘just cause’ into two segments— one substantive; the other procedural. The substantive requires proof that the employee, in fact, engaged in the behavior for which, in this case, suspension was recommended.”

The hearing officer found that the Board had established “substantive just cause” for suspending Moon-Williams because it had proven (and Moon-Williams had acknowledged) that she had forged signatures on an IEP. The hearing officer’s decision states:

“[Moon-Williams’s] explanation that she forged signatures on the IEP because she was too busy to conduct a meeting and develop the IEP properly cannot be taken seriously. No matter how busy she was during this period, she cannot be excused from falsifying documentation required by federal law. Moreover, while the requirement of doing a school-year IEP for D.M. may have been burdensome for the reasons Ms. Moon-Williams explained, she cannot justify her deception of changing the dates on the February IEP and signing for the team members as if a team meeting had been conducted.”

The hearing officer then proceeded to consider “procedural just cause,” whose components he outlined as follows:

“whether discipline is administered fairly and even-handedly; whether similarly situated employees are treated the same; whether the employee knows or should reasonably have been expected to know that engaging in her behavior would likely result in disciplinary action; and whether there was a reasonable relationship between the behavior and the punishment imposed.”

Addressing the “due-process issue [of] whether Ms. Moon-Williams was treated fairly when she was suspended for the same misconduct for which she had been reprimand[ed],” the hearing officer answered that question in the negative, concluding that the Board had violated a principle of “workplace double jeopardy” by suspending Moon-Williams based on the same misconduct for which she had previously been reprimanded.

The Board contends that the hearing officer’s decision is due to be reversed as arbitrary and capricious because it failed to follow Alabama law (a) by segmenting the “just-cause” standard into substantive and procedural elements and (b) by relying on a doctrine of “workplace double jeopardy.” We agree. In Ex parte Wilson, 984 So.2d 1161 (Ala.2007), our supreme court set out the definition of “just cause” under Alabama law and rejected a seven-part test for “just cause” that the hearing officer in Wilson had imported from the law applicable to collective-bargaining agreements. See 984 So.2d at 1168-71. In the present case, the hearing officer applied a “procedural just-cause standard” whose components are very similar to those in the seven-part test that was rejected in Ex parte Wilson. See id. Based on Ex parte Wilson, we conclude that Alabama law does not recognize the “procedural just-cause standard” applied by the hearing officer in this case.

Nor does Alabama law recognize a principle of “workplace double jeopardy.” See Colburn v. Tuscaloosa Cnty. Bd. of Educ., 688 So.2d 881 (Ala.Civ.App.1997). In Colburn, a school-bus driver was dismissed from her employment because, among other things, she had caused $8,000 in damage to the bus she drove by failing to check the oil in the engine and had failed to attend a mandatory drug program for bus drivers. For the first instance of misconduct, she had been reprimanded; for the second instance, she had been suspended from driving for a few days. When the bus driver contested the termination of her employment, an employee-review panel convened pursuant to the Fair Dismissal Act, see former § 36-26-100 et seq., Ala.Code 1975, refused to consider the two instances of misconduct because “it concluded that to terminate her for those same instances of misconduct would amount to double jeopardy.” Colburn, 688 So.2d at 883. The circuit court reversed the panel’s decision, and this court affirmed, holding that “the constitutional prohibition against the imposition of double jeopardy does not apply to civil proceedings, including state administrative proceedings related to employment termination.” Id. (citing Heath v. Alabama State Tenure Comm’n, 401 So.2d 68 (Ala.Civ.App.1981)).

Moon-Williams argues that the hearing officer’s decision can and should be affirmed based upon the general principle that a hearing officer has broad discretion to determine whether the punishment ordered by the Board was excessive or unreasonable. Citing Ex parte Dunn, 962 So.2d 814 (Ala.2007), Moon-Williams contends that this court is not permitted to second-guess the wisdom of a hearing officer’s decision that a teacher’s punishment was excessive or unreasonable.

There is nothing in the hearing officer’s decision to indicate that he considered Moon-Williams’s suspension to be excessive. On the contrary, in responding to Moon-Williams’s argument that there was no reasonable relationship between the misconduct with which she was charged and the 20-day suspension because, she insisted, the penalty was excessive in light of the mitigating factor that she was a competent teacher who was held in high regard by her colleagues, the hearing officer concluded:

“[ D] espite evidence of Ms. Moon-Williams’s admirable teaching ability and performance, these factors do not mitigate her delinquent behavior. Thus, ... there is no basis to make a finding that the amount of the discipline was excessive. In fact, there was testimony of another incident in which a Special Ed teacher had falsified documents and made forgeries on an IEP, and was given a twenty-day suspension.”

(Emphasis added.) Cf. Ex parte Dunn, 962 So.2d at 823-24 (refusing to second-guess a hearing officer’s decision that a teacher’s exemplary employment record was a mitigating factor that made cancellation of his contract too severe a penalty). The hearing officer’s determination that Moon-Williams’s suspension was unreasonable was not based upon any assessment of excessiveness or severity, but only upon the suspension’s having been imposed after a previous reprimand for the same conduct. The hearing officer con-eluded that the Board’s system of progressive discipline did not countenance “multiple sanctions for the same misconduct.” We disagree.

At the hearing, Gracie testified that she had issued the letter of reprimand to Moon-Williams so as to comply with a “corrective-action plan,” which had been developed by the Board and approved by the State Department of Education, to reduce the number of IEPs that failed to satisfy state and federal requirements. The corrective-action plan stated, in pertinent part, that

“[s]pecial-education teachers will receive a letter of reprimand from the special-education director when IEPs of students on a case log are not current, incomplete, or found to be out of compliance, and a copy of the reprimand will be given to the teacher, principal, and forwarded to Human Resources.”

The Board’s progressive-discipline guidelines state that, “[ajlthough discipline steps should normally originate with the employee’s supervisor, there may be situations which may require the intervention of a Central Office supervisor to observe and document the discipline.” At the hearing, Gary Hall, the principal of Carver, and Veverly Arrington, the human-resources director for the county school system, both testified that the human-resources department had the authority to adjust discipline based upon the circumstances. The progressive-discipline guidelines state that “[sjerious misconduct warranting suspension or termination on the first occurrence” is not subject to progressive discipline. The guidelines also specifically provide that “[f]alsification [of] documents, applications, and other official records” is a type of serious misconduct that “may warrant suspension or termination upon the first occurrence.”

At the hearing, the Board argued that Moon-Williams’s initial reprimand should be disregarded in determining whether her suspension was appropriate because, it said, the reprimand was issued pursuant to a Board corrective-action plan required by the State Department of Education. The hearing officer summarily rejected that argument, stating that “a plan that allows for multiple disciplines for the same misconduct is a flawed plan.”

We conclude that the sole basis for the hearing officer’s decision overturning Moon-Williams’s suspension was his reliance on a “procedural just-cause standard” and on a “workplace double jeopardy” doctrine that are not recognized under Alabama law. Because the hearing officer’s decision failed to follow Alabama law, it was, therefore, arbitrary and capricious.

Conclusion

We reverse the hearing officer’s decision and remand the cause for the parties to conduct another hearing consistent with the provisions of former § 16-24-10(b), Ala.Code 1975 (stating that “[t]he decision of the hearing officer shall be affirmed on appeal unless the Court of Civil Appeals finds the decision arbitrary and capricious, in which case the court may order that the parties conduct another hearing consistent with the procedures of this article”).

REVERSED AND REMANDED.

THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ., concur.

      . Section 16-24-1 et seq., Ala.Code 1975, was repealed by Act No. 270, § 14, Ala. Acts 2011 (effective July 1, 2011). The former act was replaced by § 16-24C-1 et seq., Ala.Code 1975 (the “Students First Act of 2011”). See Act No. 270, § 1, Ala. Acts 2011 (effective July 1, 2011). The former statute is applicable to this case because all events referred to herein occurred before July 1, 2011.


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    Joseph BOSWELL v. Mary LOWERY.
    2110463.
    Court of Civil Appeals of Alabama.
    Sept. 21, 2012.

      Joseph J. Boswell, Mobile, for appellant.
   BRYAN, Judge.

Joseph Boswell appeals from a judgment of the Mobile Circuit Court (“the circuit court”) in favor of Mary Lowery. Because the circuit court lacked subject-matter jurisdiction to enter that judgment, that judgment is void, and, because a void judgment will not support an appeal, we dismiss Boswell’s appeal with instructions to the circuit court.

On July 8, 2010, Lowery brought an unlawful-detainer action against Boswell in the Mobile District Court (“the district court”), seeking possession of a house she had rented to Boswell (“the house”) and recovery of unpaid rent. Boswell answered Lowery’s complaint and asserted a counterclaim. Following a bench trial on November 15, 2010, the district-court judge, on November 17, 2010, electronically signed and electronically filed a judgment finding in favor of Lowery with respect to both her claim and Boswell’s counterclaim and awarding her possession of the house and damages in the amount of $4,000.

Boswell filed a Rule 59(e), Ala. R. Civ. P., postjudgment motion on November 24, 2010, and filed a second Rule 59(e) post-judgment motion on December 6, 2010. The Rule 59(e) postjudgment motion Boswell had filed on November 24, 2010, was denied by operation of law pursuant to Rule 59.1(dc), Ala. R. Civ. P., on December 8, 2010. Boswell filed a notice of appeal to the circuit court on December 20, 2010.

Following a bench trial, the circuit court entered a judgment in favor of Lowery on November 28, 2011. Lowery and Boswell each filed Rule 59(e) postjudgment motions, which the circuit court denied. Boswell then filed a notice of appeal to this court on February 10, 2012.

Although the parties have not raised the issue whether this court has jurisdiction over Boswell’s appeal,

“ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). ‘Lack of subject matter jurisdiction may not be waived by the parties and it is the duty of an appellate court to consider lack of subject matter jurisdiction ex mero motu’ Ex parte Smith, 438 So.2d 766, 768 (Ala.1983).”

MPQ, Inc. v. Birmingham Realty Co., 78 So.3d 391, 393 (Ala.2011).

In pertinent part, § 6-6-350, Ala.Code 1975, a part of Alabama’s Unlawful Detain-er Article, § 6-6-310 et seq., Ala.Code 1975, provides that “[a]ny party may appeal from a judgment entered against him or her by a district court to the circuit court at any time within seven days after the entry thereof....” (Emphasis added.) Section 6-6-350 has been amended with respect to appeals in unlawful-detainer actions involving residential landlords and tenants by § 35-9A-461, a part of Alabama’s Uniform Residential Landlord and Tenant Act, § 35-9A-101 et seq., Ala.Code 1975. See Ex parte Brown, 83 So.3d 512, 515 (Ala.2011). Section 35-9A-461(d) provides:

“Notwithstanding subsection (a) of Section 12-12-70 [concerning appeals from the district court generally], any party may appeal from an eviction judgment entered by a district court to the circuit court at any time within seven days after the entry thereof. The filing of a timely post-judgment motion pursuant to the Alabama Rules of Civil Procedure shall suspend the running of the time for filing a notice of appeal. In cases where post-judgment motions are filed, the full time fixed for filing a notice of appeal shall be computed from the date of the entry in the civil docket of an order granting or denying such motion, or the date of the denial of such motion by operation of law pursuant to Rule 59.1 of the Alabama Rules of Civil Procedure ....”

(Emphasis added.)

By electronically signing and electronically filing his judgment on November 17, 2010, the district-court judge both rendered and entered his judgment on that date. See Rule 58(de), Ala. R. Civ. P. (“Rule 58 applies in the district courts.”); Rule 58(a), Ala. R. Civ. P. (“A judge may render an order or a judgment ... (5) by executing and transmitting an electronic document to the electronic-filing system.”); and Rule 58(c), Ala. R. Civ. P. (“An order or a judgment rendered electronically by the judge under subdivision (a)(5) of this rule shall be deemed ‘entered’ within the meaning of these Rules and the Rules of Appellate Procedure as of the date the order or judgment is electronically transmitted by the judge to the electronic-filing system.”).

Rule 59(dc), Ala. R. Civ. P., provides that, in the case of an unlawful-detainer action subject to appeal under § 6-6-350, a party must file his or her Rule 59(e), Ala. R. Civ. P., postjudgment motion not later than 7 days after the entry of the judgment in order for it to be timely. Lowery’s action was an unlawful-detainer action subject to appeal under § 6-6-350, and, therefore, Boswell was required to file his Rule 59(e) postjudgment motion not later than 7 days after November 17, 2010, the date the district-court judgment was entered, in order for it to be timely. See Rule 59(dc). In pertinent part, Rule 6(a), Ala. R. Civ. P., provides:

“In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.... When the period of time prescribed or allowed is less than eleven (11) days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule ... ‘legal holiday5 includes ... Thanksgiving Day....”

Thus, in computing the 7-day period for Boswell to file a timely Rule 59(e) post-judgment motion, we (1) exclude November 17, 2010, the date the district-court judgment was entered, (2) begin the computation with the following day, November 18 (a Thursday), and (3) exclude November 20 (a Saturday), November 21 (a Sunday), November 25 (Thanksgiving Day), November 27 (a Saturday), and November 28 (a Sunday). Computed in that manner, the last day of the 7-day period for Boswell to file a timely Rule 59(e) post-judgment motion was November 29, 2010. Consequently, the Rule 59(e) post-judgment motion Boswell filed in the district court on November 24, 2010, was timely and, therefore, suspended the time for Boswell to file his notice of appeal to the circuit court pursuant to § 35-9A-461(d); however, the Rule 59(e) post-judgment motion he filed on December 6, 2010, was untimely and, therefore, did not suspend the time for Boswell to file his notice of appeal to the circuit court. See MPQ, Inc. v. Birmingham Realty Co., 78 So.3d at 394 (“ ‘Although a timely post-judgment motion will toll the ... time period for filing a notice of appeal, an untimely filed postjudgment motion will not do so.’ ”) (quoting Marsh v. Marsh, 852 So.2d 161, 163 (Ala.Civ.App.2002)); and § 35-9A-461(d) (“The filing of a timely post-judgment motion pursuant to the Alabama Rules of Civil Procedure shall suspend the running of the time for filing a notice of appeal.” (emphasis added)).

The Rule 59(e) postjudgment motion Boswell filed on November 24, 2010, was denied by operation of law on December 8, 2010. See Rule 59.1(dc), Ala. R. Civ. P. (“Rule 59.1 applies in the district courts, except that the time period of ninety (90) days [that a postjudgment motion may remain pending] is reduced to fourteen (14) days unless within that time an order extends the period, for good cause shown, for not more than an additional fourteen (14) days.”); Rule 59.1, Ala. R. Civ. P. (“A failure of the trial court to render an order disposing of any pending postjudgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.”); and Williamson v. Fourth Ave. Supermarket, Inc., 12 So.3d 1200, 1203-04 (Ala.2009) (“To eliminate any confusion caused by contrary or imprecise language in previous caselaw, we now reiterate that, consistent with the express language of Rule 59.1, Ala. R. Civ. P., a failure by the trial court to dispose of any postjudgment motion during the period specified in Rule 59.1 constitutes a denial of the motion ‘as of the date of the expiration of the period.’ Rule 59.1, Ala. R. Civ. P”).

Upon the denial of his Rule 59(e) postjudgment motion by operation of law on December 8, 2010, Boswell had 7 days to file a timely notice of appeal to the circuit court. See §§ 6-6-350 and 35-9A-461(d). In Ex parte Brown, 83 So.3d 512, 515-16 (Ala.2011), the supreme court held that Rule 6(a) applies to the computation of the 7-day period for filing a timely notice of appeal pursuant to §§ 6-6-350 and 35-9A-461(d) in unlawful-detainer actions involving a residential landlord and tenant before August 1, 2011. Consequently, in computing the 7-day period for Boswell to file a timely notice of appeal to the circuit court, we (1) exclude December 8, 2010, the date his Rule 59(e) post-judgment motion was denied by operation of law, (2) begin the computation with the following day, December 9 (a Thursday), and (3) exclude December 11 (a Saturday) and December 12 (a Sunday). Computed in that manner, the last day of the 7-day period for Boswell to file a timely notice of appeal to the circuit court was December 17, 2010. Boswell did not file his notice of appeal to the circuit court until December 20, 2010. Therefore, his notice of appeal to the circuit court was untimely. Boswell’s failure to file a timely notice of appeal to the circuit court is a jurisdictional defect that prevented the circuit court from acquiring subject-matter jurisdiction over his appeal. MPQ v. Birmingham Realty Co., 78 So.3d at 394. Because the circuit court did not acquire subject-matter jurisdiction over Boswell’s appeal, the judgment entered by the district court remains in effect, see Singleton v. Graham, 716 So.2d 224, 226 (Ala.Civ.App.1998), and the judgment entered by the circuit court purporting to adjudicate Boswell’s appeal from the district court is void, see MPQ v. Birmingham Realty Co., 78 So.3d at 394. Moreover, the circuit court’s void judgment will not support Boswell’s appeal to this court. Id. Because an appellate court must dismiss an appeal from a void judgment, id., we dismiss Boswell’s appeal with instructions to the circuit court to vacate its void judgment and to dismiss Boswell’s appeal from the district court.

APPEAL DISMISSED WITH INSTRUCTIONS.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.

      . No entry was made on the case-action summary in the State Judicial Information System to record Boswell’s filing of a Rule 59(e) postjudgment motion on either November 24, 2010, or December 6, 2010; however, the first Rule 59(e) postjudgment motion contained in the record on appeal bears the date stamp of the district-court clerk establishing that it was filed on November 24, 2010, and the second Rule 59(e) postjudgment motion contained in the record on appeal bears the district-court clerk’s filing stamp establishing that it was filed on December 6, 2010.

      . Boswell asserts that the district-court judgment was not entered until November 29, 2010; however, the record on appeal and the case-action summary in the State Judicial Information System refute that assertion.

      . In Act No. 2011-700, Ala. Acts 2011, the legislature amended the definition of "day” in § 35-9A-141(3), Ala.Code 1975, effective August 1, 2011, to provide that "day” means a "calendar day, notwithstanding Rule 6 of the Alabama Rules of Civil Procedure; however, in any case where the application of a time period in this chapter consisting of a specific number of days results in the last day of that time period falling on a weekend or an official holiday, then the last day of that time period shall be considered the next official business day when the court is open.” That amended definition of "day” does not apply to the present case because the 7-day period for Boswell to file a timely notice of appeal to the circuit court occurred before the August 1, 2011, effective date of that amended definition.


author: PER CURIAM.

text:
    Mohammad HEYAT v. Anahita RAHNEMAEI. Anahita Rahnemaei v. Mohammad Heyat.
    2110382.
    Court of Civil Appeals of Alabama.
    Sept. 21, 2012.

      John E. Medaris, Pelham, for appellant/eross-appellee Mohammad Heyat.
    Bruce L. Gordon and Jason E. Gilmore of Gordon, Dana, Knight & Gilmore, LLC, Birmingham, for appellee/cross-appellant Anahita Rahnemaei.
   PER CURIAM.

Mohammad Heyat (“the husband”) appeals a judgment divorcing him from An-ahita Rahnemaei (“the wife”), awarding her custody of their minor son, ordering him to pay child support, and dividing the parties’ property.

The wife filed a complaint seeking a divorce on August 26, 2010. In her complaint, the wife requested custody of the parties’ son, child support, alimony, an award of all the parties’ joint property, to be held harmless from all debts of the parties, and an attorney fee. The wife, by motion, also sought ex parte pendente lite custody of the son, possession of the marital residence (“the Greystone house”) pen-dente lite, and pendente lite child support, relief that the trial court granted on August 27, 2010. The husband filed an answer and a counterclaim. In his answer, the husband specifically stated that he did not want a divorce; however, in the event one was to be granted, the husband sought custody of the parties’ son, child support, alimony, an equitable division of the parties’ property, to be held harmless from all debts of the parties, and an attorney fee. On the husband’s motion, the trial court set aside the ex parte custody order, and the parties entered into a pendente lite agreement concerning custody of the son and payment of certain of the parties’ expenses and debts; the agreement did not require the husband to pay child support. In addition, three accounts owned by the parties were “frozen” by a pendente lite order. The parties agreed to an arrangement permitting the husband to withdraw $500 per month for living expenses and $450 per month to pay the mortgage on the parties’ rental house (“the Southside house”).

After a trial in July 2011, the trial court entered a judgment divorcing the parties. The judgment awarded custody of the son to the wife and awarded the husband specified visitation; the husband was also ordered to pay $991 per month in child support. Pursuant to the judgment, the wife was awarded exclusive possession of the Greystone house, which was to be sold with the proceeds of the sale divided equally, after a deduction from the proceeds of $100,000, an amount that the husband agreed that he owed the wife. The wife was given the option of purchasing the Greystone house for $150,000. The husband was awarded the Southside house and ordered to assume the indebtedness associated with that house. Finally, the trial court awarded the wife “a one half (1/2) interest in and to any real estate owned by the [husband] in Iran, should such ownership exist.”

The judgment ordered that the attorney fees for the parties’ respective attorneys be paid out of a particular bank account of the parties. The remaining funds in that account were to be divided, with the wife receiving 75% of the remaining funds and the husband receiving 25%. Both the husband and the wife filed postjudgment motions. The trial court amended its judgment by permitting the husband the opportunity to purchase the Greystone house for $250,000 if the wife chose not exercise her right to purchase the Grey-stone house within 18 months of the entry of the divorce judgment. The husband timely appealed, and the wife timely cross-appealed.

On appeal, the husband raises several issues. He first argues that the trial court erred in admitting certain testimony regarding the husband’s religious devoutness and the wife’s accusations that he harbored anti-American sentiments. The husband then argues that the trial court’s failure to award him at least joint custody of the son was an abuse of the trial court’s discretion. The husband next challenges the trial court’s division of the parties’ property. Finally, the husband argues that the trial court abused its discretion when it imputed to the husband a monthly income of $5,000 despite there being a lack of evidence to support that amount and in light of the fact that the trial court’s award of the Greystone house to the wife “eliminated” the husband’s ability to earn. On cross-appeal, the wife challenges the trial court’s-award of a one-half interest in any real estate that the husband might own in Iran, arguing that she would be unable, as a woman, to enforce that property right in Iran.

Although neither party raises the issue of jurisdiction to this court, we are required to take notice of the lack of jurisdiction ex mero motu. Wilhoite v. Wilhoite, 897 So.2d 303, 312 (Ala.Civ.App.2004) (opinion on return to remand). “The question whether a judgment is final is a jurisdictional question. The reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case; if the appellee has not moved for a dismissal, then the court should dismiss the appeal on its own motion.” Wilhoite, 897 So.2d at 312. “A ‘final judgment is a “terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.” ’ ” Id. (quoting Dees v. State, 563 So.2d 1059, 1061 (Ala.Civ.App.1990) (quoting in turn Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala.Civ.App.1986))).

In Wilhoite, the trial court ordered that “ ‘ “all monies, if any exist, in the name of either parties shall be divided between the parties 65% to the husband and 35% to the wife.” ’ ” Id. at 311. We concluded that the failure of the trial court to determine if the moneys existed, who had possession of the moneys, or which party was obligated to pay a portion of the moneys to the other amounted to a failure to completely adjudicate the division of marital property between the parties. Id. In the present case, the trial court awarded the wife a one-half interest in property if the husband owns that property.- The trial court did not decide whether the husband owns the property, and, thus, the trial court’s judgment suffers from the same failure to completely adjudicate the division of marital property as the judgment in Wilhoite did. Accordingly, because the trial court’s judgment is not a final judgment, we must dismiss the appeal and the cross-appeal.

APPEAL DISMISSED; CROSS-APPEAL DISMISSED.

THOMPSON, P.J., and PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.


author: WELCH, Presiding Judge. WELCH, Judge.

text:
    John Charles YOCUM v. STATE of Alabama.
    CR-10-1271.
    Court of Criminal Appeals of Alabama.
    Nov. 4, 2011.
    Opinion on Return to Remand Aug. 24, 2012.

      John Charles Yocum, pro se.
    Luther Strange, atty. gen., and Michael A. Nunnelley, asst. atty. gen., for appellee.
   WELCH, Presiding Judge.

John Charles Yocum appeals from the circuit court’s summary dismissal of his Rule 32, Ala. R.Crim. P., petition seeking postconviction relief from his May 12, 2010, conviction for first-degree theft of property, a violation of § 13A-8-3, Ala. Code 1975. Yocum pleaded guilty to the offense and was sentenced to 20 years’ imprisonment. He did not appeal.

After the circuit court granted Yocum’s in forma pauperis application, Yocum, act-mg pro se, timely filed the instant petition, his first, on March 15, 2011.

Yocum filed the standard form appended to Rule 32, checking the following paragraphs of the standard form: 12A(1) (asserting that the guilty plea was not entered into voluntarily); 12A(9) (asserting ineffective assistance of counsel); and 12F (asserting entitlement to an out-of-time appeal).

Pursuant to instructions on the face of the Rule 32 form, Yocum attached a supplement to the petition setting out the details of his claims. In his supplement to the petition, Yocum asserted that his trial counsel was ineffective because, before advising Yocum to plead guilty, counsel had not filed motion to dismiss the indictment on the ground that Yocum’s right to a speedy trial had been violated. Yocum did not provide factual support in the supplement for his out-of-time-appeal claim.

The State filed a motion to dismiss, asserting that the claims in Yocum’s Rule 32 petition lacked specificity, that they were not meritorious, and that they were precluded under Rule 32.2(a)(3) because the claims could have been, but were not, raised at trial.

The circuit court issued an order dismissing the petition and stating that the petition lacked specificity, that Yocum’s claim of ineffective assistance of counsel based on defense counsel’s failure to file a speedy-trial motion was insufficiently pleaded, and that his claims were precluded under Rule 32.2(a)(3) and 32.2(a)(5).

On appeal, Yocum reiterates the ineffective-assistance-of-counsel claim raised in his petition and argues that he alleged sufficient facts in his petition to warrant an evidentiary hearing. Yocum did not pursue his claim regarding an out-of-time appeal in his brief on appeal. Therefore, this claim is deemed abandoned, and we will not consider it. See, e.g., Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App.1995) (“We will not review issues not listed and argued in brief.”).

In his petition Yocum pleaded the following facts. Yocum was arrested for the underlying first-degree-theft charge on May 26, 2006, and was indicted on August 18, 2006. At the time of his arrest for this offense, Yocum was serving a one-year probationary period on a federal sentence, and he was also on parole from a sentence of life imprisonment imposed by an Alabama state court. Because of his arrest for theft, his federal probation was revoked, and he served seven to eight months in federal prison completing that sentence. When he was released from federal prison, he was picked up by Alabama authorities who revoked his parole in the Alabama case, and he was incarcerated in Alabama. Yocum explained in his motion for an evidentiary hearing that in December 2008, because he had no outstanding warrants or detainers, the Alabama Department of Corrections reinstated his parole. He asserted that from that time until August 13, 2009, the date he was re-arrested on the instant theft charge, he reported to his parole officer, received Social Security, and attended church. His parole was not revoked after he made bond on the theft charge. On February 17, 2010, he pleaded guilty to the instant theft charge on advice of counsel. He was subsequently sentenced and denied probation on May 12, 2010, and began to serve his sentence.

Defense counsel did not investigate the speedy-trial issue. Before he was re-arrested on the theft charge, Yocum did not know that the theft charge was being prosecuted. The Department of Corrections would not initially place him on work release. The State did not enter the theft charge in the National Crime Information Center database. Because of the delay in the trial on the theft charge, Yocum lost the possibility to serve his sentence in the theft case concurrently with the sentence in his previous case, and his classification status was affected. Because three years had passed, Yocum could no longer remember the name of a witness who, Yo-cum says, knew that the money allegedly stolen by Yocum was Yocum’s own money.

Yocum claimed that his counsel did not investigate the reasons for the delay in bringing him to trial and that he suffered prejudice because, had counsel filed a speedy-trial motion, it would have been granted, and the theft charge would have been dismissed.

To prevail on a claim of ineffective assistance of counsel, the petitioner must ultimately prove (1) that counsel’s performance was deficient and (2) that the deficient performance actually prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

“When an appellant’s claim of ineffective assistance of counsel arises from alleged errors committed by counsel in the guilty plea process, the prejudice prong of the Strickland analysis is satisfied by the appellant’s establishing ‘that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’ ” Culver v. State, 549 So.2d 568, 572 (Ala.Crim.App.1989), quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Yocum argued that counsel was ineffective for failing to raise a speedy-trial claim and that had counsel raised the speedy trial claim the charge against him would have been dismissed before he pleaded guilty. This sufficiently alleges that he was prejudiced by counsel’s failure to raise the claim. The United States Supreme Court has held that if a claimant establishes a violation of the right to a speedy trial the only available remedy is dismissal. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

In order to determine if Yocum sufficiently pleaded facts entitling him to an evidentiary hearing on his Rule 32 petition we must examine the facts as pleaded, consider the facts necessary to establish a speedy-trial violation, and determine if an evidentiary hearing was warranted.

In determining whether a defendant has been denied his constitutional right to a speedy trial, the following four factors are considered: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) the prejudice to the defendant. See Barker, supra.

In Ex parte Walker, 928 So.2d 259, 263 (Ala.2005), the Alabama Supreme Court stated:

“ ‘A single factor is not necessarily determinative, because this is a “balancing test, in which the conduct of both the prosecution and the defense are weighed.” ’ Ex parte Clopton, 656 So.2d [1243] at 1245 [ (Ala.1985) ] (quoting Barker, 407 U.S. at 530). We examine each factor in turn.”

A. Length of the delay.

Yocum alleged that he was arrested on May 26, 2006, for first-degree theft; he pleaded guilty on February 17, 2010. The delay in this case was approximately 45 months.

“In Doggett v. United States, the United States Supreme Court explained that the first factor — length of delay — ‘is actually a double enquiry.’ 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). The first inquiry under this factor is whether the length of the delay is ‘ “presumptively prejudicial.” ’ 505 U.S. at 652, 112 S.Ct. 2686 (quoting Barker, 407 U.S. at 580-31, 92 S.Ct. 2182). A finding that the length of delay is presumptively prejudicial ‘triggers’ an examination of the remaining three Barker factors. 505 U.S. at 652 n. 1, 112 S.Ct. 2686 (‘[A]s the term is used in this threshold context, “presumptive prejudice” does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry.’). See also, Roberson v. State, 864 So.2d 379, 394 (Ala.Crim.App.2002).
“In Alabama, ‘[t]he length of delay is measured from the date of the indictment or the date of the issuance of an arrest warrant — whichever is earlier — to the date of the trial.’ Roberson, 864 So.2d at 394. Cf. § 15-3-7, Ala.Code 1975 (‘A prosecution may be commenced within the meaning of this chapter by finding an indictment, the issuing of a warrant or by binding over the offender.’); Rule 2.1, Ala. R.Crim. P. (‘All criminal proceedings shall be commenced either by indictment or by complaint.’).”

Ex parte Walker, 928 So.2d at 263-64 (footnote omitted).

It is well settled that this Court has found delays substantially less than the 45-month delay here to be presumptively prejudicial requiring examination of the remaining Barker criteria. See Mansel v. State, 716 So.2d 234, 236 (Ala.Crim.App.1997); see also State v. Van Wooten, 952 So.2d 1176 (Ala.Crim.App.2006) (29-month delay held to be presumptively prejudicial); State v. Stovall, 947 So.2d 1149 (Ala.Crim.App.2006) (41-month delay held to be presumptively prejudicial); Vincent v. State, 607 So.2d 1290 (Ala.Crim.App.1992) (31-month delay held to be presumptively prejudicial). Cf. State v. Johnson, 900 So.2d 482 (Ala.Crim.App.2004) (28-month delay held not to be presumptively prejudicial); Payne v. State, 683 So.2d 440 (Ala.Crim.App.1995) (25-month delay held not to be presumptively prejudicial). We hold that the 45-month delay here was presumptively prejudicial.

B. Reasons for delay.

In Ex parte Walker, 928 So.2d 259 (Ala.2005), the Alabama Supreme Court stated:

“The State has the burden of justifying the delay. See Barker, 407 U.S. at 531; Steeley v. City of Gadsden, 533 So.2d 671, 680 (Ala.Crim.App.1988). Barker recognizes three categories of reasons for delay: (1) deliberate delay, (2) negligent delay, and (3) justified delay. 407 U.S. at 531. Courts assign different weight to different reasons for delay. Deliberate delay is ‘weighted heavily’ against the State. 407 U.S. at 531. Deliberate delay includes an ‘attempt to delay the trial in order to hamper the defense’ or ‘ “to gain some tactical advantage over (defendants) or to harass them.” ’ 407 U.S. at 531 & n. 32 (quoting United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)). Negligent delay is weighted less heavily against the State than is deliberate delay. Barker, 407 U.S. at 531; Ex parte Carrell, 565 So.2d [104,] 108 [ (Ala.1990) ]. Justified delay — which includes such occurrences as missing witnesses or delay for which the defendant is primarily responsible — is not weighted against the State. Barker, 407 U.S. at 531; Zumbado v. State, 615 So.2d 1223, 1234 (Ala.Crim.App.1993) (‘ “Delays occasioned by the defendant or on his behalf are excluded from the length of delay and are heavily counted against the defendant in applying the balancing test of Barker.” ’) (quoting McCallum v. State, 407 So.2d 865, 868 (Ala.Crim.App.1981)).”

Ex parte Walker, 928 So.2d at 265.

In State v. Jones, 35 So.3d 644 (Ala.Crim.App.2009), this Court explained:

“ ‘Some of the delay in this case was caused by neutral reasons that are not attributable to either the State or the appellant. The investigation was completed, forensic analysis was performed, psychological testing was done, discovery was conducted, and numerous evi-dentiary matters were resolved. Neutral reasons for delay do not ordinarily require a dismissal of the case based on a violation of the right to a speedy trial. See, Pierson v. State, 677 So.2d 830, 831 (Ala.Crim.App.1996).’ ”

35 So.3d at 653-54, quoting Sharp v. State, [Ms. CR-05-2371, August 29, 2008] - So.3d - (Ala.Crim.App.2008). See also, Kimberly v. State, 501 So.2d 534, 537 (Ala.Crim.App.1986) (“[N]egligence and ‘bureaucratic indifference and inefficiency’ must be weighed against the State, although not as heavily as a deliberate attempt to delay the trial. Taylor v. State, 429 So.2d 1172, 1174 (Ala.Crim.App.), cert. denied, Alabama v. Taylor, 464 U.S. 950, 104 S.Ct. 366, 78 L.Ed.2d 326 (1983).”).

Yocum alleged that the State failed to bring him to trial because, he says, the State lacked an interest in prosecuting him, as evidenced by the State’s abandoning his prosecution for more than three years. (C. 19.) As a result, Yocum has alleged that the delay was attributable to the State’s negligence. Thus, this factor weighs against the State. See, e.g., Ex parte Anderson, 979 So.2d 777, 781 (Ala.2007).

C. Assertion of right to speedy trial.

Yocum’s claim is that his counsel failed to assert his right to a speedy trial. “Repeated requests for a speedy trial weigh heavily in favor of an accused.” Kelley v. State, 568 So.2d 405, 410 (Ala.Crim.App.1990). On the other hand, an accused’s “delay [in filing a motion for a speedy trial] reduces the significance of the appellant’s assertion.” Archer v. State, 643 So.2d 597, 599 (Ala.Crim.App.1991). “The fact that the appellant did not assert his right to a speedy trial sooner ‘tends to suggest that he either acquiesced in the delays or suffered only minimal prejudice prior to that date.’” Clancy v. State, 886 So.2d 166, 172 (Ala.Crim.App.2003), quoting Benefield v. State, 726 So.2d 286, 291 (Ala.Crim.App.1997), and Brown v. State, 392 So.2d 1248, 1254 (Ala.Crim.App.1980) (no speedy-trial violation where defendant asserted his right to a speedy trial three days before trial).

Because this is a claim of ineffective assistance of counsel based on counsel’s failure to assert a speedy-trial defense, Yocum has sufficiently pleaded this prong of Barker.

D. Prejudice to the defendant.

Yocum contends that he was prejudiced by the 45-month delay between his arrest and his guilty plea because a witness who could testify to his innocence could not be located and because he was denied work release for a time. He also alleged that he lost the possibility that his sentence in the instant case could have been served concurrently with another sentence he was then serving.

“In analyzing the fourth factor, we consider the ‘interests of defendants which the speedy trial right was designed to protect....: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.’ Barker v. Wingo, 407 U.S. at 532, 92 S.Ct. 2182.” Ex parte Anderson, 979 So.2d at 781. “Of these forms of prejudice, ‘the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.’” Doggett v. United States, 505 U.S. 647, 654, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), quoting Barker, 407 U.S. at 532.

' In this case, Yocum has failed to show oppressive pretrial incarceration or unwarranted anxiety and concern. However, Yocum’s allegations that his witness could not be located because of Yocum’s faded memories does rise to the level of presumed prejudice or require the State to affirmatively show either that the delay is “ ‘extenuated, as by the defendant’s acquiescence,’ ” or “ ‘that the delay left [the defendant’s] ability to defend himself unimpaired.’ ” Ex parte Walker, 928 So.2d at 268, quoting Doggett, 505 U.S. at 658 n. 4.

Yocum has pleaded sufficient facts to entitle him to an evidentiary hearing on his Rule 32 petition. In examining the four Barker factors in this case, as pleaded, whether the delay experienced by Yocum prejudiced him to a degree that would warrant the dismissal of his indictment and thus establishes a claim of ineffective assistance of counsel is a matter to be determined by the circuit court after receiving evidence in accord with Rule 32.9, Ala. R.Crim. P.

Based on the foregoing, this cause is remanded to the circuit court for an evi-dentiary hearing and written findings of fact on Yocum’s allegation that he was denied effective assistance of counsel. In lieu of an evidentiary hearing, the circuit court may take evidence as provided in Rule 32.9, Ala. R.Crim. P. In any event, the circuit court shall make specific findings of fact as required by Rule 32.9(d), Ala. R.Crim. P. The return to remand shall contain a transcript of the evidentiary hearing, if one is conducted, and any other evidence received or relied on by the court in making its findings. If the circuit court determines that Yocum is entitled to relief, then the court may grant such relief as it deems appropriate.

The circuit court shall take all necessary action to ensure that the circuit clerk makes due return to remand at the earliest possible time and no later than 56 days from the date of this opinion.

REMANDED WITH DIRECTIONS.

WINDOM, KELLUM, BURKE, and JOINER, JJ., concur.

On Return to Remand

WELCH, Judge.

On November 4, 2011, this case was remanded by order with directions for the circuit court to hold an evidentiary hearing and make written findings of fact regarding John Charles Yocum’s allegation in his Rule 32, Ala. R.Crim. P., petition that his counsel was ineffective for failing to file a speedy-trial motion.

On remand, after conducting an eviden-tiary hearing, the circuit court found that Yocum’s claim alleging ineffective assistance of counsel was not meritorious. We affirm.

In the hearing, the only evidence taken was Yocum’s testimony. After the hearing, the circuit court issued the following order:

“This matter was called for hearing on the 21st day of December 2011. [Yo-cum] and counsel for the State were present. The Court received testimony from [Yocum] on his own behalf. Counsel for the State then cross-examined [Yocum]. No other witnesses were called or requested by either party. The Court received physical exhibits into evidence. Arguments were made to the Court.
“After review of the pleadings, the testimony, exhibits, and arguments, the Court finds as follows:
“[Yocum] has failed to establish that attorney Theresa Terrabonne was ineffective under the standards set out by Strickland v. Washington. [Yocum] has failed to meet his burden of showing a deficiency in the representation of [Yo-cum] by attorney Terrabonne. [Yocum] has failed to demonstrate that any of the alleged errors attributed to his counsel were a result of deficient professional judgment or conduct rather than a part of a reasonable pre-trial strategy. [Yo-cum] has admitted that he chose to plead guilty without ever mentioning to his attorney the existence of an allegedly exculpatory witness he now claims to exist. The Court does not find credible [Yocum’s] claim of an alleged exculpatory witness and indeed believes that [Yo-cum] has made misrepresentations to the Court in regards to this allegedly exculpatory witness. [Yocum] confessed to police in a written statement shortly after the theft that he stole approximately $20,000 that belonged to the victim. He never mentioned this alleged witness in his statement, to his attorney or to the Court until this Rule 32 petition.
“Based on the testimony, the Court does not find credible [Yocum’s] claim that he had no knowledge that he had an active charge. The Court notes that [Yocum] had his probation revoked in federal court and his parole revoked in state court based on this theft charge. The Court further notes that [Yocum] claims being given a more restrictive classification because of this charge and yet he says he made no effort to find if this charge was active. [Yocum] never raised a speedy trial claim himself and never requested his attorney do so. Instead, [Yocum] opted to plead guilty upon the settlement agreement. Further, [Yocum] has not said that he would have forgone the plea agreement to pursue a speedy trial claim and the Court does not find it credible that he would have done so. And this Court would not have granted a speedy trial claim based on the evidence presented to the Court.
“This Court went through a plea colloquy with [Yocum] at the time of his plea and [Yocum] indicated to this Court that he was satisfied with Ms. Terrabonne’s services and his plea. Further, the petitioner signed an explanation of rights (Ireland [v. State, 47 Ala.App. 65, 250 So.2d 602 (1971)]) form and a satisfaction of attorney form indicating he was satisfied with the services of Ms. Terra-bonne and his plea.
“[Yocum] has failed to show prejudice to his case by the delay. The Court finds no evidence that [Yocum’s] ability to defend himself was impaired by the delay. As stated above, the Court does not find credible and indeed disbelieves [Yocum’s] claim of an alleged exculpatory witness. The Court further finds that [Yocum’s] claim that he lost the ability to receive concurrent time without merit. This Court could have given [Yocum] credit for time served in those other cases toward this sentence if it thought appropriate. The Court notes that this felony conviction was [Yocum’s] 18th felony conviction in Alabama State Courts alone and that he received the minimum sentence under the habitual felony offender act for this offense.”

(R.R. 48-44.)

To prevail on a claim of ineffective assistance of counsel, the petitioner must ultimately prove (1) that counsel’s performance was deficient and (2) that the deficient performance actually prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The circuit court issued a thorough order addressing each of the allegations presented by Yocum, finding that Yocum had failed to prove his claim that counsel was ineffective for failing to file a speedy-trial motion.

“The burden of proof in a Rule 82 proceeding rests solely with the petitioner, not the State.” Davis v. State, 9 So.3d 514, 519 (Ala.Crim.App.2006), rev’d on other grounds, 9 So.3d 537 (Ala.2007). “[I]n a Rule 32, Ala. R.Crim. P., proceeding, the burden of proof is upon the petitioner seeking post-conviction relief to establish his grounds for relief by a preponderance of the evidence.” Wilson v. State, 644 So.2d 1326, 1328 (Ala.Crim.App.1994). Rule 32.3, Ala. R.Crim. P., specifically provides that “[t]he petitioner shall have the burden of ... proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.” “[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court’s review in a Rule 32 proceeding is de novo.” Ex parte White, 792 So.2d 1097, 1098 (Ala.2001). “However, where there are disputed facts in a postconviction proceeding and the circuit court resolves those disputed facts, ‘[t]he standard of review on appeal ... is whether the trial judge abused his discretion when he denied the petition.’” Boyd v. State, 913 So.2d 1113, 1122 (Ala.Crim.App.2003) (quoting Elliott v. State, 601 So.2d 1118, 1119 (Ala.Crim.App.1992)).

The circuit court found that had Yocum’s counsel presented a speedy-trial claim it would have been properly denied. An analysis of the Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), factors — (1) the length of the delay; (2) the reasons for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) the degree of prejudice to the defendant — supports this conclusion.

The length of delay found to exist was 45 months. This factor is unchanged by the evidentiary hearing; however, the length of the delay is merely a starting point for a balancing of the remaining factors if the delay is presumptively prejudicial and is itself not dispositive.

Yocum offered no evidence that the State sought to gain an unfair advantage by the delay, and the delay appears to be the result of mere negligence or indifference; therefore, this factor weighs against the State but not as heavily as if there had been an attempt to gain an advantage.

Yocum offered no evidence indicating that he asserted his right to a speedy trial. The record is silent regarding the date when counsel was appointed. Yocum alleged in his petition that counsel was appointed after August 2009 and he pleaded guilty on February 17, 2010. The circuit court found that he received the minimum sentence that could have been imposed as a habitual offender with eighteen prior Alabama felonies.

Yocum offered no evidence that he suffered oppressive pretrial incarceration or anxiety and concern. Yocum also testified that his assertion in the Rule 32 petition that his ability to defend himself was impaired because he lost the ability to locate an exculpatory witness was in fact a lie. Yocum did not prove which of his 18 prior felonies he was serving time for when he could have been brought to trial and did not show that he lost the opportunity to have his sentence run concurrently with that sentence.

After a consideration of the Barker v. Wingo factors, the trial court determined that Yocum had failed to prove that he received ineffective assistance of counsel. Although it would have been prudent for counsel to have filed a speedy-trial motion, the circuit court’s finding that Yocum was not denied a speedy trial is supported by the evidence. A consideration of the factors set out above also convinces this court that Yocum suffered no prejudice as a result of his counsel s failure to file a speedy-trial motion.

The circuit court resolved the disputed issues of fact and decided that Yocum had not met his burden of proof. In so doing the court acted within its discretion. Based on the record before us, the circuit judge exercised sound discretion in denying Yocum’s petition.

AFFIRMED.

WINDOM, P.J., and KELLUM and BURKE, JJ., concur. JOINER, J., concurs in the result.

      . We note that Yocum's in forma pauperis application showed that $1,991.17 had been deposited into his inmate account in the 12 months preceding the filing of his application, much more than two times the filing fee for a Rule 32 petition; the circuit court would not have abused its discretion if it had denied Yocum's request to proceed in forma pauper-is. See Ex parte Wyre, 74 So.3d 479, 482 (Ala.Crim.App.2011):
      "[A]n inmate who has appreciably more than the amount necessary to pay a filing fee deposited in his inmate account in the 12 months preceding the filing of an IFP [in forma pauperis] request is not indigent as that term is defined in Rule 6.3(a), Ala. R.Crim. P. Wyre had $876.52 deposited to his account in that period — more than twice the amount necessary to pay the filing fee. Thus, he is not indigent.”