source: Caselaw Access Project

author: JOINER, Judge.

license: Public Domain

text:
    Ronzie McRATH v. STATE of Alabama.
    CR-12-1166.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 2013.

      Ronzie McRath, pro se.
    Luther Strange, atty. gen., and Tracy M. Daniel, asst. atty. gen., for appellee.
   JOINER, Judge.

Ronzie McRath appeals the denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P. We reverse and remand.

In March 1994, following a trial on a single-count indictment charging capital murder — “[mjurder ... during a robbery in the first degree or an attempt thereof,” § 13A-5-40(a)(2), Ala.Code 1975— McRath was convicted of the lesser-included offenses of “murder” and first-degree robbery. McRath was subsequently sentenced to consecutive terms of life imprisonment for the two convictions. McRath appealed his convictions and sentences to this Court; this Court, on return to remand, affirmed McRath’s convictions and sentences by unpublished memorandum. McRath v. State, 668 So.2d 874, 876 (Ala.Crim.App. 1995) (note from the reporter of decisions).

In April 1997, McRath filed his first petition for postconviction relief pursuant to Rule 32, Ala. R.Crim. P.

In that petition, McRath claimed, among other things, that the evidence was insufficient “to sustain [the] verdict,” that he received ineffective assistance of counsel, and that his sentence “exceeded] the maximum authorized by law.” (C2. 13-15.)

With respect to the suffíciency-of-the-evidenee claim, McRath argued that “[t]he two separate convictions for lesser-included offenses not submitted to the jury violate[d] due process and [the] double-jeopardy clause.” (C2. 13.) McRath then argued that his counsel was ineffective because counsel “failed to recognize the double-jeopardy violations resulting in the improper convictions and sentences for lesser offenses not included in the indictment[.]” (C2. 15.) Finally, McRath contended that his sentence was illegal because it was based on “verdicts of two lesser included offenses from a single-count indictment,” and “only a single conviction for ‘felony-murder or murder’ or alternatively ‘felony-robbery or robbery’ can be sustained.” (C2. 13, 15.)

The circuit court subsequently entered a written order dismissing McRath’s first petition. With respect to McRath’s sufficiency-of-the-evidence claim — which the circuit court characterized as a claim “that no set of facts could support a jury finding [McRath] guilty of murder and robbery 1st degree as separate offenses under an indictment charging ... capital murder”— the circuit court concluded that this claim was “ludicrous” and that “the jury found the two criminal acts were separate and distinct albeit part of a continuing series of events.” (C2. 22.) The circuit court also concluded — with respect to McRath’s inef-feetive-assistance-of-counsel claim — that, irrespective of McRath’s claim of deficient performance, “the outcome of th[e] case would have been no different.” (C2. 22.) Finally, with respect to McRath’s illegal-sentence claim, the circuit court concluded that “[t]he jury found [McRath] guilty of two separate Class A felonies” and that “separate sentences to run consecutive [are] legal sentences under Alabama law.” (C2. 22.)

In the unpublished memorandum affirming the summary dismissal of McRath’s first petition, this Court concluded that summary dismissal was proper because “all of [McRath’s] claims, with the exception of the ineffective assistance of appellate counsel claim, were clearly precluded from review as the claims could have been, but were not, raised on direct appeal.” This Court briefly addressed the substance of the double-jeopardy claim — albeit as it was presented in an ineffective-assistanee-of-counsel claim — stating that McRath “is apparently under the mistaken impression that he could not be convicted and sentenced on two separate offenses that arose out of the same event.”

In April 2012, McRath filed a petition for postconviction relief pursuant to Rule 32, Ala. R.Crim. P. In the instant petition — which appears to be his third such petition — McRath claimed that the “trial court was without jurisdiction to render judgment or to impose sentences” because, he claimed, he was convicted of felony murder and first-degree robbery and the “robbery provide[d] the basis for both the [felony-]murder conviction and the first-degree robbery conviction.” (C. 19.) McRath argued that the dual convictions violated double-jeopardy principles and asked the circuit court to “vacate the first-degree robbery conviction.” (C. 19.) In response, the State asserted that “the count[s] alleging murder and robbery arose out of separate acts” and argued that McRath’s convictions did not violate double jeopardy; specifically, the State contended that McRath was indicted for murder made capital because it was committed during the course of a robbery, see § 13A-5-40(a)(2), Ala.Code 1975, but was found guilty of two independent lesser-included offenses — intentional murder and first-degree robbery. (C. 40.)

The State subsequently submitted an affidavit from the judge who presided over McRath’s trial. The trial judge’s affidavit states:

“I was the Presiding Judge over the case of State of Alabama v. Ronzie McRath, CC-93-496 that was disposed of by a jury verdict. As I recall, the Defendant, Ronzie McRath, was charged with capital murder because it was alleged that the murder was committed during the commission of a robbery in the first degree. At the end of the trial, I instructed the jury on the charges of capital murder, murder and robbery in the first degree. The jury instructions would be part of the record in this case, but I believe the jury was clearly instructed that in lieu of finding the defendant guilty of ‘capital murder,’ they could find from the evidence that the murder and the robbery were separate and distinct felony acts. After deliberations, the jury returned verdicts of guilty for murder and robbery in the first degree. I adjudged the Defendant Ronzie McRath guilty of both murder and robbery in the first degree at that time. The Defendant was sentenced by me to two (2) consecutive life sentences and an order was entered.
“In my order I apparently put in parenthesis the code section for felony murder, which would have been a clerical error on my part, as that is not consistent with the jury verdict nor my adjudication following a returning of the verdict since the Defendant was found guilty of both the murder charge and the robbery charge by the jury and it was my intent to sentence him separately for murder and robbery, not felony-murder and robbery.”

(C. 53.)

The circuit court conducted an evidentia-ry hearing on the petition. At the beginning of the hearing, McRath — through counsel — admitted a portion of the trial transcript reflecting the jury instructions given at trial and also admitted a “Sentencing Memorandum & Order” entered by the trial judge following the jury’s verdict. (C. 84-112.) During the hearing, McRath argued as follows:

“So, in this case, the sentencing order, the jury instructions were all capital murder and then the lesser-included [offense] of murder and robbery, which to me is felony murder, and that was what the sentencing order says he was convicted of.
“The caselaw is just rock solid clear that you cannot be convicted of felony murder and also be convicted of the underlying felony that made it felony murder.”

(R. 15.) In response, the State agreed with McRath’s contention that felony murder and robbery “cannot be two separate and distinct acts.” (R. 20.) The State argued, however, that McRath was not convicted of felony murder but, instead, was convicted of intentional murder; the State also contended that trial judge’s sentencing order — which states that McRath was convicted under § 13A-6-2(a)(3), Ala. Code 1975 — was a clerical “mistake.” (R. 22.)

The circuit court subsequently denied McRath’s petition. The circuit court found that this claim was raised in McRath’s first petition for postconviction relief and, thus, that the claim was precluded because it was successive under Rule 32.2, Ala. R.Crim. P. The circuit court also concluded that “the jury found [McRath] was guilty of murder and robbery, the lesser-included offenses of capital murder.” (C. 61.)

On appeal, McRath continues to argue that his convictions violate double-jeopardy principles. We agree.

“ ‘The standard of review on appeal in a postconviction proceeding is whether the [circuit court] abused [its] discretion when [it] denied the petition. Ex parte Heaton, 542 So.2d 931 (Ala.1989).’ ” Strickland v. State, 771 So.2d 1128, 1125 (Ala.Crim.App.1999) (quoting Elliott v. State, 601 So.2d 1118, 1119 (Ala.Crim.App. 1992)). However, “when 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).

I.

As a threshold matter, the circuit court erred when it concluded that McRath’s double-jeopardy claim is precluded as successive under Rule 32.2(b), Ala. R.Crim. P., which states:

“If a petitioner has previously filed a, petition that challenges any judgment, all subsequent petitions by that petitioner challenging any judgment arising out of that same trial or guilty-plea proceeding shall be treated as successive petitions under this rule. The court shall not grant relief on a successive petition on the same or similar grounds on behalf of the same petitioner. A successive petition on different grounds shall be denied unless (1) the petitioner is entitled to relief on the ground that the court was without jurisdiction to render a judgment or to impose sentence or (2) the petitioner shows both that good cause exists why the new ground or grounds were not known or could riot have been ascertained through reasonable diligence when the first petition was heard, and that failure to entertain the petition will result in a miscarriage of justice.”

“Rule 32.2(b) creates a two-pronged approach to addressing successive petitions. The first inquiry, under Rule 32.2(b), is whether the grounds raised in the successive petition are duplicative, that is, have the same grounds been raised in a prior petition.” Ex parte Trawick, 972 So.2d 782, 783 (Ala.2007). Regarding this first inquiry, “[i]t is well settled under Alabama caselaw that where a particular claim in a Rule 32 petition has been raised in a previous petition ... for that claim to be precluded as successive under Rule 32.2(b), the claim must have been decided on the merits in the previous petition.” Whitt v. State, 827 So.2d 869, 875 (Ala. Crim.App.2001).

“The second prong of Rule 32.2(b) states that ‘[a] successive petition on different grounds shall be denied’ unless one of two exceptions apply.’ (Emphasis added.)” Ex parte Trawick, 972 So.2d at 783. Under either inquiry, “for purposes of applying the procedural bar in Rule 32.2(b), the claims in a Rule 32 petition should be considered separately, and not collectively.” Whitt, 827 So.2d at 875 (citing Ex parte Walker, 800 So.2d 135 (Ala.2000)).

In its order, the circuit court quotes a portion of McRath’s first petition, notes that McRath’s first petition was denied and the denial affirmed on appeal, and concludes that McRath is alleging “the exact same grounds ... in this successive petition.” (C. 61.) Whether McRath’s claim is successive, however, is not determined based solely on whether the claim was raised in a previous petition.

In dismissing McRath’s first petition, the circuit court' did not reference double jeopardy, let alone purport to address a double-jeopardy claim; instead, the circuit court concluded that the evidence was sufficient to support both of McRath’s convictions and, also, that McRath’s sentences were legal. (C2. 21-22.) Likewise, on appeal, this Court did not address in its unpublished memorandum the merits of the claim that McRath now asserts; this Court concluded that his claims were precluded and that, with respect to McRath’s ineffective-assistance-of-appellate-counsel claim that implicated double jeopardy, McRath was “under the mistaken impression that he could not be convicted and sentenced on two separate offenses that arose out of the same event.”

Although McRath vaguely asserted double-jeopardy and illegal-sentence claims in his first petition, we cannot say that McRath previously raised the claim he now asserts in this petition, namely, that his conviction for felony murder and first-degree robbery violate double-jeopardy principles. Even if he did raise such a claim, we cannot say that it was addressed on its merits, either by the circuit court or this Court; at best — as evidenced by the trial judge’s affidavit — McRath’s claims have been viewed as if he has been convicted of intentional murder and first-degree robbery.

Because the claim that McRath now asserts was not raised in a previous petition and addressed on the merits, his petition asserting “ ‘different grounds shall be denied’ unless one of two exceptions apply.” Ex parte Trawick, supra (quoting Rule 32.2(b), Ala. R.Crim. P.). As McRath asserted in his petition — and as recognized by bóth this Court and the Alabama Supreme Court — McRath’s double-jeopardy claim is a jurisdictional claim. See Heard v. State, 999 So.2d 992, 1006 (Ala.2007) (“[Simultaneous convictions involving greater and lesser-ineluded offenses ... implicates the jurisdiction of the trial court and cannot be waived.”); Rolling v. State, 673 So.2d 812, 816 (Ala.Crim.App.1995) (“[T]his double-jeopardy claim [in which a defendant is convicted of both the greater and lesser-ineluded offenses] goes to the jurisdiction of the trial court to render judgment.”). Accordingly, this claim falls within the exception recognized by Rule 32.2(b)(1), Ala. R.Crim. P., and thus, is not precluded as successive.

II.

The evidence received by the circuit court during the hearing — a portion of the trial transcript reflecting the jury instructions given in McRath’s trial, as well as a “Sentencing Memorandum & Order” entered by the trial judge following the jury’s verdict — clearly reflect that the jury was instructed on “felony murder” as a lesser-ineluded offense of capital murder and that McRath was convicted of both felony murder and first-degree robbery.

“Rule 32.3 states: ‘The petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.’ ” Ex parte Hodges, 147 So.3d 973, 976 (Ala.2011). When the circuit court conducts an evidentiary hearing “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). In Barbour v. State, 903 So.2d 858 (Ala.Crim.App. 2004), this Court explained:

“We will reverse a circuit court’s findings only if they are ‘clearly erroneous.’ Jenkins v. State, 972 So.2d 165 (Ala. Crim.App.2005).
“ ‘ “ ‘[A] finding is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).... If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the 'evidence, the factfinder’s choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982).” [Anderson v. City of Bessemer City, N.C.], 470 U.S. [564] at 573-74, 105 S.Ct. [1504] at 1511 [(1985)].’
“Morrison v. State, 551 So.2d 435, 436-37 (Ala.Crim.App.1989); see also Giles v. State, 906 So.2d 963, 970-71 (Ala.Crim. App.2004).”

903 So.2d at 861-62.

The trial transcript admitted at the hearing reflects that the trial court instructed the jury that “[s]hould [it] find in [its] deliberations ... that the State has failed to prove beyond a reasonable doubt that the defendant committed an intentional murder during the commission of a robbery in the first degree as charged ... then you should go on to consider the offense of murder sometimes in our jurisdiction called felony murder.” (C. 96 (emphasis added).) The jury was instructed that, “[u]nder our law, a person commits the crime of murder if that person commits robbery in any degree, and in the course of the crime or in furtherance of the crime or in immediate flight from the crime he causes the death of any person.” (C. 96.) The jury instructions reference felony murder, and the instructions track the language of the felony-murder statute. See § 13A-6-2(a)(3), Ala.Code 1975 (“He or she commits or attempts ... robbery in any degree ... and, in the course of and in furtherance of the crime that he or she is committing or attempting to commit, or in immediate flight therefrom, he or she, or another participant if there be any, causes the death of any person.”). Likewise, the trial judge’s sentencing order reflects that McRath was convicted under § 13A-6-2(a)(3), AIa.Code 1975, the felony-murder portion of the first-degree-murder statute.

The two exhibits offered by McRath at the hearing leave this Court “with the definite and firm conviction that a mistake has been committed”; thus, we conclude that the circuit court’s conclusion that McRath’s double-jeopardy claim was without merit is clearly erroneous.

Our conclusion is bolstered by our review of the record in McRath’s direct appeal. During a discussion between the judge and the attorneys regarding jury instructions, the following exchange occurred:

“[Defense counsel]: Judge, I think we have submitted requested charges on the felony murder doctrine.
“The Court: All right.
“[Defense counsel]: And I would ask that the judge, excuse me, the jury be charged on that and give that as a lesser included.
“[State’s attorney]: Is that going to be the charge of murder?
“The Court: Well, that’s what — there is no evidence in this case if the jury finds — well, there is no evidence in this case that there was not a robbery in process. There is no evidence from which the jury could reasonably concluded that. The sole question is whether or not the defendant was a participant in it and did the actual killing. The only reason I think you are entitled to a felony-murder charge is the one statement of [a witness] that he says was made by the defendant McRath shortly after the incident that is, T don’t know whether I shot her or not.’
“[Defense counsel]: Yes, sir.
“The Court: Something — I can find it. But the jury as I read it would have to find Mr. McRath guilty of capital murder or murder based upon the felony-murder doctrine as contained in 13A-6-2.
“[Defense counsel]: But basically they’re going to get a charge on felony murder?
“The Court: Basically.”

(Cl. 948-50 (emphasis added).) The above-quoted portion of the transcript reflects that the judge concluded that the only evidence presented was that a murder occurred during the course of a robbery; accordingly, the only charge supported by the evidence was an intentional murder committed during the course of a first-degree robbery — capital murder — or a murder unintended by McRath that occurred during the course of a robbery— felony murder.

As envisioned by the judge and attorneys in the above-quoted exchange, the jury was instructed on capital murder, felony murder, and first-degree robbery; the jury subsequently returned guilty verdicts on “murder” and first-degree robbery as lesser-included offenses of the indicted offense. As the trial judge’s sentencing order reflects, McRath was convicted and sentenced for felony murder and first-degree robbery. It is undisputed that the same robbery provided the basis for both McRath’s felony-murder conviction and his first-degree-robbery conviction; accordingly, McRath’s dual convictions and sentences cannot stand. See Ex parte Murray, 893 So.2d 353, 354 (Ala.2004) (“It is undisputed that the same robbery provided the basis for both Murray’s felony-murder conviction and his first-degree-robbery conviction. Therefore, as the State conceded in its motion to vacate the first-degree-robbery conviction, the felony-murder conviction encompasses the first-degree robbery conviction, and the circuit court must vacate the first-degree robbery conviction.” (quotations omitted)).

Accordingly,- we reverse the circuit court’s order denying McRath’s petition and remand this matter for the circuit court to grant McRath’s petition and vacate his conviction and sentence for first-degree robbery. Brooks, 952 So.2d at 1184. Due return should be made to this Court within 28 days of the release' of this opinion.

REVERSED AND REMANDED.

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

      . We take judicial notice of the record that was before this Court in McRath’s direct appeal. Nettles v. State, 731 So.2d 626 (Ala. Crim.App.1998). References to the clerk's record in McRath's direct appeal will be designated as "Cl.,” and, likewise, references to the reporter's transcript will be designated as "Rl."

      . McRath appealed the summary dismissal of his first Rule 32 petition; this Court affirmed the summary dismissal by unpublished memorandum. McRath v. State (No. CR-96-1803, Sept. 26, 1997), 725 So.2d 1088 (Ala.Crim. App.1997) (table). References to the clerk’s record in the appeal of McRath's first petition will be designated as "C2.,” and, likewise, references to the reporter’s transcript will be designated as "R2.”

      . This Court is unaware of the nature and disposition of McRath's second petition.

      . The trial judge is now retired.

      . This Court affirmed McRath’s convictions and sentences in September 1995. The decision in Rolling — recognizing that there are certain types of double-jeopardy claims that are jurisdictional — was decided before McRath’s case was final on direct review.

      . The fact that McRath’s convictions and sentences have been previously affirmed by this Court does not prohibit this Court from addressing McRath’s double-jeopardy claim on appeal from the denial of his Rule 32 petition. See Brooks v. State, 952 So.2d 1180 (Ala.Crim. App.2006) (vacating first-degree-robbery conviction on double-jeopardy grounds on appeal from denial of Rule 32 petition, even though convictions and sentences for felony murder and first-degree robbery were affirmed on direct appeal); Edwards v. State, 907 So.2d 1077 (Ala.Crim.App.2004) (same).

      . See also Jury Instructions at C. 96-97 ("That in doing the acts which constituted the commission or attempting to commit the felony of robbery that the death was caused by the defendant or by another participant and that the death was caused by the defendant unintentionally or was caused by another participant in the commission of the robbery.”); and C. 98 ("under our felony murder doctrine the reason an unintentional killing committed during the course of one of several enumerated felonies, robbery being one of them, is because even though there is not an intent, an actual intent, on the part of a defendant the law implies an intent by the commission of the underlying serious felony offense.”).


author: BURKE, Judge. JOINER, Judge,

text:
    Leon Maurice BARNETT v. STATE of Alabama.
    CR-12-1450.
    Court of Criminal Appeals of Alabama.
    Nov. 8, 2013.
    Rehearing Denied Feb. 7, 2014.
    Certiorari Denied May 23, 2014 Alabama Supreme Court 1130715.

      Leon Maurice Barnett, pro se.
    Luther Strange, atty. gen., and Tracy M. Daniel, asst. atty. gen., for appellee.
   BURKE, Judge.

Leon Maurice Barnett appeals the circuit court’s summary dismissal of his Rule 32, Ala. R.Crim. P., petition for postconviction relief. The petition challenged his convictions for one count of trafficking in marijuana, a violation of § 13A-12-231(1), Ala.Code 1975; one count of possession of drug paraphernalia, a violation of § 13A-12-260, Ala.Code 1975; and two counts of the unlawful distribution of marijuana, violations of § 13A-12-211, Ala.Code 1975. He was sentenced as an habitual offender to life imprisonment for the trafficking conviction; to 15 years’ imprisonment for each of his convictions for distribution of marijuana; and to 12 months’ imprisonment for his conviction for possession of drug paraphernalia.

This Court affirmed Barnett’s convictions and sentences in an unpublished memorandum issued on August 22, 2008. Barnett v. State (No. CR-06-1660), 27 So.3d 625 (Ala.Crim.App.2008) (table). After Barnett’s petition for a writ of certiora-ri to this Court was quashed by the Alabama Supreme Court, this Court issued its certificate of judgment on April 10, 2009.

Barnett filed the instant petition, his first, on April 1, 2010. Barnett filed the standard Rule 32 form found in the appendix to Rule 32 and attached a supplement setting out his claims. In his supplement to the petition, Barnett raised four claims of ineffective assistance of trial counsel. Barnett alleged that his trial counsel was ineffective (1) for failing to object to the State’s presentation of certificates of analysis concerning the marijuana “when no expert witness was subpoenaed to verify the report; thus, violating the Confrontation Clause”; (2) for failing to request that the trial court instruct the jurors that they could not draw any adverse inferences from Barnett’s failure to testify on his own behalf; (3) for failing to object to the trial' court’s failure to swear the jury venire before voir dire; and (4) for failing to object to the State’s failure “to establish the Frye[ v. United States, 293 F. 1013 (D.C.Cir.1923),] predicates” before presenting the certificates of analysis concerning the marijuana. (C. 15-16.) After receiving a response from the State, the circuit court summarily dismissed Barnett’s petition on June 15, 2010. (C. 28-35.) After determining that Barnett did not receive notice of the dismissal, the circuit court granted Barnett an out-of-time appeal on March 12, 2013. (C. 50.)

On appeal, Barnett reiterates the claims raised in his petition and argues that the circuit court erred in summarily dismissing his petition. .

Concerning our review of a circuit court’s dismissal of a Rule 32 petition, this Court has stated that “ ‘ “[i]f the circuit court is correct for any reason, even though it may not be the stated reason, we will not reverse its denial of the petition.” ’ ” McGahee v. State, 885 So.2d 191, 201 (Ala.Crim.App.2003) (quoting Grady v. State, 831 So.2d 646, 648 (Ala.Crim.App. 2001), quoting in turn Reed v. State, 748 So.2d 231, 233 (Ala.Crim.App.1999)).

To prevail on a claim of ineffective assistance of counsel, the petitioner must ultimately prove (1) that his counsel’s performance was deficient and (2) that the deficient performance actually prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “To meet the first prong of the test, the petitioner must show that his counsel’s representation fell below an objective standard of reasonableness. The performance inquiry must be whether counsel’s assistance was reasonable, considering all the circumstances.” Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.1987). “ ‘This court must avoid using ‘hindsight’ to evaluate the performance of counsel. We must evaluate all the circumstances surrounding the case at the time of counsel’s actions before determining whether counsel rendered ineffective assistance.’” Lawhorn v. State, 756 So.2d 971, 979 (Ala.Crim.App.1999) (quoting Hallford v. State, 629 So.2d 6, 9 (Ala.Crim.App.1992)). “[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. To prove prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693.

Under Rule 32.3, Ala. R.Crim. P.,

“[t]he petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief. The state shall have the burden of pleading any ground of preclusion, but once a ground of preclusion has been pleaded, the petitioner shall have the burden of disproving its existence by a preponderance of the evidence.”

Under Rule 32.6(b), Ala. R.Crim. P.,

“[e]ach claim in 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 Boyd v. State, 913 So.2d 1113 (Ala. Crim.App.2003), this Court stated:

“ ‘Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief.’ Boyd v. State, 746 So.2d 364, 406 (Ala.Crim.App.1999). In other words, it is not the pleading of a conclusion ‘which, if true, entitle[s] the petitioner to relief.’ Lancaster v. State, 638 So.2d 1370, 1373 (Ala.Crim.App. 1993). It is the allegation of facts in pleading which, if true, entitle a petitioner to relief. After facts are pleaded, which, if true, entitle the petitioner to relief, the petitioner is then entitled to an opportunity, as provided in Rule 32.9, Ala. R.Crim. P., to present evidence proving those alleged facts.”

913 So.2d at 1125.

Furthermore, this Court has stated that “[t]he burden of pleading under Rule 32.3 and Rule 32.6(b) is a heavy one. Conclusions unsupported by specific facts will not satisfy the requirements of Rule 32.3 and Rule 32.6(b). The full factual basis for the claim must be included in the petition itself. If, assuming every factual allegation in a Rule 32 petition to be true, a court cannot determine whether the petitioner is entitled to relief, the petitioner has not satisfied the burden of pleading under Rule 32.3 and Rule 32.6(b). See Bracknell v. State, 883 So.2d 724 (Ala.Crim.App. 2003). To sufficiently plead an allegation of ineffective assistance of counsel, a Rule 32 petitioner not only must ‘identify the [specific] acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment,’ Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), but also must plead specific facts indicating that he or she was prejudiced by the acts or omissions, i.e., facts indicating ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ 466 U.S. at 694. A bare allegation that prejudice occurred without specific facts indicating how the petitioner was prejudiced is not sufficient.”

Hyde v. State, 950 So.2d 344, 356 (Ala. Crim.App.2006).

The circuit court may summarily dismiss a Rule 32 petition pursuant to Rule 32.7(d), Ala. R.'Crim. P.,

“[i]f the court determines that the petition is not sufficiently specific, or is pre-eluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings .... ”

In his petition, Barnett’s ineffective-assistance-of-counsel claims failed to sufficiently plead facts supporting the rule set forth in Strickland. Concerning claims (1) and (4) in his petition, Barnett failed to plead any fact that, if true, would show that there is a reasonable probability that, but for his trial counsel’s failure to object to the introduction of the certificates of analysis, the result of his trial would have been different. Barnett failed to state that the certificates of analysis were inaccurate; that the analyzed substances upon which his convictions were based were not marijuana; that his ability to confront the forensic scientists who prepared the reports would have changed the outcome of the proceeding; that the certificates were, in fact, inadmissible under the Frye test; or any other fact that would show that there is a reasonable probability that, but for his trial counsel’s failure to object to the introduction of the certificates of analysis, the result of his trial would have been different. Therefore, Barnett failed to plead facts that would support a finding that his trial counsel’s performance actually prejudiced the defense.

Likewise, concerning claim (2) in his petition, Barnett failed to plead any fact that, if true, would show that there is a reasonable probability that, but for his trial counsel’s failure to request a jury instruction concerning Barnett’s failure to testify, the result of his trial would have been different. Barnett also failed to plead any fact that would show that his trial counsel’s failure to request a jury instruction concerning Barnett’s failure to testify fell below an objective standard of reasonableness. In his petition, Barnett simply made the conclusory allegation that his “counsel’s failure to request such an instruction amounted to ineffective assistance, and he was prejudiced as a result.” (C. 21.)

This Court has held that a “no-adverse-inference” instruction is mandatory only if the instruction is requested, and we have recognized that trial counsel may make a strategic decision to not request such an instruction because he or she believes that it would unduly direct the jury’s attention to the fact that the defendant chose not to testify. See Phillips v. State, 726 So.2d 292, 295 (Ala.Crim.App.1998). Furthermore, this Court has stated that the failure to give a requested “no-adverse-inference” instruction “may be harmless where the evidence without material conflict shows that the accused committed the crime and the failure of the accused to testify was not commented upon by counsel or referred to in any manner.” Gaston v. State, 359 So.2d 1170, 1171 (Ala.Crim.App.1978).

In his petition, Barnett failed to plead any facts that, if true, would show that his trial counsel’s decision to not request a “no-adverse-inference” instruction could not have been justified as a strategic decision. Barnett also failed to plead facts that, if true, would show that his failure to testify was commented upon or was otherwise used against him at trial. Further, Barnett failed to plead any other facts that, if true, would show that his trial counsel’s failure to request a “no-adverse-inference” instruction fell below an objective standard of reasonableness and reasonably could have changed the result of his trial. Therefore, Barnett failed to plead facts that would support a finding that his trial counsel’s performance was deficient or that would support a finding that his counsel’s performance actually prejudiced the defense.

Similarly, concerning claim (3) in his petition, Barnett failed to plead any fact that, if true, would show that there is a reasonable probability that, but for his trial counsel’s failure to object to the trial court’s failure to swear the venire before voir dire, the result of his trial would have been different. Initially, we note that it is undisputed that the petit jury was sworn. See Brooks v. State, 845 So.2d 849, 851 n. 4 (Ala.Crim.App.2002) (stating that “there is a difference between a claim that the trial court failed to administer the oath to both the venire and the petit jury — which is a jurisdictional claim — and a claim that the trial court failed to administer the oath to either the venire or the petit jury — neither of which are, by themselves, jurisdictional claims”). In his petition, Barnett simply alleged that the record was silent as to the swearing of the venire and that he was entitled to a new trial because his trial counsel did not object to the trial court’s failure to swear the venire. Again, Barnett did not allege any actual prejudice caused by his trial counsel’s failure to object. For example, Barnett did not allege that an unsworn veniremember falsely answered a question propounded to him or her and that, if that veniremember had been sworn, there is a reasonable probability that the outcome of the trial would have been different.

To support the claim in his petition, Barnett cited Ex parte Hamlett, 815 So.2d 499 (Ala.2000), and its progeny. In Hamlett, the defendant filed a Rule 82 petition in which he argued that his conviction should be set aside because, he said, the venire was not properly sworn and his trial counsel was ineffective because he failed to preserve that error for review. The Alabama Supreme Court concluded that it could not tell from the record whether the venire had been sworn and that it could not reach the petitioner’s ineffective-assistance-of-counsel claim without knowing whether the venire had been sworn. Thus, the case was remanded to the circuit court to determine whether the venire was properly sworn. However, the opinion in Hamlett simply does not discuss the prejudice prong of Strickland. Likewise, other cases that have relied on Hamlett to remand the case to the circuit court to determine whether the venire was properly sworn and to address the petitioners’ post-conviction ineffective-assistance-of-counsel claims have failed to discuss the prejudice prong of Strickland. See, e.g., Wheeler v. State, 939 So.2d 51, 54-55 (Ala.Crim.App. 2005); Burgin v. State, 857 So.2d 162, 164 (Ala.Crim.App.2002); Wilson v. State, 845 So.2d 2, 4-5 (Ala.Crim.App.2002); and Evans v. State, 842 So.2d 22, 24 (Ala.Crim. App.2001).

Perhaps the petitions in these cases sufficiently pleaded a claim of prejudice under Strickland and that fact was not mentioned in the opinions, or perhaps no one argued that the petition did not sufficiently plead a claim of prejudice. In any event, we find that, under Rules 32.3 and 32.6(b), Ala. R.Crim. P., and Strickland, a petitioner who asserts a claim of ineffective-assistance-of-counsel always has the burden of specifically pleading how the deficient performance actually prejudiced the defense, even if the allegedly deficient performance was trial counsel’s failure to object to the trial court’s failure to swear the venire.

Based on Barnett’s petition, even assuming that the trial court failed to swear the venire and that his trial counsel did not object to that failure, a court cannot determine whether Barnett is entitled to relief on his ineffective-assistance-of-counsel claim because he did not plead specific facts indicating that he was prejudiced by his trial counsel’s omission. See Hyde, supra. Accordingly, we conclude that Barnett’s ineffective-assistance-of-eounsel claim was insufficient on its face and that summary disposition of the claim was appropriate. See Lott v. State, 826 So.2d 457, 459 (Fla.Dist.Ct.App.2002) (holding that the defendant’s postconviction claim that his counsel was ineffective for failing to object to the trial court’s failure to swear the venire was properly summarily denied because the defendant did not allege that the omission by his counsel caused any harm).

All Barnett’s claims are merely bare allegations, unsupported by any factual basis; accordingly, they fail to satisfy either his burden of pleading under Rule 32.3 or the specificity requirements of Rule 32.6(b). Even assuming that every factual allegation in Barnett’s Rule 32 petition is true, he has failed to plead any facts suggesting that trial counsel’s performance actually prejudiced the defense. Because Barnett’s claims were not sufficiently pleaded, the circuit court did not err in summarily dismissing his petition.

For the foregoing reasons, the judgment of the circuit court is affirmed.

AFFIRMED.

WINDOM, P.J., and WELCH, J., concur. KELLUM, J., concurs in the result. JOINER, J., concurs in part and dissents in part, with opinion.

JOINER, Judge,

concurring in part and dissenting in part.

I concur with the portions of the opinion addressing claims (1), (2), and (4); I dissent, however, with that part of the opinion addressing claim (3).

In his petition, Barnett claimed, among other things, that the jury venire was not sworn and that his trial counsel was ineffective for failing to object; Barnett cited specific portions of the record in support of his claim and cited caselaw supporting his contention that failing to administer an oath to the jury venire is reversible error. The State did not dispute Barnett’s claim. (C. 28-31.) In a subsequent order summarily dismissing Barnett’s claims, the circuit court dismissed Barnett’s petition concluding, among other things, that Barnett’s allegation that his trial counsel was ineffective for failing to object to the trial court’s failure to administer an oath to the jury venire (“jury-oath claim”) was insufficiently pleaded because Barnett did not allege prejudice as required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

On appeal, Barnett reiterates those claims raised in his petition, including his jury-oath claim. The majority opinion concludes that Barnett’s jury-oath claim was insufficiently pleaded because “Barnett did not allege any actual prejudice caused by his trial counsel’s failure to object.” 154 So.3d at 259. In support of this conclusion, the majority opinion discusses and distinguishes Ex parte Hamlett, 815 So.2d 499 (Ala.2000), as well as Wheeler v. State, 939 So.2d 51, 54-55 (Ala.Crim.App. 2005), Burgin v. State, 857 So.2d 162, 164 (Ala.Crim.App.2002), Wilson v. State, 845 So.2d 2, 4-5 (Ala.Crim.App.2002), and Evans v. State, 842 So.2d 22, 24 (Ala.Crim. App.2001), on the basis that those decisions “have failed to discuss the prejudice prong of Strickland ” with respect to post-conviction claims raising ineffective assistance of counsel related to an unsworn jury venire. I disagree with the majority’s reading of these cases; although I understand the position the majority is taking— and question the continued workability of Ex parte Hamlett and its progeny — I dissent because I believe the majority opinion conflicts with caselaw from both this Court and the Alabama Supreme Court.

The majority opinion tries to distinguish Ex parte Hamlett, Wheeler, Burgin, Wilson, and Evans on the basis that those decisions “have failed to discuss the prejudice prong of Strickland.” Those cases, however, establish that the success of a petitioner’s ineffective-assistance-of-eoun-sel claim is contingent upon whether the jury venire was actually sworn. Specifically, this Court in Fortner v. State, 825 So.2d 876 (Ala.Crim.App.2001), stated:

“Our rereading of Hamlett teaches us ... that the [Alabama Supreme] Court remanded the cause to the circuit court both because it would not assume from a silent record that the venire had been sworn and because it could not reach Hamlett ineffective-assistance-of-counsel claim without knowing whether Hamlett’s counsel had in fact rendered ineffective assistance by failing to object to the trial court’s alleged failure to administer the oath to the venire. Thus, because of Hamlett’s ineffective-assistance-of-counsel claim, the Court could not simply find that Hamlett had waived his claim that the venire had not been sworn because that claim had a direct bearing on the result of Hamlett’s claim alleging ineffective assistance of counsel. If the Court allowed the waiver of the jury-swearing claim, it effectively allowed the waiver of Hamlett’s ineffective-assistance-of-trial-counsel claim, which would have been contrary to the law in Alabama concerning the waivability of ineffective-assistance-of-counsel claims.”

825 So.2d at 879-80 (emphasis added). This Court followed the holding of Fortner in Burgin — a case nearly identical to this one and written by then Judge Shaw — in which this Court held:

“Burgin contends that his trial counsel was ineffective for not objecting to the trial court’s alleged failure to swear in the jury venire before the voir dire examination. In its response and motion to dismiss, the State argued that the venire was sworn and that Burgin’s claim in this regard was meritless. However, the record from Burgin’s direct appeal is silent as to whether the venire was sworn. The circuit court had before it conflicting allegations regarding whether the venire was properly sworn. In its order summarily denying Burgin’s petition, the circuit court found that ‘the petition is without merit,’ but it did not make specific findings of fact regarding whether the venire was sworn. (C. 233.) From the record before us, we simply cannot evaluate the merits of Burgin’s claim that his counsel was ineffective for not objecting to the alleged failure to swear the venire without knowing whether the venire was, in fact, sworn. See, e.g., Ex parte Hamlett, 815 So.2d 499 (Ala.2000), and Fortner v. State, 825 So.2d 876 (Ala. Crim.App.2001).”

857 So.2d at 164 (emphasis added).

Unlike the majority, I do not read the progeny of Ex parte Hamlett as simply ignoring the prejudice prong of Strickland. Instead, I read both Fortner and Burgin as applying a per se prejudice standard, presumably because the failure to swear a jury venire — when preserved — is reversible error. See Ex parte Benford, 935 So.2d 421, 429 (Ala.2006) (“ ‘A trial court’s failure to administer the oath to a jury venire, while reversible error, does not rob the trial court of its jurisdiction to render judgment and to impose sentence against a defendant.’ ” (quoting Fortner v. State, 825 So.2d 876, 879-80 (Ala.Crim.App.2001))); Ex parte Deramus, 721 So.2d 242, 244 (Ala.1998) (“The fact that the record is silent as to whether the trial court reminded the petit jurors that they were still under oath or administered another oath would be reversible error only if Deramus had objected to that defect ‘during the progress of the trial.’ Ala.Code 1975, § 12-16-173.”); Holland v. State, 668 So.2d 107, 108 (Ala.Crim.App.1995) (“If, however, the trial court determines that the oath was not administered, or if the trial court cannot determine whether the oath was administered, the trial court is directed to set aside the appellant’s conviction, and to grant the appellant a new trial or other relief consistent with this opinion.”); Tarver v. State, 500 So.2d 1232, 1242 (Ala.Crim.App.1986) (“In the case before us, the record affirmatively shows that the prospective jurors were properly sworn and thus, were properly qualified .... There is no basis of error to reversal here.”).

The holding in Fortner — and by extension the holding in Burgin — was later cited and expressly approved by the Alabama Supreme Court in Ex parte Benford. See Ex parte Benford, 935 So.2d at 429 (“We conclude that the Fortner court correctly interpreted our opinion in Hamlett.”). Ex parte Hamlett is still the law of this State, and, pursuant to Ex parte Benford, our interpretation of Ex parte Hamlett in Fortner is still viable; this Court is not in a position to overrule decisions of the Alabama Supreme Court. Applying this case-law to the current case, I conclude that Barnett is entitled to a remand for an evidentiary hearing.

Nevertheless, I do not believe that Ex parte Hamlett was correct when it was decided, and I question whether Fortner and Burgin — along with a number of other cases that attempt to interpret and limit Ex parte Hamlett — are workable interpretations of Ex parte Hamlett.

In Ex parte Hamlett, the Alabama Supreme Court addressed a petitioner’s post-conviction claim that the jury venire in his case was not sworn; the Ex parte Hamlett Court apparently addressed this jury-veni-re-oath claim independently — i.e., not associated with an ineffective-assistance-of-counsel claim — and addressed the claim without respect to possible preclusionary grounds. See Ex parte Hamlett, 815 So.2d at 500-01 (“Therefore, we do not reach Hamlett’s claim of ineffective assistance of counsel. We remand this case for the Court of Criminal Appeals to remand for the trial court to make such findings as are necessary to determine whether the venire was properly sworn.”). Such analysis is puzzling, especially in light of Ex parte Deramus — a case decided well before Ex parte Hamlett — which holds that a jury-oath-defect claim is waivable. See Ex parte Deramus, 721 So.2d at 244 (“The fact that the record is silent as to whether the trial court reminded the petit jurors that they were still under oath or administered another oath would be reversible error only if Deramus had objected_”). It is unclear, then, why the majority decision in Ex parte Hamlett would address the independent jury-venire-oath claim outside the context of an ineffective-assistance-of-counsel claim and, further, without respect to the possible preclusionary grounds that apply to a claim that, as recognized a few years earlier by that same court, is waivable.

The treatment of the jury-oath claim in Ex 'parte Hamlett — without reference to preclusionary grounds and before the ineffective-assistance-of-eounsel claim — appears to have immediately caused problems for this Court.

A year after Ex parte Hamlett was decided, this Court in Nix v. State, 819 So.2d 84 (Ala.Crim.App.2001), “held that a claim that the jury venire was not sworn before voir dire was jurisdictional and could not be waived or precluded” but then almost immediately overruled Nix in Fortner, concluding that “Ex parte Hamlett does not indicate that we are to treat jury-swearing issues as jurisdictional and therefore nonwaivable.” Ex parte Benford, 935 So.2d at 428 (quotations omitted). This Court in Fortner — after a “rereading of Ex parte Hamlett ” — offered the following explanation of the rationale of Ex parte Hamlett:

“[T]he [Supreme] Court remanded the cause to the circuit court both because it would not assume from a silent record that the venire had been sworn and because it could not reach Hamlett’s ineffective-assistance-of-counsel claim without knowing whether Hamlett’s counsel had in fact rendered ineffective assistance by failing to object to the trial court’s alleged failure to administer the oath to the venire. Thus, because of Hamlett’s ineffective-assistance-of-counsel claim, the Court could not simply find that Hamlett had waived his claim that the venire had not been sworn because that claim had a direct bearing on the result of Hamlett’s claim alleging ineffective assistance of counsel. If the Court allowed the waiver of the jury-swearing claim, it effectively allowed the waiver of Hamlett’s ineffective-assis-tanee-of-trial-counsel claim, which would have been contrary to the law in Alabama concerning the waivability of ineffective-assistance-of-counsel claims.”

825 So.2d át 879-80. As established earlier in my writing, the Alabama Supreme Court later expressly approved Fortner in Ex parte Benford. This Court’s rationale in Fortner, however, is problematic for a number of reasons.

First, the legal principle that this Court “would not assume from a silent record that the venire had been sworn,” Fortner, supra, does not appear to have any import in a postconviction-relief appeal; “Rule 32 provides a limited scope of review,” Acra v. State, 105 So.3d 460, 464 (Ala.Crim.App. 2012), and the existence of error in the trial record is not itself a basis for postcon-viction relief.

Second, in the postconvietion-relief setting, it is simply incorrect that this Court or a circuit court “could not reach [an] ineffective-assistance-of-counsel claim without knowing whether ... counsel had in fact rendered ineffective assistance.” Fortner, supra. Instead, this Court addresses the substance of an ineffective-assistance-of-counsel claim raised in a petition for postconviction relief only if a petitioner pleads facts — satisfying the two prongs of Strickland — which, if true, would entitle the petitioner to relief. Boyd v. State, 913 So.2d 1113, 1125 (Ala. Crim.App.2003). Put another way, this Court does not predetermine the outcome of a claim before addressing the claim; instead, the claim must be sufficiently pleaded and then, and only then, will that claim be addressed.

Third, and finally, it is not true that allowing “the waiver of the jury-swearing claim, [would] effectively allow[ ] the waiver of [an] ineffective-assistance-of-trial-counsel claim.” Fortner, supra. As an example, a claim that a defendant was denied a fair trial based on the State’s use of peremptory strikes is procedurally barred in the postconviction setting, but an ineffective-assistance-of-counsel claim based on the same allegation may still be raised in a first, timely filed petition for postconviction relief. Boyd v. State, 746 So.2d 364, 882 (Ala.Crim.App.1999).

For these reasons, I believe that Ex parte Hamlett was incorrectly decided, and I also believe that those cases that try to interpret it are no longer workable. I strongly urge the Alabama Supreme Court to review its decision in Ex parte Hamlett; Ex parte Hamlett and its progeny, however, are still the law, and the majority opinion conflicts with Ex parte Benford, Fort-ner, and Burgin. Accordingly, I dissent from this portion of the majority opinion.

      . Although the petition was not stamped as filed in the circuit clerk's office until April 14, 2010, Barnett certified that he placed the petition in the prison mail system on April 1, 2010. Thus, the petition is deemed filed on that date. Moody v. State, 95 So.3d 827, 833 n. 2 (Ala.Crim.App.2011).


author: BURKE, Judge.

text:
    Cartez WOOLEN v. STATE of Alabama.
    CR-12-1434.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 2013.
    Rehearing Denied Feb. 7, 2014.

      Douglas H. Scofield, Chelsea, for appellant.
    Luther Strange, atty. gen., and Jean A. Therkelsen, asst. atty. gen., for appellee.
   BURKE, Judge.

Cartez Woolen appeals his guilty-plea conviction for unlawful possession of a controlled substance, a violation of § 13A-12-212 (a)(1), Ala.Code 1975, and his resulting sentence of 97 months’ imprisonment; Woolen’s sentence was split, and he was ordered to serve 12 months’ imprisonment, followed by 2 years’ supervised probation. Woolen was also ordered to pay $100 to the Crime Victims’ Compensation Fund, $100 to the Forensic Science Trúst Fund, to attend a substance-abuse program, and to surrender his driver’s license.

Before- trial, Woolen made an oral motion to suppress the State’s evidence, alleging that the evidence was seized during an illegal search at a roadblock. Officer Joshua Osborne testified that, on August 20, 2011, he had been assigned to the South Precinct task force that was conducting a roadblock at the intersection of Kappa Avenue and Center Place South. Officer Osborne testified that the task force had been asked to go to that area to conduct a roadblock because of recent violence in the area. Officer Osborne stated that “[t]he roadblock itself was for the purpose of checking driver’s license, insurance, seat belts, make sure there were no drunk drivers, that kind of thing.” (R. 6.) Officer Osborne testified that the officers stopped every car that came through the roadblock and that the officers required proof of insurance and a license from every driver. The officers also checked every tag and registration.

On cross-examination, Officer Osborne explained that one sergeant and approximately six to eight officers participated in the roadblock. When defense counsel asked Officer Osborne whether the purpose of the roadblock was to prevent or deter violence, Officer Osborne stated that “there had just been — in the area is prone to some, you know, so occasionally we would be asked to do these roadblocks just as a visible deterrence, I suppose.” (R. 8.) Officer Osborne stated that, for safety precautions, the roadblock was performed in a well-lit area and that the officers had marked patrol cars with their emergency lights activated to make sure that anyone approaching knew that they were the police. Officer Osborne stated that all the officers were uniformed, were wearing reflective gear, and had flashlights. Officer Osborne testified that he did not have any written guidelines at the exact moment of the roadblock, but it was a verbal assignment and the sergeant supervisor was on the scene as required by their rules and regulations. Officer Osborne testified that there was a lieutenant available at one of the precincts. The record indicates the following transpired:

“[Defense counsel:] If the mayor or Judge Vinson came through [the] roadblock, did ya’ll have the discretion to wave them through?
“[Officer Osborne:] Everyone is stopped. I have no way of knowing who is coming through this. If the president, I suppose, came through, you know, I would probably step out of the way for that. “[Defense counsel:] If you saw the may- or coming up and you recognized him, did you have discretion to wave him through? You did, didn’t you?
“[Officer Osborne:] If I — you know, if I know for sure, considering it’s the may- or, if the mayor drives up or is driven around in an SUV that resembles numerous SUVs, I would have to verify first.
“[Defense counsel:] But if you saw it was the mayor, you wouldn’t ask him for his driver’s license and his insurance, would you?
“[Officer Osborne:] He wouldn’t have been driving, a police officer would have been driving, so I wouldn’t have, no, sir. “[Defense counsel:] Okay. If you recognized the presiding judge of the municipal court of Birmingham who was driving his vehicle, you had the discretion to wave him through, didn’t you?
“[Officer Osborne:] I would have asked for a driver’s license and proof of insurance.
“[Defense counsel:] You would have done that?
“[Officer Osborne:] Absolutely.”

(R. 10-11.) When asked whether he had any explicit “neutral limitations” on his conduct as an officer working the roadblock that were in writing, Officer Osborne stated the following:

“If I understood the question correctly, we don’t have any written guidelines in hand. It’s — you know, it’s not as if a sergeant comes into roll call and hands us a written order, but we do have an oral briefing or the supervisor, you know, that is what we’re going to go do and these are the hours we’re going to do it and the time we’re going to conduct this operation, roadblock, however you care to phrase it, during this time span.”

(R. 12.) Officer Osborne testified that the supervising sergeant had discretion over the roadblock and that, if something happened that he needed to go higher up in command, there was always a duty lieutenant at one of the precincts. Officer Osborne stated that the average length of time that a motorist would be detained if they had their documentation was approximately a minute. According to Officer Osborne, there was no advance notice of the roadblock to the public at large, and, he stated, the roadblocks usually last between 80 and 40 minutes.

Following closing arguments from counsel, the trial court denied Woolen’s motion to suppress, finding that there was sufficient evidence to establish that the stop of Woolen was reasonable. Woolen preserved the issue concerning the suppression of the evidence obtained from a search conducted during the roadblock, and he entered a guilty plea to one count of unlawful possession of a controlled substance.

On appeal, Woolen argues that the stop and his subsequent search and arrest constituted an unlawful, warrantless search and seizure of his person and vehicle in violation of his Fourth Amendment rights. Specifically, Woolen contends that the roadblock in this case was established solely for the impermissible purpose of creating a police presence in a high-violence area as a deterrent of violent crime and, thus, was unconstitutional. Woolen also argues that the roadblock was an unconstitutional stop and seizure because it was not carried out pursuant to a plan embodying explicit neutral limitations on the conduct of the individual officers as required by Ogburn v. State, 104 So.3d 267 (Ala. Crim.App.2012).

“ ‘In reviewing the correctness of the trial court’s ruling on a motion to suppress, this Court makes all the reasonable inferences and credibility choices supportive of the decision of the trial court.’ ” Kennedy v. State, 640 So.2d 22, 26 (Ala. Crim.App.1993) (quoting Bradley v. State, 494 So.2d 750, 761 (Ala.Crim.App.1985)). “A trial court’s ruling on a motion to suppress will not be disturbed unless it is ‘palpably contrary to the great weight of the evidence.’ Parker v. State, 587 So.2d 1072, 1088 (Ala.Crim.App.1991).” Rut ledge v. State, 680 So.2d 997, 1002 (Ala. Crim.App.1996). “The trial court’s findings on a motion to suppress will not be disturbed on appeal unless they are clearly erroneous.” Ex parte Matthews, 601 So.2d 52 (Ala.1992).

This Court has repeatedly held that sobriety checkpoints, license checks, and roadblocks are not intrinsically unconstitutional. McInnish v. State, 584 So.2d 935, 936 (Ala.Crim.App.1991). “In order for a roadblock to be constitutionally permissible, the stop must be reasonable.” Hagood v. Town of Town Creek, 628 So.2d 1057, 1059 (Ala.Crim.App.1993). The United States Supreme Court created a three-prong balancing test for determining whether a seizure is considered reasonable, which is as follows:

“Consideration of the constitutionality of such seizures involves a weighing of [1] the gravity of the public concerns served by the seizure, [2] the degree to which the seizure advances the public interest, and [3] the severity of the interference with individual liberty.”

Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979).

This Court held that “if a roadblock stop is to be upheld, it must be ... because it is ‘carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.’ ” Cains v. State, 555 So.2d 290, 293 (Ala.Crim.App. 1989) (citing Brown v. Texas, 443 U.S. at 51). Thus, stops of vehicles at fixed roadblocks are reasonable if they are performed pursuant to a “neutral and objective plan, are supported by strong public interest, and are minimally intrusive to the individual motorist.” Id.

In evaluating the first prong in the Brown balancing test, the United States Supreme Court has held that driver’s license checkpoints satisfy the first prong — that “the gravity of the public concerns served by the seizure” outweigh the Fourth Amendment interest of individuals. See Brown, 443 U.S. at 51. In Ex parte Jackson, 886 So.2d 155 (Ala.2004), in regard to the second factor of the Brown balancing test — “the degree to which the seizure advances the public interest” — the Alabama Supreme Court stated the following:

“[T]here is no question that the public has an interest in making sure that drivers of vehicles are properly licensed and that the vehicles they are driving are registered and equipped with safety devices. The Court of Criminal Appeals stated in Hagood [v. Town of Town Creek, 628 So.2d 1057, 1060 (Ala.Crim. App.1993) ]:
“ “The states’ interest in enforcing its registration and licensing laws and the difficulty in enforcing the laws by any other method” ... [has] been held sufficient to outweigh a minor intrusion upon persons stopped at roadblocks conducted for [that] purpose[ ].’ ”

Ex parte Jackson, 886 So.2d at 162. In the present case, although Officer Osborne stated that his task force was asked to go to an area because there had been violence in that area recently, Officer Osborne also testified that “[t]he roadblock itself was for the purpose of checking driver’s license, insurance, seat belts, make sure there were no drunk drivers, that kind of thing.” (R. 6.) Thus, because the United States Supreme Court in Brown and the Alabama Supreme Court in Ex parte Jackson have previously upheld driver’s license checkpoints as satisfying the first two prongs of the Brown test and advancing the public interest, we turn to whether the State satisfied the third factor — “the severity of the interference with individual liberty.”

“To analyze the third factor — ‘the severity of the interference with individual liberty’ — we must determine whether the officers conducted the roadblock-type stop in a neutral and objective manner. As the Court of Criminal Appeals stated in Cains: ‘[Sjtops [of vehicles] at fixed checkpoints or roadblocks are reasonable if they are carried out pursuant to a neutral and objective plan, are supported by a strong public interest, and are only minimally intrusive to the individual motorist.’ [Cains v. State,] 555 So.2d [290] at 293 [ (Ala.Crim.App.1989) ]. We must determine if the stop in Jackson’s case was ‘minimally intrusive to the individual motorist.’ The Court of Criminal Appeals stated in Cains that ‘the manner of operation and the physical characteristics of a roadblock,’ 555 So.2d at 296, affect the intrusiveness of the stop. The Court of Criminal Appeals then quoted a 13-factor analysis adopted by the Kansas Supreme Court:

“‘“(1) The degree of discretion, if any, left to the officer in the field; (2) the location designated for the roadblock; (3) the time and duration of the roadblock; (4) standards set by superior officers; (5) advance notice to the public at large; (6) advance warning to the individual approaching motorist; (7) maintenance of safety conditions; (8) degree of fear or anxiety generated by the mode of operation; (9) average length of time each motorist is detained; (10) physical factors surrounding the location, type and method of operation; (11) the availability of less intrusive methods for combating the problem; (12) the degree of effectiveness of the procedure; and (13) any other relevant circumstances which might bear upon the test.” ’
555 So.2d at 296 (quoting State v. Deskins, 234 Kan. 529, 541, 673 P.2d 1174, 1185 (1983)). We agree with the Court of Criminal Appeals that we should not exalt form over substance and that some of the 13 factors outlined above are not pivotal to determining whether a particular roadblock-type stop is ‘minimally intrusive.’ However, those factors are helpful considerations to take into account when determining whether the officers conducted the stop pursuant to an ‘objective standard.’
“We also agree with the Court of Criminal Appeals that because a roadblock-type stop to examine driver’s licenses is warrantless and not based on an ‘articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered,’ [Delaware v.] Prouse, 440 U.S. [648] at 663, 99 S.Ct. 1391 [ (1979) ], the State has the burden of proving that it was reasonable under the Fourth Amendment. Hagood [v. Town of Town Creek], 628 So.2d [1057] at 1062 [(Ala.Crim.App.1993)].”

Ex parte Jackson, 886 So.2d at 161-63.

As previously stated, Woolen contends that the roadblock in the present case was unconstitutional because “it was not carried out pursuant to a plan embodying explicit mutual limitations on the conduct of the individual officers, as required by Ogburn v. State, 104 So.3d 267 (Ala.Crim. App.2012).” (Woolen’s brief, at 17.) In Ogbum, one of the troopers conducting a checkpoint stopped Ogburn and came to believe that he had been driving his vehicle under the influence of alcohol.

“Concerning the procedures that were used when a vehicle was stopped at the checkpoint, Trooper Salvador testified that, after a vehicle pulled up to the checkpoint, an officer would ask the driver to present his or her driver’s license and proof of insurance. If the driver could produce a valid license and proof of insurance and if the officer did not suspect that the driver was - under the influence of alcohol, the vehicle was allowed to proceed through the checkpoint. Defense counsel asked Trooper Salvador: ‘If an automobile is approaching the roadblock and comes up to it and you notice that it’s one of our local circuit judges, did you have the authority and discretion to wave them on through and not ask for that?’ (R. 24.) Trooper Salvador responded: ‘I’d check everybody, sir.’ (R. 25.) Defense counsel then asked: ‘But did you have the discretion to wave them through?’ (Id.) Trooper Salvador responded: Tes, sir. I would assume so.’ (Id.)
“At trial, Corporal Jesse Thornton, a supervisor with the Alabama State Troopers, was asked: ‘Do the troopers have any established policies in regards to establishing the checkpoint?’ (R. 6.) Corporal Thornton answered: ‘We do.’ (Id.) However, Corporal Thornton did not give any further testimony concerning those policies. Corporal Thornton further testified that he was involved with the checkpoint at which Ogburn was stopped on July 2, 2011. Corporal Thornton’s main duty that day was field supervision. Corporal Thornton stated that over the 4th of July weekend, the troopers conducted several sobriety checkpoints in an effort to deter drunk driving. Corporal Thornton determined the location of the checkpoint at which Ogburn was stopped. Corporal Thornton stated that he chose the location of the checkpoint based on safety and on the fact that the location was in a heavily traveled area. Corporal Thornton testified that the purpose of the checkpoint was to deter crashes caused by impaired drivers and to check for driver’s license and/or insurance violations. Corporal Thornton stated that the location was visible to motorists; that vehicles that were stopped at the checkpoint were able to pull out of the stream of traffic without causing significant interruption to the flow of traffic; and that the troopers used typical emergency equipment to warn oncoming motorists of the checkpoint. Corporal Thornton stated that the troopers working at the checkpoint were wearing reflective vests and were using flashlights. Corporal Thornton testified that approaching motorists could see the troopers’ vehicles and that the blue lights of the vehicles were flashing. Corporal Thornton stated that the officers stopped every vehicle that came through the checkpoint.
“The State introduced a ‘vehicle checkpoint’ form that documented the July 2 checkpoint. The form stated that Corporal Thornton approved the checkpoint, and the form was signed by him. The form further stated that the approved location for the checkpoint was on Friendship Road at Cherokee Trail in Elmore County. The form stated that the checkpoint started at 9:00 p.m. and ended at 11:00 p.m. and that the weather conditions during the checkpoint were clear and warm. The form also listed the officers who were assigned to the checkpoint and the enforcement activity that occurred at the checkpoint. Lastly, the form stated that it was submitted by Trooper Salvador. Corporal Thornton testified that the form was created after the checkpoint had ended but that the time and location of the checkpoint and the officers assigned to the checkpoint were determined before the checkpoint started.”

104 So.3d at 268-69.

Applying the above-discussed principles regarding checkpoint stops, this Court held that “the State did not carry its burden of proving the reasonableness of the checkpoint stop. Specifically, the State did not present evidence showing that the checkpoint was ‘carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.’” Ogbum, 104 So.3d at 274. Further, this Court stated:

“Although we hold today that a written plan is not required by the Fourth Amendment, we strongly suggest that having a previously established plan that is in writing before the execution of the checkpoint is the best practice. If no previously established written plan is submitted into evidence, a witness for the State must specifically articulate the full details of the previously established plan that limits the discretion of the individual officers at the checkpoint in accordance with Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979).”

Ogburn, 104 So.3d at 275. Thus, as this Court stated in Connell v. State, 141 So.3d 1108 (Ala.Crim.App.2013):

“Ogburn stands for the proposition that the State, in sobriety-checkpoint challenges, has the burden of establishing the existence of a ‘plan embodying explicit, neutral limitations on the conduct of individual officers,’ 104 So.3d at 274, and that the State may do so by either submitting a previously established written plan into evidence or by eliciting oral testimony of a witness who can ‘articulate the full details of the previously established plan.’ 104 So.3d at 275.”

141 So.3d at 1116.

The State’s evidence and testimony concerning the proof of the existence of a preexisting plan limiting the officers’ discretion was weak in this case. However, we find that the totality of the testimony elicited from the State’s witness was sufficient to establish the existence of a “previously established objective and neutral plan designed by higher ranking personnel to limit the discretion of the officers in the field” and the details of that plan that limited the discretion of the officers at the checkpoint. Ogbum, 104 So.3d at 274-75. Specifically, in Ogbum, the officer did not provide any testimony as to the substance of the troopers’ policies on checkpoints and how those policies placed explicit, neutral limitations on the conduct of the officers in the field, and “there was no evidence indicating that the officers in the field were given any particular instructions before the checkpoint began concerning how they were to conduct the checkpoint or concerning the extent of their discretion.” 104 So.3d at 275. In the present case, unlike the officer in Ogbum, when asked whether there were any explicit neutral limitations on his conduct as an officer working the roadblock, Officer Osborne stated that he did not have any written guidelines on that day but that the officers have an oral briefing at which the supervisor informs the officers of the plan, including the hours of the roadblock and the time span that the officers would be conducting the plan. Additionally, unlike in Ogbum, in which the officer testified that “he assumed that he had the discretion to allow a circuit judge to pass through the checkpoint without being stopped,” 104 So.3d at 268, Officer Osborne testified in the present case that if the mayor or a presiding judge was driving through the roadblock, he would have stopped them and asked for his or her driver’s license and proof of insurance. Further, unlike in Ogbum, in which this Court found that “there was no evidence indicating the officers’ discretion at the checkpoint was supervised by any official that was not in the field,” 104 So.3d at 275, Officer Osborne testified that, in addition to the supervisor who was in the field and at the location of the roadblock, there was also a duty lieutenant at one of the precincts if there was a need to seek instruction from someone higher up in the chain of command.

We also note that Officer Osborne stated that his unit was in a well-lit area, that the marked patrol cars had their emergency-lights engaged to ensure that individuals approaching the checkpoint knew that they were the police, and. that the officers had flashlights and were wearing reflective gear. Officer Osborne also stated that drivers were usually detained for about only one minute if they had a valid driver’s license and proof of insurance.

As this Court noted in Ogbum, “the primary wrong that the Fourth Amendment seeks to prevent is unbridled police discretion.” 104 So.3d at 275. The instant case embodies the primary concerns that are caused by the failure to have a previously established written plan, and it further strengthens the position that having an established written plan in place before a roadblock or a checkpoint is the best practice to ensure that officers do not exert the unbridled police discretion that the Fourth Amendment seeks to prevent. However, in the present case, although the evidence presented did not establish as clearly as would be preferred, there was sufficient evidence presented by the State’s witness to establish that there was a preexisting plan limiting the officer’s discretion at the checkpoint. Therefore, the circuit court properly determined that the checkpoint in the present case was carried out in a neutral and objective manner, and the circuit court did not err in denying Woolen’s motion to suppress.

Accordingly, based on the foregoing, the judgment of the circuit court is due to be affirmed.

AFFIRMED.

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

      . The Fourth Amendment to the United States Constitution states:
      "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
      The United States Supreme Court has held that the protections of the Fourth Amendment extend to the states through the operation of the Due Process Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949).


author: BOLIN, Justice. MOORE, Chief Justice

text:
    Ex parte Cartez Woolen. (In re Cartez WOOLEN v. STATE of Alabama).
    1130535.
    Supreme Court of Alabama.
    May 9, 2014.
    Cartez Woolen, pro se.
   BOLIN, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

STUART, PARKER, MURDOCK, SHAW, MAIN, WISE, and BRYAN, JJ., concur.

MOORE, C.J., dissents.

MOORE, Chief Justice

(dissenting).

Because I believe that the State provided insufficient evidence of a preexisting plan by which to measure the conduct of the roadblock at issue in this case, I would grant the petition for a writ of certiorari to review this issue.

I.Facts and Procedural History

City of Birmingham police officers arrested Cartez Woolen at a roadblock and charged him with unlawful possession of a controlled substance. § 13A-12-212(a)(l), Ala.Code 1975. He entered a guilty plea, reserving for appeal the issue of the legality of the search at the roadblock. The Court of Criminal Appeals found that the roadblock search did not violate the Fourth Amendment. Woolen v. State, 154 So.3d 264 (Ala.Crim.App.2013). Woolen then sought a writ of certiorari from this Court to review the decision of the Court of Criminal Appeals.

II.Standard of Review

“Where the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the Supreme Court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court’s application of the law to those facts.” Stiles v. Brown, 380 So.2d 792, 794 (Ala.1980). Additionally, because individualized suspicion for stopping a vehicle is not present at a roadblock where every driver is questioned, the State has the burden of proving that the roadblock was reasonable under the Fourth Amendment. Ex parte Jackson, 886 So.2d 155, 163 (Ala. 2004).

III.Analysis

A. Purpose of the Roadblock

Because the use of police roadblocks implicates the Fourth Amendment interest in being free from unreasonable searches and seizures, the United States Supreme Court has limited the use of such roadblocks to certain specified purposes. See Illinois v. Lidster, 540 U.S. 419, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004) (seeking information concerning a recent crime); Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) (checking for sobriety); Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (checking driver’s licenses); and United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) (intercepting illegal aliens). However, a roadblock whose primary purpose “is ultimately indistinguishable from the general interest in crime control ... violate[s] the Fourth Amendment.” City of Indianapolis v. Edmond, 531 U.S. 32, 48, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). See also Hagood v. Town of Town Creek, 628 So.2d 1057 (Ala.Crim.App.1993) (noting that the “general interest in law enforcement simply does not outweigh the liberty interests of those seized, however brief the seizure may be”). On appeal to the Court of Criminal Appeals Woolen argued that “the roadblock in this case was established solely for the impermissible purpose of creating a police presence in a high-violence area as a deterrent of violent crime and, thus, was unconstitutional.” Woolen, 154 So.3d at 267. His petition for a writ of certiorari, however, does not raise the issue whether the purpose of the roadblock was impermissible. Instead he challenges, as he did below, the constitutionality of the manner in which the roadblock was conducted.

B. Manner of Conducting the Roadblock

A roadblock “ ‘carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers’ ” is reasonable under the Fourth Amendment. Ogburn v. State, 104 So.3d 267, 270 (Ala. Crim.App.2012) (quoting Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979)). Although the Ogbum court did not require the State to produce a preexisting written plan for conducting a roadblock, it did require, in conformity with Brown, that “a witness for the State must specifically articulate the full details of the previously established plan that limits the discretion of the individual officers at the checkpoint....” 104 So.3d at 275 (emphasis added).

The State’s testimony in the trial court established only that the officers conducting the roadblock had an oral briefing “on what we’re going to go do and these are the hours we’re going to do it ... during this time span.” The Court of Criminal Appeals held that this sparse testimony, which it conceded was “weak,” satisfied the Ogbum requirement to “specifically articulate the full details of the previously established plan.” Although this conclusion seems puzzling, the Court of Criminal Appeals, viewing the State’s testimony in light of “the totality of the circumstances” inferred the existence of the unarticulated plan from the officers’ actions at the roadblock, e.g., a well-lit stopping area, blinking emergency lights on the police vehicles, and a minimally intrusive detention to examine driver’s licenses and proof of insurance.

Because the State presented no evidence on the details of the plan or how it controlled the officers’ discretion, it failed to meet its burden of demonstrating that “the checkpoint was in accordance with a plan embodying explicit, neutral limitations on the officers’ conduct.” Ogburn, 104 So.3d at 275 (emphasis added). As Woolen argues in his petition, the State “offered absolutely no testimony about what [the officers] were actually instructed to do, or whether what they actually did was in accordance with a pre-established plan.” By inferring the existence of a plan from the officers’ actions, the Court .of Criminal Appeals in effect relieved the State of its burden as articulated in Ogbum.

TV. Conclusion

Because the decision of the Court of Criminal Appeals in this case conflicts with the standard stated in Ogbum for determining the reasonableness of a roadblock under the Fourth Amendment, I would grant Woolen’s petition for a writ of certio-rari to clarify the law in this area.

      . The Fourth Amendment “generally bars officials from undertaking a search or seizure absent individualized suspicion.’’ Chandler v. Miller, 520 U.S. 305, 308, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997).

      . Woolen suggests that "the neutral pre-exist-ing plan, in effect, acts as a substitute for the detached and neutral magistrate requirement of the Fourth Amendment.” Woolen’s petition, at 7 n. 2.