text:
    Ex parte ALABAMA DEPARTMENT OF LABOR (formerly the Alabama Department of Industrial Relations). (In re Charter HR, Inc. v. Alabama Department of Labor (formerly the Alabama Department of Industrial Relations)).
    2140907.
    Court of Civil Appeals of Alabama.
    Oct. 9, 2015.
    See also 141 So.3d 1058.
    Joseph S. Ammons, gen. counsel, and Arthur F. Ray II, asst. gen. counsel, Alabama Department of Labor, for petitioner.

      Randall S. Haynes and Nancy L. Eady of Morris, Haynes, Hornsby, Wheeles & Knowles, Alexander City, for respondent.
   DONALDSON, Judge.

The Alabama Department of Labor (“ADOL”) petitions this court for the writ of mandamus directing the Tallapoosa Circuit Court (“the trial court”) to grant its motion to dismiss an appeal filed in the trial court by Charter HR, Inc. (“Charter”). In that appeal, Charter seeks a review of an administrative determination and final assessment by ADOL that imposed unemployment-compensation taxes against Charter. Because the materials properly before this court show that Charter did not comply with the statutory requirements to invoke the jurisdiction of the trial court, we grant the petition and issue the writ.

Facts and Procedural History

The relevant facts before us are as follows. A dispute existed between ADOL and Charter as to the proper assessment that should be imposed on Charter for unemployment-compensation tax purposes. See generally § 25-4-8, Ala.Code 1975. On December 21, 2012, ADOL sent a letter to Charter via certified mail notifying Charter that an assessment had been entered calculating Charter’s unemployment-compensation tax rate. The letter also specifically stated:

“Should you be dissatisfied with the decision and final assessment as fixed, I call your attention to the provisions of Section 25-4-134, Code of Alabama 1975, which provides that you are entitled to an appeal from this decision. Any appeal must be tried to Circuit Court and initiated within thirty (30) days of the date of the final assessment made by the Alabama Department of Labor.”

Section 25-4-134(c)(3)b., Ala.Code 1975, provides, in pertinent part:

“If an employer against whom an assessment is made by the director is dissatisfied with the final assessment as fixed by the director under any of the provisions of subdivision (1) of this subsection (c) and duly protests the fixing of the same, he may appeal from said final assessment to the Circuit Court of Montgomery County, or to the circuit court of the county in which the employer resides or has his principal place of business, if the employer has within the state a permanent residence, at the option of the employer, by filing notice of appeal with the director and with the register of the circuit court of the county to which appeal shall be taken, within 30 days of the date of the final assessment made and entered on the minutes of the department, and in addition thereto by giving bond conditioned to pay all costs, to be filed with and approved by the register or clerk of the court to which the appeal shall be taken.”

It is undisputed that Charter is an employer for purposes of that statute and that its principal place of business is in Tallapoosa County.

On January 18, 2013, which was within 30 days of December 21, 2012, the date ADOL sent its assessment letter, Charter filed a notice of appeal in the trial court seeking judicial review of the administrative determination and final ■ assessment. The notice of appeal was served on the director of ADOL on January 23, 2018, which was 33 days after December 21, 2012.

On February 8, 2013, ADOL filed its first motion to dismiss Charter’s appeal. In that motion, ADOL claimed that the supersedeas bond submitted by Charter was not sufficient pursuant to § 25^4-134(c)(3), AJa.Code 1975. The trial court denied that motion on February 22, 2013. ADOL petitioned this court, seeking a writ of mandamus directing the trial court to grant the motion to dismiss, which this court denied. See Ex parte Alabama Dep’t of Labor, 141 So.3d 1058 (Ala.Civ.App.2013).

On November 12, 2014, ADOL filed a second motion to dismiss the appeal in the trial court. In that motion, ADOL alleged that Charter’s appeal was untimely under § 25-4-134(c)(3)b. because the notice of appeal was not filed with the director within the time required by the statute and that, therefore, the trial court did not have subject-matter jurisdiction over the appeal. Charter filed a response in opposition to ADOL’s motion on December 17, 2014. The trial court denied the motion on June 30, 2015. ADOL petitioned this court for the writ of mandamus on August 7, 2015.

Standard of Review

“The denial of a motion to dismiss for lack of jurisdiction is renewable upon a timely filed petition for a writ of mandamus. Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala.2000); Drummond Co. v. Alabama Dep’t of Transp., 937 So.2d 56, 57 (Ala.2006). With regard to an appellate court’s consideration of a petition for a writ of mandamus, our supreme court has stated:
“ ‘This Court has consistently held that the writ of mandamus is an extraordinary and drastic writ and that a party seeking such a writ must meet certain criteria. We will issue the writ of mandamus only when (1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court’s jurisdiction is properly invoked. Ex parte Mercury Fin. Corp., 715 So.2d 196, 198 (Ala. 1997)....”

Ex parte Diefenbach, 64 So.3d 1091, 1093 (Ala.Civ.App.2010).

Discussion

Section 25-4-134(c)(3)b. requires that a notice of appeal be filed in the appropriate circuit court and with the director of ADOL within 30 days of “the date of the final assessment made and entered on the minutes of the department.” ADOL contends that the letter sent to Charter via certified mail dated December 21, 2012, notifying Charter of the administrative determination and final assessment was the date from which the calculation of time should be made to determine whether Charter filed a timely appeal. Although Charter filed its notice of appeal in the trial court within 30 days of December 21, 2012, Charter’s notice of appeal was not filed with the director of ADOL until January 23, 2013, or 33 days after December 21, 2012. In response, Charter asserts that ADOL has failed to establish the date on which the administrative determination and final assessment was “made and entered on the minutes of the department.” This court has previously addressed this issue:

“Taxpayer contends that the State’s motion to dismiss should not have been granted since it does not specifically appear in the complaint or in the Final Assessment Notice, nor was it alleged in the motion to dismiss that the final assessment was ever ‘entered on the minutes of the department.’ By the terms of the statute, if the assessment has not been entered in the minutes, the time has not yet run for invoking the jurisdiction of the circuit court on appeal. However, we do not consider that the ‘entering on the minutes’ provision requires a formal entry in a book of minutes comparable to that of corporate meetings. There is no indication that the Department has ever kept such ‘minutes.’ ‘Minutes’ may be viewed as simply ‘the written memoranda of the assessment of the ... tax.’ Howell & Graves, Inc. v. Curry, 242 Ala. 122, 5 So.2d 105 (1941). The final assessment and the official notice thereof received by Taxpayer are permanent records of the department and are ‘minutes’ sufficient for the statute. See City of Talladega v. Jackson-Tinney Lumber Co., 209 Ala. 106, 95 So. [ ] 455 (1923).”

Mitchell v. State, 351 So.2d 599, 601 (Ala.Civ.App.1977). Accordingly, ADOL’s administrative determination and final assessment was “made and entered on the minutes of the department” on December 21, 2012, making Charter’s notice of appeal from that administrative determination and final assessment due within 30 days from that date. We note that the 30th day following December 21, 2012, fell on Sunday, January 20, 2013, and that Monday, January 21, 2013, was a legal holiday. Section 1-1-4, Ala.Code 1975 provides, in part:

“Time within which any act is provided by law to be done must be computed by excluding the first day and including the last. However, if the last day is Sunday, or a legal holiday ..., or a day on which the office in which the act must be done shall close as permitted by any law of this state, the last day also must be excluded, and the next succeeding secular or working day shall be counted as the last day within which the act may be done.”

Therefore, Charter was required to file the notice of appeal with the trial court and the director no later than Tuesday, January 22, 2013. See Ex parte Tellabs Operations, Inc., 84 So.3d 53, 57 (Ala.2011) (“Alabama courts previously have held that filing deadlines provided by statute are to be read in pari materia with § 1-1-4, Ala.Code 1975.”).

In Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771 (Ala.Civ.App.1989), this court addressed the issue whether a

“circuit court was without jurisdiction to act on the appeal due to the employer’s failure to comply with provisions of section 25-4-134(c)(3), which required notice of appeal to be filed with the circuit court and with the Director of the Department ‘within thirty days of the final assessment made and entered on the minutes of the Department [of Industrial Relations].’ ”

545 So.2d at 772. In Allen, a final assessment was issued by the Alabama Department of Industrial Relations (“ADIR”), the predecessor to ADOL (see note 1, supra), on September 8,1986, and mailed by certified mail to employer. On September 26, 1986, the employer filed its notice of appeal in the circuit- court; however, the notice of appeal was not served upon the director of ADIR until October 14, 1986. ADIR filed a motion to dismiss the appeal, asserting that the circuit court was without jurisdiction to act on the appeal because of the employer’s failure to comply with the provisions of § 25-4-134(c)(3)b., which, as now, required a notice of appeal to be filed with the circuit court and with the director of the ADIR “within 30 days of the date of final assessment made and entered on the minutes of the department.” The circuit court denied ADIR’s motion to dismiss. This court held:

‘“[Section 25-4-134(c)(3)b.] clearly provides that a timely filing of a notice of appeal with the [director] of the department is one of the prerequisites which must be met by a taxpayer in order to perfect an appeal to the circuit court from the department’s final tax assessments. That is a jurisdictional requirement, and there must be compliance with it before a circuit court has jurisdiction over the subject matter, the appeal. The appellate courts of this state have uniformly held that, if such a notice of appeal is not filed with the [director] of the department within thirty days from the entry of the final tax assessment, the taxpayer’s appeal to the circuit court should be dismissed. Some of those opinions to that effect are Dowda v. State, 274 Ala. 124, 145 So.2d 830 (1962); Lambert v. State Department of Revenue, 414 So.2d 983 (Ala.Civ.App.1982); Mitchell v. State, 351 So.2d 599 (Ala.Civ.App.1977); and State v. Empire Building Company, 46 Ala.App. 565, 246 So.2d 454 (1971).’
“[State Department of Revenue v. Welding Engineering & Supply Co., 452 So.2d 1340 (Ala.Civ.App.1984).]
“Based on the foregoing, it is our opinion that the trial court erred in denying the Department’s motion to dismiss employer’s notice of appeal, and therefore acted without jurisdiction in subsequently determining the case on its merits. It is well recognized that a judgment rendered in the absence of subject matter jurisdiction is void and will not support an appeal. Payne v. Department of Industrial Relations, 423 So.2d 231 (Ala.Civ.App.1982).”

Allen, 545 So.2d at 775.

Similarly, in this case, it is undisputed that Charter did not comply with § 25-4-134(c)(3)b. because the notice of appeal was not filed with the director of ADOL within the required period. Charter cites affidavits filed in the trial court after ADOL filed its petition in this court in support of its argument that the director was not available on certain days during the 30-day period following the entry of the administrative determination and final assessment. ADOL has moved to strike those affidavits. We cannot consider evidence or factual assertions that were not presented to the trial court before it made its determination on ADOL’s motion to dismiss:

“It is well settled that, ‘in a mandamus proceeding, this Court will not consider evidence not presented to the trial court.’ Ex parte Cincinnati Ins. Co., 51 So.3d 298, 310 (Ala.2010). See Ex parte Ford Motor Credit Co., 772 So.2d 437, 442 (Ala.2000)(‘“On review by mandamus, we must look at only those facts before the trial court.’” (quoting Ex parte Baker, 459 So.2d 873, 876 (Ala.1984))). ‘[T]his Court is bound by the [materials before it], and it cannot consider a statement or evidence in a party’s brief that was not before the trial court.’ Ex parte Pike Fabrication[,Inc.], 859 So.2d [1089,] 1091 [(Ala.2002)].”

Ex parte East Alabama Med. Ctr., 109 So.3d 1114, 1117-18 (Ala.2012). Because the affidavits were not before the trial court at the time of its ruling, we grant the motion to strike and do not address whether the facts asserted in the affidavits would have excused Charter’s failure to file the notice of appeal with the director within the required time frame.

In the trial court, Charter also argued that it had 42 days to appeal the decision of ADOL pursuant to Rule 4, Ala. R.App. P., instead of the 30 days as provided in § 25-4-134(c)(3)b. Charter argued that the procedural aspects of the appeal from the administrative proceedings to the trial court are governed by the Alabama Rules of Appellate Procedure. In State, Department of Revenue v. Welding Engineering & Supply Co., 452 So.2d 1340 (Ala.Civ.App.1984), a taxpayer attempted to appeal a final tax assessment by the Alabama Department of Revenue (“ADOR”) to the circuit court. At issue in that case was whether the taxpayer’s notice of appeal was timely filed with the secretary of ADOR pursuant to former § 40-2-22, Ala.Code 1975, which provided that an appeal from final tax assessments would be perfected by ‘“filing notice of appeal with the secretary of the department of revenue and with the clerk or register of the circuit court of the county to which the appeal shall be taken within 30 days from the date of said final assessment made and entered on the minutes of the department as required by law....’” 452 So.2d at 1342 (quoting former § 40-2-22)(emphasis omitted). This court stated:

“The taxpayer filed a notice of appeal in the appropriate circuit court on February 8, 1979, and deposited a notice of appeal in the United States mail on February 8, 1979, addressed to the secretary of the department. That notice normally would have arrived in Montgomery on February 9, 1979; however, the notice of appeal was not received by the secretary of the department until February 12,1979.”

452 So.2d at 1341. The taxpayer argued that, pursuant to Rule 25(a), Ala. R.App. P., the appeal was timely filed “since that rule provides that a filing of appellate papers required or permitted to be filed with the appellate clerk are deemed to be filed on the day of mailing if certified or registered mail is utilized in transmitting them to the clerk of the appellate court.” Id. at 1342. This court concluded:

“We disagree with that contention for the reasons which follow.
“‘Contrary to the defendants’ argument, Rule 25(a), [Ala. R.App. P.,] does not apply to all filings, but only to filings in an appellate court. That rule does not allow a certified mailing date as this was to be deemed the filing date in a trial court.’ Holmes v. Powell, 363 So.2d 760, 762 (Ala.1978). That rationale is equally applicable to the required filing of the notice of appeal with the secretary of the department.
“Since compliance with the provisions of § 40-2-22, supra, is jurisdictional, that code section applies and Rule 25(a) does not provide the mechanism by which a party may invoke the jurisdiction of the circuit court over such a tax appeal. To apply the Alabama Rules of Appellate Procedure so as to find an external exception to the jurisdictional time requirements of § 40-2-22 would constitute an unauthorized extension of jurisdiction. Holmes v. Powell, supra; Mitchell v. State, [351 So.2d 599 (Ala.Civ.App.1977) ]; State v. Empire Building Company, Inc., [46 Ala.App. 565, 246 So.2d 454 (1971) ].
“When the legislature has prescribed the means and method of perfecting an appeal from a tax assessment to the circuit court, that procedure must be followed. The legislature requires the filing of a notice of appeal with the secretary of the department within the specified thirty-day period. That means that mailing was not enough but that the notice had to be actually received by the secretary of the department before it was filed. Holmes v. Powell, supra. In that case, it was stated, ‘[I]t is obvious from a comparison of the Rules and the authorities that, in connection with filing a notice of appeal, the hazards of mail traffic have been studiously avoided.’ 363 So.2d at 762.”

Id. at 1342-43. Likewise, the legislature has prescribed the means and method for perfecting an appeal to a circuit court from an administrative determination and final assessment by ADOL for unemployment-compensation taxes in § 25-4-134(c)(3)b. Rule 4, Ala. R.App. P., on the other hand, applies to appeals made to an appellate court. Therefore, the 42-day period prescribed in that rule is inapplicable to appeals taken pursuant to § 24-4-134(c)(3)b.

In an argument that was not presented to the trial court and that was raised by Charter for the first time in response to ADOL’s petition in this court, Charter claims the appeal was filed in a timely manner pursuant § 41-22-20(d), Ala.Code 1975, a part of the Alabama Administrative Procedure Act (“the AAPA”), § 41-22-1 et seq., Ala.Code 1975. The AAPA provides that an appeal from certain decisions may be perfected within 30 days of receipt of the decision rather than within 30 days of the date of the decision. Charter claims it filed the notice of appeal with the director within 30 days of its receipt of the administrative determination and final assessment. Charter is not precluded from seeking to uphold the trial court’s decision not to dismiss the appeal based on a different legal ground or argument than the one it asserted in the trial court so long as the evidence before the trial court would sustain the position or argument. Home Indem. Co. v. Reed Equip. Co., 381 So.2d 45, 50 (Ala.1980) (“The rule requiring adherence to the theory relied on below ... does not mean the parties are limited in the appellate court to the same reasons or arguments advanced in the lower court upon the matter or question in issue. 5 Am.Jur.2d, Appeal and Error, § 546 at 32.”). See also Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988) (noting the distinction between upholding and reversing a trial court’s ruling on grounds not specifically asserted below).

Charter does not provide a sufficient legal argument to support its contention that the provisions of the AAPA, rather than § 25-4-134(c)(3)b, apply. We initially note that the judicial-review provisions of the AAPA apply only to a “final decision in a contested case.” § 41-22-20(a), Ala. Code 1975. Charter does not present an argument that ADOL’s decision was a “final decision in a contested case” as defined by the AAPA. Even if the AAPA is applicable, there is no evidence in the materials before us establishing the date Charter received the December 21, 2012, letter. Therefore, the ruling of the trial court cannot be sustained based on the argument that the AAPA, not § 25-4-134(c)(3)b, is applicable to the proceedings.

ADOL has demonstrated a clear legal right to the relief sought; therefore, we grant the petition and issue a writ of mandamus instructing the trial court to grant ADOL’s motion and dismiss the appeal.

PETITION GRANTED; WRIT ISSUED.

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

      . Pursuant to Act. No. 2012-496, Ala. Acts 2012, codified at § 25-2-1.1, Ala.Code 1975, the former Alabama Department of Industrial Relations has merged with ADOL, and the new department is named the "Alabama Department of Labor.” We note that § 25-2-1.1(b) provides, in part, that, “whenever any act, section of the Code of Alabama 1975, or any other provision of law refers to the Department of Industrial Relations ..., it shall be deemed a reference to the Department of Labor ... created by Act 2012-496.”


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Don CARTEE, Rebecca Cartee, and Alan Cartee v. COMMUNITY SPIRIT BANK.
    2140650.
    Court of Civil Appeals of Alabama.
    Oct. 30, 2015.
    Rehearing Denied Feb. 12, 2016.

      Don Cartee, pro se; Rebecca Cartee, pro se; and Alan Cartee, pro se.
    Thomas A. Woodall and Rodney E. No-len of Sirote & Permutt, P.C., Birmingham, for appellee.
   MOORE, Judge.

Don Cartee, Rebecca Cartee, and Alan Cartee (hereinafter referred to collectively as “the Cartees”) appeal from a judgment of the Franklin Circuit Court (“the trial court”) dismissing, with prejudice, their case against Community Spirit Bank (“Community”). We affirm.

Procedural History

On March 17, 2014, the Cartees filed, in the trial court, a complaint against Community concerning a dispute regarding the Cartees’ repayment of a loan secured by a mortgage to Community. On April 17, 2014, Community filed a motion to compel the Cartees to arbitrate the dispute. Community requested that, if the Cartees failed to initiate arbitration proceedings within 90 days, the trial court dismiss the Cartees’ action with prejudice. On April 21, 2014, the trial court granted Community’s motion to compel arbitration. On July 31, 2014, Community filed a motion to dismiss the action, alleging that the Car-tees had failed to initiate arbitration proceedings. On August 1, 2014, the trial court dismissed the case with prejudice.

On August 18, 2014, the Cartees filed a motion requesting that the trial court reinstate the case. The Cartees alleged that they had experienced difficulties in obtaining the finances to hire an arbitrator and requested that the trial court allow them 30 additional days to secure an arbitrator. On August 19, 2014, the trial court entered an order stating:

“This Court has received a petition from [the Cartees] asking that this matter be reinstated so that it can arbitrated. The Court notes that arbitration does cost certain monies and therefore ORDERS, ADJUDGES, and DECREES that this action is reinstated with the [Cartees] to furnish this Court within thirty days of this reinstatement order the notice of the arbitration agreement signed by Community Spirit Bank and an arbitrator.
“This Court will dismiss this action if there is not an agreement to enter into arbitration between the parties within thirty days of the date of reinstatement.”

On September 16, 2014, the Cartees filed a notice with the trial court stating that their attorney had “sent the Arbitration Contract from the [proposed arbitrator] to the [attorney for Community] concerning arbitration in the matter.” On September 24, 2014, Community responded to the Cartees’ notice by stating:

“1. [Community] does not waive any provision of the binding arbitration agreement in this case which designates that arbitration is to be conducted by the American Arbitration Association.
“2. However, [Community] would agree to arbitrate this case locally, if either of the following two (2) arbitrators is acceptable to the [Cartees]:
“Daniel B. Banks, Jr....
“Michael Suttle.”

On November 14, 2014, the trial court ordered the parties to provide a status update within 10 days. On November 19, 2014, the Cartees notified the trial court that the parties had agreed that Daniel B. Banks, Jr., would serve as the arbitrator of their dispute.

On January 21, 2015, Community filed an answer to the complaint. On March 2, 2015, the trial court ordered the parties to provide a status update within 10 days. On March 3, 2015, Community provided a status update stating, in part:

“5. The arbitration was scheduled to take place on February 4, 2015.
“6. On January 30, 2015, the arbitrator was advised by counsel for [the Car-tees] that they no longer wished to mediate the case.
“7. On February 2, 2015, counsel for [Community] spoke with Don Cartee (with permission of [the Cartees’ counsel] ). Mr. Cartee advised that he was ill with the flu and unable to attend the arbitration scheduled for February 4, 2015. He had also communicated with the arbitrator but failed to reach a satisfactory agreement regarding cancellation fees.
“8. [Community] agreed to a cancellation of the arbitration scheduled for February 4, 2015, because of the illness of ... Don Cai’tee. Mr. Cartee was to contact the arbitrator and counsel for Community Spirit Bank concerning any desire to reschedule an arbitration.
“9. [Counsel for Community] ha[s] received no communication from Don Cartee or ... Rebecca Cartee and/or Alan Cartee.
“10. On February 25, 2015, [counsel for Community] received notice from the arbitrator that he has received no further communication from any of the [Cartees] regarding a new date for arbitration.”

(Emphasis in original.) That same day, Community filed a motion to dismiss the case with prejudice. Also on March 3, 2015, the Cartees’ attorney filed a motion to withdraw, because, he said, the Cartees had “terminated [his] services ... in this matter and asked that he not be present for mediation.” Finally, on March 3, 2015, the trial court entered a judgment dismissing the case with prejudice and an order allowing the Cartees’ attorney to withdraw.

On April 1, 2015, the Cartees filed a postjudgment motion, arguing:

“[Community] filed the motion to dismiss with prejudice on March 3, 2015, and the court entered the order of dismissal that same day. The [Cartees] were not given any time to respond to the motion or explain to the court the reasons why the arbitration did not take place. The court also entered an order removing the attorney for [the Cartees] as attorney of record without giving the [Cartees] any opportunity to respond. [The Cartees] have not been given due process in this case. As shown by the motion to dismiss, the February 4th arbitration was continued due to medical reasons. Just because the arbitration had not been reset within 30 days was no reason to dismiss the case with prejudice.”

On April 6, 2015, the trial court denied the Cartees’ postjudgment motion. On May 18, 2015, the Cartees filed their notice of appeal to this court challenging the judgment dismissing the case. On July 7, 2015, this court transferred the appeal to the Alabama Supreme Court for lack of subject-matter jurisdiction; that court transferred the appeal back to this court, pursuant to Ala.Code 1975, § 12-2-7.

Discussion

On appeal, the Cartees argue that the trial court “did not give [them] an opportunity to explain why the case should not be dismissed” and that “the fact that 30 days had passed and a new date for the arbitration hearing had not yet been set is not sufficient for the trial court to terminate the case with prejudice.”

“Rule 41(b), Ala. R. Civ. P., provides, in pertinent part: ‘For failure of the plaintiff to prosecute or to comply with [the Alabama Rules of Civil Procedure] or any order of [the] court, a defendant may move for dismissal of an action or of any claim against the defendant.’ It is well settled that the decision whether to enter a Rule 41(b) dismissal is within the sound discretion of the trial court, and such a dismissal will be reversed only if the trial court exceeded its discretion. Atkins v. Shirley, 561 So.2d 1075, 1077 (Ala.1990); Riddlesprigger v. Ervin, 519 So.2d 486, 487 (Ala.1987); State ex rel. S.M. v. A.H., 832 So.2d 79, 80 (Ala.Civ.App.2002); and Coulter v. Stewart, 726 So.2d 726, 728 (Ala.Civ.App.1999). However, because dismissal with prejudice is a drastic sanction, it should be applied only in extreme situations. Smith v. Wilcox County Bd. of Educ., 365 So.2d 659, 661 (Ala.1978). Therefore, this court will carefully scrutinize orders dismissing an action with prejudice and occasionally will find it necessary to set them aside. Id. In reviewing the trial court’s dismissal of an action, we must determine whether the ruling is supported by the evidence contained in the record. Nash v. Cosby, 597 So.2d 209, 210 (Ala.1992); Atkins v. Shirley, 561 So.2d at 1077; and Riddlesprigger v. Ervin, 519 So.2d at 487.
“ ‘ “In Alabama, and many federal courts, the interest in disposing of the litigation on the merits is overcome and a dismissal may be granted when there is a clear record of delay, willful default or contumacious conduct by the plaintiff. Smith v. Wilcox County Board of Education, 365 So.2d [659] at 661 [ (Ala.1978) ]. See, e.g., Boazman v. Economics Laboratory, Inc., 537 F.2d 210 (5th Cir.1976); Pond v. Braniff Airways[, Inc.], 453 F.2d 347 (5th Cir.1972). Willful default or conduct is a conscious or intentional failure to act. Welsh v. Automatic Poultry Feeder Co., 439 F.2d 95 (8th Cir.1971). ‘Willful’ is used in contradistinction to accidental or involuntary noncompliance. No wrongful motive or intent is necessary to show willful conduct.”
‘Selby v. Money, 403 So.2d 218, 220-21 (Ala.1981); see also Burton v. Allen, 628 So.2d 814, 815 (Ala.Civ.App.1993).’
“HICA Educ. Loan Corp. v. Fielding, 953 So.2d 1261, 1263 (Ala.Civ.App.2006).”

Blake v. Stinson 5 So.3d 615, 617-18 (Ala.Civ.App.2008). “Because the trial judge is in the best position to assess the conduct of the plaintiff and the degree of noncompliance, his decision to grant a motion to dismiss for failure to prosecute will be accorded considerable weight by a i*eview-ing court.” Jones v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 604 So.2d 332, 341 (Ala.1991).

In Alexander v. GEICO Insurance Cos., 47 So.3d 1225 (Ala.2010), our supreme court affirmed a judgment dismissing a case with prejudice for want of prosecution after noting:

“From all that appears before us, the plaintiffs failed to meet discovery deadlines imposed by the trial court, and they were not prepared to proceed to trial after the trial court had continued the trial date one time.”

47 So.3d at 1230.

In Mangiafico v. Street, 767 So.2d 1103 (Ala.2000) (plurality opinion), a plurality of our supreme court affirmed a judgment dismissing an action with prejudice for want of prosecution when a litigant failed to initiate arbitration in accordance with the trial court’s order, reasoning:

“The trial court gave Mangiafico specific notice that arbitration was to be initiated within 30 days. Twenty-two days later, Mangiafico moved to extend the time for initiating arbitration. The trial court did not rule on the motion before the expiration of the 30-day period. Mangiafieo failed-to initiate arbitration, despite the clear language in the trial court’s order indicating that the case would be dismissed if arbitration proceedings were not begun within 30 days. Because Mangiafieo did not commence arbitration as ordered by the terms of the July 23, 1998, order, the trial court, acting within its discretion and authority to manage the cases before the court, properly dismissed the case.”

767 So.2d at 1106.

We conclude that, perhaps even more so than in Alexander and Mangiafi-eo, the record in the present case reveals a “clear record of delay” on the part of the Cartees. The record indicates that the Cartees initially failed to commence arbitration proceedings within 90 days, as ordered by the trial court, resulting in the trial court’s dismissing the case on August 1, 2014. After the Cartees requested that the trial court reinstate the case and grant them an additional 30 days in which to secure an arbitrator, the trial court entered an order on August 19, 2014, reinstating the case, ordering the Cartees to provide to the court, within 30 days of the reinstatement order, notice of the arbitration agreement signed by Community and an arbitrator, and stating that the case would be dismissed “if there is not an agreement to enter into arbitration between the parties within thirty days of the date of reinstatement.” The trial court was . not notified that the parties had agreed on an arbitrator until after the trial court requested a status update almost three months later. The parties scheduled arbitration for February 4, 2016; however, the Cartees requested to cancel the arbitration due to the illness of Don Cartee. A month after the date of the canceled arbitration, the Cartees still had not attempted to reschedule the arbitration.

Because the record in the present case indicates a “clear record of delay” by the Cartees based on their repeatedly failing to meet the trial court’s deadlines, we conclude that the trial court did not exceed its discretion in dismissing the ease with prejudice for want of prosecution.

With regard to the Cartees’ argument that they were not allowed time to respond to the motion to dismiss before the trial court entered its judgment dismissing the case, we note that the Cartees filed a postjudgment motion, and, in that motion, they did not articulate any valid excuse for their continued delay. Therefore, we conclude that any error on this point was harmless. See Rule 45, Ala. R.App. P,

Based on the foregoing, we affirm the trial court’s judgment.

AFFIRMED.

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


author: THOMPSON, Presiding Judge. THOMAS, Judge,

text:
    Ryan Nichole WHITEHEAD v. Brandon Heath WHITEHEAD.
    2140657.
    Court of Civil Appeals of Alabama.
    Feb. 12, 2016.
    Rehearing Denied April 15, 2016.
    Certiorari Denied July 8, 2016
    Alabama Supreme Court 1150803.

      Adrienne Michele LaBudde, Anniston, for appellant.
    R. Allen Crow, Eastaboga, for appellee.
   THOMPSON, Presiding Judge.

Ryan Nichole Whitehead (“the mother”) and Brandon Heath Whitehead (“the father”) were divorced by an October 2008 judgment of the Calhoun Circuit Court (“the trial court”). The parties have not specified the exact terms of the custody arrangement set forth in their divorce judgment pertaining to the child born of the marriage. However, on July 29, 2010, the trial court granted the father’s petition to modify the custody provisions of the divorce judgment, awarded the parties “joint custody, care, and control” of the child and specified that the father have “primary placement” and the mother have “secondary placement.”

In April 2014, the father notified the mother by letter that he planned to relocate with the child to Tennessee. On May 7, 2014, the mother filed a petition seeking to modify custody of the child and objecting to the father’s proposed relocation with the child. In her modification petition, the mother also sought an order preventing the father from taking the child out of Alabama pending a hearing on the mother’s petition. The mother filed a separate motion seeking pendente lite custody of the child. On May 8, 2014, the trial court entered an order enjoining the father from relocating with the child pending a hearing on the mother’s petition.

The trial court conducted an ore tenus hearing. At that hearing, it was agreed that the father no longer proposed to relocate to Tennessee and, therefore, that any issue pertaining to that move was moot. On February 26, 2015, the trial court entered a judgment finding that the issue of the father’s proposed relocation was moot and denying the mother’s custody-modification claim. The mother filed a postjudgment motion, and the trial court denied that motion. The mother timely appealed.

The mother first argues that, in denying her petition to modify custody, the trial court applied an incorrect modification standard. In reaching its judgment on the issue of custody, the trial court determined that the mother had failed to meet the modification standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984). The McLendon standard provides that the parent seeking to modify a previous custody award must demonstrate that a material change in circumstances has occurred such that a change of custody would materially promote the child’s best interests and that the benefits of the change would offset the disruptive effect of the change in custody. McLendon, 455 So.2d at 866; Ex parte Cleghorn, 993 So.2d 462, 468-69 (Ala.2008). The mother argues, however, that the “best interests of the child” standard set forth in Ex parte Couch, 521 So.2d 987, 989 (Ala.1988), applies under the facts of this case.

The determination whether the McLendon standard or the “best interests of the child” standard set forth in Couch applies turns on whether there has been a previous custody determination as between the two parents. If no previous custody determination has been made, or if a custody determination has been made that does not favor one parent over the other, such as an award of joint custody pursuant to which the parties share both joint legal custody and joint physical custody, see § 30-3-151(1), Ala.Code 1975, the “best interests of the child” standard applies. New v. McCullar, 955 So.2d 431, 434 (Ala.Civ.App.2006). However, if a previous custody award favors one parent, i.e., by awarding one parent primary, or sole, physical custody, the McLendon standard applies to any modification action. Rehfeld v. Roth, 885 So.2d 791, 794 (Ala.Civ.App.2004) (citing Scholl v. Parsons, 655 So.2d 1060, 1062 (Ala.Civ.App.1995)). Our supreme court has explained:

“There are different standards for a trial court to use in ruling on questions of child custody. If one parent has previously been granted primary physical custody or if one parent has ‘given up’ legal custody, then an existing custody arrangement will be modified only if the modification materially promotes the best interests and welfare of the child. Ex parte McLendon, 455 So.2d 863, 865-66 (Ala.1984). If neither parent has previously been given primary physical custody, then the ‘best interests of the child’ standard applies. Ex parte Couch, 521 So.2d 987, 989 (Ala.1988).”

Ex parte Johnson, 673 So.2d 410, 413 (Ala.1994).

In this case, the most recent, July 29, 2010, custody-modification judgment stated that the parties were to “share the joint custody, care, and control of their minor child.” However, that judgment then specified that the father have the “primary placement” of the child and that the mother have “secondary placement.” The mother was ordered to pay child support to the father and was awarded liberal visitation with the child, i.e., alternating weekends, one weekday each week during the school year, and one-half of the summer break.

The mother contends that because the July 29, 2010, modification judgment specified that the parties share “joint custody” and because she has “placement” of the child for what she contends in her brief is approximately 150 days per year, the custody award awarded the parties joint legal custody and joint physical custody, rather than an award of primary physical custody, or sole custody, to the father. The term “joint custody” is defined in § 30-3-151(1), Ala.Code 1975, as “[j]oint legal and joint physical custody.” However, our appellate courts have recognized that there is confusion in the trial courts’ use of that term, and, therefore, the courts have interpreted the term “joint custody” according to the intent of the trial court in using the term. This court has explained:

“The trial court’s divorce judgment awarded the parties ‘joint custody,’ yet it awarded the father ‘primary physical custody.’ ‘These terms have been-commonly employed by the bench and bar; however, in light of the definitions of the types of custody set out in the joint-custody statute, those older terms are unclear and ... serve only to confuse the issue of custody.’ Harris v. Harris, 775 So.2d 213, 214 (Ala.Civ.App.1999). Using the proper terms set out in the joint-custody statute, § 30-3-151, Ala. Code 1975, the divorce judgment can be construed only one way—that is, it awards the father sole physical custody and the mother and the father joint legal custody. See Harris, 775 So.2d at 214.”

Richardson v. Fotheringham, 950 So.2d 339, 341 (Ala.Civ.App.2006).

This court interpreted a previous judgment that had awarded the parties “ ‘joint custody’ ” but had awarded the father “ ‘primary placement’ ” to be a custody judgment in favor of the father. Clayton v. Langley, 175 So.3d 179 (Ala.Civ.App.2015). Similarly, in Smith v. Smith, 887 So.2d 257, 261-62 (Ala.Civ.App.2003), this court concluded that a custody judgment that awarded the parties “ ‘joint custody,’ ” but specified that the mother was to have “ ‘primary physical custody,’ ” was a judgment that favored the mother.

“[TJhere is but one way to interpret a judgment that awards ‘joint custody’ with an award-of ‘primary physical custody’ to one parent—such a judgment must be interpreted as awarding the parents joint legal custody-and awarding one parent sole physical custody, the term used by [§ 30-3-151] to denote a parent being favored with the right of custody over the other parent, who will receive visitation.”

Smith v. Smith, 887 So.2d at 262. In Smith v. Smith, supra, this court recognized the difference between the terminology employed by the trial court in its judgment and that used in § 30-3-151, and we stated: “We take this opportunity to remind the bench and bar that our legislature has adopted terminology to be used in crafting custody judgments. Use of the terminology used before the enactment of § 30-3-151 only serves to engender confusion.” Id. See also Martin v. Payne, 739 So.2d 510, 510-11 (Ala.Civ.App.1999) (a judgment that awarded “joint custody” but that the evidence showed primary placement was awarded to the mother with the father having liberal visitation was a judgment that favored the mother such that the McLendon standard applied to a modification of the judgment); and Williams v. Williams, 75 So.3d 132, 138-39 (Ala.Civ.App.2011) (stating that “this court has urged trial courts to use the terminology contained in § 30-3-151 when crafting custody judgments” but holding that a judgment awarding the" parties joint custody with one parent having primary physical custody “should be interpreted as awarding the parties joint legal custody of the children and awarding [that one parent] sole physical custody of the children”).

The mother argues that the number of days each month that the child spent with her should be used to determine the nature of the custody award set forth in the July 29, 2010, modification judgment. The mother cites a number of cases in support of that argument. However, in most of those cases, the custody judgments that the parties sought to modify were different from the July 29, 2010, modification judgment that the mother sought to modify in this action. In those other cases, the custody judgments at issue specifically awarded the parties joint physical custody, and the courts examined whether the award was a trae award of joint physical custody such that there was no preference in favor of either parent. In New v. McCullar, supra, the custody judgment at issue provided that “ ‘the parties share joint legal and joint physical custody,’ ” although it specified that the child’s primary residence was with the mother. 955 So.2d at 432. The main opinion concluded that: “To the extent that the divorce judgment is internally inconsistent, we conclude that it in fact created a joint-physical-custody arrangement, as defined by § 30-3-151(3).” 955 So.2d at 436. Therefore, given the facts of that case, the main opinion concluded that the “best interests” standard applied to a modification of that judgment. Id.

In E.F.B. v. L.S.T., 157 So.3d 917 (Ala.Civ.App.2014), although the custody judgment sought to be modified designated the father as the “primary custodian,” that judgment specified that the parties shared “joint physical custody.” This court concluded:

“Like in New, we conclude that the custody arrangement under the modified judgment in the present case, in which the parties received ‘joint physical custody’ and both parties exercised custody over the children for an approximately equal amount of time, amounts to ‘a joint-physical-custody arrangement, as defined by § 30-3-151(3).’ New [v. McCullar], 955 So.2d [431,] 436 [ (Ala.Civ.App.2006) ].”

E.F.B. v. L.S.T., 157 So.3d at 923.

In Hovater v. Hovater, 577 So.2d 461, 464 (Ala.Civ.App.1990), the mother was awarded “ ‘primary physical custody’ ” of the children during the school year and the father was awarded “‘primary physical custody’ ” during the summer. This court concluded that the “best interests” standard applied, stating:

“We conclude that, by the use of the term ‘joint custody’ and by the division of physical custody, the parties and the trial court envisioned a ‘joint legal’ and ‘joint or split physical’ custodial arrangement. Because neither party was awarded exclusive physical custody, the proper standard of review was the ‘best interests and welfare’ of the children as opposed to the more stringent burden established by McLendon.”

Id.

In this case, the July 29, 2010, modification judgment awarded the parties joint custody—not “joint physical custody”— and it awarded the father primary placement. Further, that judgment required that the mother pay child support. Although the award of child support is not dispositive, it tends to support the conclusion that the father was preferred in the custody award, i.e., that the custody award favored the father over the mother.

“When a previous joint custody determination favors one parent, such as when one parent has been granted primary physical custody, and the other parent moves for a modification, the stricter standard set out in McLendon applies.... Even though the parties in this case refer in their briefs to joint custody, the record indicates that the [father] had primary physical custody.”

Ex parte Johnson, 673 So.2d 410, 413-14 (Ala.1994).

Given the facts of this case, the language of the July 29, 2010, modification judgment, and the foregoing authority, we conclude that the July 29, 2010, modification judgment awarded the parties joint legal custody of the child, with primary physical placement, or sole physical custody, see § 30-3-151(5), awarded to .the father. Accordingly, the McLendon standard applied to any action seeking to modify that judgment. Rehfeld v. Roth, supra. The mother has failed to demonstrate that the trial court erred with regard to the standard it applied to her action seeking to modify custody of the child.

The mother next argues that the trial court’s denial of her modification petition was not supported by the evidence. The record indicates that since the entry of the 2010 modification judgment, the father and the child have changed residences multiple times. The father and the child initially lived with the father’s then wife, Jennifer, and they moved to the child’s paternal grandfather’s home when the father and Jennifer separated. The father and the child lived with the paternal grandfather for approximately two weeks before the father moved himself and the child in with his new girlfriend, Karen, whom he later married. It appears that the father, Karen, and the child lived together in at least two different residences. The father and Karen separated in December 2013, and the father and the child again began living' with the paternal grandfather and shared a room in the basement of the paternal grandfather’s home. The father testified that he then began investigating moving to Tennessee to obtain employment and to be closer to friends and some cousins. The father denied that his proposed move to Tennessee in the spring of 2014 was prompted by a new relationship with a woman named Tasha, but other evidence in the record disputes that claim. The father notified the mother on April 8, 2014, that he had rented an apartment in Sparta, Tennessee, and that he intended to move to Tennessee with the child. The father testified that, after the mother filed her petition objecting to the move to Tennessee in April 2014, he and the child moved into a home with his new girlfriend, Stacy, in Alabama. At the time of the hearing in this matter, the father was still living with Stacy and her children, but the two had not married. The record indicates that, since 2010, the child has attended three different schools; however, in spite of the more recent relo-cations of her residence with the father, the child has remained in the same school for almost four years.

The father denied that the frequent changes in his and the child’s residences had had a detrimental effect on the child, but the mother testified that the child’s grades had dropped temporarily after some of those moves. The father admitted that moving so frequently into homes with different women was not appropriate for the child.

The mother testified that she had married and moved in with her husband after the 2010 hearing and that she and her husband had moved twice since that time. The mother and her husband have a young child. The mother testified that she does not work outside the home because her potential earnings would not make paying for day-care and work-related expenses viable.

The mother presented evidence in support of her allegation that the father had an anger problem and was controlling. Karen, the father’s most recent wife, testified that the father had anger issues and often yelled at her and sometimes at the child. However, the father impeached some portions of Karen’s testimony about the details of an alleged act of domestic violence with a tape recording he made of that incident.

The father was questioned about a road-rage incident during which he exited his vehicle and shot a gun into the ah-; the child and other children were in the vehicle during that incident. The father testified that the people in the other vehicle had been the aggressors and that he was not certain whether they were young people acting badly or people who might rob him. Other testimony in the record indicated that the father had been the aggressor in that incident and that the child and the other children in the father’s vehicle during that incident had been very frightened. In another portion of his testimony, the father stated that he believed that it was appropriate to respond in an angry or hostile manner, either physically or verbally, if he was provoked or if another person behaved badly first.

The mother testified that she believed that the child was afraid of the father, and she detailed some instances that she said supported that conclusion. The father testified that the child sometimes lied to him and that he raised his voice or punished her for those lies, but he disputed that the child was afraid of him. He also disputed the mother’s allegation that he discouraged the child from speaking with the mother after the child’s sporting events. Both parties have purchased a telephone, and each had created social-media profiles, for the child’s use because each alleged that the other had “blocked” the child from communicating with the other.

The father presented evidence indicating that the mother purchased expensive gifts for the child and ate at'restaurants frequently but was regularly in arrears on her child-support obligation. The father also disagreed with the mother that the child should be allowed to consume coffee when she'visited the mother and that she should be allowed to have a boyfriend at 12 years of age.

The child testified before the trial court while the parties were not present. ■ In short, the child testified that she was occasionally afraid of the father and that she would prefer to live with her mother and visit the father on the same schedule pursuant to which she had been visiting the mother. No useful purpose would be served by setting forth the full details of the child’s testimony. We note that the trial court found it necessary to remind the parties not to ask the child about any specifics of her testimony or to punish her for anything she had said during her testimony. Further, in its judgment, the trial court specifically ordered that the parties were restrained from questioning the child about where she preferred to live, from blocking each other’s access to the child through her telephone and social-media accounts, and from speaking derogatorily about each other in front of the child. See Price v. Price, 440 So.2d 1110, 1110 (Ala.Civ.App.1983) (“The paramount consideration for a court in a child custody case is the best interests and welfare of the child.”).

The mother argues that the evidence warranted a change in custody. She cites in support of her argument the father’s numerous moves and relationships, the alleged incident of domestic violence against one of his former wives, and the road-rage incident. In denying the mother’s petition to modify custody of the child, the trial court specifically found that the mother had failed to meet the McLendon standard “in that she failed to present sufficient evidence that the proposed change of custody would offset the disruption caused by the change of custody.” The mother contends that the father’s choices have been disruptive for the child and that a modification of custody would provide the child needed' stability. The mother also points out that the child expressed a desire to live with her and that, although it is not determinative, a child’s custody preference is a factor for the trial court to consider. Glover v. Singleton, 598 So.2d 995, 996 (Ala.Civ.App.1992).

This court shares the mother’s concern about the lack of stability in the father’s residences and relationships and agrees that the evidence in the record also tends to support the conclusion that the father does have an issue with anger. The evidence supports a conclusion that both parties,- but particularly the father, have allowed their dislike for each other to impact the manner in which they parent the child, but it appears that the trial court has attempted to take steps, through enjoining certain behaviors of the parties, to ensure that the child’s best interests are protected. However, the evidence in the record also indicates that the child loves both parents and is generally happy during each parent’s custodial periods. The trial court could have concluded that the child’s preference concerning her primary residence focused on the parties’ differing parenting styles. “On appellate review of custody matters, this court is limited when the evidence was presented ore tenus, and, in such circumstances, a trial court’s determination will not be disturbed ‘absent an abuse of discretion or where it is shown to be plainly and palpably wrong.’ ” Cheek v. Dyess, 1 So.3d 1025, 1029 (Ala.Civ.App.2007) (quoting Alexander v. Alexander, 625 So.2d 433, 434 (Ala.Civ.App.1993)). This court might not have reached the same result as did the trial court given the evidence. However, this court did not have the trial court’s advantage of being able to observe the witnesses as they testified and to’ assess their demeanor and credibility:

‘ “The trial court is in the ... position of discerning the demeanor and other like intangibles which do not transfer so readily in a transcript.” Shepherd v. Shepherd, 531 So.2d 668, 671 (Ala.Civ.App.1988). Stated another way, “the deference given to the trial court by the ore tenus rule is, in part, due to the trial court’s unique position to see and/or hear something that may not be apparent on the face of the written record.” Willing v. Willing, 655 So.2d 1064, 1068 (Ala.Civ.App.1995). See Dobbins v. Dobbins, 602 So.2d 900, 901 (Ala.Civ.App.1992) (“The reason for the ore tenus rule is [well established], i.e., that the trial court had the opportunity to observe the witnesses as they testified, to judge their credibility and demeanor, and to observe what this court cannot perceive from a written record.”).’ ”

Fell v. Fell, 869 So.2d 486, 496 (Ala.Civ.App.2003) (quoting Ex parte Fann, 810 So.2d 631, 638 (Ala.2001)). Given the totality of the evidence, we cannot say that the trial court erred in determining that the mother failed to meet her burden under Ex parte McLendon, supra. Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

PITTMAN, MOORE, and DONALDSON, JJ., concur.

THOMAS, J., dissents, with writing.

THOMAS, Judge,

dissenting.

I respectfully dissent. The July 2010 custody-modification judgment awarded Ryan Nichole Whitehead (“the mother”) and Brandon Heath Whitehead (“the father”) “joint custody” of the child. The Alabama joint-custody statutes, codified at Ala.Code 1975, § 30-3-150 et seq., define joint custody as “[j]oint legal custody and joint physical custody.” Ala.Code 1975, § 30-3-151(1). Thus, contrary to the main opinion’s conclusion, the failure of the Calhoun Circuit Court to use the term “joint physical custody” in the July 2010 custody-modification judgment does not serve to make that judgment significantly distinguishable from the judgments sought to be modified in New v. McCullar, 955 So.2d 431 (Ala.Civ.App.2006), and E.F.B. v. L.S.T., 157 So.3d 917 (Ala.Civ.App.2014). Furthermore, the July 2010 judgment awarded the parents joint custody in one paragraph of the judgment and set out what it called “placement” in a separate paragraph. Although the July 2010 judgment awarded the father “primary placement” and the mother “secondary placement,” that judgment did not, as did the judgments sought to be modified in Richardson v. Fotheringham, 950 So.2d 339, 341 (Ala.Civ.App.2006), and Smith v. Smith, 887 So.2d 257, 261-62 (Ala.Civ.App.2003), award “primary physical custody” of the child to either parent. I cannot equate the term “primary placement” with the much more descriptive term “primary physical custody.” I construe the use of the terms “primary placement” and “secondary placement” as a method of delineating which parent would exercise custody at certain times.

Because the July 2010 judgment, like the judgments in New and E.F.B., awarded the mother and the father joint custody, I find this case indistinguishable from New and E.F.B. My conclusion is bolstered by the fact that, in the present case, the mother’s “secondary placement” provides her with a comparable number of custodial days as was awarded the “secondary” parent in both New and E.F.B. Therefore, I conclude that the trial court improperly applied the more stringent custody-modification standard set out in Ex parte McLendon, 455 So.2d 863 (Ala.1984), to the mother’s custody-modification petition. See Watters v. Watters, 918 So.2d 913, 916 (Ala.Civ.App.2005) (indicating that a parent seeking modification of a joint-custody arrangement is not required to meet the standard set out in Ex parte McLendon). Accordingly, I would reverse the judgment of the trial court, remand the cause, and instruct the trial court to reconsider the evidence presented under the best-interest standard to decide the mother’s custody-modification petition.

I further note that this case illustrates the continued confusion created by the refusal of the bench and bar to use the custody terminology chosen by our legislature. The joint-custody statutes became effective on January 1, 1997, more than 19 years ago. For 19 years, a significant number of the members of the bench and bar have continued to use the old, outdated terminology when drafting custody judgments and custody agreements. The terminology in the joint-custody statutes is no longer new and it should not be unfamiliar to any attorney in this state. The only proper terms to describe custody in Alabama are those set out in the joint-custody statutes: joint custody, joint legal custody, joint physical custody, sole legal custody, and sole physical custody. See § 30-3-151 (defining the various forms of custody). Continued use of terms like “primary physical custody” serve to make unclear custody judgments and agreements and to confuse the parties regarding their custodial arrangements, which, in turn, leads to confusion among the trial courts and the appellate courts regarding the appropriate standard applicable to later custody-modification actions. Much difficulty and litigation could be avoided by the use of the proper terminology at the outset.

      . The July 29, 2010, modification judgment provides, in pertinent part:
      "2. PLACEMENT. [The father] shall have the primary placement of the parties' minor child.... The [mother] shall have secondary placement of the parties’ minor child as follows:
      “i. Weekend Secondary Placement: Commencing on July 30, 2010, and on every other weekend thereafter from the time that school is recessed on Friday until the following Monday morning when school shall commence.
      "ii. Weekday Secondary Placement: Every week from the time that school is recessed on Wednesday until the following Thursday afternoon when school shall be recessed.
      "iii. Summer Secondary Placement: ... the parties shall alternate placement week to week for the minor child’s summer break from school...,

      "vi. Precedence of Secondary Placement Schedule: The holiday placement schedule as set forth in the previous Order and summer placement schedule as herein set forth takes precedence over any regularly scheduled weekend and weekday secondary placement period.
      "vii, Secondary Placement Schedule Changes: The parties shall be liberal with the set placement schedule as per their careers, vacations, school work, special occasions and holidays permit. The parties shall cooperate fully in regards to such placement and remember that the minor child is to be the primary consideration.
      "viii. Mutual Agreement of Change of Secondary Placement Schedule: The schedule of secondary placement may be changed by mutual agreement between the parties.
      "ix. Parties’ Agreement for Additional Secondary Placement: The mother may visit with the minor child at other reasonable times and places to which the Parties may agree.”

      . In Reuter v. Neese, 586 So.2d 232 (Ala.Civ.App.1991), however, the custody judgment the father sought to modify provided that the parties share “joint custody” of the son, with the son living with the mother during the school year and the father during the summer. This court held that because the custody award did not give primary custody to either parent, the "best interests of the child” standard applied to the modification claim. 586 So.2d at 234.

      . We agree with that part of Judge Thomas's dissent in which she points out that the confusion created by the wording of the judgment in this case would be eliminated if attorneys and trial courts used the custody terminology set forth in § 30-3-151, Ala.Code 1975.

      . Although the parties were not present when the child testified, the mother’s attorney pointed out that some parts of the child's testimony were made clear to the parties given the nature of some of the questions the attorneys had asked during the ore tenus hearing.


author: WELCH, Judge.

text:
    Terry Dewayne BAILEY. v. STATE of Alabama.
    CR-13-1840.
    Court of Criminal Appeals of Alabama.
    April 17, 2015.
    Joshua Steven Segall, Montgomery, for appellant.
    Luther Strange, atty. gen., and Laura I. Cuthbert, asst. atty. gen., for appellee.
   WELCH, Judge.

Terry Dewayne Bailey appeals from the denial of his pro se motions to alter, amend, or vacate a judgment.

In 1997, Bailey pleaded guilty to two counts of first-degree robbery and was sentenced to concurrent terms of 15 years’ imprisonment. Bailey did not appeal. On April 15, 2014, Bailey filed a Rule 32, Ala. R.Crim. P., petition challenging his sentences and requesting resentencing. Bailey alleged in the petition that his 15-year sentences were illegal because they were less than the mandatory minimum sentence for first-degree robbery in which a firearm was used, the sentence for which is 20 years. § 13A-5-6(a)(4), Ala.Code 1975. He requested an evidentiary hearing and, as relief, that he be resentenced to 20-year terms of imprisonment in accordance with the statute. The circuit court held an evidentiary hearing on May 29, 2014, and Bailey argued that the 15-year sentences had been improper, and he stated he wanted to “correct [his] record.” The court set aside Bailey’s 15-year sentences. The court appointed counsel and scheduled a date for a sentencing hearing. On June 19, 2014, Bailey and defense counsel appeared for the hearing, and the trial court sentenced Bailey to concurrent 20-year terms of imprisonment.

On July 1 and July 3, 2014, Bailey filed pro se motions to “alter, amend or vacate the judgment.” The substance of the two motions is virtually identical, and in each motion Bailey requested that he be allowed to withdraw his guilty pleas. He alleged that he had entered his pleas pursuant to an agreement reached between defense counsel and the prosecutor that provided for concurrent 15-year sentences even though the mandatory minimum sentence was a term of 20 years and that a trial court cannot accept a plea agreement for an illegal sentence. Bailey further alleged in the motions that, because his guilty plea was based on that agreement, the 20-year sentences imposed in the June 2014 resentencing hearing constituted a rejection of the plea agreement and that, therefore, he was entitled to withdraw his guilty pleas. We consider Bailey’s motions to be the functional equivalents of motions for a new trial, see Wallace v. State, 701 So.2d 829, 830 (Ala.Crim.App.1997), and, as such, they were timely filed.

Rule 24.4, Ala. R.Crim. P., provides that a motion for a new trial or in arrest of judgment shall not remain pending for more than 60 days and that on the 60th day the motion is deemed denied, absent the express consent of the prosecutor and the defendant or the defendant’s attorney that the time for ruling on the motion has been extended beyond that time for ruling. The record contains no consent by the parties to extend the circuit court’s time for ruling on the postjudgment motions as required by Rule 24.4. Therefore, Bailey’s postjudgment motions were deemed denied by operation of law on August 18, 2014. Nonetheless, on September 4, 2014, the circuit court held a hearing on Bailey’s motions and it purported to deny Bailey relief. Bailey gave oral notice of appeal. The trial court determined that Bailey was indigent, and on September 5, 2014, the trial court entered an order appointing counsel to represent Bailey on appeal. On September 17, 2014, Bailey, through newly appointed appellate counsel, filed a notice of appeal.

In his brief to this Court, Bailey argues that the circuit court’s judgment should be reversed and his guilty pleas set aside. He argues, in relevant part, that the plea agreement was violated because it provided for 15-year sentences and he ultimately was sentenced to 20 years. Bailey further argues that he was entitled to counsel on his pro se motions seeking to withdraw his plea and that the record does not reflect that he had counsel or that he had waived his right to counsel.

On numerous occasions our courts have addressed the denial of the right to counsel during proceedings on a motion to withdraw a guilty plea. For example, in a case nearly identical to Bailey’s, Humphrey v. State, 110 So.3d 396 (Ala.Crim.App.2012), this Court stated:

“The dispositive issue[ ] raised by Humphrey on appeal is whether the circuit court violated his Sixth Amendment right to counsel when the circuit court ruled on his pro se motion to withdraw his guilty pleas without first informing Humphrey of his right to counsel to assist in the preparation of that motion and without ascertaining if Humphrey had knowingly and intelligently waived his right to the assistance of counsel.
“The Sixth Amendment right to counsel ‘attaches at the initiation of adversary judicial proceedings, and extends to every critical stage of the proceedings .... A critical stage is any stage where a substantial right of an accused may be affected ... and can arise in pre-trial as well as post-trial proceedings.’ Berry v. State, 630 So.2d 127, 129 (Ala.Crim.App.1993) (internal citations omitted). ‘A motion to withdraw a guilty plea is a critical stage in a criminal proceeding requiring representation of counsel or a valid waiver of the right to counsel.’ Berry, 630 So.2d at 129.
“In Ex parte Pritchett, 117 So.3d 356 (Ala.2012), the Alabama Supreme Court recently discussed a case that is factually indistinguishable from Humphrey’s. The facts in Pritchett were as follows:
“‘[cjounsel in [Pritchett’s] case was appointed for [Pritchett], and at no point before the filing and adjudication of the motion to withdraw the guilty plea did counsel formally withdraw. Nonetheless, Pritchett filed a motion to withdraw his guilty plea that, in this case, we know was handwritten and that explicitly stated that it was being filed as a “pro se” motion. Furthermore, we also know that, in this case, the ground for relief asserted in this motion was that counsel who had represented the defendant before the filing of the motion allegedly had been inadequate and ineffective. As in Berry, although Pritchett nominally had counsel of record at the time he filed his motion, it was clear that the motion was prepared and relief was sought by Pritchett without the involvement of that counsel.’
117 So.3d at 361-62. The Supreme Court held that Pritchett was required to have the assistance of counsel—or to have validly waived such assistance— during the proceedings surrounding the motion to withdraw his guilty plea because Pritchett’s motion to withdraw his guilty plea was a critical stage in the judicial proceedings. Id. Therefore, the Supreme Court reversed Pritchett’s conviction and ordered ‘a hearing on Pritch-ett’s motion to withdraw his guilty plea in which Pritchett is represented by counsel or in which the trial court determines that Pritchett has knowingly, intelligently, and voluntarily waived his right to counsel.’ Pritchett, 117 So.3d at 362.
“Here, just as in Pritchett, Humphrey filed a pro se motion to withdraw his guilty pleas. The motion was filed before Humphrey’s appointed counsel had withdrawn from his representation of Humphrey. The record does not expressly indicate that Humphrey waived his right to the assistance of counsel, nor does the record indicate that the circuit court made any inquiry into whether Humphrey had waived his right to counsel knowingly, intelligently and voluntarily.Based on the Supreme Court’s decision in Pritchett, the judgment of the circuit court is reversed and Humphrey’s case is remanded to the circuit court to conduct a hearing on Humphrey’s motion to withdraw his guilty pleas in which Humphrey is represented by counsel or to determine that Humphrey has knowingly, intelligently and voluntarily waived his right to counsel.”

110 So.3d at 397-98. See also Stewart v. State, 110 So.3d 395 (Ala.Crim.App.2012) (reversing circuit court’s denial of motion to withdraw guilty plea because appellant had not been represented by counsel and remanding for a hearing on the motion).

Here, as in Humphrey, Bailey was entitled to counsel during the proceedings in which he sought to withdraw his guilty plea. Bailey filed two motions pro se, and the record does not show that he had counsel or that he had waived his right to counsel. Because of this fundamental error, the denial of Bailey’s motions seeking to withdraw his guilty pleas must be set aside and the case remanded to the circuit court for that court to conduct a hearing on Bailey’s motions to withdraw the pleas. At the hearing Bailey shall be represented by counsel unless he knowingly, intelligently, and voluntarily waives his right to representation by counsel.

REVERSED AND REMANDED.

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

      . We note, furthermore, that at the September 4, 2014, hearing the trial court held on Bailey’s pro se motions seeking to withdraw his guilty plea, Bailey argued on his own behalf; there is no indication in the record that counsel had been appointed or appeared on his behalf.


author: BURKE, Judge. KELLUM, Judge,

text:
    Thadduess Darnell JONES v. STATE of Alabama.
    CR-13-1553.
    Court of Criminal Appeals of Alabama.
    April 17, 2015.
    Thadduess Darnell Jones, pro se.
    Luther Strange, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
   BURKE, Judge.

Thadduess Darnell Jones pleaded guilty to one count of conspiracy to commit murder, see § 13A-4-3, Ala.Code 1975, three counts of first-degree assault, see § 13A-6-20, Ala.Code 1975, and four counts of second-degree assault, see § 13A-6-21, Ala.Code 1975. He was sentenced as a habitual felony offender .to 25 years’ imprisonment for the conspiracy conviction and 20 years’ imprisonment for each assault conviction, the sentences to be served concurrently. Jones made an oral motion to withdraw his guilty plea, which the Montgomery Circuit Court denied. Jones did not appeal. On May 20, 2014, Jones filed a timely petition for postconviction relief pursuant to Rule 32, Ala. R.Crim. P. After a response from the State, the circuit court summarily denied the petition. This appeal follows.

In Cantu v. State, 660 So.2d 1026, 1029 (Ala.1994), the Alabama Supreme Court held that, “even though a defendant could file a motion under the provisions of Rule 14 [,Ala. R.Crim. P.,] to withdraw a plea of guilty and could appeal a trial court’s ruling on that motion, the defendant would not be precluded from raising, in a timely filed post-conviction proceeding, the question of the voluntariness of the guilty plea.”

In his petition, Jones argued that his guilty plea was unconstitutional because, he said, he did not enter the plea knowingly, intelligently, and voluntarily. Specifically, Jones asserted that he entered into a plea agreement with the State pursuant to which the State would recommend concurrent sentences of 20 years’ imprisonment for each conviction in exchange for Jones’s guilty pleas. According to Jones, the trial court verbally agreed to that arrangement as well. Although Jones received a 20-year sentence for each of his assault convictions, the trial court sentenced him to 25 years’ imprisonment for his conspiracy-to-commit-murder conviction. Jones argued that the 25-year sentence violated of the plea agreement.

In its response and motion to dismiss, the State claimed that no plea agreement existed and that, therefore, Jones could not meet his burden of proof. The State argued that, “[without any evidence whatsoever of the existence of a plea agreement, [Jones] cannot meet his burden of proving his claim by a preponderance of the evidence.” (C. 23.) The State also argued that, “[e]ven if a plea agreement had been in place, the Court was still free to reject its recommendation and sentence [Jones] to an appropriate sentence.” (C. 24.)

In its order denying Jones’s Rule 32 petition, the circuit court also asserted that no plea agreement existed and stated: “The Court takes notice that it rarely agrees to a sentence before a defendant has [pleaded] guilty. Any discussion with [Jones’s] counsel concerning a possible twenty-year sentence was nothing more than the Court expressing what it felt would be an appropriate sentence.” (C. 31.) Thus, it appears from the face of the circuit court’s order that the court did engage in discussions with Jones about a possible sentencing recommendation.

In his petition, Jones asserted that he was induced to plead guilty based on the State’s offer to recommend a 20-year sentence in each case. Although a trial court is not bound to accept an agreement between the defense and the prosecution, see Ex parte Yarber, 437 So.2d 1330, 1336 (Ala.1983), Jones attached a letter from defense counsel to his Rule 32 petition that stated that the trial court did agree to accept the State’s recommendation. In the letter, Jones’s counsel stated:

“While the Judge had agreed verbally that you would receive a twenty year sentence, as you are aware, he changed his mind based upon the perception you had one more prior felony than he was aware of.... Apparently once the judge brought you back and realized one of the felonies was not to be counted as a prior, he still left you with a 25 year sentence. As you are aware, I asked the court to allow you to withdraw your guilty plea which was denied. You may wish to retain your own counsel and have them follow up on this matter. I will be glad to speak with them and will verify that we were told we were getting a 20 year sentence to run concurrent with all other charges.”

(C. 19.) Thus, Jones has alleged that both the State and the trial court agreed to a 20-year sentence in each of his cases.

Rule 14.3, Ala. R.Crim. P., provides:

“(a) Entering Into Plea Agreements. The prosecutor and the defendant or defendant’s attorney may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty to a charged offense or to a lesser or related offense, the prosecutor either will move for dismissal of other charges or will recommend (or will not oppose) the imposition or suspension of a particular sentence, or will do both.
“(b) Disclosure of Plea Agreement. If a plea agreement has been reached by the parties, the court shall require the disclosure of the agreement in open court prior to the time a plea is offered. Thereupon, the court may accept or reject the agreement or may defer its decision as to acceptance or rejection until receipt of a presentence report.
“(c) Acceptance or Rejection of Plea Agreements.
“(1) If the court accepts the plea agreement, the court, after compliance with Rule 14.4, shall inform the parties that it will embody in the judgment and sentence the disposition provided for in the plea agreement.
“(2) If the court rejects the plea agreement, the court shall:
“(i) So inform the parties;
“(ii) Advise the defendant and the prosecutor personally in open court that the court is not bound by the plea agreement;
“(iii) Advise the defendant that if the defendant pleads guilty, the disposition of the case may be either more or less favorable to the defendant than that contemplated by the plea agreement;
“(iv) Afford the defendant the opportunity to -withdraw the defendant’s offer to plead guilty;
“(v) Afford the prosecutor the opportunity to change his recommendations; and
“(vi) Afford the parties the opportunity to submit further plea agreements.

Rule 32.3, Ala. R.Crim. P., states that “[t]he petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to enti-tie the petitioner to relief.” As noted, Jones alleged that, in exchange for his pleas of guilt, the State agreed to recommend that he be sentenced to 20 years’ imprisonment for each count. Jones also alleged that the trial court verbally agreed to that arrangement. Thus, Jones’s claims, if true, would mean that the trial court did not comply with Rule 14.8, Ala. R.Crim. P., when it sentenced him to 25 years’ imprisonment. If the trial court did not intend to accept the alleged plea agreement, it should have complied with the provisions of Rule 14.3(c)(2), Ala. R.Crim. P.

Accordingly, this case is remanded with instructions that Jones be given the opportunity to prove his claim that both the State and the trial court agreed to a 20-year sentence in exchange for his guilty plea. As Judge Kellum notes in her special concurrence, Alston v. State, 455 So.2d 264 (Ala.Crim.App.1984), and other cases do not require Jones to prove that the trial court entered into any type of agreement in order to be entitled to relief. 214 So.3d at 385. The circuit court may hold an evidentiary hearing or take evidence by other means as provided by Rule 32.9, Ala.R.Crim. P. The record on return to remand shall contain a transcript of any evidentiary hearing that is held, as well a transcript of Jones’s guilty-plea colloquy in case no. CC-12-455. Additionally, the circuit “court shall make specific findings of fact relating to each material issue of fact presented.” Rule 32.9(d), Ala. R.Crim. P.

REMANDED WITH INSTRUCTIONS.

WINDOM, P.J., and WELCH, J., concur. KELLUM, J., concurs specially, with opinion, which JOINER, J., joins.

KELLUM, Judge,

concurring specially.

I agree that this case must be remanded to the Montgomery Circuit Court to allow Thadduess Darnell Jones the opportunity to prove the claim in his Rule 32, Ala. R.Crim. P., petition for postconviction relief that his guilty plea was involuntary. Specifically, Jones alleged in his petition, among other things, that he had pleaded guilty pursuant to a plea agreement with the State in which the State agreed to recommend 20-year sentences for each of his convictions, but that the trial court did not sentence him to 20 years’ imprisonment for each conviction in accordance with that agreement. That claim is, as the majority concludes, sufficiently pleaded, is not precluded, and is meritorious on its face. Therefore, Jones is entitled to an opportunity to prove that claim. See, e.g., Ford v. State, 831 So.2d 641, 644 (Ala.Crim.App.2001) (“Once a petitioner has met his burden of pleading so as to avoid summary disposition pursuant to Rule 32.7(d), Ala. R.Crim. P., he is then entitled to an opportunity to present evidence in order to satisfy his burden of proof.”).

I write specially only to clarify what I believe is the confusion inherent in the last paragraph of the main opinion. This Court remands this case with “instructions that Jones be given the opportunity to prove his claim that both the State and the trial court agreed to a 20-year sentence in exchange for his guilty plea,” but then states that Jones is not required “to prove that the trial court entered into any type of agreement in order to be entitled to relief.” 214 So.3d at 383 (emphasis added). In my opinion, these two statements are contradictory. Therefore, I believe that this Court should provide some additional guidance to the circuit court on remand.

This Court’s opinion should not be read as placing a burden on Jones to prove that he had any type of agreement with the trial court, in addition to the agreement he said he had with the State. Rather, that statement in our opinion is simply a reflection of the allegations Jones made in his petition and the attachments to that petition. Jones alleged in his petition and attachments not only that he had pleaded guilty pursuant to an agreement with the State, but also that the trial court had agreed to sentence him to 20 years’ imprisonment for each of his convictions in accordance with that agreement. However, under Alabama law, an allegation that the trial court had agreed to sentence in accordance with a plea agreement is not necessary to establish a right to relief when the trial court does not sentence in accordance with the agreement.

In Alabama, a trial court’s “refusal to permit [a defendant] to withdraw his guilty pleas after the trial court ha[s] refused to follow the bargained for sentencing recommendations by the State constitutes reversible error.” Alston v. State, 455 So.2d 264, 265 (Ala.Crim.App.1984), superseded by rule on other grounds as stated in Bozeman v. State, 686 So.2d 556 (Ala.Crim.App.1996). This Court has repeatedly held that when a defendant enters into a plea agreement with the State in which the State agrees to recommend a certain sentence and the trial court does not sentence the defendant in accordance with the agreed-upon recommendation, the defendant must be allowed to withdraw his or her plea, even if the State fulfilled its end of the agreement by making the appropriate recommendation and even if the defendant has been advised by the trial court that it was not bound by the State’s recommendation. See, e.g., Andrews v. State, 12 So.3d 728 (Ala.Crim.App.2009) (holding that the defendant was allowed to withdraw plea where the defendant had entered into a plea agreement with the State in which the State agreed to recommend a sentence of five years’ imprisonment split to serve two years in confinement followed by probation but the trial court rejected the recommendation and sentenced the defendant to 15 years’ imprisonment, even though the defendant had been advised and understood before he entered his plea that the trial court was not bound by the State’s recommendation); Nelson v. State, 866 So.2d 594 (Ala.Crim.App.2002) (holding that the defendant was allowed to withdraw his plea where the defendant entered into a plea agreement with the State in which the State agreed to recommend probation but the trial court rejected the State’s recommendation and denied probation, even though the defendant was advised and understood before he entered his plea that the trial court was not bound by the recommendation of the State); Brown v. State, 776 So.2d 216 (Ala.Crim.App.2000) (holding that the defendant was allowed to withdraw plea where the defendant entered into a plea agreement with the State in which the State agreed to recommend a sentence of 15 years’ imprisonment but the trial court rejected the recommended sentence and sentenced the defendant to 25 years’ imprisonment, even though the defendant was advised and understood before he entered his plea that the trial court was not bound by the recommendation of the State); Moore v. State, 719 So.2d 269 (Ala.Crim.App.1998) (holding that the defendant was allowed to withdraw plea where the defendant entered into a plea agreement with the State in which the State agreed to recommend a sentence of four years’ imprisonment and plea agreement did not mention split sentence, and the trial court sentenced the defendant to four years’ imprisonment but split the sentence and ordered the defendant to serve three years in confinement, thus depriving the defendant of the opportunity to earn correctional incentive time); Griffin v. State, 740 So.2d 1141 (Ala.Crim.App.1998) (same as Moore); Clark v. State, 655 So.2d 49 (Ala.Crim.App.1994), on return to remand, 655 So.2d 50 (Ala.Crim.App.1995) (holding that the defendant was allowed to withdraw plea where the defendant entered into plea agreement with the State in which the State agreed to recommend a sentence of three years’ imprisonment but the trial court rejected the State’s recommendation and sentenced the defendant to eight years’ imprisonment); Edwards v. State, 581 So.2d 1260 (Ala.Crim.App.), on return to remand, 586 So.2d 1008 (Ala.Crim.App.1991) (holding that the defendant was allowed to withdraw plea where the defendant entered into a plea agreement with the State in which the State agreed to recommend a sentence of 10 years’ imprisonment but the trial court rejected the State’s recommendation and sentenced the defendant to 30 years’ imprisonment); Bland v. State, 565 So.2d 1240 (Ala.Crim.App.1990) (holding that the defendant was allowed to withdraw plea where the defendant entered into a plea agreement with the State in which the State agreed to recommend a sentence of 15 years’ imprisonment, split to serve one year in confinement followed by probation and to run coterminously with another sentence the defendant was then serving, but the trial court rejected the recommended sentence and sentenced the defendant to 15 years’ imprisonment split to serve one year in confinement followed by probation with the one-year-confinement portion to run consecutively to the sentence the defendant was currently serving); Brown v. State, 495 So.2d 729 (Ala.Crim.App.1986) (holding that the defendant was allowed to withdraw plea where the defendant entered into a plea agreement with the State in which the State agreed to recommend a sentence of three years’ probation but the trial court rejected the recommendation and denied the defendant’s request for probation, even though the defendant was advised and understood before she entered her plea that the trial court was not bound by the recommendation of the State); Alston, supra (holding that the defendant was allowed to withdraw plea where the defendant entered into a plea agreement with the State in which the State agreed to recommend that he be sentenced to six years’ imprisonment for all of his convictions and that all of his sentences were to run concurrently but the trial court rejected the State’s recommendation and, although it sentenced the defendant to six years’ imprisonment for each conviction, it ordered a combination of concurrent and consecutive sentences); and Griswold v. City of Enterprise, 384 So.2d 1219 (Ala.Crim.App.1980) (holding that the defendant was allowed to withdraw pleas where the defendant entered into plea agreement with the State in which the State agreed to recommend only fines and the trial court rejected the recommendation and sentenced the defendant to a jail term for each conviction in addition to fines).

Therefore, under established precedent, to be entitled to relief on remand, Jones is required to prove only that his pleas were the result of a plea agreement with the State in which the State agreed to recommend a 20-year sentence for each of his convictions and that he did not receive a 20-year sentence for each conviction. If Jones proves those two things, the circuit court should grant Jones relief from his convictions and sentences on remand.

JOINER, J., concurs.

      . Jones also argued that his conviction violated the prohibition against double jeopardy. However, Jones failed to address the double-jeopardy claim in his brief on appeal. Allegations not expressly argued on appeal are deemed to be abandoned and will not be reviewed by this Court. Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App.1995).

      . "Although a Rule 32 petitioner is not required to include attachments to his or her petition in order to satisfy the pleading requirements in Rule 32.3 and Rule 32.6(b), when a petitioner does so, those attachments are considered part of the pleadings.” Conner v. State, 955 So.2d 473, 476 (Ala.Crim.App.2006). See also Ex parte Lucas, 865 So.2d 418 (Ala.2002) (noting that attachments to a Rule 32 petition are considered part of the pleadings).

      . "The court in its discretion may take evidence by affidavits, written interrogatories, or depositions, in lieu of an evidentiary hearing, in which event the-presence of the petitioner is not required, or the court may take some evidence by such means and other evidence in an evidentiary hearing.” Rule 32.9(a), Ala. R.Crim. P.

       Note from the reporter of decisions; On October 22, 2015, following a return to its remand order, the Court of Criminal Appeals again remanded this case by an order. On February 10, 2016, on return to second remand, the Court of Criminal Appeals dismissed the appeal, without opinion.