source: Caselaw Access Project

author: PARKER, Justice.

license: Public Domain

text:
    Ex parte Michael Brandon KELLEY
    (In re Michael Brandon Kelley v. State of Alabama)
    1131451.
    Supreme Court of Alabama.
    Nov. 6, 2015.
    Patrick Mulvaney and William R. Montross, Jr., Southern Center for Human Rights, Atlanta, Georgia, for petitioner.
    Luther Strange, atty. gen., and Megan A. Kirkpatrick, aast. atty. gen., for respondent.
   PARKER, Justice.

Michael Brandon Kelley petitioned this Court for a writ of certiorari to review the Court of Criminal Appeals' decision affirming the judgment of the St. Clair Circuit Court ("the trial court") sentencing Kelley to death for his convictions for two counts of murder made capital pursuant to §§ 13A-5-40(a)(1) and (8), Ala.Code 1975, and sentencing Kelley to life imprisonment for his conviction for one count of sexual torture, see § 13A-6-65.1, Ala.Code 1975. Kelley v. State, 246 So.3d 1032 (Ala.Crim.App.2014). We granted Kelley's petition solely to determine whether the Court of Criminal Appeals lacked jurisdiction to review Kelley's sexual-torture conviction. We reverse in part and remand.

Facts and Procedural History

The factual basis for Kelley's convictions is set out in detail in the Court of Criminal Appeals' decision. The following procedural history is pertinent to our review.

On September 2, 2010, a jury convicted Kelley of murder made capital because it was committed during the course of a first-degree kidnapping, see § 13A-5-40(a)(1), Ala.Code 1975; murder made capital because it was committed during the course of sexual abuse, see § 13A-5-40(a)(8), Ala.Code 1975; and sexual torture, see § 13A-6-65.1, Ala.Code 1975. Following the penalty phase of Kelley's trial, the jury recommended that Kelley be sentenced to death.

On November 18, 2010, the trial court conducted a sentencing hearing. After receiving evidence and considering arguments from both sides, the trial court stated on the record that it found Kelley guilty of both counts of capital murder and sentenced Kelley to death. It is undisputed, however, that the trial court did not state on the record that it found Kelley guilty of sexual torture and did not state on the record a sentence for Kelley's sexual-torture conviction. Nonetheless, that same day, November 18, 2010, the trial court entered a written order sentencing Kelley to death for the capital-murder convictions and purporting to sentence Kelley to life imprisonment for his sexual-torture conviction.

On February 2, 2011, Kelley filed a notice of appeal to the Court of Criminal Appeals. The notice-of-appeal form asks Kelley, in part, to "LIST EACH CONVICTION BELOW." In response, Kelley listed "CAPITAL MURDER (2 Counts)." Kelley did not list the sexual-torture conviction, and no reference to that conviction appears on his notice of appeal.

In Kelley's brief before the Court of Criminal Appeals, Kelley did not allege any error regarding his sexual-torture conviction. Similarly, in its brief before the Court of Criminal Appeals, the State did not request that the Court of Criminal Appeals affirm Kelley's sexual-torture conviction. Nonetheless, the Court of Criminal Appeals affirmed both of Kelley's capital-murder convictions and his conviction for sexual torture.

Kelley filed an application for rehearing in the Court of Criminal Appeals, alleging, among other things, that the Court of Criminal Appeals did not have jurisdiction to affirm his conviction for sexual torture. Kelley argued that a sentence was never pronounced for his sexual-torture conviction and that, therefore, "jurisdiction over the sexual torture conviction remain[ed] in the circuit court." Kelley also argued that the Court of Criminal Appeals' lack of jurisdiction over Kelley's sexual-torture conviction was the reason he did not appeal that conviction.

On September 5, 2014, the Court of Criminal Appeals denied Kelley's application for rehearing, withdrew its March 14, 2014, opinion, and substituted a new opinion. In its new opinion, the Court of Criminal Appeals addressed Kelley's allegation that he had never been sentenced for his sexual-torture conviction in a footnote, as follows: "On rehearing, Kelley argues that this Court lacks jurisdiction to review his conviction for sexual torture because he was never sentenced in relation to that conviction. Kelley's argument is refuted by the record. (C. 322-24.)" 246 So.3d at 1037 n. 1. The citation to the record provided by the Court of Criminal Appeals in that footnote refers to the trial court's written order purporting to sentence Kelley to life imprisonment for his sexual-torture conviction. The Court of Criminal Appeals did not provide any other analysis of Kelley's argument that the Court of Criminal Appeals lacked jurisdiction to review Kelley's conviction for sexual torture.

Kelley then filed with this Court a petition for a writ of certiorari. In the first ground asserted in his petition as a basis for issuing the writ, Kelley alleged that the Court of Criminal Appeals lacked jurisdiction to affirm his sexual-torture conviction and thus that its decision conflicted with prior decisions of this Court and of the Court of Criminal Appeals. We granted Kelley's petition for certiorari review solely to address that first ground.

Standard of Review

A claim that a court lacks jurisdiction presents a question of law, which this Court reviews de novo. See Sheffield v. State, 194 So.3d 911, 912 (Ala.2014) (applying a de novo standard of review when determining whether the Court of Criminal Appeals had jurisdiction to consider an appeal), and Ex parte Walker, 152 So.3d 1247 (Ala.2014) ; see also Ex parte Morrow, 915 So.2d 539, 541 (Ala.2004) (" 'This Court reviews pure questions of law in criminal cases de novo.' " (quoting Ex parte Key, 890 So.2d 1056, 1059 (Ala.2003) )).

Discussion

Kelley alleges that the Court of Criminal Appeals lacked jurisdiction to affirm his sexual-torture conviction because, he argues, his sexual-torture conviction was not ripe for appeal. We agree.

In Alabama, the right to appeal a conviction is specifically provided for in § 12-22-130, Ala.Code 1975:

"A person convicted of a criminal offense in the circuit court or other court from which an appeal lies directly to the Supreme Court or Court of Criminal Appeals may appeal from the judgment of conviction to the appropriate appellate court."

Under § 12-22-130, appeals lie only from a "judgment of conviction." Ex parte Eason, 929 So.2d 992, 993 (Ala.2005) ; Thornton v. State, 390 So.2d 1093, 1096 (Ala.Crim.App.1980). A judgment of conviction consists of the pronouncement of both a determination of a defendant's guilt and a sentence. Ex parte Walker, 152 So.3d at 1252. Absent a judgment of conviction, a conviction is not ripe for appeal. Id.

Kelley alleges that no judgment of conviction was entered on the sexual-torture conviction because, he argues, the trial court did not pronounce a sentence on that conviction. After reviewing the transcript from Kelley's sentencing hearing, we agree. " ' "Pronounce" is "to utter officially or ceremoniously." Webster's Third New International Dictionary, G. & C. Merriam Co. 1971. "Utter" is defined as "to send forth as a sound: give out in an audible voice." Id.' " King v. State, 862 So.2d 677, 678 (Ala.Crim.App.2003) (quoting Hill v. State, 733 So.2d 937, 939 (Ala.Crim.App.1998) ). It is undisputed that, during Kelley's sentencing hearing, the trial court did not mention Kelley's sexual-torture conviction; the trial court did not pronounce a determination of guilt as to that conviction or a sentence. Thus, a judgment of conviction was not entered as to that offense. See Ex parte Walker, supra (defining a judgment of conviction as the pronouncement of both a determination of a defendant's guilt and a sentence). Because a judgment of conviction was not entered for that offense, Kelley's sexual-torture conviction was not ripe for appeal. See id.

The State argues that the trial court's failure to pronounce a sentence on Kelley's sexual-torture conviction did not deprive the Court of Criminal Appeals of jurisdiction to consider an appeal of that conviction. Specifically, the State argues 1) that Kelley failed to preserve the issue whether the trial court had pronounced a sentence on his sexual-torture conviction; 2) that the trial court's failure to pronounce a sentence on Kelley's sexual-torture conviction did not affect the jurisdiction of the Court of Criminal Appeals as this Court defined jurisdiction in Ex parte Seymour, 946 So.2d 536 (Ala.2006) ; and 3) that the trial court's failure to pronounce a sentence on Kelley's sexual-torture conviction was merely a procedural defect. State's brief, at pp. 8, 12, 15. We address each argument in turn.

We first address the State's allegation that Kelley failed to preserve the issue whether the trial court pronounced a sentence on his sexual-torture conviction. As explained above, the pronouncement of a sentence for a conviction affects the jurisdiction of the Court of Criminal Appeals because, without such a pronouncement, a judgment of conviction has not been entered. "[J]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu. Horn v. Dunn Brothers, Inc., 262 Ala. 404, 79 So.2d 11 (1955)." Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). Thus, even assuming, for the sake of argument, that Kelley failed to preserve the issue whether the trial court pronounced a sentence on his sexual-torture conviction, that issue is properly before this Court.

Next, the State alleges that the trial court's failure to pronounce sentence does not "affect the [Court of Criminal Appeals'] power and authority to hear Kelley's appeal." State's brief, at p. 15. In support of this argument, the State cites this Court's decision in Ex parte Seymour, supra, in which we defined jurisdiction as follows:

"Jurisdiction is '[a] court's power to decide a case or issue a decree.' Black's Law Dictionary 867 (8th ed.2004). Subject-matter jurisdiction concerns a court's power to decide certain types of cases. Woolf v. McGaugh, 175 Ala. 299, 303, 57 So. 754, 755 (1911) (' "By jurisdiction over the subject-matter is meant the nature of the cause of action and of the relief sought." ' (quoting Cooper v. Reynolds, 77 U.S. (10 Wall.) 308, 316, 19 L.Ed. 931 (1870) )). That power is derived from the Alabama Constitution and the Alabama Code. See United States v. Cotton, 535 U.S. 625, 630-31, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (subject-matter jurisdiction refers to a court's 'statutory or constitutional power' to adjudicate a case)."

946 So.2d at 538.

The Court of Criminal Appeals has subject-matter jurisdiction to review a conviction for sexual torture. Section 12-3-9, Ala.Code 1975, provides that the Court of Criminal Appeals "shall have exclusive appellate jurisdiction of ... all felonies," and § 13A-6-65.1, Ala.Code 1975, provides that "the crime of sexual torture is a Class A felony." Yet, unless otherwise provided by law, the Court of Criminal Appeals does not have jurisdiction to review a conviction simply because that conviction falls within its subject-matter jurisdiction; instead, the jurisdiction of the Court of Criminal Appeals must be invoked. Ex parte Watkins, 268 Ala. 567, 570, 109 So.2d 671, 673 (1959) ("A court's jurisdiction and power until invoked lie dormant, and if the court proceeds in a manner in which its jurisdiction has not been invoked ... the proceedings are without jurisdiction.").

In the present case, Kelley could not invoke the jurisdiction of the Court of Criminal Appeals to review his sexual-torture conviction because a judgment of conviction was not entered for that offense. Moreover, as the State correctly points out, Kelley did not include his sexual-torture conviction in his notice of appeal as a conviction as to which he was seeking appellate review. State's brief, at p. 6. Thus, not only could Kelley not have appealed his sexual-torture conviction, but he also did not attempt to do so. Consequently, although the Court of Criminal Appeals has subject-matter jurisdiction to review a conviction for sexual torture, it did not have jurisdiction in the present case to review Kelley's sexual-torture conviction.

Next, the State alleges that the Court of Criminal Appeals had jurisdiction to review Kelley's sexual-torture conviction because, the State argues, the trial court's failure to pronounce sentence on that conviction was merely a procedural defect. State's brief, at p. 12. In support of this argument, the State cites our decision in Ex parte Eason, supra, and the Court of Criminal Appeals' decision in Hill v. State, 733 So.2d 937 (Ala.Crim.App.1998). The State's argument is unpersuasive.

First, Ex parte Eason is distinguishable from the present case. In Ex parte Eason, the trial court had sentenced the defendant to five years' imprisonment following a guilty plea, but it did not formally pronounce the defendant's guilt or enter a judgment of guilt. 929 So.2d at 992. This Court held that the trial court's entry of a sentence "adequately established that the trial court adjudicated [the defendant] guilty and that the conviction and sentence were ripe for appeal." 929 So.2d at 996. In so doing, this Court recognized the proposition that "a judgment by the [trial] court imposing sentence in accordance with a guilty verdict or a guilty plea sufficiently implies the judgment of guilt and serves as a judgment of conviction that will support an appeal." 929 So.2d at 995.

Thus, in Ex parte Eason, this Court held that a judgment of conviction is entered when the trial court enters a sentence that is consistent with a determination of guilt, even though that determination of guilt is not explicitly set out in the record. In the present case, however, the trial court failed to pronounce a sentence on Kelley's sexual-torture conviction. Furthermore, unlike the defendant in Ex parte Eason, Kelley did not admit guilt through a guilty plea. Therefore, Ex parte Eason does not stand for the proposition that a judgment of conviction is entered absent a trial court's pronouncement of sentence.

Additionally, in further distinguishing Ex parte Eason, we recognize that the trial court in the present case entered a written order purporting to sentence Kelley to life imprisonment for his sexual-torture conviction. However, " '[s]entence' means the pronouncement by the court of the penalty imposed upon the defendant after a judgment of guilty." Rule 26.1, Ala. R.Crim. P. Thus, according to the Alabama Rules of Criminal Procedure and the definition of the word "pronounce" set forth above, the trial court's written order was not the entry of a "sentence" sufficient to support a holding that a judgment of conviction was entered on Kelley's sexual-torture conviction.

Furthermore, the State's reliance on Hill, in light of this Court's decision in Ex parte Walker, is misplaced. In Hill, the trial court pronounced sentence in open court on two of the defendant's felony convictions but did not pronounce a sentence on the defendant's misdemeanor conviction. 733 So.2d at 938. Nonetheless, the trial court recorded a sentence for the misdemeanor on its case-action-summary sheet. On appeal, the defendant alleged, and the State agreed, that the trial court had violated Rule 26.9(b), Ala. R.Crim. P., by not pronouncing the defendant's sentence for the misdemeanor conviction. The Court of Criminal Appeals held that the trial court had violated the defendant's constitutional right to be present at the pronouncement of sentence and remanded the case for the trial court to pronounce sentence upon the defendant pursuant to Rule 26.9, Ala. R.Crim. P. 733 So.2d at 939.

The State correctly points out that, in Hill, the Court of Criminal Appeals did not hold that the trial court's failure to pronounce sentence deprived the Court of Criminal Appeals of jurisdiction. However, in Hill, the parties did not argue that the Court of Criminal Appeals did not have jurisdiction to hear the defendant's appeal, and the Court of Criminal Appeals did not raise and address that issue ex mero motu. Moreover, the Court of Criminal Appeals decided Hill before this Court explicitly set out the requirements for a judgment of conviction in Ex parte Walker. Accordingly, the State's reliance on Hill to demonstrate that the trial court's failure to pronounce both a determination of guilt and a sentence on Kelley's sexual-torture conviction was merely a procedural defect is misplaced.

The State makes a number of additional arguments in response to Kelley's petition that are unrelated to the issue whether the Court of Criminal Appeals had jurisdiction to review Kelley's sexual-torture conviction. Specifically, the State argues that Kelley invited any error the Court of Criminal Appeals committed by failing to include his sexual-torture conviction in his notice of appeal; that the plain-error standard of review under Rule 45A, Ala. R.App. P., does not apply to Kelley's sexual-torture conviction; and that, even if the plain-error standard of review applied to Kelley's sexual-torture conviction, Kelley did not satisfy the requirements under that standard. However, having concluded that the Court of Criminal Appeals lacked jurisdiction to review Kelley's sexual-torture conviction, we pretermit discussion of the State's arguments. " ' "[I]f a court ha[s] no jurisdiction, its action is void." ' Moore v. State, 596 So.2d 53, 54 (Ala.Crim.App.1991), quoting State v. Johns, 142 Ala. 61, 38 So. 755, 755 (1905), quoting in turn Church, Church On Habeas Corpus, § 245, n. 1." L.R.G. v. State, 996 So.2d 208, 210 (Ala.Crim.App.2008).

Finally, Kelley alleges that, because the Court of Criminal Appeals lacked jurisdiction to review his sexual-torture conviction, the Court of Criminal Appeals' opinion purporting to affirm that conviction is merely advisory and was ineffective to affirm his capital-murder convictions. Specifically, Kelley argues that the nonfinality of his sexual-torture conviction and the Court of Criminal Appeals' lack of jurisdiction to review that conviction rendered his entire case, including his two convictions for capital murder, not "ripe for appeal." Kelley's argument is unpersuasive.

In support of his argument that the Court of Criminal Appeals' decision is merely advisory, Kelley relies on Eubanks v. McCollum, 828 So.2d 935 (Ala.Civ.App.2002), Taylor v. Taylor, 398 So.2d 267 (Ala.1981), and In re United States of America, 898 F.2d 1485 (11th Cir.1990). Kelley cites Eubanks and Taylor for the proposition, set out in Taylor, that "an appeal will lie only from a final judgment which determines the issues before the court and ascertains and declares the rights of the parties involved." Taylor, 398 So.2d at 269. Kelley then quotes from In re United States, as follows:

"A final, appealable order is one that has 'a final and irreparable effect on the rights of the parties.' Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). In the context of sentencing orders, our predecessor circuit has held that, when a defendant is sentenced on fewer than all of the counts on which the defendant is convicted, the order is not final for purposes of appeal. See United States v. Wilson, 440 F.2d 1103, 1104-05 (5th Cir.1971).3 Only when the defendant is sentenced on all counts on which he is convicted (or when the convictions on the other counts are otherwise disposed of) does the order become final and appealable. See id. at 1105.4
"____________________
" In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
" 4 If we were writing on a clean slate, we might come to a different conclusion. An appealable order is one that finally and irreparably affects the rights of parties, and, in our view, each count on which a defendant is convicted should constitute a separate case, which is brought to a conclusion by sentencing. We are not at liberty, however, to so hold."

898 F.2d at 1487.

Eubanks is a decision from the Court of Civil Appeals arising from a tort action, 828 So.2d at 936, and Taylor is a decision by this Court affirming a trial court's judgment confirming the sale of land. 398 So.2d at 270. Thus, Eubanks and Taylor address the appealability of a final judgment in civil law. Neither case demonstrates that the Court of Criminal Appeals' lack of jurisdiction over a particular conviction deprives it of the power to adjudicate other convictions that are properly before it.3

Additionally, In re United States is a decision by the United States Court of Appeals for the Eleventh Circuit. "[T]his Court is not bound by decisions of the United States Courts of Appeals...." Ex parte Johnson, 993 So.2d 875, 886 (Ala.2008). Therefore, this Court is not required to follow the rule from In re United States set out above. Moreover, the Eleventh Circuit indicated that its decision was pursuant to its own precedent and that "if [it] were writing on a clean slate, [it] might come to a different conclusion." 898 F.2d at 1487. We have found no Alabama precedent requiring us to come to the same conclusion as the Eleventh Circuit. Accordingly, we see no reason to adopt the above-quoted rule from that court.

Consequently, Kelley's argument that the Court of Criminal Appeals' decision is merely advisory is unpersuasive.

Conclusion

The Court of Criminal Appeals lacked jurisdiction to review Kelley's sexual-torture conviction. However, Kelley's argument that lack of jurisdiction rendered the entirety of the Court of Criminal Appeals' opinion merely advisory is unpersuasive. Accordingly, we reverse the Court of Criminal Appeals' judgment insofar as it affirms Kelley's sexual-torture conviction, and we remand the case for proceedings consistent with this opinion.

REVERSED IN PART AND REMANDED.

MOORE, C.J., and STUART, BOLIN, MAIN, WISE, and BRYAN, JJ., concur.

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

MURDOCK, Justice (dissenting in part and concurring in the result in part).

For a number of reasons, including the avoidance of more than one appeal arising from the same criminal case and the judicial inefficiencies resulting from such a scenario, as well as the uncertainties created for defendants as to when appeals must be filed, I believe that the rule recognized in United States v. Wilson, 440 F.2d 1103, 1104-05 (5th Cir.1971), and subsequently accepted in In re United States of America, 898 F.2d 1485 (11th Cir.1990), is sound. I therefore respectfully dissent insofar as the main opinion holds that Michael Brandon Kelley's convictions for capital murder were properly before the Court of Criminal Appeals, notwithstanding the lack of an entry of a final judgment by the trial court as to the companion charge of sexual torture.

I concur in the result achieved by the main opinion with respect to the reversal of the Court of Criminal Appeals' judgment as it relates to Kelley's sexual-torture conviction. I write separately as to that conviction to note that I am not persuaded that the present case, although distinguishable from Ex parte Eason, 929 So.2d 992 (Ala.2005), on other grounds, may be properly distinguished from Eason on the ground that Eason involved a guilty plea, whereas the present case involves a guilty verdict. Eason itself suggests the lack of such distinction. See Ex parte Eason, 929 So.2d at 995 ("[A] judgment by the court imposing sentence in accordance with a guilty verdict or a guilty plea sufficiently implies the judgment of guilt and serves as a judgment of conviction that will support an appeal." (emphasis added)).

      Rule 26.9(b) provides:
      "(b) Pronouncement of Sentence. In pronouncing sentence, the court shall:
      "(1) Afford the defendant an opportunity to make a statement in his or her own behalf before imposing sentence.
      "(2) State that a credit will be allowed on the sentence, as provided by law, for time during which the defendant has been incarcerated on the present charge.
      "(3) Explain to the defendant the terms of the sentence.
      "(4) Inform the defendant as to the defendant's right to appeal; provided, however, in cases in which the defendant has entered a plea of guilty, the court shall advise the defendant of his or her right to appeal only in those cases in which the defendant (i) has entered a plea of guilty, but before entering the plea of guilty has expressly reserved his or her right to appeal with respect to a particular issue or issues, or (ii) has timely filed a motion to withdraw the plea of guilty and the motion has been denied, either by order of the court or by operation of law. When informing the defendant of his or her right to appeal, the court shall also advise the defendant that if he or she is indigent, counsel will be appointed to represent him or her on appeal if the defendant so desires, and that a copy of the record and the reporter's transcript will be provided at no cost to the defendant for purposes of appeal, if the appeal is from a judgment and sentence of the circuit court."

      Rule 45A provides:
      "In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."

      We note that, under Alabama law, Kelley's capital-murder convictions were properly before the Court of Criminal Appeals. The trial court pronounced a determination of guilt and a sentence for each of Kelley's capital-murder convictions; therefore, a judgment of conviction issued for each of those convictions. Kelley then invoked the jurisdiction of the Court of Criminal Appeals by timely filing a notice of appeal that indicated that he was appealing his capital-murder convictions. Moreover, even if Kelley did not file a notice of appeal, the Court of Criminal Appeals automatically reviews a judgment of conviction in which the sentence of death has been imposed. § 13A-5-55, Ala.Code 1975 ("In all cases in which a defendant is sentenced to death, the judgment of conviction shall be subject to automatic review."); Beck v. State, 396 So.2d 645, 664 (Ala.1980) ("In Alabama, a sentence of death is automatically reviewed by the Court of Criminal Appeals....").


author: WINDOM, Presiding Judge.

text:
    Michael Brandon KELLEY v. STATE of Alabama
    CR-10-0642.
    Court of Criminal Appeals of Alabama.
    June 3, 2016. Certiorari Denied May 19, 2017
    Alabama Supreme Court 1160533.
    Jessica Oats, Raoul Dieter Schonemann (withdrew 07/11/2013), and William Robert Montross, Jr., Atlanta, Georgia, for appellant.
    Luther Strange, atty. gen., and Jess R. Nix and Andrew Lynn Brasher, deputy attys. gen., and Megan Arys Kirkpatrick, asst. atty. gen., for appellee.
    On Remand from the Alabama Supreme Court
   WINDOM, Presiding Judge.

On September 5, 2014, this Court affirmed Michael Brandon Kelley's two convictions for capital murder, see §§ 13A-5-40(a)(1) and 13A-5-40(a)(8), Ala.Code 1975, his sentences of death for those convictions, and his one conviction for sexual torture, see § 13A-6-65.1, Ala.Code 1975. Kelley v. State , 246 So.3d 1032 (Ala.Crim.App.2014). On February 24, 2015, the Alabama Supreme Court granted Kelley's petition for a writ of certiorari to review whether this Court had jurisdiction to affirm his sexual-torture conviction.

On November 6, 2015, the Alabama Supreme Court issued an opinion in which it determined that this Court did not have jurisdiction to affirm Kelley's conviction for sexual torture. Ex parte Kelley , 246 So.3d 1068 (Ala.2015). Specifically, the Alabama Supreme Court determined that the circuit court had not pronounced a sentence for Kelley's sexual-torture conviction; therefore, there had been no judgment of conviction under § 12-22-130, Ala.Code 1975, from which to appeal. 246 So.3d at 1071. Because there was no judgment of conviction relating to the sexual-torture charge, any appeal from that charge was not ripe. 246 So.3d at 1071. Consequently, this Court lacked jurisdiction to affirm that conviction. 246 So.3d at 1071.

After determining that this Court lacked jurisdiction to affirm Kelley's conviction for sexual torture, the Alabama Supreme Court "reverse[d] the Court of Criminal Appeals' judgment insofar as it affirm[ed] Kelley's sexual-torture conviction, and ... remand[ed] the case for proceedings consistent with [its] opinion." 246 So.3d at 1076. In accordance with the Alabama Supreme Court's opinion in Ex parte Kelley , 246 So.3d 1068 (Ala.2015), this Court's judgment in Kelley v. State , 246 So.3d 1032 (Ala.Crim.App.2014), is vacated to the extent it addressed and affirmed Kelley's conviction for sexual torture, and Kelley's appeal from that conviction is dismissed.

APPEAL DISMISSED IN PART.

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


text:
    Roger James YOUNG and Timothy James Davis v. STATE of Alabama
    CR-15-0020
    Court of Criminal Appeals of Alabama.
    February 10, 2017 Rehearing Denied April 21, 2017 Certiorari Denied August 11, 2017
    Alabama Supreme Court 1160680
    Julian L. McPhillips, Jr., and Joseph C. Guillot, Montgomery, for appellant Roger James Young.
    Susan G. James, Montgomery, for appellant Timothy James Davis.
    Luther Strange, atty. gen., and Laura I. Cuthbert, asst. atty. gen., for appellee.
   WINDOM, Presiding Judge.

Roger James Young and Timothy James Davis were tried jointly and convicted of various offenses they committed together. In particular, Young was convicted of one count of first-degree burglary, see § 13A-7-5, Ala. Code 1975, and two counts of first-degree robbery, see § 13A-8-41, Ala. Code 1975. As a result, Young was sentenced to concurrent terms of 20 years in prison for each conviction. Davis was convicted of one count of first-degree burglary, see § 13A-7-5, Ala. Code 1975, two counts of first-degree robbery, see § 13A-8-41, Ala. Code 1975, and one count of attempted murder, see §§ 13A-4-2 and 13A-6-2, Ala. Code 1975. Davis was sentenced to serve concurrent terms of 20 years in prison for the burglary and robbery convictions and a consecutive term of 20 years for the attempted-murder conviction.

The relevant facts are as follows. During the trial and after numerous witnesses had testified, Juror S.H. informed the circuit court that she worked with Davis's wife, Joycelyn Davis. The circuit court asked S.H. if working with Mrs. Davis would affect her ability to be fair and impartial. S.H. indicated that it would be uncomfortable but that it would not affect her ability to be fair and impartial. At that point, the circuit court decided to leave S.H. on the jury.

The parties concluded their cases and the jury was instructed on a Friday. The alternate jurors were released from service with no instructions. The jurors then began deliberating at 1 o'clock p.m. At 4 o'clock p.m., the court recessed for the weekend and instructed the jury to return at 1 o'clock p.m. the following Monday to resume deliberations.

When the jury returned that Monday, the jury foreperson sent a note to the circuit court indicating that there was an issue with S.H. The circuit court questioned S.H. about the issue, and S.H. informed the court that, although she had said that she could be fair and impartial, she actually could not because of her working relationship with Joycelyn Davis. She told that court that she "absolutely cannot do this." (R. 378.) The circuit court then released S.H. from further jury duty. After releasing S.H., the circuit court informed the remaining jurors that it would try to contact an alternate juror and instructed the remaining jurors to stop deliberating and to take a recess.

During the recess, defense counsel moved for a mistrial arguing, among other things, that the alternate jurors had been released for the weekend with no instructions to refrain from talking about or investigating the case. The circuit court denied defense counsel's motion. Later, alternate Juror F.J. was contacted and indicated that she could return to the court the next day, Tuesday.

On Tuesday when F.J. returned, the following occurred:

"THE COURT: ... [F.J.,] you left us at the close of the case on Friday; is that right?
"[F.J.]: Yes, sir.
THE COURT: Since that time, in the event you have discussed the case with anyone or had anyone discuss it with you, are you able to set aside any information you have gained during that time and deliberate strictly on the evidence presented during the trial?
"[F.J.]: Yes, sir.
"THE COURT: Any questions you want to ask me?
"[F.J.]: No, sir.
"THE COURT: That's all I need to know."

(R. 389.) The circuit court then instructed the jury that F.J. would be returning and that, once F.J. returned, the jury must begin its deliberations anew. Defense counsel again objected to the substitution and moved for a mistrial arguing that it was improper to substitute an alternate juror who had not been instructed to avoid outside influences. The circuit court again denied counsel's motion. Thereafter, the jury found Young and Davis guilty on all charges.

On appeal, Young and Davis argue that the circuit court improperly substituted F.J. for S.H. According to Young and Davis, when the circuit court released F.J. on Friday, it failed to instruct her to refrain from discussing the case and/or allowing herself to be swayed by any outside influences. They assert that, when the circuit court brought F.J. back to serve the next Tuesday, it failed to inquire as to what, if any, outside influences she may have had during the time in which she had been released. They argue that the circuit court merely made a cursory inquiry regarding whether F.J. believed she could set aside any information she had gained from discussions and decide the case based on the evidence presented at trial. Young and Davis contend that the procedure used to substitute F.J. for S.H. violated this Court's holding in Peak v. State, 106 So.3d 906 (Ala. Crim. App. 2012), and the Alabama Supreme Court's holding Lloyd Noland Hospital v. Durham, 906 So.2d 157 (Ala. 2005) ; therefore, the circuit court should have granted a mistrial.

" 'A mistrial is a drastic remedy that should be used sparingly and only to prevent manifest injustice.' Hammonds v. State, 777 So.2d 750, 767 (Ala. Crim. App. 1999) (citing Ex parte Thomas, 625 So.2d 1156 (Ala. 1993) ), aff'd, 777 So.2d 777 (Ala. 2000). A mistrial is[, however,] the appropriate remedy when a fundamental error in a trial vitiates its result. Levett v. State, 593 So.2d 130, 135 (Ala. Crim. App. 1991). 'The decision whether to grant a mistrial rests within the sound discretion of the trial court and the court's ruling on a motion for a mistrial will not be overturned absent a manifest abuse of that discretion.' Peoples v. State, 951 So.2d 755, 762 (Ala. Crim. App. 2006)."

Peak, 106 So.3d at 915.

At the conclusion of the case in Peak, the circuit court released the alternate juror but instructed her as follows: " 'I would ask you not to discuss the case with anybody until tomorrow midmorning. All right. If we get past tomorrow midmorning, then you can discuss [the case] with whomever you'd like after that time.' (R. 1017.)" Peak, 106 So.3d at 913. The following morning, after the jury had been deliberating, it became necessary to release a juror who had been serving on Peak's jury. Id. The circuit court recalled the alternate juror.

"Once [the alternate juror] returned, the circuit court asked [the alternate juror] if she followed the court's instructions not to talk to anyone about the case. [The alternate juror] assured the court that she had followed the court's instructions and had not discussed the case, other than to tell her husband that it was a serious case, and that it did not bother her to not have to sit on the jury. The circuit court then brought the remaining members of the jury into open court and informed them that [the alternate juror] had returned to serve on the jury [and that they must begin their deliberations anew]."

Peak, 106 So.3d at 913.

On appeal, Peak argued that the circuit court erroneously substituted the alternate juror after jury deliberations had begun. Id. at 915. This Court rejected Peak's argument. Id. at 913. Specifically, this Court held:

"Our Supreme Court recently addressed the issue whether a mid-deliberations substitution of an alternate juror was permissible in Lloyd Noland Hospital v. Durham, [906 So.2d 157 (Ala. 2005) ]. In Lloyd Noland-a civil, medical-malpractice case-the circuit court charged the jury and designated one of the jurors as an alternate. The court instructed the alternate juror to go to one of the conference rooms in the courthouse while the jury deliberated.
On the second full day of deliberations, 1 of the 12 principal jurors failed to appear for jury duty. The defendant objected to substituting the alternate late in the deliberative process and moved for a mistrial. Lloyd Noland, 906 So.2d at 162. The circuit court denied the motion for a mistrial, brought the alternate before the court, and inquired whether the alternate had spoken to anyone about the case. After learning that no discussion had taken place, the circuit court confirmed that the alternate 'could be an impartial juror; that she could weigh the evidence and testimony and be fair to both sides; and that she could render a true and impartial verdict.' 906 So.2d at 162. The circuit court then assembled the reconstituted jury and instructed it to begin its deliberations anew. After deliberating for two hours, the jury returned a verdict in favor of Durham. The hospital subsequently filed a motion for a new trial, arguing for the first time that replacing the absent juror with the alternate after deliberations had begun violated Rule 47(b), Ala. R. Civ. P. The circuit court denied the motion, and the hospital appealed.
"Finding that the hospital's Rule 47(b) argument was not properly preserved for review on appeal, the Supreme Court considered only whether the circuit court erred in refusing to declare a mistrial in the face of the hospital's assertion that placing the alternate on the jury would disadvantage and unduly prejudice the hospital in light of the 'dynamic of the deliberation process.' Lloyd Noland, 906 So.2d at 167-68. In considering the issue presented, our Supreme Court stated:
" 'We agree with the Hospital that the appellate courts of this State have never addressed the issue whether such a mid-deliberations substitution of an alternate juror is permissible. In Cork v. State, 433 So.2d 959 (Ala. Crim. App. 1983), a regular juror was discharged immediately before the case was submitted to the jury for deliberations, and an alternate substituted. The appellant in that case had objected to the substitution on the basis that there was no necessity for excusing the original juror. The Court of Criminal Appeals concluded that the trial judge had acted within its sound discretion in excusing the juror. In Toombs v. State, 739 So.2d 550 (Ala. Crim. App. 1999), a mid-deliberations substitution was made and, although the defendant moved for a mistrial on the ground that the substitution infringed on his right to a fair trial, he did not argue that ground on appeal. Rather, he argued on appeal only that the trial judge had committed reversible error by having an ex parte communication with the jury after it had begun its deliberations. Thus, the Court of Criminal Appeals held that the issue argued on appeal had not been preserved but volunteered that, even if it had, "the trial judge's communication with the jury did not amount to reversible error." 739 So.2d at 552.
" 'Both parties have cited various cases from other jurisdictions on point, but most of those cases are inapposite because they rely on a particular rule of procedure of that jurisdiction and/or a particular state constitutional provision, whereas for the reasons explained, we cannot consider on this appeal the implications of Rule 47, Ala. R. Civ. P., or § 11 of the Alabama Constitution. A thorough survey of the cases from other jurisdictions is found in David B. Sweet, Annotation, Propriety, Under State Statute or Court Rule, of Substituting State Trial Juror with Alternate After Case has been Submitted to Jury, 88 A.L.R.4th 711 (1991). Both the Hospital and Durham discuss in their respective briefs a number of those cases, and it may be fairly said that with respect to the two main issues involved-whether a mid-deliberations substitution is error per se and whether such an error can be considered harmless-cases go both ways. All of the cases cited by the Hospital are criminal cases, including some death-penalty cases. In most of those cases, a state procedural rule or a state statute, or both, expressly mandated the discharge of alternate jurors once the regular jurors began their deliberations. For example, in People v. Burnette, 775 P.2d 583 (Colo. 1989), and State v. Bobo, 814 S.W.2d 353 (Tenn. 1991), both cited by the Hospital, the state's applicable rule of criminal procedure mandated that "[a]n alternate juror who does not replace a regular juror shall be discharged when the jury retires to consider its verdict." Rule 18.4(g)(1), Ala. R. Crim. P., contains substantially identical language. It may be contrasted with the less specific language of Rule 47(b), Ala. R. Civ. P., but this case does not require us to consider whether that difference in phrasing between the two rules is meaningful. Suffice it to say that in Burnette and Bobo the mandatory language controlled. Also implicated in both of those decisions were the respective state constitutional provisions relating to trial by jury.
" 'In certain of the cases in which the court was unwilling to entertain a harmless-error analysis of a mid-deliberations substitution, it was important that the alternate juror had been discharged or otherwise allowed to resume his or her normal activities in the community before being recalled and that the alternate was not questioned about those activities or a present ability to serve on the jury when recalled. E.g., Burnette. Once we eliminate from the cases cited by the Hospital those relying, in whole or part, on violations of state criminal statutes; violations of state criminal procedural rules; violations of state constitutional provisions relating to the right to trial by jury; and/or the inadequacy of the questioning of the alternate juror and the instructions given the alternate and the remaining regular jurors, we find no case ordering a reversal of a judgment for a mid-deliberations substitution of an alternate juror solely because the substitution created an abstract disadvantage or prejudice to the objecting party or because of "the dynamic of the deliberation process." As the court noted in State v. Sanchez, 129 N.M. 284, 6 P.3d 486, 490-92 (2000), Federal Rule of Criminal Procedure 24(c) originally required that any substitution of an alternate juror occur before the alternate jurors were discharged and before the jury retired to deliberate. Effective December 1, 1999, however, Rule 24(c), Fed. R. Crim. P., was amended to read as follows:
" ' "When the jury retires to consider the verdict, the court in its discretion may retain the alternate jurors during deliberations. If the court decides to retain the alternate jurors, it shall insure that they do not discuss the case with any other person unless and until they replace a regular juror during deliberations. If an alternate replaces a juror after deliberations have begun, the court shall instruct the jury to began its deliberations anew."
" '....
" ' "State courts are increasingly willing to allow substitution during deliberation of an alternate juror kept separate from the deliberating jurors." Jon D. Ehlinger, Substitution of Alternate Jurors During Deliberations: Constitutional and Procedural Considerations, 57 Notre Dame Law. 137, 161 (1981). Should a judge decide, in his or her discretion, to allow an alternate juror to substitute for a regular juror during deliberations, the court should "conduct a careful voir dire of the alternate to determine if he has been subject to any impermissible outside influence and can still make a fair decision." Additionally, "[t]he court should further instruct the regular jurors to begin deliberations anew, or to summarize to the alternate juror the extent of the deliberations to that point." Id. at 164.
" '....
" 'Given the limited grounds for a mistrial presented to the trial judge and the corresponding narrow scope of our review and the steps the trial judge took to attempt to counteract the potential for the particular prejudice about which the Hospital expressed concern, including an admonitionary final charge to the jury, to which no objection was made, we cannot say that the trial judge committed reversible error in denying the Hospital's motion for a mistrial on the juror-substitution issue.'
" Lloyd Noland, 906 So.2d at 166-68.
"In this case, as in Lloyd Noland, the issue before us is limited by the argument that was properly preserved for review on appeal. Therefore, we must decide if the circuit court's decision to replace a juror with an alternate after deliberations had begun necessitated a mistrial under the particular facts and circumstances of this case. The record on appeal established that the circuit court instructed Juror J.G., as the last remaining alternate, not to discuss the case with anyone until midmorning the next day. The jury deliberated for approximately one and one-half hours before going home for the evening. The following day, the circuit court postponed deliberations until it could telephone Juror J.G. to return to court. When questioned if she had followed the circuit court's instructions not to talk to anyone about the case, Juror J.G. indicated that she had complied with the court's instructions. The circuit court then brought the remaining jurors into the courtroom and instructed the jury to begin its deliberations anew. Given the argument presented on appeal and the steps taken by the circuit court to counteract the potential for prejudice, including the circuit court's questioning of Juror J.G. following her return to court and the instructions given to the jury to begin deliberations anew, we cannot say that the circuit court abused its discretion when it denied Peak's motion for a mistrial on the issue of juror substitution. See Lloyd Noland, supra."

Peak v. State, 106 So.3d 906, 915-18 (Ala. Crim. App. 2012) (emphasis added).

In Peak, Judge Joiner wrote a concurring opinion joined by Judge Burke. In his concurring opinion, Judge Joiner explained:

"[T]he unusual circumstances of this case limit the holding of the main opinion to the specific facts presented here. In particular, after charging the jury, the circuit court instructed Juror J.G. that she not talk to anyone about the case 'until tomorrow midmorning.' The circuit court requested Juror J.G.'s telephone number so that she could be contacted if she needed to be called back for service on the jury. The next day, once it became apparent that Juror A.D. should be excused from the jury, the circuit court instructed the bailiff to contact Juror J.G. and ask if she could return to serve on the jury. After Juror J.G. returned, the circuit court determined that Juror J.G. had followed its instructions, and 'Juror J.G. assured the court that she ... had not discussed the case, other than to tell her husband that it was a serious case, and that it did not bother her to not have to sit on the jury.' 106 So.3d at 913. The circuit court then instructed the jury to disregard its previous deliberations and begin its deliberations anew with Juror J.G. Thus, the circuit court's actions in this case were consistent with the following procedure described in Lloyd Noland Hospital v. Durham, 906 So.2d 157, 167 (Ala. 2005) :
" 'Should a judge decide, in his or her discretion, to allow an alternate juror to substitute for a regular juror during deliberations, the court should "conduct a careful voir dire of the alternate to determine if he has been subject to any impermissible outside influence and can still make a fair decision." [Jon D. Ehlinger, Substitution of Alternate Jurors During Deliberations: Constitutional and Procedural Considerations, 57 Notre Dame Law. 137, 161 (1981).] Additionally, "[t]he court should further instruct the regular jurors to begin deliberations anew, or to summarize to the alternate juror the extent of the deliberations to that point." Id. at 164.'
"Had the circuit court's actions in the case before us not been consistent with that procedure, I am not persuaded that the outcome should necessarily be the same as that reached today."

Peak, 106 So.3d at 922 (Joiner, J., concurring specially).

In the case at hand, the circuit court released alternate Juror F.J. without instructing her to refrain from improper contacts or influences. For three days, F.J. remained free to discuss the case, to visit the crime scene, to conduct experiments, etc. When F.J. was recalled, the circuit court conducted absolutely no voir dire to determine if she had been subjected to any impermissible outside influences. Instead, the circuit court merely asked F.J. if, in the event she had discussed the case with anyone, she could set aside any information she had obtained during those discussions. The circuit court's actions fall far short of the procedure outlined in Peak for recalling an alternate juror mid-deliberations. Consequently, the circuit court violated Young's and Davis's right to a fair and impartial jury.

Further, this Court cannot say that the circuit court's error was harmless. " 'In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the United States Supreme Court held that before a court's error in violating certain constitutional rights can be held harmless, the appellate court must be able to declare that the error was harmless beyond a reasonable doubt.' " Penn v. State, 189 So.3d 107, 116 (Ala. Crim. App. 2014) (quoting Trimble v. State, 157 So.3d 1001, 1005 (Ala. Crim. App. 2014) ). Here, the circuit court released F.J. for three days with no instructions to avoid improper influences. When F.J. was recalled, the circuit court merely asked if she could set aside any information she had obtained during any discussions but failed to inquire into what impermissible influences she may have been subjected. Further, although F.J. stated that she could set aside any discussions she had had concerning the case, the circuit court's failure to investigate the types of influences to which F.J. may have been subjected or the extent to which F.J. may have been influenced diminishes the weight that may be placed on F.J.'s answer. See Ex parte Potter, 661 So.2d 260, 262 (Ala. 1994) (jurors' visit to the scene of the crime to view the width of the street in a criminally-negligent-homicide case might have affected the jury's verdict, despite testimony to the contrary); Ex parte Troha, 462 So.2d 953 (Ala. 1984) (juror's communication with his minister brother requesting scripture references during deliberations in rape defendant's prosecution warranted reversal because the misconduct might have influenced the verdict). Consequently, this Court cannot say that the circuit court's error was harmless beyond a reasonable doubt.

For the foregoing reasons, Young's and Davis's convictions and sentences are reversed, and the causes are remanded for further proceedings.

REVERSED AND REMANDED.

Welch, Kellum, and Burke, JJ., concur. Joiner, J., concurs specially, with opinion.

JOINER, Judge, concurring specially.

After this Court's decision in Peak v. State, 106 So.3d 906 (Ala. Crim. App. 2012), Rule 18.4 was amended to include Rule 18.4(g)(2), which provides a mechanism for retaining alternate jurors. Rule 18.4(g)(2) states:

"The court may retain alternate jurors after the jury retires to deliberate. The court must ensure that a retained alternate does not discuss the case with anyone until that alternate replaces a juror or is discarded. If an alternate replaces a juror after deliberations have begun, the court must instruct the jury to begin its deliberations anew."

As the main opinion notes, after the parties concluded their cases and the jury was instructed, the circuit court released the alternate jurors with no instructions, and the jury began its deliberations at 1 p.m. on a Friday. The following Monday, the circuit court decided to release juror S.H. from further jury duty and informed the attorneys that the court would try to contact the released alternate jurors. Defense counsel then moved for a mistrial and asserted, among other grounds, that the circuit court had released the alternate jurors without instructing them not to discuss the case with anyone. (R. 383-84.) In footnote 1 of the main opinion, the Court states that the appellants failed to assert Rule 18.4, Ala. R. Crim. P., as a ground for a mistrial below. Although defense counsel did not specifically mention Rule 18.4(g)(2), the substance of defense counsel's argument was that the circuit court had released the alternate jurors without complying with certain provisions of Rule 18.4(g)(2).

Regardless of whether strict compliance with Rule 18.4(g)(2) is necessary to avoid a mistrial when an alternate replaces a juror after the jury's deliberations have begun, I agree that the procedure used by the circuit court in this case did not meet the minimum requirements discussed in Peak, and that, therefore, the judgments are due to be reversed.

      Young and Davis also argue that the circuit court's actions violated Rule 18.4, Ala. R. Crim. P. They, however, failed to assert Rule 18.4, Ala. R. Crim. P., as a ground below; therefore, this issue is not properly before this Court. See Peak, 106 So.3d at 912-14.