text:
    E.D., Jr. v. LEE COUNTY DEPARTMENT OF HUMAN RESOURCES
    2170190
    Court of Civil Appeals of Alabama.
    June 15, 2018
    Stephanie M. Pollard of Beverlye Brady & Associates, Auburn, for appellant.
    Steve Marshall, atty. gen., and Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for appellee.
   THOMAS, Judge.

E.D., Jr. ("the father"), and J.M. ("the mother") are the parents of a son, S.G.D. ("the child"). The Lee County Department of Human Resources ("DHR") commenced in the Lee Juvenile Court ("the juvenile court") a dependency proceeding that was assigned case no. JU-17-373.01 ("the dependency action"). The father appeals the judgment entered in the dependency action determining that the child is dependent as to the father and awarding the child's custody to the mother.

The record on appeal reveals the following. The mother and the father are the unmarried parents of the child, who was born in 2011. At some point the parents' romantic relationship changed, and the record in this appeal indicates that the mother initiated a paternity and child-support action and the father initiated a paternity action in the Lee Circuit Court "Child Support Division." Apparently those actions were consolidated and assigned case no. CS-13-900004 ("the child-support action"). The record in this appeal does not contain orders entered in the child-support action; however, it contains a copy of the parties' settlement agreement in which they stipulated to the father's paternity of the child and requested an order awarding them joint custody of the child. It is undisputed that the parties shared joint custody of the child.

In July 2017, DHR received a report that the father had poured hot water on the child to punish him, and, during DHR's investigation, the child disclosed to DHR that the father had touched the child's penis and had made him feel uncomfortable. DHR had also learned that the father was "indicated" for physical abuse and bizarre discipline of his four older children from another relationship.

On August 1, 2017, the mother filed a complaint seeking a modification of the custody judgment entered in the child-support action. On August 14, 2017, DHR initiated the dependency action, alleging that the child was dependent as to the father. On August 29, 2017, the mother filed in the juvenile court a complaint seeking the entry of a protection-from-abuse ("PFA") order against the father on behalf of herself and the child, which was assigned case no. CV-17-163 ("the PFA action"). The record contains an order entered in the PFA action, awarding the mother temporary custody of the child and providing that the child could not visit the father. See § 12-15-138, Ala. Code 1975 ("The juvenile court, at any time after a dependency petition has been filed, or on an emergency basis, may enter an order of protection or restraint to protect the health or safety of a child subject to the proceeding."). After a hearing in the dependency action, the juvenile court entered a judgment adjudicating the child dependent as to the father and awarding sole legal and physical custody of the child to the mother.

We first consider whether the juvenile court properly exercised subject-matter jurisdiction over the dependency action. "We review the legal question of subject-matter jurisdiction de novo." T.K. v. M.G., 82 So.3d 1, 3 (Ala. Civ. App. 2011) (citing Hill v. Hill, 89 So.3d 116, 117-18 (Ala. Civ. App. 2010) ). Section 12-15-114(a), Ala. Code 1975, provides, in pertinent part:

"(a) A juvenile court shall exercise exclusive original jurisdiction of juvenile court proceedings in which a child is alleged to have committed a delinquent act, to be dependent, or to be in need of supervision. A dependency action shall not include a custody dispute between parents."

The pleading that initiated the dependency action was not filed by the mother or the father as a custody dispute; rather, it was filed by DHR, alleging that the child is dependent as to the father. "Once the dependency jurisdiction of a juvenile court has been properly invoked, the juvenile court has an imperative statutory duty to conduct an evidentiary hearing to determine the dependency of the child." K.C.G. v. S.J.R., 46 So.3d 499, 501 (Ala. Civ. App. 2010). The juvenile court properly exercised its dependency jurisdiction. Furthermore, § 12-15-138 provides that a juvenile court has the authority to protect the health and safety of a child in emergency circumstances, such as those alleged by DHR in this case.

Next, we consider whether the child is a dependent child. DHR asked the juvenile court to resolve a question upon which neither this court nor our supreme court has offered guidance until today:

whether a child can be a dependent child if the child has a fit custodial parent.

"Our standard of review of dependency determinations is well settled.
" 'A finding of dependency must be supported by clear and convincing evidence. § 12-15-65(f)[, Ala. Code 1975]; M.M.S. v. D.W., 735 So.2d 1230, 1233 (Ala. Civ. App. 1999). However, matters of dependency are within the sound discretion of the trial court, and a trial court's ruling on a dependency action in which evidence is presented ore tenus will not be reversed absent a showing that the ruling was plainly and palpably wrong. R.G. v. Calhoun County Dep't of Human Res., 716 So.2d 219 (Ala. Civ. App. 1998) ; G.C. v. G.D., 712 So.2d 1091 (Ala. Civ. App. 1997) ; and J.M. v. State Dep't of Human Res., 686 So.2d 1253 (Ala. Civ. App. 1996).'
" J.S.M. v. P.J., 902 So.2d 89, 95 (Ala. Civ. App. 2004). This court has stated that clear and convincing evidence is
" ' "[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt."
" '§ 6-11-20[ (b) ](4), Ala. Code 1975.'
" L.M. v. D.D.F., 840 So.2d 171, 179 (Ala. Civ. App. 2002)."

L.A.C. v. T.S.C., 8 So.3d 322, 326-27 (Ala. Civ. App. 2008).

A "dependent child" is defined in § 12-15-102(8)a. as "[a] child who has been adjudicated dependent by a juvenile court and is in need of care or supervision and meets any of the following circumstances:

"1. Whose parent, legal guardian, legal custodian, or other custodian subjects the child or any other child in the household to abuse, as defined in subdivision (2) of Section 12-15-301[Ala. Code 1975,] or neglect as defined in subdivision (4) of Section 12-15-301, or allows the child to be so subjected.
"2. Who is without a parent, legal guardian, or legal custodian willing and able to provide for the care, support, or education of the child.
"3. Whose parent, legal guardian, legal custodian, or other custodian neglects or refuses, when able to do so or when the service is offered without charge, to provide or allow medical, surgical, or other care necessary for the health or well-being of the child.
"4. Whose parent, legal guardian, legal custodian, or other custodian fails, refuses, or neglects to send the child to school in accordance with the terms of the compulsory school attendance laws of this state.
"5. Whose parent, legal guardian, legal custodian, or other custodian has abandoned the child, as defined in subdivision (1) of Section 12-15-301.
"6. Whose parent, legal guardian, legal custodian, or other custodian is unable or unwilling to discharge his or her responsibilities to and for the child.
"7. Who has been placed for care or adoption in violation of the law.
"8. Who, for any other cause, is in need of the care and protection of the state."

In Ex parte L.E.O., 61 So.3d 1042 (Ala. 2010), L.E.O. and P.O. initiated an action by filing a petition in the Madison Juvenile Court alleging that J.I.P., Jr., a child in their care, was dependent and seeking an award of custody. 61 So.3d at 1043. The Madison Juvenile Court concluded that J.I.P., Jr., was not a dependent child. Id. A majority of our supreme court determined that, because he had been abandoned by everyone legally required to care for him, J.I.P., Jr., was a dependent child even though his father was a noncustodial parent desiring to assume his custody. Id. at 1050. Our supreme court explained:

"It is a reasonable interpretation of [former] § 12-15-1(10)[, Ala. Code 1975, the predecessor to § 12-15-102(8)(a).,] to require that, in determining whether a child is 'in need of care or supervision,' the juvenile court must consider whether the child is receiving adequate care and supervision from those persons legally obligated to care for and/or to supervise the child. The child is entitled to the care or supervision from those persons with the authority to take appropriate actions on behalf of the child, such as, for example, to enroll the child in school, to authorize medical care for the child, and to obtain insurance for the benefit of the child. This interpretation comports with the purposes of the [new] Alabama Juvenile Justice Act, ... § 12-15-101 et seq., Ala. Code 1975, among which are to provide children with permanency and to foster family preservation."

61 So.3d at 1047. In G.H. v. Cleburne County Department of Human Resources, 62 So.3d 540, 544 (Ala. Civ. App. 2010), this court, on the authority of Ex parte L.E.O., reiterated that, even if a child has a fit noncustodial parent willing to assume custody, the child can be dependent if the child is dependent as to the custodial parent. See also G.H., 62 So.3d at 551 (Moore, J., concurring in the result).

In this case, the parents exercised joint custody of the child. In other words, both parents were custodial parents. DHR alleged and offered testimony intended to demonstrate that the child was dependent as to the father, but it did not allege or offer testimony intended to demonstrate that the child was dependent as to the mother. In fact, DHR's witnesses testified that the child was well taken care of by the mother, and the record demonstrates that she had acted to protect the child's health and safety by seeking a PFA order in the PFA action and a custody modification in the child-support action. Because the child in this case has a fit and willing custodial parent, he is not similarly situated to the child in Ex parte L.E.O. or to the children in G.H. There is no evidence demonstrating that the child's care or supervision is inadequate. The mother, a person legally obligated to care for and to supervise the child, has the authority to take appropriate actions on behalf of the child, and she has done so.

We have also examined whether our decision in this case would conflict with our previous decisions in J.L. v. W.E., 64 So.3d 631 (Ala. Civ. App. 2010) ; M.P.G. v. Jefferson County Department of Human Resources, 215 So.3d 1096 (Ala. Civ. App. 2016) ; and T.W. v. Madison County Department of Human Resources, 946 So.2d 469 (Ala. Civ. App. 2006). In J.L., R.L., the mother, had been the custodial parent of her child, L.L., pursuant to a divorce judgment. 64 So.3d at 632. Later, L.L. was removed from R.L.'s custody and placed in foster care based upon a suspicion that R.L. had abused L.L.'s sibling. Id. J.L., L.L.'s father, and L.L.'s maternal grandparents sought custody of L.L. in the Talladega Juvenile Court, which adjudicated L.L. dependent, awarded her custody to DHR, and placed her with her maternal grandparents. Id. at 632-33. J.L. filed a notice of appeal arguing that L.L. was not dependent. Id. at 634. We determined that the evidence presented had not demonstrated that J.L. was unable or unwilling to parent L.L. and concluded that there had been no need to conduct the dispositional phase of a dependency proceeding. Id. at 637. However, we did not order the Talladega Juvenile Court to dismiss the action because J.L. was not a custodial parent. Instead, we remanded the action, noting that a judgment must be entered divesting the custodial parent of custody based upon the finding of dependency and awarding custody to the noncustodial parent. Id.

In M.P.G., we relied upon T.W., and reiterated that a juvenile court cannot dismiss a dependency action without holding an evidentiary hearing to afford a parent who had been the custodial parent an opportunity to introduce evidence indicating that a child should be returned to his or her custody. M.P.G., 215 So.3d at 1101. We observed that to hold otherwise would have allowed transfers of permanent custody of children without evidentiary hearings to consider the best interests of such children.

"In T.W., the Madison County Department of Human Resources had filed a dependency petition concerning F.H., alleging that F.H. was dependent because she and one of her half siblings, whose custody was not at issue in T.W., had been found to have unexplained injuries and previous injuries that had healed. 946 So.2d at 470. The petition further alleged that F.H. had told a social worker that B.F., the boyfriend of T.W., F.H.'s mother, had caused the injuries; that T.W. had been unable or unwilling to offer a plausible explanation for F.H.'s injuries; and that T.W. was unable or unwilling to protect F.H. from further physical abuse. Id. The Madison Juvenile Court held a shelter-care hearing and placed F.H. in the custody of K.H., F.H.'s father. 946 So.2d at 470-72. Thereafter, the Madison Juvenile Court entered an order setting a hearing regarding ' "temporary legal custody." ' 946 So.2d at 472. The mother then filed a motion for an evidentiary hearing regarding custody of F.H. Id. In response to that motion, the Madison Juvenile Court set the action for an evidentiary hearing, id.; however, a week before the scheduled evidentiary hearing, the Madison County Department of Human Resources filed a motion to dismiss the dependency action involving F.H., 946 So.2d at 473. In support of its motion, the Madison County Department of Human Resources alleged that F.H. was doing well in K.H.'s care and that it no longer considered F.H. to be dependent. Id. The following day the Madison Juvenile Court entered a judgment granting the Madison County Department of Human Resources' motion to dismiss. Id. T.W. filed a postjudgment motion asking the Madison Juvenile Court to vacate its judgment granting the motion to dismiss and to set the action for an evidentiary hearing so that she would have an opportunity to introduce evidence indicating that she was the fit and proper person to have custody of F.H. Id. That motion was denied; T.W. then appealed to this court. Id.
"This court concluded that the Madison Juvenile Court had erred in dismissing the dependency action without affording T.W. an opportunity to introduce evidence indicating that F.H. should be returned to T.W.'s custody, stating:
" '[T]he [Madison Juvenile Court's] dismissal of this action effectuated a transfer of permanent custody of the child to [K.H.] without holding an evidentiary hearing to consider the best interests of the child. See D.K.G. v. J.H., 627 So.2d 937 (Ala. Civ. App. 1993) (the appropriate standard to be applied in the dispositional phase of a dependency proceeding is the "best-interests-of-the-child standard"). In addition, this court recently noted that the final dispositional order in a dependency action " 'coincide[s] with the end of the child's dependency ....' "; such an order, " 'results in a custody award wherein the parent or custodian is able and willing to have the care, custody, and control of the child, free from any intervention or supervision by the state under the dependency statutes.' " In re B.B., 944 So.2d 960, 962 (Ala. Civ. App. 2006) (quoting S.P. v. E.T., 957 So.2d 1127, 1131 (Ala. Civ. App. 2005) ).
" 'Based on the facts of this case, the [Madison Juvenile Court] should have held a full evidentiary dispositional hearing to determine whether the child should have been returned to [T.W.'s] physical custody. Accordingly, the [Madison Juvenile Court's] judgment dismissing the dependency action is reversed, and the cause is remanded for the [Madison Juvenile Court] to hold an evidentiary hearing so as to afford [T.W.] an opportunity to present evidence regarding whether [F.H.] should be returned to her.'
" 946 So.2d at 473-74."

M.P.G., 215 So.3d at 1100-01 (reversing judgment in which juvenile court disposed of dependency action without having conducted a hearing at which mother could present evidence demonstrating that she was a fit custodian and remanding the action for further proceedings). In this case, the juvenile court held a dependency hearing in which the father participated, and the father was a custodial parent, not a noncustodial parent. Therefore, our decision in this case is not in conflict with our decisions of the appeals in J.L., supra, M.P.G., supra, or T.W., supra.

In this case, the juvenile court had subject-matter jurisdiction over the action; however, because the child has a custodial parent able to properly care for and supervise him, the child is not a dependent child. This opinion should not be read as holding that a child with joint custodians, only one of whom has been allegedly harming the child, can never be declared dependent. If an otherwise fit joint custodian fails to adequately protect a child from the harm of another joint custodian, the child may be adjudicated dependent and subjected to state protective services under Ex parte L.E.O., supra. The juvenile court's judgment is reversed, and the cause is remanded for the juvenile court to enter an order dismissing the dependency action. See § 12-15-310(b). Presumably, the custody dispute between the parents will continue in the child-support action, and, to ensure the safety of the child, the "flexible and speedy remedy" of a PFA order is available to the mother in that action. § 30-5-1(b)(2), Ala. Code 1975; see also § 30-5-3(b), Ala. Code 1975. We pretermit discussion of the father's other arguments. See Favorite Mkt. Store v. Waldrop, 924 So.2d 719, 723 (Ala. Civ. App. 2005).

REVERSED AND REMANDED WITH INSTRUCTIONS.

Thompson, P.J., and Pittman J., concur.

Moore, J., concurs specially.

Donaldson, J., concurs in the result, without writing.

MOORE, Judge, concurring specially.

In this case, J.M. ("the mother") and E.D., Jr. ("the father"), had been sharing joint custody of S.G.D. ("the child") since 2013. In the summer of 2017, the child began exhibiting signs of trauma, which led the mother to suspect that the father had been abusing the child while the child was in the father's home during the father's custodial periods. The mother thereafter withheld the child from returning to the custody of the father. The mother promptly reported her concerns to the Lee County Department of Human Resources ("DHR"), which, for the protection of the child, advised the mother to obtain a forensic interview with a local child-advocacy center, to enroll the child in counseling, to file a protection-from-abuse action against the father, and to file a petition to modify custody of the child so that the mother could obtain sole legal and physical custody of the child. The mother followed the advice of DHR on all points and obtained a court order prohibiting the father from contacting or exercising custody of the child.

DHR nevertheless filed a dependency petition in the Lee Juvenile Court ("the juvenile court"). At the trial on that petition, DHR's representative testified that DHR had no concerns with the mother and that the mother had done all that she could legally and otherwise do to protect the child from any harm from the father. The juvenile court determined that the father had not actually abused the child, but it found the child dependent because the father had previously abused his other children and because the father had recently pleaded guilty to child endangerment. The juvenile court awarded the mother sole legal and physical custody of the child subject to supervised visitation by the father.

On appeal, the father argues that the juvenile court lacked subject-matter jurisdiction to modify custody of the child because, he says, the child had a custodial parent, i.e., the mother, who was at all relevant times adequately discharging her parental responsibilities toward the child. In Ex parte L.E.O., 61 So.3d 1042, 1047 (Ala. 2010), our supreme court held that "in determining whether a child is 'in need of care or supervision,' [so as to be dependent under Ala. Code 1975, former § 12-5-1(10), the predecessor to § 12-15-102(8)a., Ala. Code 1975,] the juvenile court must consider whether the child is receiving adequate care and supervision from those persons legally obligated to care for and/or to supervise the child." By that standard, a child may be found to be dependent, i.e., in need of the supervision and protection of the state, only when all persons with a duty of care and supervision toward the child are not providing adequate care and supervision. Accordingly, in a case in which a child is subject to a judgment awarding both his or her physical custody and legal custody to joint custodians, that child may be considered dependent only when all joint custodians are failing in their responsibilities to and for the child.

In this case, the undisputed evidence shows that the mother discharged all of her parental responsibilities of adequately caring for and supervising the child. Indeed, the juvenile court obviously transferred sole legal and physical custody of the child to the mother based on its finding that she was properly performing her custodial role. Because the mother was adequately caring for and supervising the child, and because the mother had taken all legal steps necessary to secure the child from the allegedly abusive father, the child was not in need of the protection and supervision of the state either at the time DHR filed its dependency petition or at the time of the trial and the adjudication of the dependency of the child. In light of these particular circumstances, I agree that the juvenile court erred in finding the child dependent and that, based on our past precedent, the juvenile court's judgment is void for lack of subject-matter jurisdiction.

I agree that the main opinion

"should not be read as holding that a child with joint custodians, only one of whom has been allegedly harming the child, can never be declared dependent. If an otherwise fit joint custodian fails to adequately protect a child from the harm of another joint custodian, the child may be adjudicated dependent and subjected to state protective services under Ex parte L.E.O."

266 So.3d at 746. The record in this case indicates that the mother took all the formal and informal actions that were necessary to adequately protect the child, but, if she had not, the juvenile court would have been correct in intervening through its dependency jurisdiction to assure the protection of the child.

      "Circuit courts in Alabama have concurrent jurisdiction with juvenile courts to adjudicate paternity." Ex parte C.P., 253 So.3d 401, 402 n.1 (Ala. Civ. App. 2017) (citing Brock v. Herd, 187 So.3d 1161, 1163-64 (Ala. Civ. App. 2015), citing, in turn, among other authorities, § 26-17-104, Ala. Code 1975 ).

      "After an investigator's assessment of the reported child abuse or neglect, DHR typically designates either an 'indicated' or 'not indicated' disposition for the report. An 'indicated' disposition is defined as '[w]hen credible evidence and professional judgment substantiates that an alleged perpetrator is responsible for child abuse or neglect.' § 26-14-8(a)(1), Ala. Code 1975." Duran v. Buckner, 157 So.3d 956, 962 (Ala. Civ. App. 2014) (footnote omitted).

      Although that complaint is not contained in the record on appeal, the mother testified that she had filed her complaint seeking a modification of custody on August 1, 2017, and Deputy Steve Miller testified at the November 7, 2017, dependency hearing that he had, that morning, perfected service of the summons and complaint on the father, who had been transported from the Russell County jail to the dependency hearing.

      "[T]he juvenile court may assume jurisdiction to adjudicate custody when DHR brings a separate action alleging dependency and requesting that custody be removed from the custodial parent due to neglect and inability to care for the child. Carter v. Jefferson County Department of Pensions & Security, 496 So.2d 66 (Ala. Civ. App. 1986). In such circumstances, the central issue is the child's immediate welfare rather than a mere determination of custody between two fit parents. Id."
      Ex parte K.S.G., 645 So.2d 297, 300 (Ala. Civ. App. 1992).

      But see Ex parte W.E., 64 So.3d 637, 638 (Ala. 2010) (Murdock, J., concurring specially) ("[D]ependency is a status created by law that either is true of a child or is not. That is, either a child is dependent or it is not. A child cannot be dependent vis-à-vis one parent but not dependent as to the other parent. If the child is not dependent 'as to one parent,' then the child is not dependent.")

      Furthermore, our decision in this case has no application to termination-of-parental-rights actions wherein a custodial parent seeks to terminate the parental rights of the other parent because, in those situations, a finding of dependency is not required. See T.M. v. M.D.B., 160 So.3d 1, 7-8 (Ala. Civ. App. 2014) (quoting Ex parte Beasley, 564 So.2d 950, 954 (Ala. 1990) ). Moreover, nothing in this opinion should be read as a limitation on a juvenile court's authority to issue emergency custody orders, without first adjudicating dependency. See § 12-15-138, Ala. Code 1975; Ex parte T.M., 218 So.3d 850, 852 (Ala. Civ. App. 2016).


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Michael James MAXWELL v. Maria Adela MAXWELL
    2170124
    Court of Civil Appeals of Alabama.
    June 22, 2018
    Julia D. Collins of The Isaak Law Firm, Troy, for appellant.
    Charlotte Nicole Pierce of M. Adam Jones & Associates, LLC, Dothan, for appellee.
   THOMPSON, Presiding Judge.

Michael James Maxwell ("the father") appeals from a judgment of the Dale Circuit Court ("the trial court") that, among other things not relevant to this appeal, modified custody of his children.

On January 11, 2012, the trial court entered a default judgment divorcing the father and Maria Adela Maxwell ("the mother"). In the divorce judgment, the father was awarded custody of the parties' minor children ("the children"). The mother was not awarded visitation rights at that time. However, on April 29, 2013, the divorce judgment was modified to allow the mother to exercise visitation in a manner that was compatible with the distance between the mother's and the father's residences.

The father is in the United States Army. At the time the 2012 divorce judgment was entered, he and the children lived in Dale County; the mother resided in New Jersey. There is no evidence in the record to suggest that the mother has ever lived in Alabama. The parties agree that the father and the children moved from Alabama in "mid-May 2013" to the father's new military posting in Hawaii. On June 26, 2013, the mother filed in the trial court a motion to enforce visitation and for contempt. It appears that she sought to visit the children before they left the United States mainland. The father was served with the motion in Hawaii on July 17, 2013.

On May 30, 2014, more than one year after the father and the children had moved from Alabama, the mother filed in the trial court a petition to modify custody. On June 15, 2015, the father, who, along with the children, still lived in Hawaii at that time, filed in the trial court a contempt action against the mother. The trial court consolidated the three pending actions, i.e., the mother's 2013 motion to enforce visitation and for contempt and her 2014 modification petition and the father's 2015 contempt petition, for the purposes of conducting a final hearing and a entering a final judgment.

In 2016, the father and the children moved to North Carolina. By that time, the mother had resided in New Jersey for at least six years. The parties continued to live in those respective locations when the trial court entered its judgment modifying custody on June 27, 2017. In that judgment, the trial court, among other things, awarded the mother sole physical custody of the children.

The father filed a timely appeal from the modification judgment. On April 6, 2018, the appeal was submitted for decision on briefs. In the appellate briefs, neither party addressed the issue of the trial court's subject-matter jurisdiction. Because the record reflected that the parties and the children had not resided in Alabama for at least one year at the time the mother's modification petition was filed, this court requested letter briefs from the parties on the issue of the trial court's subject-matter jurisdiction to modify custody. The parties complied with our request, and we now address the issue of jurisdiction.

Jurisdictional issues are of such importance that this court may take notice of them ex mero motu. Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala. Civ. App. 1997). " '[T]his Court is duty bound to notice ex mero motu the absence of subject-matter jurisdiction.' " Baldwin Cty. v. Bay Minette, 854 So.2d 42, 45 (Ala. 2003) (quoting Stamps v. Jefferson Cty. Bd. of Educ., 642 So.2d 941, 945 n.2 (Ala. 1994) ). " 'The question of jurisdiction is always fundamental, and if there is an absence of jurisdiction, over either the person, or the subject matter, a court has no power to act, and jurisdiction over the subject matter cannot be created by waiver or consent.' " Poff v. General Motors Corp., 705 So.2d 442, 443 (Ala. Civ. App. 1997) (quoting B.F. Goodrich Co. v. Parker, 282 Ala. 151, 155, 209 So.2d 647, 650 (1968) ). Therefore, this court must determine whether the trial court, which awarded the father custody of the children in the 2012 divorce judgment, had continuing jurisdiction to modify the custody award even though the mother, the father, and the children all resided in other states at the time the mother's modification petition was filed.

The Uniform Child Custody Jurisdiction and Enforcement Act ("the UCCJEA"), § 30-3B-101 et seq., Ala. Code 1975, governs determinations of subject-matter jurisdiction in cases involving child-custody proceedings. Ex parte Gallant, 221 So.3d 1120, 1122 (Ala. Civ. App. 2016). The UCCJEA provides:

"(a) Except as otherwise provided in Section 30-3B-204[, Ala. Code 1975, dealing with temporary emergency jurisdiction], a court of this state which has made a child custody determination consistent with Section 30-3B-201 or Section 30-3B-203[, Ala. Code 1975,] has continuing, exclusive jurisdiction over the determination until:
"(1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships; or
"(2) A court of this state or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in this state.
"(b) A court of this state which has made a child custody determination and does not have continuing, exclusive jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under Section 30-3B-201."

§ 30-3B-202, Ala. Code 1975.

The trial court did not make any factual findings regarding where the parties lived or the length of time they had lived outside of Alabama on the date the mother filed her modification petition. However, in the last paragraph of the modification judgment, the trial court noted that, at the time that judgment was entered, the father resided near Fort Bragg, North Carolina, and the mother resided in New Jersey. Therefore, the trial court directed, "[o]nce this matter is concluded, this Court relinquishes jurisdiction, and jurisdiction for all future action shall be determined pursuant to the UCCJEA and the [Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A ]."

This case is indistinguishable from McGonagle v. McGonagle, 218 So.3d 1208, 1213 (Ala. Civ. App. 2016). In McGonagle, the father lived in Texas at the time he filed a petition seeking a modification of an Alabama circuit court's prior custody determination. The mother, who was the custodial parent, and the child had lived in Florida for more than six consecutive months at the time the petition was filed. Accordingly, we held, the circuit court should have determined that it had lost continuing, exclusive jurisdiction of the matter.

In this case, the evidence is undisputed that, at the time the mother filed the modification petition on May 30, 2014, she lived in New Jersey and the father and the children lived in Hawaii. Thus, at the time the petition was filed, the trial court did not have exclusive, continuing jurisdiction to modify the custody award set forth in the divorce judgment and the subsequent "amended" judgment, that is, the judgment that awarded visitation to the mother. § 30-3B-202(a)(2) ; McGonagle, 218 So.3d at 1213.

Because the trial court no longer had exclusive, continuing jurisdiction, § 30-3B-202(b) directs us to § 30-3B-201, Ala. Code 1975, to determine whether the trial court had jurisdiction to make an initial custody determination. If it did have such jurisdiction, then it would also have jurisdiction to modify its previous custody award. § 30-3B-202(b).

Section 30-3B-201 provides, in pertinent part:

"(a) Except as otherwise provided in Section 30-3B-204[, Ala. Code 1975, dealing with temporary emergency jurisdiction], a court of this state has jurisdiction to make an initial child custody determination only if:
"(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
"(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207 or 30-3B-208, [Ala. Code 1975,] and:
"a. The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
"b. Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;
"(3) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 30-3B-207 or 30-3B-208 ; or
"(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).
"(b) Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state."

The record demonstrates that, at the time the mother filed her petition, she had resided in New Jersey for more than six consecutive months and the father and the children had resided in Hawaii for more than six consecutive months. Thus, Alabama was no longer the home state of the children. § 30-3B-201(a)(1). There is no evidence that anyone in the family had substantial ties to Alabama; nothing in the record demonstrates that substantial evidence is available in Alabama concerning the children's care, protection, training, and personal relationships; and there is no evidence to suggest that a court in another state has declined to exercise jurisdiction. § 30-3B-201. Therefore, the trial court would not have had jurisdiction to make an initial custody determination at the time the mother's petition was filed. McGonagle, supra.

Because the trial court did not have continuing, exclusive jurisdiction under § 30-3B-202 and did not have subject-matter jurisdiction under § 30-3B-201, the trial court did not have subject-matter jurisdiction to modify custody as requested in the mother's May 30, 2014, petition.

The mother states that Alabama was the children's home state at the time she filed her motion to enforce visitation and for contempt in June 2013. Because the trial court consolidated that motion with the mother's petition to modify custody filed in 2014 and the father's subsequent contempt petition filed in 2015, the mother says, the trial court retained jurisdiction over the entire matter. In making this argument, the mother ignores the provisions of the UCCJEA. Moreover, this court has previously rejected an argument similar to the argument the mother has asserted.

"In Ex parte Stouffer, 214 So.3d 1192 (Ala. Civ. App. 2016), a majority of this court held that § 30-3B-202 does not apply to enforcement actions. The majority held that an Alabama trial court has inherent authority to enforce its own child-custody determination even though it has lost jurisdiction under the UCCJEA to modify that determination. Under Ex parte Stouffer, even if the children and the parents no longer reside in Alabama and Alabama otherwise has no other connection to the case, an Alabama court may still exercise subject-matter jurisdiction over contempt proceedings to enforce its prior child-custody determination."

Ex parte Gallant, 221 So.3d 1120, 1123 (Ala. Civ. App. 2016). Thus, even though the trial court retained jurisdiction over the enforcement and contempt matters, under the UCCJEA it had lost jurisdiction to modify custody.

The trial court did not have subject-matter jurisdiction to modify custody at the time the mother filed her modification petition. Accordingly, the June 27, 2017, judgment purporting to modify custody is void. See McGonagle, 218 So.3d at 1215, and Baker v. Baker, 25 So.3d 470, 475 (Ala. Civ. App. 2009). "This court has a duty to dismiss an appeal that is taken from a void judgment because a void judgment will not support an appeal." Baker, 25 So.3d at 475.

The mother's request for an attorney fee on appeal is denied.

APPEAL DISMISSED.

Pittman, Thomas, Moore, and Donaldson, JJ., concur.


author: DONALDSON, Judge.

text:
    EX PARTE K.J.
    (In re S.B. v. K.J.)
    2170716
    Court of Civil Appeals of Alabama.
    June 22, 2018
    Ginette A. Dow, Bessemer, for petitioner.
    A. Edward Fawwal, Bessemer, for respondent.
   DONALDSON, Judge.

K.J. ("the father") petitions this court for a writ of mandamus directing the Jefferson Circuit Court ("the circuit court"), to grant his motion to dismiss the petition of S.B. ("the grandmother"), who sought an order from the circuit court permitting her to have visitation with the father's child, K.H.J. ("the child"). For the reasons explained below, we deny the petition.

Facts and Procedural History

The materials submitted by the father indicate the following facts and procedural history relevant to the disposition of this petition for a writ of mandamus. The grandmother is a parent of the child's mother, A.J. ("the mother"). Pursuant to a court order from Greene County, the mother had sole custody of the child and the father had visitation rights. On March 17, 2014, the mother died. On March 25, 2014, the grandmother filed a petition in the Jefferson Juvenile Court, Bessemer Division ("the juvenile court"), asserting that the child was dependent. On May 1, 2015, the juvenile court entered a judgment granting sole custody of the child to the father and visitation to the grandmother.

The grandmother appealed the juvenile court's judgment to this court, and the father cross-appealed. In S.J. v. K.J., 206 So.3d 641 (Ala. Civ. App. 2016), this court held that the juvenile court's record was inadequate for appellate review and transferred the grandmother's appeal to the circuit court for a trial de novo. See Rule 28(D), Ala. R. Juv. P. We also held that the father's cross-appeal seeking appellate review of the judgment insofar as it granted the grandmother visitation was moot because the transfer of the grandmother's appeal to the circuit court for a trial de novo annulled and vacated the juvenile court's judgment.

On January 3, 2017, the father filed a motion to dismiss the proceedings in the circuit court, asserting that the child was not dependent. On February 3, 2017, the grandmother filed an amended dependency petition, alleging that the father was unable to properly parent the child. On August 25, 2017, the circuit court conducted a pretrial conference in which the grandmother orally moved to dismiss the action. On August 28, 2017, the circuit court entered an order dismissing the action without prejudice.

On September 7, 2017, the grandmother filed a petition in the circuit court seeking visitation with the child, pursuant to § 30-3-4.2, Ala. Code 1975 ("the Grandparent Visitation Act"). On November 27, 2017, the father filed a motion to dismiss the petition for lack of jurisdiction. On November 28, 2017, the circuit court entered an order denying the father's motion to dismiss.

On April 3, 2018, the father filed a second motion to dismiss. In that motion, he argued that the circuit court lacked jurisdiction over the proceedings under the Grandparent Visitation Act. On April 26, 2018, the circuit court entered an order denying the father's second motion to dismiss.

On May 2, 2018, the father filed the present petition for a writ of mandamus seeking an order compelling the circuit court to grant his motion to dismiss. We have jurisdiction to review the father's petition pursuant to § 12-3-10, Ala. Code 1975, and § 12-3-11, Ala. Code 1975.

Standard of Review

The father contends that the circuit court lacks subject-matter jurisdiction over the action, and "[t]he denial of a motion to dismiss for lack of jurisdiction is reviewable upon a timely filed petition for a writ of mandamus." Ex parte Diefenbach, 64 So.3d 1091, 1093 (Ala. Civ. App. 2010).

" 'Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' "

Ex parte Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala. 2003) (quoting Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995) ).

Discussion

The father contends that his motion to dismiss, filed on April 3, 2018, should have been granted because the grandmother had previously initiated a dependency action involving the issue of the grandmother's visitation with the child and that, therefore, the subsequent grandparent-visitation action initiated by the grandmother was not an "original action" under § 30-3-4.2(b), which provides, in relevant part:

"A grandparent may file an original action in a circuit court where his or her grandchild resides or any other court exercising jurisdiction with respect to the grandchild or file a motion to intervene in any action when any court in this state has before it any issue concerning custody of the grandchild, including a domestic relations proceeding involving the parent or parents of the grandchild, for reasonable visitation rights with respect to the grandchild ...."

To obtain the relief sought, the father must establish that § 30-3-4.2(b) bars a grandparent from filing a petition seeking an order for visitation when the grandparent has previously initiated an action involving his or her visitation rights.

" ' " 'The fundamental rule of statutory construction is that this Court is to ascertain and effectuate the legislative intent as expressed in the statute. League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). In this ascertainment, we must look to the entire Act instead of isolated phrases or clauses; Opinion of the Justices, 264 Ala. 176, 85 So.2d 391 (1956).' " ' Bright v. Calhoun, 988 So.2d 492, 497 (Ala. 2008) (quoting City of Bessemer v. McClain, 957 So.2d 1061, 1074-75 (Ala. 2006), quoting in turn Darks Dairy, Inc. v. Alabama Dairy Comm'n, 367 So.2d 1378, 1380 (Ala. 1979) )...."

Grimes v. Alfa Mut. Ins. Co., 227 So.3d 475, 488-89 (Ala. 2017).

We note that § 30-3-4.2(b) refers to both the filing of an original action and the filing of a motion to intervene in an ongoing action. The father contends that the filing of an "original action" means more than the filing of a petition to initiate a new action. In his view, § 30-3-4.2(b) permits a grandparent to initiate in total only one action seeking visitation rights and bars any subsequent attempts to initiate another such action. We observe that § 30-3-4.2(g)(1) provides:

"A grandparent or grandparents who are married to each other may not file a petition seeking an order for visitation more than once every 24 months absent a showing of good cause. The fact that a grandparent or grandparents who are married to each other have petitioned for visitation shall not preclude another grandparent from subsequently petitioning for visitation within the 24-month period. After an order for grandparent visitation has been granted, the parent, guardian, or legal custodian of the child may file a petition requesting the court to modify or terminate a grandparent's visitation time with a grandchild."

Section 30-3-4.2(g)(1) permits a grandparent to file more than one petition seeking visitation rights, within certain constraints. We conclude that the Grandparent Visitation Act, read in its entirety, does not bar a grandparent from filing more than one petition seeking visitation rights in the absolute manner asserted by the father. Therefore, the father has not established a ground for granting his motion to dismiss.

We note that the father does not argue that the grandmother filed more than one petition seeking visitation rights in violation of the constraints in § 30-3-4.2(g)(1), and such an argument was not presented to the circuit court. That issue is therefore not before us. See State v. Reynolds, 887 So.2d 848, 851-52 (Ala. 2004) ("This Court will not ... issue a writ of mandamus commanding a trial judge to rescind an order, based upon a ground asserted in the petition for the writ of mandamus that was not asserted to the trial judge ...."); Ex parte Showers, 812 So.2d 277, 281 (Ala. 2001) (" Rule 21(a), Ala. R. App. P., requires that a petition to an appellate court for the writ of mandamus 'shall contain ... a statement of the reasons why the writ should issue, with citations to the authorities and the statutes relied on.' ").

For the foregoing reasons, we deny the father's petition for a writ of mandamus.

The grandmother's request for an award of attorney fees is denied.

PETITION DENIED.

Thompson, P.J., and Pittman, Thomas, and Moore, JJ., concur.

      We note that, since our opinion was issued in S.J. v. K.J., the grandmother's name has changed. In this opinion, we refer to the grandmother as S.B., based on her name change and on how she is referred to in the materials submitted.

      Although we generally address issues of subject-matter jurisdiction ex mero motu, Ex parte McKinney, 87 So.3d 502, 509 (Ala. 2011), a circuit court generally has subject-matter jurisdiction over petitions seeking only grandparent visitation. See § 30-3-4.2(b) ; Ex parte K.L.P., 868 So.2d 454, 457 (Ala. Civ. App. 2003). Because it is not apparent that the applicability of § 30-3-4.2(g)(1) would implicate the circuit court's subject-matter jurisdiction, and because the father has not asserted that it does, we are not compelled to address this issue.


author: MOORE, Judge.

text:
    Hayle P. KELLEY v. Elvirita FINLEY
    Elvirita Finley v. Hayle P. Kelley
    2170250 2170525
    Court of Civil Appeals of Alabama.
    June 29, 2018
    Albert C. Bulls III of A.C. Bulls III & Assocs., LLC, Tuskegee, for appellant/cross-appellee Hayle P. Kelley.
    Mary Lee Abele, Birmingham, for appellee/cross-appellant Elvirita Finley.
   MOORE, Judge.

Hayle P. Kelley ("the father") appeals from a judgment entered by the Jefferson Circuit Court ("the circuit court"), and Elvirita Finley ("the mother") cross-appeals from that same judgment. We dismiss the appeal and the cross-appeal.

Procedural History

After protracted proceedings over child support and postminority educational support owed by the father for E.Z.B. ("the child"), the Jefferson District Court entered a judgment on June 21, 2016, establishing the arrearage owed by the father. The father appealed to the circuit court for a trial de novo. On November 8, 2017, the circuit court purported to enter a judgment denying the father's request to receive a credit for the Social Security dependent benefits paid to the mother on behalf of the child, setting the amount of the father's arrearage for postminority educational support, and denying all other requested relief. On November 15, 2017, the father filed his notice of appeal to this court. On November 18, 2017, the mother filed a postjudgment motion. The father's appeal was held in abeyance pending the denial of the mother's postjudgment motion on January 10, 2018. See Rule 4(a)(5), Ala. R. App. P. On January 26, 2018, the mother filed her notice of cross-appeal.

Discussion

We initially note that neither party raises the issue whether the circuit court could properly exercise appellate jurisdiction in order to enter a valid judgment. Our initial review of the record indicated that, at the time the father appealed to the circuit court, the district court had not yet adjudicated a contempt motion filed by the mother on January 29, 2015. Upon noticing this potential jurisdictional defect, this court asked the parties to file letter briefs on this point. See D.C.S. v. L.B., 84 So.3d 954, 957 (Ala. Civ. App. 2011) (" ' "[T]his Court is duty bound to notice ex mero motu the absence of subject-matter jurisdiction." ' " (quoting Baldwin Cty. v. Bay Minette, 854 So.2d 42, 45 (Ala. 2003), quoting in turn Stamps v. Jefferson Cty. Bd. of Educ., 642 So.2d 941, 945 n.2 (Ala. 1994) ) ). After reviewing the record and considering the parties' letter briefs and the relevant law, we conclude that the district court's judgment was not a final judgment that would support an appeal to the circuit court.

Section 12-12-70(a), Ala. Code 1975, provides:

"Any party may appeal from a final judgment of the district court in a civil case by filing notice of appeal in the district court, within 14 days from the date of the judgment or the denial of a posttrial motion, whichever is later, or, if the appeal is to an appellate court, within the time prescribed by the Alabama Rules of Appellate Procedure or the Alabama Rules of Juvenile Procedure where applicable, together with security for costs as required by law or rule."

(Emphasis added.) Additionally, § 12-12-71, Ala. Code 1975, provides that, "[e]xcept as provided in Section 12-12-72[, Ala. Code 1975,] and in subsection (e) of Section 12-15-120[, Ala. Code 1975,] all appeals from final judgments of the district court shall be to the circuit court for trial de novo." (Emphasis added.)

"A judgment is nonfinal if it fails to adjudicate all the claims between the parties, see Wright v. Wright, 882 So.2d 361, 363 (Ala. Civ. App. 2003), and '[a] nonfinal judgment will not support an appeal.' Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala. 2004)."

Chappell v. JP Morgan Chase Bank, NA, 106 So.3d 904, 906 (Ala. Civ. App. 2012). See also Rule 54(b) and (dc), Ala. R. Civ. P.

In Nicke v. Minter, 195 So.3d 274, 278 (Ala. Civ. App. 2015), this court concluded, in part, that, because the trial court had set the obligor parent's child-support-arrearage amount but had not adjudicated the obligee parent's motion to hold the obligor parent in contempt for failure to pay child support, the trial court's order was not a final judgment and, thus, this court did not have jurisdiction over the appeal from the order entered in that action. Similarly, in the present case, although the district court established the father's child-support arrearage, it did not determine whether the father was in contempt for his failure to pay child support. Therefore, we conclude that the district court did not enter a final judgment and, thus, that the circuit court did not acquire subject-matter jurisdiction over the father's appeal. Dillard v. LePore, 243 So.3d 284, 287 (Ala. Civ. App. 2017).

" ' "A judgment entered by a court lacking subject-matter jurisdiction is absolutely void and will not support an appeal; an appellate court must dismiss an attempted appeal from such a void judgment." ' " Dillard, 243 So.3d at 287 (quoting Persons v. Persons, 10 So.3d 610, 613 (Ala. Civ. App. 2008), quoting in turn Vann v. Cook, 989 So.2d 556, 559 (Ala. Civ. App. 2008) ). Because the circuit court lacked subject-matter jurisdiction to enter its November 8, 2017, judgment, that judgment is void, and we must dismiss the father's appeal and the mother's cross-appeal. Dillard, 243 So.3d at 287. Accordingly, the appeal and the cross-appeal are dismissed, albeit with instructions to the circuit court to set aside its void November 8, 2017, judgment, and to take any and all further actions necessary to return this matter to the district court for final adjudication. See Dillard, supra.

2170250-APPEAL DISMISSED WITH INSTRUCTIONS.

2170525-CROSS-APPEAL DISMISSED WITH INSTRUCTIONS.

Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.


author: JOINER, Judge.

text:
    Harold HALL v. STATE of Alabama
    CR-13-0785
    Court of Criminal Appeals of Alabama.
    March 18, 2016 Rehearing Denied May 27, 2016 Certiorari Quashed June 15, 2018
    Alabama Supreme Court 1150950 J.D. Lloyd, Birmingham, for appellant.
    Luther Strange, atty. gen., and Tracy M. Daniel, asst. atty. gen., for appellee.
    On Return to Second Remand

      Note from the reporter of decisions: On May 18, 2015, the Court of Criminal Appeals issued an order remanding this case to the trial court, with instructions. On July 8, 2015, the trial court filed a return to the Court of Criminal Appeals' remand order. On August 11, 2015, the case was again remanded to the trial court, with instructions. On February 8, 2016, the trial court filed a return to the Court of Criminal Appeals' second remand order. This opinion followed.

   JOINER, Judge.

Harold Hall appeals his conviction for unlawful distribution of a controlled substance, see § 13A-12-211(a), Ala.Code 1975.

Facts and Procedural History

On March 11, 2013, Hall was indicted for distributing cocaine in violation of Section 13A-12-211(a), Ala.Code 1975. Hall's case was scheduled to begin on December 9, 2013. The record indicates that Hall appeared in court for voir dire but that he did not, however, appear at his trial. On appeal, Hall, who does not dispute the facts of his case, raises two claims-that he was denied the effective assistance of trial counsel and that the trial court, when it sentenced him, erroneously departed from the presumptive sentencing standards, see § 12-25-34.2, Ala.Code 1975.

The following discussion occurred immediately before the trial:

"THE COURT: All right. Okay. Obviously, Mr. Hall is not present. How would the State like to proceed?
"[THE STATE]: The State would like to go ahead and try this case. He did make himself present at the jury selection and has apparently voluntarily absented himself from these proceedings.
"THE COURT: Okay. [Defense counsel]?
"[DEFENSE COUNSEL]: We would like to ask for a continuance because my defense was based on two witnesses he was supposed to bring, and now my-I don't know how to proceed because now my whole defense strategy is blown out of the water. So I, basically, don't have a defense without those witnesses.
"[THE STATE]: Well, just because those witnesses aren't here, even if the defendant was here and they didn't show up-as far as I know, they weren't served with subpoenas, so that's not the issue.
"[DEFENSE COUNSEL]: Well, that's what I-they guaranteed me they would be here; they didn't need a subpoena.
"THE COURT: So they have told you they would be here?
"[DEFENSE COUNSEL]: Yes.
"THE COURT: Okay. Well, let's just go ahead and proceed. I find that he has voluntar[il]y absented himself from the proceedings. We've already selected a jury. He was here on Monday. He knew when we were to start, and we will just try him in absentia.
"....
"[DEFENSE COUNSEL]: Well, I would like to-I don't know what has happened to him.
"THE COURT: Have you tried to call him?
"[DEFENSE COUNSEL]: Yes, I have tried to call him. But I don't know, you know, if he's got involved in a wreck or something, in the hospital. But I have tried to call numerous times because he was to be at my office at eight o'clock. Okay? And it would be unfair to him to have a trial without a proper defense, because he has the right to be present.
"....
"THE COURT: Well, I don't think we have a choice but to have to go forward. Y'all help me write up something that you want-everybody can agree on the preliminary instruction. I don't think there is any kind of standard instruction for that. So-
"....
"[DEFENSE COUNSEL]: Probably because it's not supposed to be done.
"THE COURT: Yes. Pursuant to the rule they can voluntar[il]y absen[t] themselves from a trial."

(R. 4-8.) Butler County Sheriff Kenny Harden informed the trial court that there had not been any recent reports of accidents involving Hall and that Hall was not present at either of his two known addresses.

The parties discussed a preliminary jury instruction regarding Hall's absence, and Hall's trial counsel stated her concern that the jury, regardless of an instruction to the contrary, would improperly presume that Hall was guilty if the trial continued in his absence. Ultimately, Hall's trial counsel objected "to the proceedings continuing" but did not object to the instruction itself. The trial court then found that Hall had "voluntarily absented himself from the proceeding," elected to try Hall in absentia, and issued a bench warrant for his arrest. (R. 15.)

The trial court gave the following instruction to the jury before commencing the trial:

"A defendant does have the right to be present at every stage of the trial, pursuant to Alabama Rules of Criminal Procedure. The defendant may waive the right to be present at any proceeding if the Court finds that his absence from the proceeding was voluntary and constitutes an understanding and voluntary waiver of the right to be present and that the defendant had notice of the time and place of the proceeding and was informed of the right to be present. The proceeding may then proceed and the defendant is tried in absentia.
"You may draw no inference or make any assumptions to the guilt or innocence of the defendant by his absence. And his absence is not evidence. Your verdict is to be based on the testimony and evidence presented during the trial."

(R. 16-17.)

Hall's defense counsel, when given the opportunity to make opening and closing arguments and to cross-examine the State's witnesses, repeatedly stated: "Defendant through his counsel objects to these proceedings occurring without the defendant because a proper defense cannot be presented because the defendant is absent and request[s] a continuance." (R. 27, 40, 48, 54, 62, 63-64, 70.) The trial court overruled each objection and denied each motion to continue, and the case proceeded.

The evidence at trial indicated that Hall sold crack cocaine to a confidential informant who was working with the Greenville Police Department. Officer Lionel Davidson, Lieutenant Byron Russell, and the confidential informant all testified that the informant purchased two white rocks from Hall during a controlled buy conducted under the supervision of Lt. Russell and Officer Davidson. Lt. Russell also testified that the transaction occurred within three miles of a school and within three miles of a public housing community. John Bruner, a drug chemist with the Alabama Department of Forensic Sciences, testified that Officer Davidson delivered the white rocks to him for scientific analysis. Bruner stated that he determined the rocks to be "cocaine-based, known as crack cocaine." (R. 60.)

After the State rested, Hall's counsel moved for a judgment of acquittal on the ground that "the State did not present [a prima facie case of unlawful distribution of a controlled substance] beyond a reasonable doubt." (R. 64.) Hall's counsel made no other objections during the trial and did not call any witnesses in Hall's behalf.

After the jury returned the guilty verdict, the trial court determined that it would set Hall's sentencing hearing upon his arrest. Hall was eventually arrested, and the trial court conducted a sentencing hearing on February 20, 2014. At that hearing, the State presented evidence indicating that Hall had more than three prior felony convictions and recommended that the trial court sentence Hall to life imprisonment. Hall's counsel objected to "having [had] the trial in the first place" and also to the State's sentencing recommendation. (R. 97.) Hall himself objected to the State's sentencing recommendation, stating:

"As far as the presumptive sentence, the aggravating factors are part of the presumptive sentence. They're not part of the aggravating factors. They're encompassed inside of the presumptive sentencing; therefore, a proper sentence should be within the guidelines. The aggravating factors are not part of the prior felony conviction, are part of presumptive sentencing. The five and five-no sentence enhancement is supposed to depart outside of the guidelines. They're encompassed in the new sentencing guidelines."

(R. 97-98.)

The trial court sentenced Hall as follows:

"All right. Mr. Hall, I am departing from the presumptive sentencing recommendations, and I will be sentencing you under the Habitual Felony Offender Act within that sentencing scheme of 20 years to life. So I hereby sentence you to life imprisonment in the penitentiary in the State of Alabama. I'm also giving you five years for Section 13A-12-250, for being within a three mile radius of a school, and five years for Section 13A-12-270, for being within three miles of a housing project."

(R. 100-01.) The trial court memorialized its sentence in a written order issued the same day.

Hall's appointed trial counsel was permitted to withdraw on February 21, 2014. On March 10, 2014, appellate counsel was appointed for Hall, and counsel filed a motion for a new trial that requested simply that the trial court "reconsider the matter and order a new trial." (C. 107.) On March 12, 2014, Hall retained counsel who filed a notice of appearance and, on March 13, 2014, filed an amended motion for a new trial. The amended motion alleged, among other issues, that Hall was denied the effective assistance of counsel at trial and requested that the trial court "vacate [his] sentence under [the Habitual Felony Offender Act, § 13A-5-9, Ala.Code 1975,] and resentence him pursuant to the presumptive sentencing [standards]." (C. 112-19.) Hall also incorporated a motion for sentence reconsideration into his amended motion for a new trial in which he made the following claims: (1) that the trial court "committed a procedural error when it used ... 'aggravating circumstances' to depart from the sentencing [standards]" (R. 123); (2) that the trial court "committed substantive error by using these 'aggravating circumstances' to depart from the presumptive [standards]"

(R. 124); and (3) that, "[b]ecause the sentencing [standards] say that departures should be rare and because [his] case is not an extraordinary case, [the trial court] should not have departed from the presumptive [standards]." (R. 125.)

On March 20, 2014, the trial court allowed Hall's appointed appellate counsel to withdraw, and the trial court set a hearing on Hall's amended motion for a new trial for April 4, 2014. The record, however, does not indicate that a hearing was held on that motion, and the motion was denied by operation of law. Hall timely appealed to this Court.

Hall, in his initial brief on appeal, contended that he was denied the effective assistance of trial counsel and that the trial court erred when it failed to sentence him pursuant to the presumptive sentencing standards. On May 18, 2015, this Court, by unpublished order, remanded this matter to the trial court instructing that court to hold "an evidentiary hearing regarding Hall's assertions of ineffectiveness of trial counsel" presented in his amended motion for a new trial and, on return of such action, to "include written findings of fact, conclusions of law, and a transcript of the proceedings." (Record on Return to Remand, C. 15.) The trial court complied with our order and held an evidentiary hearing on June 18, 2015. Following the hearing, the trial court issued a written order, stating:

"To prevail the defendant must satisfy the two-prong test established by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). At the hearing the defendant offered no evidence to support a claim of ineffective assistance, only argument that trial counsel did nothing. The first prong which the defendant must satisfy is that counsel's performance was deficient. The defendant must present evidence that the specific facts or omissions were not the result of reasonable professional judgment based on the circumstances at the time of trial. Trial counsel had filed pretrial motions to exclude the State's evidence, conducted voir dire, and moved for a judgment of acquittal at the close of the State's case and then renewed that motion after resting. At trial, faced with the defendant's voluntary absence, counsel objected to the proceeding in absentia and repeatedly moved this Court for a mistrial. The defendant has presented no evidence to this Court that trial counsel's repeated objections to the continuance of the trial in defendant's absence, aimed at obtaining a mistrial, and her decision not to reemphasize the State's evidence by cross-examination was not reasonable defense strategy given the circumstances in which the defendant's actions had placed her. Based on the Court's observance of counsel's actions at trial and the lack of evidence by defendant to overcome the presumption that counsel performed effectively, the Court finds the defendant has failed to satisfy the first prong established under Strickland.
"Having determined that counsel's limited action at trial was the exercise of reasonable professional judgment under the circumstances and was not inadequate as a defense strategy, the Court will briefly address the second prong of Strickland, wherein the defendant must prove that the outcome of the trial would have been different but for trial counsel's ineffective assistance. The defendant has not demonstrated a reasonable probability that, but for trial counsel's actions, he would not have been convicted. The direct testimony of the drug task force agent, the confidential informant who made the drug buy, and the forensic analyst who tested the controlled substance, coupled with the audio/video recording of the drug buy and still photographs from that video, was overwhelming evidence of the defendant's guilt.
"The defendant has failed to present any evidence to support the claim of ineffective assistance and satisfy his burden as set out in Strickland. It is therefore ORDERED that defendant's claim of ineffective assistance of counsel and request for relief is hereby DENIED."

(Record on Return to Remand C. 18-19.) Following the trial court's order, Hall filed a motion to reconsider the denial of his amended motion for a new trial. In that motion, Hall claimed: (1) that the trial court "erred in not considering that [he] is entitled to relief under United States v. Cronic, 466 U.S. 648 (1984)" (Record on Return to Remand C. 21); (2) that the trial court "impermissibly rested on the strength of the State of Alabama's case against [him] to defeat concerns that his Sixth Amendment rights were violated" (Record on Return to Remand C. 22); and (3) that the trial court "impermissibly concluded that trial counsel's actions were 'strategy' under Strickland v. Washington." (Record on Return to Remand C. 23). The trial court denied Hall's motion.

On return to remand, this Court granted Hall's motion to submit a brief on return to remand. In his brief, Hall raised the same arguments he raised in his motion for a new trial and in his initial brief on appeal.

Discussion

I.

Hall contends that he "was denied the effective assistance of counsel required by the Sixth Amendment [of the United States Constitution] when his attorney refused to participate in his trial." (Hall's brief, p. 9.)

With respect to claims of ineffective assistance of trial counsel, this Court has stated:

"In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court articulated two criteria that must be satisfied to show ineffective assistance of counsel. A defendant has the burden of proving (1) that his counsel's performance was deficient and (2) that the deficient performance actually prejudiced the defense. 'To meet the first prong of the test, the petitioner must show that his counsel's representation fell below an objective standard of reasonableness. The performance inquiry must be whether counsel's assistance was reasonable, considering all the circumstances.' Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.1987). ' "This court must avoid using 'hindsight' to evaluate the performance of counsel. We must evaluate all the circumstances surrounding the case at the time of counsel's actions before determining whether counsel rendered ineffective assistance." ' Lawhorn v. State, 756 So.2d 971, 979 (Ala.Crim.App.1999) (quoting Hallford v. State, 629 So.2d 6, 9 (Ala.Crim.App.1992) ). 'A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' Strickland, 466 U.S. at 689, 104 S.Ct. 2052. As the United States Supreme Court has explained:
" 'Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client the same way.'
" Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (citations omitted). To prove prejudice, '[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' 466 U.S. at 694, 104 S.Ct. 2052. 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' Id. at 693, 104 S.Ct. 2052."

Eller v. State, 187 So.3d 1184, 1188 (Ala.Crim.App.2014).

In addition,

"The United States Supreme Court, in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), a decision released the same day as Strickland, recognized certain exceptions to the prejudice requirement. The Supreme Court of Mississippi aptly stated the following concerning the Supreme Court's holding in Cronic:
" 'The Supreme Court has recognized a limited exception to the prejudice requirement when (1) assistance of counsel has been denied completely, (2) "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing," or (3) counsel is denied during a critical stage of the proceedings. Cronic, 466 U.S. at 658-59, 104 S.Ct. 2039 ; see Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 1240-41, 152 L.Ed.2d 291 (2002)....
" '....'
" Branch v. State, 882 So.2d 36, 65-66 (Miss.2004)."

Hunt v. State, 940 So.2d 1041, 1056 (Ala.Crim.App.2005).

Although given the opportunity to present evidence to support his claim that he was denied the effective assistance of counsel, Hall failed to present any evidence in support of his motion. This Court has held:

"There is no error in a trial court's denial of a motion for new trial where no evidence is offered in support of that motion. Tucker v. State, 454 So.2d 541, 547-48 (Ala.Cr.App.1983), reversed on other grounds, 454 So.2d 552 (Ala.1984) ; McKinnis v. State, 392 So.2d 1266, 1269 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1270 (Ala.1981). The motion itself was unverified and was not accompanied by any supporting affidavits. Consequently, the assertions of counsel contained therein 'are bare allegations and cannot be considered as evidence or proof of the facts alleged.' Thompson v. State, 444 So.2d 899, 902 (Ala.Cr.App.1984) (quoting Daniels v. State, 416 So.2d 760, 762 (Ala.Cr.App.1982) ); Smith v. State, 364 So.2d 1, 14 (Ala.Cr.App.1978). Similarly, statements made by counsel during a hearing on a motion for new trial cannot be considered evidence in support of the motion. Vance v. City of Hoover, 565 So.2d 1251, 1254 (Ala.Cr.App.1990)."

Arnold v. State, 601 So.2d 145, 154-55 (Ala.Crim.App.1992) (emphasis added).

Moreover,

" ' " 'If the record is silent as to the reasoning behind counsel's actions, the presumption of effectiveness is sufficient to deny relief on [an] ineffective assistance of counsel claim.' " Davis v. State, 9 So.3d 539, 546 (Ala.Crim.App.2008) (quoting Howard v. State, 239 S.W.3d 359, 367 (Tex.Crim.App.2007) ).
" ' " ' "An ambiguous or silent record is not sufficient to disprove the strong and continuing presumption [of effective representation]. Therefore, 'where the record is incomplete or unclear about [counsel]'s actions, we will presume that he did what he should have done, and that he exercised reasonable professional judgment.' " Chandler v. United States, 218 F.3d 1305, 1314 n. 15 (11th Cir.2000) (en banc) (quoting Williams v. Head, 185 F.3d 1223, 1228 (11th Cir.1999) ).' "
" ' Davis, 9 So.3d at 546 (quoting Grayson v. Thompson, 257 F.3d 1194, 1218 (11th Cir.2001) ).' "

Ex parte Whited, 180 So.3d 69, 75 (Ala.2015).

Here, the record indicates that after Hall was convicted, his new counsel filed an unverified amended motion for a new trial in which he claimed that Hall's "trial counsel was constitutionally ineffective at trial." (C. 133.) Hall's new counsel did not attach any supporting affidavits to that motion. At the evidentiary hearing on that motion, Hall's new counsel recounted the actions of Hall's counsel at trial and claimed that, under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), Hall's trial counsel failed to provide Hall with effective assistance at trial as required by the Sixth Amendment of the United States Constitution. Hall's new counsel, however, did not present any evidence to support his legal arguments. Thus, the only statements the trial court had to consider regarding the circumstances of Hall's ineffective-assistance-of-counsel claim were the assertions by his new counsel. Consequently, there was no evidence for the trial court to consider in support of the motion for a new trial.

Because of this failure to present evidence, the trial court was given no reason to exclude the possibilities that the actions of Hall's trial counsel were strategic and that she exercised reasonable professional judgment. Accordingly, the trial court did not abuse its discretion when it denied Hall's motion for a new trial.

II.

As noted above, the trial court departed from the presumptive sentencing standards and sentenced Hall under the Habitual Felony Offender Act, § 13A-5-9, Ala.Code 1975 ("the HFOA"). Hall argues that the trial court abused its discretion in departing from the presumptive sentencing standards. We disagree.

In Hyde v. State, 185 So.3d 501 (Ala.Crim.App.2015), this Court stated:

"Under the presumptive standards, circuit courts are given 'significant discretion in arriving at sentencing decisions.' Presumptive and Voluntary Sentencing Standards Manual 14 (emphasis added). That 'significant discretion' includes a circuit court's decision to depart from either the durational or dispositional recommendation, or both. The Presumptive and Voluntary Sentencing Standards Manual, however, explains that a durational or dispositional departure 'should be rare' and occur only 'in exceptional cases.' Presumptive and Voluntary Sentencing Standards Manual 24. Before a circuit court chooses to depart from a dispositional or durational recommendation under the presumptive sentencing standards, however, the following procedures must be followed:
" '3. Consideration of Aggravating and Mitigating Factors-The Court must consider all aggravating and/or mitigating factors proven for a sentencing event, but the decision to depart from the presumptive sentence recommendation is in the discretion of the court.
" '....
" '4. Burden of Proof-Aggravating Factors-The prosecutor bears the burden of proving beyond a reasonable doubt that an aggravating factor exists. The defendant is entitled to a jury trial on the existence of any aggravating factor, unless the aggravating factor is admitted by the defendant or both the defendant and the prosecutor waive a jury determination and request the judge alone to decide. It is within the discretion of the trial court whether to bifurcate the trial and sentencing phase of a covered case.
" '....
" '6. Notice-Aggravation-The prosecutor shall give the defendant notice of aggravating factors no less than seven (7) days before trial. Once given, notice is deemed sufficient for any future trial settings. For good cause shown, notice may be given at any time with the consent of the trial court, provided the defendant is given an opportunity to research and rebut the aggravating factor. Notice can be waived.[ ]
" '....
" '8. Stating Reasons for Departure-The aggravating and/or mitigating factors found as reasons for any departure must be stated in the written sentencing order, even if the departure sentence is the result of a plea agreement and the parties have agreed to the existence of the aggravating and/or mitigating factors.'
"Presumptive and Voluntary Sentencing Standards Manual 24-25 (emphasis added)."

Hyde, 185 So.3d at 511-12. Further, "when reviewing a circuit court's decision to depart from either a dispositional or durational recommendation under the presumptive sentencing standards, this Court will apply an abuse-of-discretion standard of review." Hyde, 185 So.3d at 508. " 'A trial court abuses its discretion only when its decision is based on an erroneous conclusion of law or where the record contains no evidence on which it rationally could have based its decision.' " McCain v. State, 33 So.3d 642, 647 (Ala.Crim.App.2009) (quoting Holden v. State, 820 So.2d 158, 160 (Ala.Crim.App.2001) ).

In the Presumptive and Voluntary Sentencing Standards Manual ("the Standards Manual"), the following are listed as "aggravating factors" that may justify a departure from the presumptive sentencing standards:

• "The crime involved multiple participants in the criminal conduct, and the defendant played a major role in the crime as the leader, organizer, recruiter, manager, or supervisor."
• "The offense was committed for the benefit of, or at the discretion of, any streetgang as defined in Ala.Code 13A-6-26(a), with the specific intent to promote, further, or assist in criminal activity by streetgang members."
• "The defendant was hired or paid to commit the offense."
• "The defendant held public office at the time of the offense and the offense was related to the conduct of the office."
• "The offense involved a fiduciary relationship, including a domestic relationship, which existed between the defendant and the victim."
• "The victim was particularly vulnerable due to age, infirmity, or reduced physical capacity that was known or should have been known to the defendant."
• "The defendant was incarcerated, on pretrial release, on probation or parole, or serving a community corrections sentence at the time the crime was committed, or otherwise under sentence of law."
• "The offender being 18 or more years of age employs, hires, uses persuades, induces, entices, or coerces an individual under 16 years of age to assist in the crime or to assist in avoiding detection or apprehension."
• "The offense involved an attempted or actual taking or receipt of property of great monetary value or damage causing great monetary loss to the victim(s)."
• "The offense involved a high degree of sophistication or planning, occurred over a lengthy period of time, involved multiple victims, or involved a single victim victimized more than once."
• "The commission of the offense created a substantial risk to human health or safety or a danger to the environment."
• "The defendant exposed a child under 17 years of age to criminal conduct and/or endangerment."
• "The defendant was motivated by the victim's actual or perceived race, color, religion, national origin, ethnicity, sexual orientation, or physical or mental disability to commit the offense."
• "The defendant used the identity of another person without authorization to commit the crime."
• "Any other 'aggravating factor' reasonably related to the purposes of sentencing."

Standards Manual 26.

In the instant case, the trial court departed from the presumptive standards based upon the jury's unanimous findings that Hall had committed the offense "within a three-mile radius of a public or private school, college, university, or other educational institution" and "within a three-mile radius of a public housing project owned by a housing authority." (R. 92.) Although the conduct described in §§ 13A-12-250 and -270 is not specifically included in the above list, the list includes a "catchall" provision authorizing a departure based on "any other 'aggravating factor' reasonably related to the purposes of sentencing." On appeal, Hall raises three central challenges to the trial court's decision to depart from the sentencing standards. We address each in turn.

A.

The Standards Manual states that "a necessary element of the most serious offense may not be used as an aggravating factor for the sentencing event." Standards Manual 24 (emphasis added). Hall contends that the trial court's reliance on the facts establishing the applicability of the sentencing enhancements in § 13A-12-250 and § 13-12-270 was an "impermissibl[e] use [ ] [of] 'elements' of [his] offense as aggravating factors in order to depart from the presumptive sentencing [standards]." (Hall's brief, p. 24.) Hall argues specifically that "[b]ecause the enhancements [provided for in §§ 13A-12-250 and -270, Ala.Code 1975, ] extended the range of punishment beyond the statutory maximum, the 'enhancements' were elements of" the conviction for which he was sentenced. (Hall's brief, p. 26.) In support of his claim, Hall cites Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and Lightfoot v. State, 152 So.3d 445 (Ala.2013). We disagree.

Initially, we note that the Standards Manual does not define "necessary element." It does, however, include the following footnote:

"Some worksheet offenses may be committed in multiple ways. For instance, Unlawful Manufacture of a Controlled Substance in the first degree must have a combination of two of seven identified elements. If a third of the seven elements is proven beyond a reasonable doubt and is an aggravating factor, the use of that element as an aggravating factor is not precluded."

Standard Manual 24 n. 4 (emphasis added).

Hall was convicted of unlawful distribution of a controlled substance, see § 13A-12-211(a), Ala.Code 1975. Section 13A-12-211(a) provides that "[a] person commits the crime of unlawful distribution of controlled substances if, except as otherwise authorized, he or she sells, furnishes, gives away, delivers, or distributes a controlled substance enumerated in Schedules I through V." Thus, neither of the enhancements provided for in §§ 13A-12-250 and -270 is a necessary element of the offense of unlawful distribution of a controlled substance, see § 13A-12-211(a).

Contrary to Hall's assertion, the decisions he cites-Alleyne, supra, and Lightfoot, supra-do not transform the sentencing enhancements under §§ 13A-12-250 and -270 into "necessary elements" the Standards Manual prohibits from being used as "aggravating factors." Rather, those decisions establish that, for purposes of the Sixth Amendment to the United States Constitution, "a fact increasing either end of the sentencing range (the minimum or the maximum) produces a new penalty, constitutes an element of the offense, and must be found by the jury, regardless of what sentence the defendant might have received had a different range been applicable." Lightfoot, 152 So.3d at 450. In other words, Alleyne and Lightfoot stand for the proposition that, to increase a defendant's sentence pursuant to aggravating factors, the Sixth Amendment requires the government to prove to a jury beyond a reasonable doubt that, in addition to committing the acts establishing the elements of the underlying offense, the defendant committed acts that qualify as aggravating factors. Alleyne and Lightfoot do not transform such aggravating factors into "necessary elements" of the underlying offense for purposes of a circuit court's decision to depart from the presumptive sentencing standards.

Accordingly, Hall's arguments in this regard are without merit.

B.

In addition to prohibiting the use of a "necessary element" as an aggravating factor, the Standards Manual prohibits the use of "[w]orksheet scoring factors for the most serious offense." Standards Manual 24. Hall argues that this prohibition applies to the enhancements provided in §§ 13A-12-250 and -270. Hall cites § 12-25-34(c), Ala.Code 1975, which provides that the proposed sentencing ranges for the voluntary guidelines (which preceded the presumptive sentencing standards) were to include "historically based sentence ranges, including all applicable statutory minimums and sentence enhancement provisions, including the Habitual Felony Offender Act, with adjustments made to reflect current sentencing policies." In Hall's view, § 12-25-34(c) makes the enhancements under §§ 13A-12-250 and

-270 "worksheet scoring factors" and, therefore, excludes those provisions from being used as aggravating factors under the presumptive standards. We disagree.

The Standards Manual does not specifically define "worksheet scoring factor," but the two worksheets applicable to Hall's conviction-the "Drug Prison In/Out Worksheet" and the "Drug Prison Sentence Length Worksheet"-have a section entitled "sentencing factors section." Within each "sentencing factors section" on those worksheets are categories with certain "scores" applicable to specifically delineated factors. Neither of those worksheets includes the enhancements found in § 13A-12-250 or § 13A-12-270. Thus, nothing on the worksheets or in the Standards Manual indicates that either of these enhancements is used as a "worksheet scoring factor." Accordingly, Hall's arguments in this regard are without merit.

C.

Finally, Hall contends that the trial court's departure from the sentencing standards is in conflict with the statement in the Standards Manual that "[d]eparture sentences should be rare." Standards Manual 24. Placed in context, the statement cited by Hall is as follows:

"The Standards are designed to provide appropriate recommendations for sentences in covered cases and are presumptive for non-violent covered offenses as defined in Ala.Code [1975,] § 12-25-32. However, in exceptional cases, upon a finding of aggravating and/or mitigating factors, the sentencing court may depart from either a dispositional or durational sentence recommendation or from both. Departure sentences should be rare, with the court following the presumptive recommendation in the vast majority of sentenced cases."

Standards Manual 24.

As noted above, "the decision to depart from the presumptive sentence recommendation is in the discretion of the court." Id. (emphasis added). There is nothing in the record to indicate that the trial court's decision to depart from the presumptive sentencing standards when it sentenced Hall was based on an erroneous conclusion of law or that the record contains no evidence upon which the court rationally could have based its decision. Likewise, there is nothing in the record to indicate that the trial court's departure in Hall's case violated the general admonition in the Standards Manual that "[d]eparture sentences should be rare." Accordingly, Hall has not demonstrated that the trial court abused its discretion in this case.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

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

      The jury unanimously found that Hall had committed the offense "within a three-mile radius of a public or private school, college, university, or other educational institution" and "within a three-mile radius of a public housing project owned by a housing authority." (R. 92.)

      The trial court also ordered Hall to pay a $1,000 fine, a $2,000 drug-demand-reduction assessment, a $100 crime-victims-compensation assessment, a $700 bail-bond fee, $40 in restitution, court costs, and, following a remand from this Court by unpublished order, a $100 forensic-services-trust-fund assessment.

      Hall, citing the case-action summary, contends in his reply brief that a hearing on his amended motion for a new trial was held on April 4, 2014. The case-action summary, however, indicates only that on March 20, 2014, a hearing was set for April 4, 2014. Contrary to Hall's assertion, there is no entry in the case-action summary on April 4, 2014, indicating that a hearing was held.

      Because Hall was sentenced on February 20, 2014, the trial court had until April 21, 2014, to rule on the amended motion for a new trial before that motion was denied by operation of law. See Rule 24.1, Ala. R.Crim. P. ("No motion for new trial ... shall remain pending in the trial court for more than sixty (60) days after the pronouncement of sentence, except as provided for in this section. A failure by the trial court to rule on such a motion within the sixty (60) days allowed by this section shall constitute a denial of the motion as of the sixtieth day.").

      Hall does not claim that the State failed to provide him sufficient notice of aggravating factors; we note, however, that the record indicates that the State filed a written notice of aggravating factors more than seven days before Hall's trial.

      Section § 13A-12-250, Ala.Code 1975, provides a five-year enhancement if the offense took place within a three-mile radius of a school; § 13A-12-270, Ala.Code 1975, provides a five-year enhancement if the offense took place within a three-mile radius of a public-housing project.

      As noted above, the jury unanimously found that Hall had violated §§ 13A-12-250 and
      -270, and thus triggered the statutorily imposed penalties of additional five-year terms of imprisonment for each violation. (R. 92.)

      The "Drug Prison In/Out Worksheet" has the following scoring factors: (1) "Most Serious Conviction Offense"; (2) Number of Prior Adult Felony Convictions"; (3) "Number of Prior Adult Convictions for Misdemeanors or Violations"; (4) "Prior Incarceration with Unsuspended Sentence Imposed of 1 Year or More"; (5) "Prior Felony Probation or Parole Revocation"; (6) "Number of Prior Juvenile Delinquency or YO Adjudications (Violation/Misd/Felony)"; and (7) "Possession/Use of a Deadly Weapon or Dangerous Instrument." Standards Manual 33.
      The "Drug Prison Sentence Length Worksheet" has the following scoring factors: (1) "Most Serious Conviction Offense"; (2) "Number of Additional Felony Convictions (Including Counts)"; (3) "Number of Prior Adult Felony Convictions"; (4) "Number of Prior Adult Felony Class C Convictions"; and (5) "Prior Incarceration with Unsuspended Sentence Imposed of 1 Year or More." Presumptive and Voluntary Sentencing Standards Manual 35.