REL:06/20/2014
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1130649
____________________
Ex parte Robert Gill
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Robert Gill
v.
State of Alabama)
(Morgan Circuit Court, CC-95-43;
Court of Criminal Appeals, CR-12-1972)
BOLIN, Justice.
WRIT DENIED. NO OPINION.
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Stuart, Parker, Murdock, Shaw, Main, Wise, and Bryan,
JJ., concur.
Moore, C.J., dissents.
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MOORE, Chief Justice (dissenting).
I would grant inmate Robert Gill's petition for a writ of
certiorari to review the Court of Criminal Appeals' affirmance
of the trial court's denial of Gill's motion for sentence
reconsideration filed pursuant to § 13A-5-9.1, Ala. Code 1975.
Gill v. State (No. CR-12-1972, Feb. 7, 2014), ___ So. 3d ___
(Ala. Crim. App. 2014)(table). Therefore, I dissent from the
denial of his petition. I believe that Gill's case is
representative of a systemic problem associated with the
Habitual Felony Offender Act, § 13A-5-9, Ala. Code 1975 ("the
HFOA").
Gill was convicted of first-degree robbery, a Class A
felony, and was sentenced as a habitual felony offender to
life imprisonment without the possibility of parole. His prior
convictions included convictions for distribution of a
controlled substance and for two counts of possession of a
controlled substance. This petition for certiorari review
arises out of Gill's fourth motion for sentence
reconsideration, which the circuit court summarily denied. On
his appeal of that denial to the Court of Criminal Appeals,
Gill argued that, because he was a nonviolent offender, the
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circuit court had exceeded its discretion in denying his
motion for sentence reconsideration. Affirming the circuit
court's denial of Gill's motion, the Court of Criminal Appeals
issued an unpublished memorandum quoting its ruling in the
appeal involving Gill's third motion for sentence
reconsideration: "'Suffice it to say, we have reviewed the
record and, considering that Gill was armed with a knife
during the robbery, we find no abuse of discretion on the part
of the circuit court in finding him to be a violent offender
and thus ineligible for sentence reconsideration.'" This
statement presupposes that the offense for which Gill was
convicted determined whether he was a violent offender. As
explained below, I reject this assumption. I believe that §
13A–5–9.1 and Kirby v. State, 899 So. 2d 968(Ala. 2004), and
its progeny prohibit a sentencing or presiding judge from
determining whether an inmate is a violent offender for
purposes of sentence reconsideration based solely on the
offense of which the inmate was convicted. The statutory
requirement that the sentencing or presiding judge must
consider "evaluations performed by the Department of
Corrections and approved by the Board of Pardons and Paroles"
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in determining whether to reconsider a defendant's sentence
suggests that the offense for which the inmate was convicted
may not serve as the sole basis for determining whether an
inmate is a violent or a nonviolent offender for purposes of
§ 13A–5–9.1.
Before 2000, the HFOA read, in pertinent part:
"(c) In all cases when it is shown that a
criminal defendant has been previously convicted of
any three felonies and after such convictions has
committed another felony, he must be punished as
follows:
"(1) On conviction of a Class C
felony, he must be punished by imprisonment
for life or for any term not more than 99
years but not less than 15 years.
"(2) On conviction of a Class B
felony, he must be punished for life in the
penitentiary.
"(3) On conviction of a Class A
felony, he must be punished by imprisonment
for life without parole."
(Emphasis added.) The HFOA was amended effective May 25, 2000;
subsection (c) now reads:
"(c) In all cases when it is shown that a
criminal defendant has been previously convicted of
any three felonies and after such convictions has
committed another felony, he or she must be punished
as follows:
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"(1) On conviction of a Class C
felony, he or she must be punished by
imprisonment for life or for any term of
not more than 99 years but not less than 15
years.
"(2) On conviction of a Class B
felony, he or she must be punished by
imprisonment for life or any term of not
less than 20 years.
"(3) On conviction of a Class A
felony, where the defendant has no prior
convictions for any Class A felony, he or
she must be punished by imprisonment for
life or life without the possibility of
parole, in the discretion of the trial
court.
"(4) On conviction of a Class A
felony, where the defendant has one or more
prior convictions for any Class A felony,
he or she must be punished by imprisonment
for life without the possibility of
parole."
(Emphasis added.) The Amendment Notes to the HFOA describe the
changes effectuated by the 2000 amendment:
"The 2000 amendment ... inserted 'or she' in
eleven places; in subsection (a), in the
introductory matter substituted 'a felony and after
the' for 'any felony and after such'; in subsection
(c), in subdivision (1) inserted 'of' following
'term', in subdivision (2) substituted 'by
imprisonment for life or any term of not less than
20 years' for 'life in the penitentiary', in
subdivision (3) substituted 'where the defendant has
no prior convictions for any Class A felony, he or
she must be punished by imprisonment for life or
life without the possibility of parole, in the
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discretion of the trial court' for 'he must be
punished by imprisonment for life without parole',
and added subdivision (4); and made nonsubstantive
changes."
Amendment Notes, § 13A-5-9(c), Ala. Code 1975.
In Kirby, this Court described the reasoning behind, and
the implementation of, the 2000 amendment to the HFOA:
"In 2000, the Legislature amended the HFOA to allow
a sentence to be imposed for certain habitual
offenders less severe than life imprisonment without
parole under certain circumstances. Specifically,
and relevant to this proceeding, § 13A–5–9(c)(3) was
amended so that a defendant with three prior felony
convictions, none of which was for a Class A felony,
who is subsequently convicted of a Class A felony
may be sentenced to imprisonment for life or life
imprisonment without the possibility of parole, in
the discretion of the trial court.[1] Before that
amendment, a sentence of life imprisonment without
1
Justice Stuart has explained that "the 2000 amendment
provided judges with the discretion, when sentencing a
defendant, to order the defendant to serve a sentence of life
imprisonment when convicted of a fourth felony offense,
provided that the fourth felony conviction was not for a Class
A felony and the defendant had not previously been convicted
of a Class A felony." Holt v. State, 960 So. 2d 740, 745 (Ala.
2006)(dissenting from quashing the writ of certiorari).
Nabers, C.J., and See, Stuart, and Parker, JJ., dissented in
that case. Justice See dissented on the ground that § 13A-5-
9.1 may violate the separation-of-powers doctrine insofar as
the legislature in enacting it may have usurped powers
reserved for the judiciary by requiring trial courts to
recognize jurisdiction over criminal defendants more than 30
days after the criminal defendants were sentenced and by
mandating that trial courts entertain motions for sentence
reconsideration in certain circumstances. Holt, 960 So. 2d
at 741-44.
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the possibility of parole was mandatory under §
13A–5–9(c)(3) for a Class A felony offender with
three prior felony convictions. In 2001, the
Legislature passed Act No. 2001–977 ('the Act') in
an attempt to make the 2000 amendments to § 13A–5–9
retroactive. The stated purpose of the Act was 'to
provide further for eligibility for parole
consideration of non-violent offenders.' The Act,
now codified as § 13A–5–9.1, states in its entirety:
"'The provisions of Section 13A–5–9
shall be applied retroactively by the
sentencing judge or presiding judge for
consideration of early parole of each
nonviolent convicted offender based on
evaluations performed by the Department of
Corrections and approved by the Board of
Pardons and Paroles and submitted to the
court.'
"The Act became effective on December 1, 2001.
However, because the Department of Corrections ('the
DOC') and the Board of Pardons and Paroles ('the
Parole Board') concluded that there were significant
problems with § 13A–5–9.1, it ha[d] not ... been
implemented or applied [as of August 2004].
"On September 29, 2001, the same day he approved
the Act, then Governor Siegelman signed Executive
Order Number 62 ('EO 62') calling for the
development of a 'process for evaluating non-violent
offenders possibly affected by [§ 13A–5–9.1].' EO 62
directed the DOC to develop guidelines and
procedures for determining which inmates would be
eligible for reconsideration of their sentences
under § 13A–5–9.1. EO 62 also purported to suspend
operation of § 13A–5–9.1 until June 1, 2002, 'by
which time the Department of Corrections should have
developed an evaluation process to determine which
offenders are "non-violent."'"
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899 So. 2d at 969-70 (footnote omitted; all but initial
emphasis added). "At the time § 13A-5-9.1, Ala. Code 1975,
became effective the question arose as to how a circuit court
retained the authority to reconsider an inmate's sentence when
that court normally loses jurisdiction to modify a defendant's
sentence in a criminal case within 30 days of sentencing if a
postjudgment motion is not filed." Holt v. State, 960 So. 2d
740, 745 (Ala. 2006)(Stuart, J., dissenting from quashing the
writ of certiorari). This Court resolved that question in
Kirby, which held that an inmate need not have a case pending
before the circuit court in order to file a motion for
reconsideration of sentence under § 13A-5-9.1 and also that §
13A-5-9.1 vested the circuit courts with jurisdiction to
consider such motions for sentence reconsideration. Kirby, 899
So. 2d at 971. Therefore, under Kirby, "an inmate may ask the
sentencing judge or the presiding judge for relief from a
previous sentence imposed pursuant to the HFOA." Id.
As a result of Kirby and subsequent cases interpreting
Kirby, a three-step "test" has developed for evaluating
motions for sentence reconsideration under § 13A-5-9.1. Step
one is to determine whether the motion was filed in the
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appropriate court and assigned to the appropriate judge (i.e.,
the sentencing judge or the presiding judge). Ex parte
Sandifer, 925 So. 2d 290, 295-96 (Ala. Crim. App. 2005). Step
two is to determine whether the motion is a successive motion.
Under Ex parte Gunn, 993 So. 2d 433, 435-37 (Ala. 2007), a
circuit court does have jurisdiction to consider successive
motions for sentence reconsideration; however, the fact that
a motion for sentence reconsideration is successive has been
held to be a valid basis for denying the motion. Ashford v.
State, 12 So. 3d 160, 162 (Ala. Crim. App. 2008).
Step three consists of three parts and addresses an
inmate's eligibility for sentence reconsideration. Merely
because an inmate is eligible for sentence reconsideration
does not mean that the inmate must be resentenced. Holt, 960
So. 2d at 735 n.3 ("[A] circuit court is not required to
resentence an inmate merely because it determines that the
inmate is eligible for reconsideration of his or her
sentence.").
"There are three requirements for eligibility to
have a sentence reconsidered under § 13A-5-9.1: (1)
the inmate was sentenced before May 25, 2000, the
date the 2000 amendment to the HFOA became
effective; (2) the inmate was sentenced to life
imprisonment without the possibility of parole
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pursuant to § 13A-5-9(c)(3) and had no prior Class
A felony convictions or was sentenced to life
imprisonment pursuant to § 13A-5-9(c)(2)...; and (3)
the inmate is a 'nonviolent convicted offender.' An
inmate must satisfy all three requirements before he
or she is eligible for reconsideration of the
sentence under § 13A-5-9.1. If a circuit court
determines that an inmate is eligible for
reconsideration of his or her sentence, the court
then has the authority pursuant to § 13A-5-9.1 to
resentence the inmate, within the bounds of § 13A-5-
9(c)(2) or § 13A-5-9(c)(3), as amended, if it so
chooses. If, on the other hand, the circuit court
determines that the inmate fails to meet any or all
of the eligibility requirements then the circuit
court must deny the inmate's § 13A-5-9.1 motion
because a circuit court has jurisdiction to
resentence only those inmates who meet the
eligibility requirements of § 13A-5-9.1. ..."
Holt, 960 So. 2d at 734-35 (emphasis added).
Because § 13A-5-9.1 does not define "nonviolent convicted
offender," circuit courts have had difficulty determining
whether an inmate is "nonviolent" and hence eligible for
sentence reconsideration. Although it is appropriate for a
circuit court to consider whether the offense committed by an
inmate seeking reconsideration of his or her sentence is
statutorily defined as a "violent offense," this fact alone
does not necessarily render an inmate a violent convicted
offender. Holt, 960 So. 2d at 736. Accordingly, committing a
"violent offense" as defined by statute does not permanently
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brand an inmate as a "violent offender" for purposes of §
13A–5–9.1, which maintains that the sentencing or presiding
judge must consider the "evaluations performed by the
Department of Corrections and approved by the Board of Pardons
and Paroles." Holt, 760 So. 2d at 736; § 13A–5–9.1.
"[I]n determining whether an inmate is a 'nonviolent
convicted offender' within the meaning of § 13A-5-9.1, what
weight to afford each factor presented to [the circuit court]
is within the circuit court's discretion." Holt, 960 So. 2d at
738.
"A circuit court is not required to make specific
findings of fact regarding the weight it affords
each factor, and in reviewing a circuit court's
determination of whether an inmate is a 'nonviolent
convicted offender,' this Court will give the trial
court great deference regarding the weight it
afforded the factors presented to it, and we will
presume that the circuit court properly considered
and weighed each factor presented, unless the record
affirmatively shows otherwise."
960 So. 2d at 738. "[W]hether an inmate is a 'nonviolent
convicted offender' is based on a totality of the
circumstances." Id. By "totality of the circumstances," this
Court means "the totality of the information before the
circuit court when it rules on the § 13A-5-9.1 motion [for
sentence reconsideration]." Id. "[A] circuit court is not
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precluded from considering, nor may it refuse to consider, all
of the factors presented to it by either party." Id.
One factor involves "evaluations" of the inmate
"performed by the Department of Corrections and approved by
the Board of Pardons and Paroles and submitted to the court."
§ 13A-5-9.1. Kirby implies that a presumption of nonviolence
attaches to a motion for sentence reconsideration by holding
that "if the DOC [Department of Corrections] does not provide
the evaluation in a timely fashion, the State will have waived
any input as to the inmate's conduct while incarcerated that
the sentencing judge or the presiding judge might otherwise
have considered in determining whether the inmate is a
nonviolent offender." Kirby, 899 So. 2d at 975. Moreover,
"[w]hile the information available to the trial court in the
DOC's evaluation will be helpful in making its determination,"
the Department of Corrections' failure to submit an evaluation
waives the State's input regarding whether the inmate is a
violent offender. 899 So. 2d at 874. If the Department of
Corrections does not submit an evaluation, then it presents no
evidence to rebut an inmate's claim that the inmate is a
nonviolent convicted offender. I disagree that "§ 13A-5-9.1
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does not require a circuit court to order, or the Department
of Corrections to submit, an inmate evaluation, [and that] it
merely permits the consideration by the circuit court of such
an evaluation." Holt, 960 So. 2d at 737. The circuit court is
required to order the Department of Corrections to submit an
inmate evaluation.
I note in conclusion that the legislature repealed 13A-5-
9.1, Ala. Code 1975, effective March 13, 2014. See Act No.
2014-165, Ala. Acts 2014. Therefore, the HFOA, as amended in
2000, will no longer be applied retroactively. Act No. 2014-
165 states that "this act shall be applied prospectively
only." Section 2, Act No. 2014-165. Nevertheless, the repeal
of 13A-5-9.1 is not effective as to all cases: "Any case, on
the effective date of this act, in which a motion filed
pursuant to 13A-5-9.1, Code of Alabama 1975, is pending in the
trial court or is subject to an appeal or pending in an
appellate court on appeal from the denial or dismissal of a
motion shall not be affected by this act." Id.
The retroactive application of the amended HFOA corrected
an unjust sentencing scheme that mandated the imprisonment of
many nonviolent convicted offenders for life with no
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opportunity for parole. The recent repeal of § 13A-5-9.1
eliminates all chances of release for nonviolent inmates who
are serving a term of life imprisonment without the
possibility of parole but who are reformed or rehabilitated
while in prison. Recent petitions before this Court have
argued that, in contravention of § 13A-5-9.1, the Department
of Corrections was not submitting inmate evaluations to the
circuit courts when inmates moved for a reconsideration of
their sentence and that, even when the Department of
Corrections submitted such evaluations, circuit courts were
not considering the inmate evaluations before ruling on
motions for sentence reconsideration. See, e.g., Ex parte
Pate, [Ms. 1120348, August 30, 2013] ___ So. 3d ___ (Ala.
2013) (noting that circuit court did not consider inmate's
motion for sentence reconsideration on its merits); Ex parte
Manley (No. 1120382, March 8, 2013), ___ So. 3d ___ (Ala.
2013)(table)(denying petition for a writ of certiorari in a
case in which an inmate alleged that, instead of considering
his inmate evaluations, the circuit court determined that he
was a violent offender even though the previous felonies used
to enhance his sentence under the HFOA were nonviolent
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offenses and the offense for which he was convicted and
sentenced under the HFOA was classified as robbery simply
because he stole guns); and Ex parte Harper, [No. 1130496](a
pending petition for certiorari review in which the inmate
alleges that the circuit court refused to consider the
evidence he submitted to the circuit court, including his
prison records, before ruling, solely on the basis of his
underlying offense of robbery, that he was a violent
offender). If these allegations are true, then § 13A-5-9.1 is
not being followed in letter or spirit.
Therefore, because I believe there are special and
important reasons for this Court to grant Gill's petition for
a writ of certiorari in this case and the petitions in
numerous other cases, I respectfully dissent.
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