Rel: February 9, 2024
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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Alabama Court of Criminal Appeals
OCTOBER TERM, 2023-2024
_________________________
CR-2023-0374
_________________________
Henry Neal Ferguson III
v.
Alabama Department of Corrections
Appeal from St. Clair Circuit Court
(CV-23-16)
MINOR, Judge.
Henry Neal Ferguson III, who is serving a sentence of life
imprisonment without the possibility of parole for his 1994 conviction for
attempted murder, petitioned the St. Clair Circuit Court for a writ of
habeas corpus. Although a life-imprisonment-without-the-possibility-of-
parole sentence has no end date and thus cannot be shortened, Ferguson
CR-2023-0374
argues that, under § 15-18-5, Ala. Code 1975, he is due credit on his
sentence for the time he spent in jail before his attempted-murder
conviction. For the reasons below, we remand this matter to the circuit
court for that court to hold a hearing on Ferguson's claim.
FACTS AND PROCEDURAL HISTORY
According to Ferguson's habeas petition, which he filed on February
27, 2023, authorities arrested him in May 1993 for first-degree assault
and placed him in the Talladega County jail. In June 1993, Ferguson
escaped from the jail. In February 1994, a grand jury indicted Ferguson
for attempted murder. In June 1994, authorities captured Ferguson and
returned him to jail. Ferguson was convicted of attempted murder in
August 1994, and a month later the circuit court sentenced him as a
habitual felon to life imprisonment without the possibility of parole. (C.
2-3.)
In his petition, Ferguson alleged two claims. First, he asserted that
he was due credit for the time he spent in jail "from his arrest date for
assault first degree unto his escape date, and from his escape capture
date unto his attempt to murder conviction and sentencing date." (C. 4.)
Second, he asserted that "his public government records" erroneously
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CR-2023-0374
showed that he had been convicted in September 1994 of murder rather
than attempted murder. (C. 4.)
The State moved to dismiss the petition. (C. 60.) As to Ferguson's
claim seeking a correction of the record of his conviction, the State
asserted that the claim was moot and referenced an affidavit from the
director of records from the Alabama Department of Corrections ("the
Department") and a copy of records showing that Ferguson had been
convicted of attempted murder. (C. 61.) Although the State asserted that
the affidavit and the records were attached to its motion to dismiss, they
were not.
As to Ferguson's claim seeking jail credit, the State asserted that
Ferguson had no constitutional right to such a credit. The State also
asserted that, because Ferguson was serving a sentence of life
imprisonment without the possibility of parole, "any jail time credited …
would have no impact on his release date." (C. 61, 73.)
The circuit court granted the State's motion to dismiss. (C. 65.)
Ferguson moved the court to reconsider, noting among other things that
the State had not included the affidavit and records with its motion to
dismiss. (C. 66.) The State responded and provided the affidavit and
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CR-2023-0374
records it had omitted from the motion to dismiss. (C. 71-79.) Citing the
State's response, the circuit court denied Ferguson's motion to reconsider.
(C. 80.) Ferguson timely appealed. (C. 81.)
STANDARD OF REVIEW
This Court reviews a judgment denying a habeas petition under an
abuse-of-discretion standard. Miller v. State, 668 So. 2d 912, 917 (Ala.
Crim. App. 1995). See also Montgomery v. State, 967 So. 2d 103 (Ala.
Crim. App. 2007); Ward v. State, 929 So. 2d 1048 (Ala. Crim. App. 2005).
"A circuit court may summarily deny a habeas petition without holding
an evidentiary hearing if the pleadings are sufficient to show that there
is no merit to the petition." Ward, 929 So. 2d at 1050 (citing D.L.S. v.
State, 675 So. 2d 1363, 1365 (Ala. Crim. App. 1995)).
DISCUSSION
On appeal, Ferguson argues that, on his sentence for life
imprisonment without the possibility of parole, he is due credit for the
time he was in jail before his conviction for attempted murder.1
1Ferguson also reiterates his claim seeking a correction of records
to show that his conviction was for attempted murder, not for murder.
He asserts that in the circuit court he "never got" the documents the State
attached to its response to his motion to reconsider, including the
documents showing that his conviction was for attempted murder.
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CR-2023-0374
According to the affidavit the State provided from Alcornelia Terry, the
director of central records for the Department, Ferguson has received no
jail credit for the time served in jail before trial on his sentence for his
attempted-murder conviction. Ferguson contends that "it is irrelevant
that [he] has a life without parole sentence." He cites § 15-18-5(a), Ala.
Code 1975, and § 15-18-6, Ala. Code 1975. 2
Before its amendment in 2018, § 15-18-5 provided:
"Upon conviction and imprisonment for any felony or
misdemeanor, the sentencing court shall order that the
convicted person be credited with all of his actual time spent
incarcerated pending trial for such offense. The actual time
spent incarcerated pending trial shall be certified by the
circuit clerk or district clerk on forms to be prescribed by the
Board of Corrections."
(Ferguson's brief, p. 11.) Ferguson asserts that if he had received it, "he
would have filed another motion for production of records." (Id.)
Ferguson's bare assertions do not show that the circuit court erred in
finding that his claim about the correction of records is now moot.
2Section 15-18-6, Ala. Code 1975, provides:
"An escapee from a state penal institution who is
recaptured and returned to custody shall be credited with all
of his actual time spent incarcerated within the State of
Alabama prior to his transfer and return to the custody of
Board of Corrections (penal system). The actual time spent
incarcerated pending return to custody of the Board of
Corrections (penal system) shall be certified by the sheriff on
forms to be prescribed by the Board of Corrections."
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CR-2023-0374
See Moore v. State, 40 So. 3d 750, 753 (Ala. Crim. App. 2009) (" 'A
defendant's sentence is determined by the law in effect at the time of the
commission of the offense.' Davis v. State, 571 So. 2d 1287, 1289 (Ala.
Crim. App. 1990).").
" 'Applying well-settled rules, [the Alabama Supreme] Court
has stated that if the language of a statute is clear then there
is no room for judicial construction of the statute and the
clearly expressed intent of the legislature must be given
effect. Tuscaloosa County Comm'n v. Deputy Sheriffs' Ass'n of
Tuscaloosa County, 589 So. 2d 687 (Ala. 1991).' "
Lay v. State, 82 So. 3d 9, 12 (Ala. Crim. App. 2011) (quoting Ex parte
Nixon, 729 So. 2d 277, 278 (Ala. 1998)). Section 15-18-5 does not exclude
a person serving a life-imprisonment-without-the-possibility-of-parole
sentence from being "credited with all of his actual time spent
incarcerated pending trial for such offense." Thus, under the plain
meaning of § 15-18-5, Ferguson's argument appears to have merit.3
We recognize that, because a petitioner serving a sentence of life
imprisonment without the possibility of parole has no release date, there
3In its brief, the State cites Lay v. State, 82 So. 3d 9 (Ala. Crim.
App. 2011), for the proposition that there is no constitutional right to jail
credit under § 15-18-5, Ala. Code 1985. In Lay, this Court held that "a
criminal defendant may waive jail credit imposed pursuant to § 15-18-5,
Ala. Code 1975, as a part of a plea agreement." Nothing in the record
shows, however, that Ferguson waived his right to jail credit.
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CR-2023-0374
is no date against which the Department may "credit" the petitioner with
time served before his or her trial that led to the conviction and sentence.
Thus, regardless how much time Ferguson was incarcerated before trial,
"crediting" him with that time of pretrial incarceration will not shorten
his prison sentence.
Even so, as noted above, the plain meaning of § 15-18-5 requires the
Department to certify "[t]he actual time [Ferguson] spent incarcerated
pending trial." Although this certification will not shorten Ferguson's
prison sentence, § 15-18-5 requires it, and, based on the record before us,
we cannot say that the Department's failure to make the certification in
Ferguson's case is harmless. Cf. People v. Paintman, 139 Mich. App. 161,
361 N.W.2d 755 (Mich. Ct. App. 1984) ("Although defendant is serving
mandatory sentences of life imprisonment without parole, the failure to
give him the extra credit is not harmless error. The number of days he
has already served may affect his eligibility within the prison system for
various benefits and may affect his eligibility for a commutation of his
sentence by the Governor,[4] however unlikely that possibility may be.");
4In Alabama, the Governor's authority to commute a sentence is
limited to a defendant who has been sentenced to death. § 124, Ala.
Const. of 2022.
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CR-2023-0374
State v. Thibodeaux, 647 So. 2d 525, 530 (La. Ct. App. 1994) ("While we
are aware that the defendant's sentence is for life without benefit of
parole, probation or suspension of sentence, we note and correct the
failure to give credit for time served because this failure could make a
difference if defendant's sentence is ever considered for commutation
and, if a decision is made to commute his sentence, the failure could also
make a difference as to when the commutation should take effect."). The
certification required by § 15-18-5, Ala. Code 1975, is not conditioned on
the possible release of an inmate, and it is thus distinguishable from a
mandatory provision like the requirement in § 13A-5-6(c), Ala. Code
1975, that a sentencing court impose a period of post-release supervision
for offenders convicted of certain offenses. Cf. Colburn v. State, [Ms. CR-
2022-0721, May 5, 2023] ___ So. 3d ___, ___ (Ala. Crim. App. 2023)
(finding no error in trial court's failure to impose period of post-release
supervision under § 13A-5-6(c) on a defendant sentenced to life
imprisonment without the possibility of parole).
When the unrefuted facts in a habeas petition show that a
petitioner's claim about the calculation of jail credit may have merit, this
Court's practice is to remand the matter for an evidentiary hearing. See,
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CR-2023-0374
e.g., Hillard v. Alabama Dep't of Corrs., 93 So. 3d 983, 984 (Ala. Crim.
App. 2011) (challenging calculation of jail credit on a 30-year sentence for
first-degree robbery); Gunn v. State, 17 So. 3d 711, 714 (Ala. Crim. App.
2007) (challenging jail-credit calculation on a sentence for first-degree
robbery); Wilson v. State, 981 So. 2d 441 (Ala. Crim. App. 2007)
(challenging jail-credit calculation on sentences for two convictions);
Culbreth v. State, 966 So. 2d 912 (Ala. Crim. App. 2007); Boone v. State,
918 So. 2d 941 (Ala. Crim. App. 2005); Smith v. State, 882 So. 2d 993
(Ala. Crim. App. 2003); Frazier v. State, 800 So. 2d 606 (Ala. Crim. App.
2000); Russell v. State, 755 So. 2d 62 (Ala. Crim. App. 1999); Johnson v.
State, 681 So. 2d 1104 (Ala. Crim. App. 1996).
CONCLUSION
We remand this case to the circuit court for that court to hold an
evidentiary hearing on Ferguson's claim that he has received no pretrial
jail credit on his sentence for his attempted-murder conviction. After the
hearing, the circuit court shall make specific, written findings about that
claim. If the court finds that Ferguson is due credit on that sentence, it
should so state and require the Department to certify on Ferguson's
records the amount of jail time he served before his conviction. The
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CR-2023-0374
circuit court must take all necessary action to ensure that the circuit
clerk files a return to remand with this Court within 42 days after the
release of this opinion. The return to remand must include a transcript
of the evidentiary hearing, any filings by the parties, the court's written
findings of fact, and any other orders the circuit court may enter in
connection with this case.
REMANDED WITH INSTRUCTIONS.
Windom, P.J., and Kellum, McCool, and Cole, JJ., concur.
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