Stone v. State , 579 So. 2d 702 ( 1991 )

579 So. 2d 702 (1991)

Tommy Edward STONE
v.
STATE.

CR 89-1447.

Court of Criminal Appeals of Alabama.

April 26, 1991.

Tommy Edward Stone, pro se.

Don Siegelman, Atty. Gen., and Yvonne A. Henderson, Asst. Atty. Gen., for the State.

ON RETURN TO REMAND

McMILLAN, Judge.

This cause was remanded to the trial court with orders to specify which provision or provisions of Rule 20.2 applied to the issues raised in this case. 571 So. 2d 412. The appellant had claimed that his 20-year sentence on a Class C felony was illegal; that his counsel was ineffective for failing to object, failing to get medical records that would have been "a big help," and failing to call certain unnamed witnesses; that his conviction was obtained as the result of an unconstitutional search and seizure; and that newly discovered evidence required his conviction and sentence to be vacated. On remand, the trial court returned a written order which states as follows:

"The petitioner, Stone, alleged that new facts and newly discovered evidence exist which establishes innocence. The Petitioner has made no showing whatsoever of what those facts might be, or of how such facts or evidence would point to his innocence. Moreover, he claims in his petition that he, the Petitioner, was aware of such evidence prior to the trial, and the nature of this evidence (medical records).

"The petitioner claims that some of the evidence used against him at trial was the product of an illegal search and seizure. At trial, Petitioner was represented by John Perry, Esquire, and on appeal by James Lackey, Esquire, and the Honorable Elizabeth Shaw. Questions of illegal search and seizure are properly raised at trial and on direct appeal, and either were raised on those occasions or should have been.

"The Court further finds that the Petitioner has failed to meet his burden of proof as to the ineffective assistance of counsel claim, nor has he shown any conflict of interest or dereliction of duty on the part of trial counsel. The mere difference of opinion between Petitioner and his counsel as to trial tactics and procedure, coupled with a lack of objection at trial by appellant are insufficient to grant the petition.

"Therefore, the Court finds that no newly discovered evidence exists under Rule 20.1(e), and, the search and seizure question should have been or was raised at trial and/or on direct appeal per Rule 20.2(a), and there is no finding of ineffective assistance of counsel, under Rule 20.1(a)."

A review of the record indicates that the trial court's findings are proper. Moreover, the appellant's claim that his 20-year sentence for a Class C felony is illegal is without merit. The record indicates that the appellant was convicted of six counts of rape in the second degree and was sentenced to 20 years for each count, the sentences to run concurrently. Rape in the second degree was made a Class B felony by amendment in 1987. Ala.Acts 1977, Act No. 607, p. 812, § 2311; Ala.Acts 1979, Act No. 79-471, p. 862, § 1; Ala.Acts 1987, Act. No. 87-607, p. 1056, § 2. See § 13A-6-62(b), Code of Alabama 1975. The statutory sentencing range for a Class B felony is "not more than 20 years or less than two years." § 13A-5-6(a)(2), Code of Alabama 1975. Therefore, the appellant's sentence was proper.

Thus, the trial court's summary dismissal of the petition was proper pursuant to Rule 20.7(d), A.R.Crim.P.Temp. Moreover, where a petition raises allegations which are meritless, it may properly be dismissed without an evidentiary hearing. Ex parte Lockett, 548 So. 2d 1045 (Ala. 1989); Glover v. State, 531 So. 2d 705 (Ala. Cr.App.1988).

OPINION EXTENDED; AFFIRMED.

All Judges concur.