Devane Twon Reynolds v. State of Alabama ( 2022 )

Rel: December 16, 2022
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, 2022-2023
_________________________
CR-21-0478
_________________________
Devane Twon Reynolds
v.
State of Alabama
Appeal from Houston Circuit Court
(CC-09-318.62)
McCOOL, Judge.
Devane Twon Reynolds appeals the Houston Circuit Court's
summary dismissal of his Rule 32, Ala. R. Crim. P., petition for
postconviction relief, in which he challenged his November 2, 2010,
guilty-plea convictions for first-degree robbery, see § 13A-8-41, Ala. Code
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1975, first-degree theft of property, see § 13A-8-3, Ala. Code 1975, and
second-degree assault, see § 13A-6-21, Ala. Code 1975, and his sentences
of life imprisonment for each charge. Reynolds did not file a direct appeal
from his convictions.
On December 14, 2021, Reynolds filed the instant petition, his
third, in which he claimed: 1) that his guilty-pleas were involuntary; 2)
that the circuit court did not have jurisdiction to render the judgment or
impose the sentence in his cases because, he says, his convictions violate
double-jeopardy principles in that his convictions for first-degree theft of
property and second-degree assault were lesser-included offenses of the
offense of first-degree robbery; 3) that his sentences were illegal because,
he says, the court improperly used three prior juvenile adjudications from
the state of Georgia to enhance his sentence under the Habitual Felony
Offender Act ("the HFOA"); and 4) that he was denied the effective
assistance of counsel during plea negotiations.
The State filed a motion to dismiss Reynolds's petition, alleging
that the claims raised in his petition were meritless and precluded under
Rule 32.2(a)(2) through (5); that his petition was precluded as successive
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under Rule 32.2(b); and that his petition was time-barred under Rule
32.2(c).
The circuit court summarily dismissed Reynolds's petition on
February 23, 2022. Reynolds timely filed a notice of appeal.
On appeal, Reynolds reasserts the claims raised in his petition and
argues that the circuit court's summary dismissal of his petition was
improper.
I.
To the extent that Reynolds raises claims that his guilty plea was
involuntary or that his counsel was ineffective, these claims were
properly dismissed as precluded. It is well settled "that claims of
ineffective assistance of counsel and challenges to the voluntariness of a
guilty plea may be presented for the first time in a timely filed Rule 32
petition." Murray v. State, 922 So. 2d 961, 965 (Ala. Crim. App. 2005)
(emphasis added). However, neither a claim of ineffective assistance of
counsel nor a challenge to the voluntariness of a guilty plea is
jurisdictional. See Burnett v. State, 155 So. 3d 304, 307 (Ala. Crim. App.
2013)("A claim alleging ineffective assistance of counsel is not
jurisdictional."); and Fincher v. State, 837 So. 2d 876, 878 (Ala. Crim.
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App. 2002) ("Claims relating to the voluntariness of guilty pleas are not
jurisdictional."). Accordingly, because these claims were raised in
Reynolds's second Rule 32 petition, they were precluded under Rule
32.2(b). The claims were also time-barred under Rule 32.2(c) because
Reynolds's petition was filed more than a decade after his convictions and
sentences became final. Therefore, the circuit court's summary dismissal
of Reynolds's involuntary guilty-plea claims and his ineffective-
assistance-of-counsel claims was proper. See Rule 32.7(d), Ala. R. Crim.
P. ("If the court determines that the petition … is precluded … and that
no purpose would be served by any further proceedings, the court may
either dismiss the petition or grant leave to file an amended petition.").
II.
Next, Reynolds reasserts his claims that his guilty plea was
involuntary and that the circuit court did not have jurisdiction to render
the judgment or impose the sentence in his cases because, he says, his
convictions for first-degree theft of property and second-degree assault
were lesser-included offenses of the offense of first-degree robbery and,
thus, violate double-jeopardy principles. Specifically, Reynolds claimed
in his petition that he was alleged to have "assaulted a single victim
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during the course of committing the theft of a motor vehicle and [other
belongings of] the alleged victim" during a single course of conduct, or,
pursuant to one act or scheme." (C. 21.) Thus, he claimed, his "conviction
for first-degree robbery [under] §13A-8-41(a)(1) encompass[ed] his
convictions for theft of property and assault" because "the theft and
assault in this particular fact situation formed the basis" for his robbery
conviction. (C. 28.)
Initially, we note that this type of double-jeopardy claim has been
recognized as a jurisdictional claim. See Ex parte Benefield, 932 So. 2d
92 (Ala. 2005)(finding that double-jeopardy claims involving
simultaneous convictions for both a greater- and lesser-included offense
are jurisdictional and cannot be waived). Additionally, we note that,
although Reynolds raised this claim in a previous petition, this Court
affirmed the circuit court's summary dismissal of his claim because the
claim was insufficiently pleaded and, thus, his claim was not addressed
on its merits in the previous petition or on appeal. See Reynolds v. State,
184 So. 3d 471 (Ala. Crim. App. 2014)(table).1 Therefore, although
1This Court may take judicial notice of its own records on appeal.
See Nettles v. State, 731 So. 2d 626, 629 (Ala. Crim. App. 1998), and Hull
v. State, 607 So. 2d 369, 371 n.1 (Ala. Crim. App. 1992).
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Reynolds did raise this jurisdictional claim in a previous petition, the
claim is not precluded as successive because it was not adjudicated on
the merits.
To the extent that Reynolds alleges that his conviction for second-
degree assault was a lesser-included offense of first-degree robbery in his
case, we disagree. In Bradley v. State, this Court explained:
"Bradley was charged with first-degree robbery under § 13A–
8–41(a)(1)[, Ala. Code 1975,]—using or threatening the
imminent use of force against the victim while armed with a
deadly weapon or dangerous instrument—not under § 13A–
8–41(a)(2)[, Ala. Code 1975,]—using or threatening the
imminent use of force against the victim and causing serious
physical injury to the victim. Second-degree assault under §
13A–6–21(a)(2)[, Ala. Code 1975,] requires proof of physical
injury, whereas first-degree robbery under § 13A–8–41(a)(1)
requires proof only of force, see § 13A–1–9(a)(1)[, Ala. Code
1975,]; thus, second-degree assault under § 13A–6–21(a)(2)
actually requires greater injury than that required for first-
degree robbery under § 13A–8–41(a)(1), not lesser injury, see
§ 13A–1–9(a)(4)[, Ala. Code 1975]. In addition, second-degree
assault under § 13A–6–21(a)(2) does not 'consist[] of an
attempt or solicitation to commit [first-degree robbery] or to
commit a lesser included offense,' § 13A–1–9(a)(2)[, Ala. Code
1975,], nor is second-degree assault under § 13A–6–21(a)(2)
'specifically designated by statute as a lesser degree' of first-
degree robbery under § 13A–8–41(a)(1). § 13A–1–9(a)(3)[, Ala.
Code 1975,]. Thus, we hold that second-degree assault under
§ 13A–6–21(a)(2) is not a lesser-included offense of first-
degree robbery under § 13A–8–41(a)(1)."
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925 So. 2d 221, 224-25 (Ala. Crim. App. 2004). Reynolds conceded in his
petition that he was charged with and convicted of first-degree robbery
under § 13A-8-41(a)(1), Ala. Code 1975, and second-degree assault, under
§ 13A-6-21(a)(2), Ala. Code 1975. Therefore, in this particular case,
Reynolds's claim that his conviction of second-degree assault and his
conviction of first-degree robbery constituted a double-jeopardy violation
was meritless.
Reynolds also reasserts on appeal his contention that, because first-
degree theft of property is a lesser-included offense of first-degree
robbery, his convictions for both first-degree theft of property and first-
degree robbery violated double-jeopardy principles.
Section 13A-1-8(b), Ala. Code 1975, states, in pertinent part:
"When the same conduct of a defendant may establish the
commission of more than one offense, the defendant may be
prosecuted for such offense. He may not, however, be
convicted of more than one offense if … one offense is included
in the other, as defined in Section 13A-1-9."
Section 13A-1-9, Ala. Code 1975, provides, in pertinent part:
"(a) A defendant may be convicted of an offense included
in an offense charged. An offense is an included one if:
"(1) It is established by proof of the same or
fewer than all the facts required to establish the
commission of the offense charged."
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Additionally, this Court has explained that "[t]he test for determining
whether two offenses are the same for double-jeopardy purposes was
established in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180,
76 L. Ed. 306 (1932)." Heard v. State, 999 So. 2d 992, 1007 (Ala. 2007).
"First, 'the threshold inquiry under Blockburger is whether the alleged
statutory violations arise from "the same act or transaction." ' " Williams
v. State, 104 So. 3d 254, 256 (Ala. Crim. App. 2012) (quoting State v.
Watkins, 362 S. W. 3d 530, 545 (Tenn. 2012)). "Second, if the offenses
did arise from the same act or transaction, then it must be determined
whether each offense requires proof of an additional fact which the other
does not, i.e., whether the two offenses are the 'same' for double-jeopardy
purposes." Williams, 104 So. 3d at 257.
Section 13A-8-41(a)(1) provides that "[a] person commits robbery in
the first degree if he violates Section 13A-8-43[, Ala. Code 1975,] and he
… is armed with a deadly weapon or dangerous instrument." Section
13A-8-43, Ala. Code 1975, states that a person commits third-degree
robbery if, "in the course of committing a theft," he either "uses force
against the person or owner or any person present with intent to
overcome his physical resistance or physical power of resistance," or if he
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"threatens the imminent use of force against the person of the owner or
any person present with intent to compel acquiescence to the taking of or
escaping with the property."
"A person commits the crime of theft of property if he or she …
[k]nowingly obtains or exerts unauthorized control over the property of
another, with intent to deprive the owner of his or her property." § 13A-
8-2, Ala. Code 1975. Section 13A-8-3(b), Ala. Code 1975, provides that
"the theft of a motor vehicle, regardless of its value, constitutes theft-of-
property in the first degree."
The record in the instant case does not contain the indictments
against Reynolds or a copy of the plea agreement. However, in his
petition, Reynolds alleged that he was indicted under § 13A-8-41(a)(1)
and § 13A-8-3, and he claimed that the theft of the motor vehicle giving
rise to his first-degree-theft-of-property conviction was also the
underlying theft giving rise to his first-degree-robbery conviction. This
Court has recognized that, in cases where the theft that forms the basis
of a theft conviction is the same theft underlying a defendant's robbery
conviction, a conviction for both crimes violates the Double Jeopardy
Clause of the Fifth Amendment. See Gholston v. State, 57 So. 3d 178 (Ala.
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Crim. App. 2010)(holding that convictions for first-degree theft of
property and first-degree robbery based on the theft of the same motor
vehicle constituted a double-jeopardy violation). See also Crayton v.
State, 949 So. 2d 946, 978 (Ala. Crim. App. 2006). Therefore, Reynolds's
claim that his first-degree robbery conviction and first-degree theft of
property conviction violated his protection against double jeopardy may
be meritorious. Therefore, this case is due to be remanded for the circuit
court to hold an evidentiary hearing on this issue. See Peterson v. State,
842 So. 2d 734 (Ala. Crim. App. 2001).
III.
Additionally, Reynolds reasserts his claim that his sentence was
illegal because, he says, the circuit court improperly used prior juvenile
adjudications from the State of Georgia that were allegedly "under seal"
to enhance his sentence under the HFOA. (Reynolds's brief, at 8). In his
petition, Reynolds alleged that, although he stipulated to having three
prior felony convictions when he pleaded guilty, those prior convictions
were juvenile adjudications that could not have been used for sentence-
enhancement purposes under the HFOA.
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"[T]he use of an invalid prior conviction for sentence enhancement
renders a sentence illegal." Ginn v. State, 894 So. 2d 793, 796 (Ala. Crim.
App. 2004). The Alabama Supreme Court "has held that ' "a challenge to
an illegal sentence is jurisdictional and can be raised at any time." ' " Ex
parte Jarrett, 89 So. 3d 730, 732 (Ala. 2011) (quoting Ex parte Batey, 958
So. 2d 339, 341 (Ala. 2006), quoting in turn Ginn, 894 So. 2d at 796). See
also Ex parte Trawick, 972 So. 2d 782, 783 (Ala. 2007)("Trawick's claim
that his sentence is illegal under the HFOA presents a jurisdictional
claim.").
Further,
"[t]he Alabama Supreme Court in Ex parte Thomas, 435
So. 2d 1324 (Ala. 1982) held that:
" '... [A] prior youthful offender adjudication is
properly considered in determining the sentence to
be imposed within the statutory range for a later
crime for which the defendant has been convicted.
That same youthful offender determination,
however, may not be considered a prior felony
conviction, as contemplated by the Habitual
Offender Act, so as to bring the defendant within
the purview of the higher sentence categories of
that Act.'
"435 So. 2d at 1326. See also Thomas v. State, 445 So. 2d 992(Ala. Crim. App. 1984)."
Pickens v. State, 475 So. 2d 637, 639 (Ala. Crim. App. 1985).
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In Ex parte Dixon, 804 So. 2d 1075 (Ala. 2000), the Alabama
Supreme Court recognized:
"In regard to sentence enhancement under the HFOA, the
general rule is that 'the burden of proof [is] on the state to
show that the defendant has been convicted of a previous
felony or felonies.' Rule 26.6(b)(3)(iii), Ala. R.Crim. P.; see
Shumate v. State, 676 So. 2d 1345, 1347 (Ala. Crim. App.
1995). However, by admitting prior felony convictions, the
defendant relieves the State of its burden of proof. See Burrell
v. State, 429 So. 2d 636, 637 (Ala. Crim. App. 1982)."
804 So. 2d at 1076-77. However, in Ex parte Dixon, the Alabama
Supreme Court also explained that, even where a defendant admits to
having prior felonies, the use of a defendant's prior felony convictions to
invoke the HFOA is invalid unless the defendant is informed "that
youthful-offender convictions are not considered prior convictions for
purposes of sentence enhancement under the HFOA." Id., at 1077-78.
Reynolds alleged in his petition that he had stipulated to having
three prior felony convictions in the state of Georgia when he pleaded
guilty in the instant case; however, he also alleged that the prior felony
offenses that he stipulated to were offenses that were adjudicated under
Georgia's juvenile-adjudication statute. The record in this case is unclear
whether Reynolds conceded that he had three prior felony convictions
that were not juvenile adjudications when he pleaded guilty in the
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instant case or whether he merely stipulated to the three prior juvenile
adjudications that occurred in Georgia.
Therefore, like his double-jeopardy claim, because Reynolds's claim
that his sentence is illegal is potentially meritorious, this case is also due
to be remanded for the court to hold an evidentiary hearing and to make
specific findings of fact on the illegal-sentence claim. See Barnes v. State,
708 So. 2d 217 (Ala. Crim. App. 1997).
Accordingly, we remand this case to the circuit court with
instructions that the court hold an evidentiary hearing on the merits of
Reynolds's double-jeopardy and illegal-sentence claims. The circuit court
shall make specific, written findings of fact regarding Reynolds's double
jeopardy claim and his illegal-sentence claim in compliance with Rule
32.9(d), Ala. R. Crim. P. If the court determines that Reynolds is entitled
to relief on either or both of his claims, the court shall take all necessary
action to render the appropriate relief. Additionally, due return shall be
filed in this Court as soon as possible and within 56 days after the release
of this opinion. The return to remand shall include the circuit court's
specific, written findings of fact and a transcript of the evidentiary
hearing.
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Based on the foregoing, this case is remanded with instructions.
REMANDED WITH INSTRUCTIONS.
Windom, P.J., and Kellum and Minor, JJ., concur. Cole, J., concurs
in the result.
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