Ex parte Shannon Ray Johnson.

Rel: 12/12/14
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2014-2015
____________________
1131279
____________________
Ex parte Shannon Ray Johnson
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Shannon Ray Johnson
v.
State of Alabama)
(Lauderdale Circuit Court, CC-11-485;
Court of Criminal Appeals, CR-12-2086)
BRYAN, Justice.
WRIT DENIED. NO OPINION.
Stuart, Bolin, Shaw, Main, and Wise, JJ., concur.
1131279
Moore, C.J., and Parker and Murdock, JJ., dissent.
2
1131279
MOORE, Chief Justice (dissenting).
I respectfully dissent from the Court's decision to deny
petitioner Shannon Ray Johnson's request for a writ of
certiorari directed to the Alabama Court of Criminal Appeals.
Facts and Procedural History
In March 2011, Johnson pleaded guilty to resisting
arrest, a violation of § 13A-10-33, Ala. Code 1975, in the
district court of Lauderdale County. The Court of Criminal
Appeals' unpublished memorandum, Johnson v. State (No. CR-12-
2086, April 25, 2014), ___ So. 3d ___ (Ala. Crim. App.
2014)(table), provides the following facts:
"The district court judge sentenced Johnson to
six months in the Lauderdale County Work Release
Center ('LCWRC'). The LCWRC is operated by the
Lauderdale County Community Corrections Authority.
Johnson reported to the LCWRC that evening and was
given a classification that prevented him from
leaving the LCWRC for any reason. Johnson was
informed that night of his classification. The next
day Johnson was again told that he could not leave
the LCWRC.
"At 7:00 p.m. on March 31, 2011, an Alcoholics
Anonymous meeting was held in a common area of the
LCWRC. A corrections officer announced that the
meeting was beginning, and Johnson went to the
common area along with other inmates. Shortly after
the meeting began, Johnson walked out of the common
area and off the LCWRC grounds. A corrections
officer reported the escape to law enforcement, and
the next day, April 1, 2011, Daryl Williams,
3
1131279
supervisor of the LCWRC, obtained a warrant for
Johnson's arrest.
"Later that day, Robbie Howard of the Florence
Police Department saw Johnson near a Johnson family
business. Johnson got into a vehicle and drove away.
Howard followed Johnson before stopping and
arresting him without incident."
Johnson was convicted in the Lauderdale Circuit Court of
third-degree escape under § 13A-10-33, Ala. Code 1975. The
State offered four of Johnson's prior felony convictions in
support of its request to have Johnson sentenced under the
Habitual Felony Offender Act, § 13A-5-9, Ala. Code 1975 ("the
HFOA"). Two of the four convictions were felony convictions
from Georgia.
Johnson objected to the admission of the Georgia
convictions on the ground that they were not properly
authenticated, that the State failed to lay the proper
foundation for admitting them, and that the State failed to
provide advance notice of its intent to use the Georgia
convictions. The circuit court admitted the Georgia
convictions over Johnson's objection and sentenced Johnson as
a habitual offender to life imprisonment under the HFOA.
Johnson appealed to the Court of Criminal Appeals, which
affirmed his conviction and sentence in an unpublished
4
1131279
memorandum. That court overruled Johnson's application for
rehearing. Johnson then filed this petition for certiorari
review.
Subject-Matter Jurisdiction of the Circuit Court
Before the Court of Criminal Appeals, Johnson argued that
the evidence of his Georgia convictions was inadmissible
because the State failed to prove that the conduct underlying
his Georgia convictions would have constituted felonies in
Alabama. The Court of Criminal Appeals held that Johnson
failed to preserve the issue of the admissibility of his
Georgia convictions because he made only a general objection
at trial.
In his certiorari petition before this Court, Johnson
argues that the Court of Criminal Appeals' holding conflicts
with appellate decisions holding that a general objection is
sufficient to preserve for appeal a challenge to patently
illegal evidence. See, e.g., Satterwhite v. State, 364 So. 2d
359, 360 (Ala. 1978) ("[A] general objection to admission of
evidence should be sustained if the evidence is illegal for
any purpose and cannot be made legal by introducing other
evidence or by otherwise framing the inquiry."). Whether
5
1131279
Johnson's alleged conflict ground has any merit, I believe
that we should have granted certiorari review to determine
whether the circuit court had subject-matter jurisdiction to
consider Johnson's Georgia convictions.
Rule 26.6(b)(3)(iv), Ala. R. Crim. P., provides, in
relevant part:
"Any conviction in any jurisdiction, including
Alabama, shall be considered and determined to be a
felony conviction if the conduct made the basis of
that conviction constitutes a felony under Act 607,
§ 130(4), Acts of Alabama 1977, p. 812 (§ 13A-1-
2(4), Alabama Criminal Code), or would have
constituted a felony under that section had the
conduct taken place in Alabama on or after January
1, 1980 ...."
Under the plain language of Rule 26.6(b)(3)(iv), not every
prior conviction may be used to enhance the sentence of a
criminal defendant as a habitual felon. Only those convictions
that satisfy the criteria set forth in the rule may properly
be considered. Therefore, the question whether a prior out-of-
state conviction qualifies to enhance a sentence goes to the
jurisdiction of the sentencing court. As the Court of Criminal
Appeals has stated:
"A challenge to the use of a prior conviction from
another jurisdiction to enhance a sentence under the
HFOA on the grounds that the prior conviction arose
from conduct that was not a felony in Alabama is a
6
1131279
jurisdictional issue challenging the legality of the
sentence."
Skinner v. State, 987 So. 2d 1172, 1175 (Ala. Crim. App. 2006)
(holding that a challenge similar to the one at issue was
jurisdictional and therefore not subject to the bar against
successive petitions in Rule 32, Ala. R. Crim. P.).
"'Subject-matter jurisdiction cannot be waived, and the
lack of subject-matter jurisdiction may be raised at any time
by a party or by a court ex mero motu.'" Ex parte Siderius,
144 So. 3d 319, 323 (Ala. 2013) (quoting Ex parte Punturo, 928
So. 2d 1030, 1033 (Ala. 2002)). Therefore, Johnson's first
ground supporting his petition for a writ of certiorari has a
probability of merit.
Applicability of Misdemeanor-Escape Statute
Additionally, I believe that Johnson states a cognizable
conflict with Terrell v. State, 621 So. 2d 402 (Ala. Crim.
App. 1993). Johnson was convicted of third-degree escape under
§ 13A-10-33, Ala. Code 1975, which classifies that escape as
a felony and supports Johnson's life sentence. Section 13A-10-
33 prohibits "escap[ing] or attempt[ing] to escape from
custody." (Emphasis added.) Section 14-8-42, Ala. Code 1975,
is a misdemeanor-escape statute that provides:
7
1131279
"The willful failure of an inmate to remain
within the extended limits of his confinement or to
return to the place of confinement within the time
prescribed shall be deemed an escape from a state
penal institution in the case of a state inmate and
an escape from the custody of the sheriff in the
case of a county inmate and shall be punishable
accordingly."
(Emphasis added.)
The Court of Criminal Appeals held in its unpublished
memorandum that the misdemeanor-escape statute does not apply
"[i]n circumstances where an inmate of any type escapes from
the detention center itself." In support of its holding, the
court relied upon Nichols v. State, 518 So. 2d 851 (Ala. Crim.
App. 1987), which in turn cited Hall v. State, 386 So. 2d 765
(Ala. Crim. App. 1980).
However, the inmate in Hall was being transported by two
correctional counselors when he broke free and escaped. The
court held that, "[u]nder the particular facts of this case,"
the inmate escaped from "actual custody" under the felony-
escape statute and did not fail "to remain within the extended
limits of his confinement" under a former misdemeanor-escape
statute. 386 So. 2d at 766. Johnson, however, did not break
free from the custody of officials, but failed to remain at
the work-release center. I believe that the conclusion by the
8
1131279
Court of Criminal Appeals that departing a work-release center
without authorization does not constitute misdemeanor escape
finds no support in the language of § 14-8-42, which prohibits
"[t]he willful failure of an inmate to remain within the
extended limits of his confinement."
Johnson alleged that the Court of Criminal Appeals'
holding conflicts with its decision in Terrell v. State, 621
So. 2d 402 (Ala. Crim. App. 1993), in which the court held
that a county inmate who escaped while serving time for a
misdemeanor could be found guilty of only misdemeanor escape,
and not felony third-degree escape. Like Terrell, Johnson "was
a county inmate serving time for a misdemeanor." Petition, at
10. Therefore, I believe that Johnson's second ground for
certiorari review has a probability of merit.
Conclusion
For the above-stated reasons, I would grant Johnson's
petition for a writ of certiorari to consider his challenge to
the use of his Georgia convictions to enhance his sentence and
the adverse construction of the misdemeanor-escape statute, §
14-8-42, Ala. Code 1975.
9