TAYLOR v. STATE

Reset A A Font size: Print

Court of Criminal Appeals of Alabama.

Kenneth Bertrand TAYLOR v. STATE.

CR-02-0823.

Decided: August 29, 2003

Kenneth Taylor, pro se. William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.

The appellant, Kenneth Bertrand Taylor, filed a Rule 32, Ala. R.Crim. P., petition, attacking his conviction for attempted murder and his sentence of 20 years' imprisonment.   He did not file a direct appeal from his conviction.

On the Rule 32 petition form, Taylor simply marked the following grounds for relief:  (1) “Conviction obtained by plea of guilty which was unlawfully induced or not made voluntarily with understanding of the nature of the charge and the consequences of the plea”;  (2) “[c]onviction obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant”;  (3) “[d]enial of effective assistance of counsel”;  (4) “[t]he court was without jurisdiction to render the judgment or to impose the sentence”;  and (5) “[t]he petitioner failed to appeal within the prescribed time and that failure was without fault on petitioner's part.”   However, he made no specific statement of allegations and provided no factual basis as to any of these five issues.   See Rule 32.6(b).  On a separate page, Taylor listed the following allegations against trial counsel:

“1. Petitioner's counsel told him to cop out to a 20 year sentence, and according to parole board guidelines petitioner has to do 15 years on a 20 year sentence.

“2. Petitioner asserts that counsel was ineffective and did not inform petitioner on forensic evaluation from Melissa V. Clinger, Phy. doctor.

“3. Petitioner asserts that counsel was ineffective on informing him on his minimum and maximum range of punishment on sentencing.

“4. Petitioner asserts counsel was ineffective in all critical stages during arraignment and during sentencing.

“5. Upon petitioner's plea agreement, counsel did not inform petitioner that he would be subjected to the 85% issue, which denied petitioner the right to a valid defense to refuse or dispute said enhancement during sentencing.”

The State moved to dismiss, arguing that Taylor had failed to comply with Rule 32.6(b) and that Taylor's claims were barred by 32.2(a)(1) and (3).   The trial court thereafter summarily denied the petition on the grounds pleaded by the State.   Taylor then filed a “Notice of Appeal and/or Motion for Reconsideration,” in which he argued (1) that he had not been advised of his right to appeal;  (2) that trial counsel had erroneously informed him that if he were tried and convicted by a jury, he could be sentenced to life imprisonment without parole;  and (3) that the trial court abused its discretion in taxing the costs of this matter to him.

On appeal, Taylor reiterates the claims he raised in his Rule 32 petition and in his motion for reconsideration.

 The trial court properly denied the petition as to Taylor's claims asserted by checking boxes on the form petition without providing any substantiating or specific facts;  specifically, the knowingness and voluntariness of his plea, the failure to disclose evidence, and the lack of jurisdiction of the trial court.   Because “a full disclosure of the factual basis of those grounds” is not included, those mere conclusions of law are insufficient to satisfy the pleading requirements of Rule 32.6(b), Ala. R.Crim. P. Madden v. State, 864 So.2d 395 (Ala.Crim.App.2002).   Additionally, Taylor's argument that the trial court improperly taxed him with court costs is meritless.   Pursuant to § 12-19-70, Ala.Code 1975, the trial court properly assigned the costs of this proceeding to Taylor.

 However, this case is due to be remanded for the trial court to make specific findings of fact as to Taylor's claims against trial counsel.   Taylor has made allegations that he was denied effective assistance of counsel during his guilty plea proceedings.   These issues could not have been presented at trial.   Taylor further argues that his failure to appeal his conviction was through no fault of his own and that this Rule 32 petition was his first opportunity to raise the claims.   The trial court's order of dismissal did not address Taylor's claims against trial counsel.   Moreover, the State has requested that this Court remand this case to the circuit court for a review of those claims.   Accordingly, this case is remanded to the Etowah Circuit Court for that court to hold an evidentiary hearing if necessary and to enter an order consistent with this opinion.   Due return shall be made to this Court within 42 days from the date of this opinion.

REMANDED WITH DIRECTIONS.*

I respectfully dissent from the majority's opinion, remanding with directions Kenneth Bertrand Taylor's Rule 32, Ala. R.Crim. P., petition, for the trial court to make specific findings of fact regarding Taylor's ineffective-assistance-of-counsel claims.1  Although this was Taylor's first opportunity to challenge counsel's performance, I do not believe that his claims satisfy either the pleading requirements of Rule 32.3, Ala. R.Crim. P.,2 or the specificity requirements of Rule 32.6(b), Ala. R.Crim. P.3

Before being heard on the claim, a petition must plead facts, which if true, entitle the petitioner to relief.   See, Ex parte Boatwright, 471 So.2d 1257, 1258 (Ala.1985).   Thus, a sufficiently pleaded petition alleging ineffective assistance of counsel must plead facts indicating (1) that counsel's performance was deficient, and (2) that the petitioner was prejudiced by the deficient performance.  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   In the context of guilty-plea proceedings, as in the instant case, a petitioner must show that but for counsel's errors, the petitioner would not have pleaded guilty but would have insisted on proceeding to trial.  Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

In order to meet the burden of pleading, Rule 32.6(b), Ala. R.Crim. P., requires not only that a petitioner plead a “clear and specific statement of the grounds upon which relief is sought,” but also that the petitioner include a “full disclosure of the factual basis of those grounds.”  (Emphasis added.)   Rule 32.6(b), Ala. R.Crim. P., continues:  “A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.”  (Emphasis added.)

It has long been settled that when seeking postconviction relief “[o]ne of the threshold requirements for a meritorious petition for writ of error coram nobis [4 ] is that the petition make ‘full disclosure of the facts relied on, not mere conclusions as to the nature and effect of facts [citation omitted].’ ”  Todd v. State, 484 So.2d 528, 530 (Ala.Crim.App.1985)(quoting Corley v. State, 397 So.2d 223, 224 (Ala.Crim.App.1981)).  “Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief.”  Boyd v. State, 746 So.2d 364, 406 (Ala.Crim.App.1999).   In other words, it is not the pleading of a conclusion “which, if true, entitle[s] the petitioner to relief.” Lancaster v. State 638 So.2d 1370, 1373 (Ala.Crim.App.1993). It is the allegation of facts in a pleading, which if true, that entitles a petitioner to relief.   After facts are pleaded, which if true entitle the petitioner to relief, the petitioner is then entitled to an opportunity (as provided in Rule 32.9, Ala.R.Crim.P.) to present evidence proving those alleged facts.

Taylor's claims regarding ineffective assistance of counsel asserted only conclusions;  he provided no facts supporting those conclusions.   Thus, Taylor's ineffectiveness claim amounted to nothing more than a bare allegation, unsupported by any factual basis.   The trial court's summary dismissal of this claim is due to be affirmed.   Therefore, I must dissent.

FOOTNOTES

FOOTNOTE.   Note from the reporter of decisions:  On November 21, 2003, on return to remand, the Court of Criminal Appeals affirmed, without opinion.

1.   The specific claims of ineffective assistance of counsel set forth in the majority opinion are quoted directly from Taylor's petition.

2.   “The petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.   The state shall have the burden of pleading any ground of preclusion, but once a ground of preclusion has been pleaded, the petitioner shall have the burden of disproving its existence by a preponderance of the evidence.”   Rule 32.3, Ala. R.Crim. P.

3.   “The petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds.   A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.”  Rule 32.6(b), Ala. R.Crim. P.

4.   Now a Rule 32, Ala. R.Crim. P., petition.

McMILLAN, Presiding Judge.

SHAW and WISE, JJ., concur.  COBB, J., dissents, with opinion.   BASCHAB, J., joins dissent.