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12/29/94 HENRY STARKS v. STATE

December 29, 1994

HENRY STARKS, ALIAS HENRY RUSSAW
v.
STATE



Appeal from Pike Circuit Court. CC-88-23. Gary McAliley, TRIAL JUDGE.

Rehearing Denied April 14, 1995. Rule 39(k) Motion Denied April 14, 1995. Released For Publication October 30, 1995.

Bowen, Presiding Judge. All Judges concur.

The opinion of the court was delivered by: Bowen

BOWEN, PRESIDING JUDGE

The appellant, Henry Starks, was indicted for the capital offense of murder during a robbery, as defined in Ala. Code 1975, § 13A-5-40(a)(2). In 1989, the appellant was convicted and sentenced to death. That conviction and sentence were reversed on appeal due to erroneous jury instructions and other errors in the trial proceedings. Starks v. State, 594 So. 2d 187 (Ala.Cr.App. 1991).

On April 6, 1992, pursuant to a plea bargain with the State, the appellant pleaded guilty to the capital offense with which he was charged. A jury was empaneled and the State presented the testimony of Troy Police Chief Grady Reeves and a stipulation of facts agreed to by it, the appellant, and the appellant's attorneys. The stipulation of facts and the testimony of Chief Reeves were sufficient to establish the appellant's guilt beyond a reasonable doubt, see Ala. Code 1975, § 13A-5-42, and the jury found the appellant guilty of the capital offense. The appellant waived jury participation in sentencing and was sentenced, on the recommendation of the State, to imprisonment for life without possibility of parole.

The appellant sent the trial Judge a letter, dated May 11, 1992, accompanied by a pro se motion requesting that counsel be appointed for an appeal. C.R. 783, 784. Both the letter and the motion pointed out that the appellant had a limited time within which to file his notice of appeal. The record on appeal contains a copy of the pro se motion that bears the circuit court clerk's stamp showing that the motion was filed May 13, 1992. C.R. 788. However, the record also indicates that that copy of the motion was not actually placed in the case file until July 28, 1992. C.R. 787, 790. The record contains other copies of the appellant's letter to the trial Judge *fn1 and the pro se motion that are stamped as having been filed July 6, 1992. C.R. 783, 784. The notice of appeal was filed July 7, 1992. On July 10, 1992, this Court dismissed the appeal "as untimely filed due to the notice [of appeal] being filed with the clerk of the trial court more than 42 days from the date of sentence." C.R. 786.

There is no explanation in the record for the discrepancies in the date of the appellant's letter and the dates on which the letter and the appellant's pro se motion were stamped as having been filed. However, all parties appear to agree that the untimely filing of the appellant's notice of appeal was due to no fault of the appellant.

On August 25, 1993, the appellant filed a petition for post-conviction relief pursuant to Rule 32, A.R.Crim.P. In his petition, the appellant alleged (1) that he had been unlawfully arrested and that evidence obtained pursuant to this unlawful arrest had been improperly admitted at trial; (2) that the foreman of the grand jury that returned the indictment against him had been improperly permitted to serve in that capacity because, according to the appellant, the foreman had "prior knowledge or access to prior knowledge of the surrounding charges"; (3) that he had been denied the effective assistance of counsel; and (4) that he had failed to appeal within the prescribed time and that that failure was without fault on his part. C.R. 825-27.

On September 2, 1993, the State filed a response, alleging (1) that the appellant's first two claims were precluded because they had been addressed at trial; (2) that the appellant's "petition was precluded by Rule 32.2(a)(5) as raising matters which could have been raised on appeal, if a proper appeal had been timely filed"; and (3) that the petition was "not meritorious upon examination of the allegations, the court file, including pleadings, motions and supporting documents, and is not sufficiently specific to warrant further proceedings." C.R. 835-36. Although arguing that these issues were precluded, the State in its response also addressed the merits of the appellant's claims of unlawful arrest, improper action by the grand jury foreman, and ineffective assistance of counsel. The response concluded with the statement that if the trial court should find that the appellant attempted to timely file his notice of appeal, "then the appropriate remedy would be for the trial court to grant the defendant an out-of-time appeal." C.R. 836.

A hearing was held on the appellant's Rule 32 petition on February 11, 1994. The prosecution indicated at this hearing that the appropriate remedy would be to grant the appellant an out-of-time appeal. R. 248. The only evidence introduced at the hearing related to the appellant's claim regarding the grand jury foreman. In an order dated February 11, 1994, the trial court granted the appellant an out-of-time appeal. C.R. 849-50.

I

Although this appeal is designated as a direct appeal from the guilty plea conviction, the appellant's first issue relates to the trial court's ruling on the allegations in his Rule 32 petition other than his request for an out-of-time appeal. We observe that while Rule 32.1(f) provides that a claim of failure to appeal through no fault of the defendant is cognizable in a petition for post-conviction relief, it is not clear whether, if an out-of-time appeal is granted, the review of any other grounds contained in the petition must be the subject of a separate appeal. In the interests of judicial economy and in view of the fact that the State also requests us to do so, we will address this issue.

In the February 11 order granting the appellant an out-of-time appeal, the trial court also stated that "all parts of the [Rule 32 petition], except those specifically addressed below," were either matters that could have been, but were not, raised at trial or matters that could have been, but were not, raised on appeal and were precluded by Rule 32.2(a)(3) or Rule 32.2(a)(5), respectively. C.R. 848. The appellant contends that because he was attempting to obtain, but had not yet had, review by direct appeal, the trial court could not properly invoke Rule 32.2(a)(5) as a ground of preclusion. Under the particular circumstances of this case, we must agree. Where, as in this case, the trial court grants a defendant's request for an out-of-time appeal, it cannot then, either fairly or logically, find that the remaining allegations in the appellant's Rule 32 petition are precluded because those issues could have been, but were not, raised on appeal. Cf. ...


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