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01/13/95 MICHAEL RICHARD FONDREN v. STATE

January 13, 1995

MICHAEL RICHARD FONDREN
v.
STATE



Appeal from Jefferson Circuit Court. (CC-92-2105)

Patterson, Judge. Bowen, P.j., And McMILLAN, J., Concur; Taylor, J., Dissents With Opinion; Montiel, J., Joins IN The Dissent.

The opinion of the court was delivered by: Patterson

PATTERSON, JUDGE

The appellant, Michael Richard Fondren, appeals his conviction for first degree rape and sentence of life imprisonment without parole. After Fondren was sentenced and had filed his notice of appeal, the trial court appointed counsel to serve as his appellate counsel (hereinafter referred to as "initial appellate counsel"). Initial appellate counsel filed a motion for a new trial and subsequently filed an amended motion for new trial. The amended motion was denied without a hearing on December 28, 1993. The case action summary shows that on January 14, 1994, a hearing was held on the motion for a new trial *fn1 and the amended motion and that both motions were denied (the amended motion being denied twice). Thereafter, the trial court granted initial appellate counsel's motion to withdraw, and present appellate counsel was appointed.

Fondren contends that his initial appellate counsel was ineffective for failing to raise the issue of ineffectiveness of trial counsel. He asserts that initial appellate counsel was ineffective on the following grounds:

(1) Fondren first asserts that, although counsel did in fact assert ineffectiveness of trial counsel in a motion for a new trial, as amended, he failed to follow the procedures set forth in Ex parte Jackson, 598 So.2d 895 (Ala. 1992), and that such failure procedurally barred Fondren from pursuing the ineffective claim alleged in the motions.

(2) Fondren further asserts that initial appellate counsel was ineffective because more egregious examples of ineffectiveness of trial counsel would have been discovered had counsel filed a Jackson motion and received the trial record. (See (infra) for grounds that allegedly should have been asserted.)

(3) Fondren further contends that those grounds that were asserted in the motion for a new trial were not preserved for appellate review because the record is devoid of any supporting evidence. He asserts that because allegedly there was no evidentiary hearing or any affidavits accompanying the motions, there is nothing for this court to review in regard to the propriety of the denial of the motions. For example, Fondren points out that the ground of trial counsel's failure to call witnesses was waived because initial appellate counsel failed to identify witnesses who were alleged to have been ready to testify to certain facts and because counsel failed to include with his motions affidavits of these alleged witnesses.

In arguing that he has satisfied the prejudice prong of Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), Fondren states that "it is clear [he] was denied his right to present various legal issues, specifically issues regarding the ineffectiveness of his trial counsel on direct appeal." He contends that had initial appellate counsel preserved the issues presented in the motions and had followed Jackson to preserve other alleged errors of trial counsel, there is a reasonable probability that his conviction, or at least his sentence, would be reversed.

Fondren also contends that his trial counsel's errors taken together amounted to ineffective assistance of counsel, which prejudiced him to the point that a reversal of his conviction would have been mandated but for the fact that the issue of ineffectiveness of trial counsel could not be considered on appeal. He asserts four areas of alleged ineffectiveness.

(1) Trial counsel failed to object to the consolidation for trial of the prosecutions of Fondren and the victim's mother on the ground that their defenses were antagonistic to the point of being irreconcilable and mutually exclusive. Fondren also contends that because of this consolidation, the mother's statements to the police detailing Fondren's actions were allowed into evidence although the mother did not testify. He argues that, consequently, the victim's testimony was corroborated, and the impact of the impeaching evidence was greatly lessened. He also asserts that the trial court's granting of the mother's motion for a judgment of acquittal at the Conclusion of the state's case had a devastating negative impact on his case.

(2) Trial counsel failed to object to the introduction of the statements by the mother, a nontestifying codefendant, to police, pursuant to Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968).

(3) Trial counsel failed to request instructions on the allegedly lesser included offenses of attempted rape and first degree sexual abuse.

(4) Trial counsel failed to object to the prosecution's failure to introduce evidence of the prior felony convictions that were used to enhance his sentence and to prove that he was in fact the individual named in the judgments relating ...


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