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02/10/95 KEITH O. MCDONALD v. STATE

February 10, 1995

KEITH O. MCDONALD
v.
STATE



Appeal from Montgomery Circuit Court. (CC-91-392). William Gordon, Trial Judge.

Released For Publication February 3, 1996.

Patterson, Judge

The opinion of the court was delivered by: Patterson

PATTERSON, JUDGE

The appellant, Keith O. McDonald, appeals from the circuit court's judgment denying his Ala.R.Cr.P. 32 petition in which he contests his 10-year sentence for his conviction of fraudulent use of a credit card pursuant to his guilty plea.

The two claims McDonald asserts in his petition are also asserted on appeal: (1) that he was denied effective assistance of counsel during his sentencing hearing because, he says, counsel failed to object to McDonald's not being present at the hearing, failed to investigate the importance of his presence, and failed to understand "the judicial tragedy of [McDonald's] absence"; and (2) that he was denied due process of law when he was sentenced in absentia. In his petition, McDonald frames this latter issue in terms of whether the sentencing court had jurisdiction to sentence him in his absence, citing Ex parte Hammond, 510 So. 2d 153, 154 (Ala. 1987). McDonald also asserts in his petition that he did not waive his presence at the sentencing hearing; that he "did not even know he was in jeopardy of being sentenced"; and that his mere failure to object does not constitute a waiver.

The case action summary and sentencing order show the following:

February 20, 1991: McDonald applies for youthful offender status.

March 8, 1991: McDonald pleads guilty, consideration of youthful offender application is postponed, and sentencing is set for March 22.

May 24, 1991: McDonald fails to appear.

August 7, 1991: Capias is issued.

March 18, 1992: McDonald fails to appear for sentencing, and his youthful offender application is denied.

March 26, 1992: The sentencing order is issued. In that order, the court states that McDonald is being sentenced in absentia upon its being informed that McDonald "has voluntarily left the jurisdiction of this court by leaving the state," ...


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