Appeal from Montgomery Circuit Court. (CC-93-210).
Cobb, Judge. All the Judges concur.
The opinion of the court was delivered by: Cobb
This case was originally assigned to another Judge on the Alabama Court of Criminal Appeals. It was reassigned to Judge Cobb on January 17, 1995.
The appellant, Thomas Hill, was convicted of robbery in the first degree and he was sentenced to 20 years' imprisonment. The appellant's trial counsel withdrew and new counsel was appointed before the sentencing hearing. Following the sentencing hearing, new counsel filed a timely motion in accordance with Ex parte Jackson, 598 So. 2d 895 (Ala. 1992). Counsel subsequently filed a motion for a new trial. The trial court never ruled on that motion; and it was denied by operation of law. See Rule 24.4, Ala. R. Crim. P.
In his motion for a new trial, the appellant alleged:
"7. Defendant Thomas Hill did not receive effective assistance of counsel as guaranteed him by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 6 of the Alabama Constitution of 1901. Without limiting the foregoing, Defendant Thomas Hill sets forth the following areas of ineffectiveness:
"a. Defendant Thomas Hill gave a statement to law enforcement officials around the time of his arrest. That statement was not voluntary but was improperly induced by representations of law enforcement officials that his giving a statement would result in a reduced bond. Thus, the statement was inadmissible under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 6 of the Alabama Constitution of 1901. Defendant Hill's statement was used by the prosecution in its case-in-chief and was also used by the prosecution to impeach Defendant Hill's testimony in the defense case. Defendant Hill's trial counsel failed to properly object to the use of Defendant Hill's statement."
(S.R. 9.) The State did not file a response to the appellant's motion for a new trial.
The appellant alleges in his brief to this court that he was entitled to a hearing on his motion for a new trial so that his allegation of ineffective assistance of trial counsel could be addressed. In Edgar v. State, 646 So. 2d 683 (Ala. 1994), the Alabama Supreme Court held that
"where...a criminal defendant's motion for a new trial is denied under the provisions of Rule 24.4, Ala. R. Crim. P., without an affirmative statement by the trial Judge giving the ruling a presumption of correctness and the defendant supports his new trial motion by evidence that was not presented at trial, and that evidence, if not controverted by the State, will entitle him to a new trial, the denial by operation of law should be reversed and the case remanded for the trial court to conduct a hearing on his motion for new trial and then enter an order either granting or denying the motion."
While the allegations in the motion for a new trial were not controverted by the State, the motion for a new trial was not supported by an affidavit.
"'Consequently, the assertions of counsel contained [in an unverified motion] "are bare allegations and cannot be considered as evidence or proof of the facts alleged."' Arnold v. State, 601 So. 2d 145, 154 (Ala.Cr.App. 1992). '"Assertions of counsel in an unverified motion . . . are bare allegations and cannot be considered as evidence or proof of the facts alleged." Smith v. State, 364 So. 2d 1, 14 (Ala.Cr.App. 1978). See Daniels [v. ...