Appeal from Shelby Circuit Court (CC-08-1183.60)
Mesiah Abercrombie pleaded guilty to first-degree robbery, a violation of § 13A-8-41(a)(1), Ala. Code 1975, and was sentenced as a habitual felony offender to life imprisonment without the possibility of parole. Abercrombie filed a motion to withdraw his guilty plea, which the trial court denied. This Court affirmed the trial court's denial of Abercrombie's motion in Abercrombie v. State, (CR-10-1485, March 9, 2012) 130 So.3d 858 (Ala.Crim.App.2012)(table). On May 13, 2013, Abercrombie filed a timely petition for postconviction relief pursuant to Rule 32, Ala. R. Crim. P. After a response from the State, the circuit court summarily denied the petition. This appeal follows.
In his petition, Abercrombie claimed, among other things, that he received incorrect advice from trial counsel regarding the effect of his guilty plea. Specifically, Abercrombie asserted that his guilty plea "was fatally infected by ... his trial counsel's telling him that he would get a sentence of 20 years split to serve 5 years but that if he took his case to trial and lost, he would get life without the possibility of parole ...." (C. 25.) Abercrombie contended that counsel's advice was erroneous and that it constituted ineffective assistance of counsel. Therefore, he argued, his plea was not entered with effective assistance of counsel.
To prevail on an ineffective-assistance-of-counsel claim, a petitioner must show that his counsel's performance was deficient and that counsel's deficient performance prejudiced him. See Brown v. State, 663 So.2d 1028 (Ala.Crim.App.1995), citing Strickland v. Washington, 466 U.S. 668 (1984). "When an appellant's claim of ineffective assistance of counsel arises from alleged errors committed by counsel in the guilty plea process, the prejudice prong of the Strickland analysis is satisfied by the appellant's establishing 'that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" Culver v. State, 549 So.2d 568, 572 (Ala.Crim.App.1989), quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Furthermore, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
As to the deficient-performance prong of Strickland, Abercrombie alleged that trial counsel told him that the trial court had the discretion to impose a 20-year sentence and to split the sentence so that Abercrombie would serve 5 years. A review of the record from Abercrombie's guilty-plea hearing reveals that this advice was based on counsel's assumption that the trial court could deviate from the Habitual Felony Offender Act ("HFOA") and sentence Abercrombie under Alabama's voluntary-sentencing standards. The voluntary-sentencing standards are set out in § 12-25-1 et seq., Ala. Code 1975. Section 12-25-34.1, Ala. Code 1975, provides:
"The initial voluntary sentencing standards and the accompanying worksheets and instructions, as adopted by the Sentencing Commission on September 30, 2005, and filed with the Clerk of the Supreme Court, the Secretary of the Senate, and the Clerk of the House of Representatives, are approved for implementation effective on October 1, 2006, under the terms and conditions set out in Sections 12-25-34 and 12-25-35. ..."
Paragraph 17 of the Initial Sentencing Standards: Instructions and Worksheets provides that the sentencing standards "do not apply to mandatory life without parole sentences [imposed] pursuant to the" HFOA.
A review of the record from Abercrombie v. State (CR-10-1485, March 9, 2012), 130 So.3d 858 (Ala.Crim.App.2012)(table), reveals that Abercrombie had three prior felonies, one of which was drug trafficking, a Class A felony. See § 13A-12-231(13), Ala. Code 1975. Therefore, Abercrombie was subject to sentencing under § 13A-5-9(c)(4), Ala. Code 1975, which provides:
"(c) In all cases when it is shown that a criminal defendant has been previously convicted of any three felonies and after such convictions has committed another felony, he or she must be punished as follows:
"(4) On conviction of a Class A felony, where the defendant has one or more prior convictions for any Class A felony, he or she must be punished by imprisonment for life without the possibility of parole."
Thus, Abercrombie was subject to a mandatory life-without-parole sentence and was consequently ineligible to be sentenced under the voluntary-sentencing standards. Accordingly, trial counsel's assertion that Abercrombie could potentially receive a 20-year split sentence was incorrect.
"To meet the first prong of the [Strickland] test, the petitioner must show that his counsel's representation fell below an objective standard of reasonableness. The performance inquiry must be whether counsel's assistance was reasonable, considering all the circumstances." Ex parte Lawley, 512 So.2d 1370, 1372 (Ala. 1987). In the present case, it appears that trial counsel gave Abercrombie erroneous advice regarding the possible outcome of his guilty plea. A reading of the above-mentioned statutes as well as the InitialSentencing Standards: Instructions and Worksheets ...