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Eller v. State

Alabama Court of Criminal Appeals

November 21, 2014

Larry Paul Eller
v.
State of Alabama

         Released for Publication April 28, 2016.

Page 1185

          Appeal from Marion Circuit Court. (CC-12-129.60). Talmadge Lee Carter, Trial Judge.

         For Appellant: Gary Lee Blume, Northport.

         For Appellee: Luther Strange, atty. gen., and Cecil G. Brendle, asst. atty. gen.

         KELLUM, Judge. Windom, P.J., and Welch, Burke, and Joiner, JJ., concur.

          OPINION

Page 1186

          On Return to Remand

         KELLUM, Judge.

         Larry Paul Eller appeals the circuit court's summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P., in which he attacked his July 11, 2012, guilty-plea conviction for first-degree sodomy and his resulting October 11, 2012, sentence of life imprisonment. Eller did not appeal his conviction and sentence.

         On September 19, 2013, Eller, through counsel, timely filed this, his first, Rule 32 petition. In his petition, Eller alleged:

(1) That his trial counsel was ineffective for:
(a) not timely moving for a preliminary hearing within 30 days of his arrest as required by § 15-11-1, Ala. Code 1975, and Rule 5, Ala. R. Crim. P., which, he claimed, resulted in his being denied a preliminary hearing;
(b) not meeting with him before trial " a sufficient number of times" (C. 15);
(c) not presenting at the hearing on his motion to suppress his confession, evidence indicating that he " suffered from a medical condition that caused him to be confused and [that] impaired his thinking at the time that law enforcement questioned" him (C. 15);
(d) not taking steps to have him evaluated to determine his competency to stand trial, his competency to understand and waive his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and his mental state at the time of the crime after he entered a plea of not guilty by reason of mental disease or defect;
(e) advising him that " his only choices were to enter a guilty plea to one count of Sodomy [in the first degree] with a child under th[e] age of 12 years and accept a life sentence, or go to trial, where he would certainly receive a sentence of life without the possibility of parole," which, he claimed, improperly led him to believe that he would be eligible for parole if he pleaded guilty when, in fact, he is not eligible for parole under § 15-22-27.3, Ala. Code 1975 (C. 16); and
(2) That his guilty plea was involuntary because, he said, the trial court failed to inform him " of the impact of § 15-22-27.3, Code of Alabama (1975) upon any sentence imposed." (C. 16.)

         On December 13, 2013, the State filed a response to Eller's petition, arguing that

Page 1187

Eller's claims of ineffective assistance of counsel were either meritless or insufficiently pleaded and that his challenge to the voluntariness of his guilty plea was also insufficiently pleaded. The circuit court conducted an evidentiary hearing on Eller's petition on January 17, 2014. On February 27, 2014, the circuit court issued an order purporting to deny Eller's petition in part and grant the petition in part. The circuit court denied Eller's petition to the extent that it raised claims of ineffective assistance of counsel. The court purported to grant Eller's petition to the extent that it challenged the voluntariness of his plea, specifically finding that the trial court had, in fact, failed to inform Eller that he was ineligible for parole under § 15-22-27.3. However, the circuit court did not set aside Eller's conviction and sentence, which would have been the appropriate remedy for an involuntary guilty plea, but instead resentenced Eller to 40 years' imprisonment. Thus, the circuit court, despite its apparent belief, did not grant any portion of Eller's petition, but rather, denied the entirety of the petition.

         Recognizing that Eller's original sentence of life imprisonment was legal and that a circuit court has no jurisdiction to modify a legal sentence more than 30 days after that sentence is imposed, on September 18, 2014, this Court remanded this case by order for the circuit court to set aside that portion of its February 27, 2014, order amending Eller's sentence from life imprisonment to 40 years' imprisonment and to reinstate Eller's original sentence of life imprisonment. The circuit court complied with our instructions on remand and reinstated Eller's life sentence. Neither party requested to file additional briefs on return to remand; therefore, we proceed based on the original briefs filed by the parties.

         I.

         In his brief on appeal, Eller does not argue claim (1)(b), as set out above -- that his trial counsel was ineffective for not meeting with him before trial " a sufficient number of times" (C. 15) -- or claim (2), as set out above -- that his guilty plea was involuntary because, he said, the trial court failed to inform him " of the impact of § 15-22-27.3, Code of Alabama (1975) upon any sentence imposed." (C. 16.) It is well settled that this Court " will not review issues not listed and argued in brief." Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App. 1995). " '[A]llegations ... not expressly argued on ... appeal ... are deemed by us to be abandoned.'" Burks v. State, 600 So.2d 374, 380 (Ala.Crim.App. 1991) (quoting United States v. Burroughs, 650 F.2d 595, 598 (5th Cir. 1981)). Because Eller does not pursue these claims in his brief on appeal, they are deemed abandoned and will not be considered by this Court.

         II.

         Eller does pursue in his brief on appeal claims (1)(a), (c), (d), and (e), as set above -- all claims of ...


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