for Publication April 28, 2016.
from Montgomery Circuit Court. (CC-07-1468.60). Tracy S.
McCooey, Trial Judge.
Appellant: Charlotte Morrison, Montgomery.
Appellee: Luther Strange, atty. gen., and William D. Little,
asst. atty. gen.
Judge. Windom, P.J., and Welch, Kellum, and Burke, JJ.,
Devon Mosley appeals the circuit court's summary
dismissal of his Rule 32, Ala. R. Crim. P., petition for
postconviction relief. We affirm.
and Procedural History
pursuant to a negotiated agreement, pleaded guilty to two
counts of second-degree sodomy, see § 13A-6-64(a)(1),
Ala. Code 1975. On May 15, 2008, the circuit court sentenced
Mosley, under the voluntary sentencing guidelines (" the
guidelines" ), to two concurrent sentences of 20
years' imprisonment; the circuit court suspended those
sentences and ordered Mosley to serve 5 years' supervised
12, 2008, however, the circuit court revoked Mosley's
probation. On that same date, Mosley filed a " Motion to
Withdraw his Guilty Plea," arguing that the circuit
court failed to follow the terms of the plea agreement; the
circuit court denied the motion. Mosley appealed the circuit
court's decision to revoke his probation and separately
appealed the circuit court's decision to deny his motion
to withdraw his guilty plea. This Court affirmed, by
unpublished memorandum, the circuit court's decision to
revoke Mosley's probation, see Mosley v. State (No.
CR-07-1828, June 19, 2009), 51 So.3d 406 (Ala.Crim.App.
2009) (table), and also affirmed, by unpublished memorandum,
the circuit court's decision to deny Mosley's motion
to withdraw his guilty plea, see Mosley v. State (No.
CR-07-1808, June 19, 2009) 51 So.3d 406 (Ala.Crim.App.
December 18, 2012, Mosley filed a " motion to correct
his sentence," arguing that the circuit court " was
without jurisdiction to impose a twenty-year sentence because
the maximum sentence authorized by [§ ] 15-22-50[, Ala.
Code 1975,] is fifteen years." (C. 11.) The circuit
court denied Mosley's motion. Mosley then filed, in this
Court, a petition for a writ of mandamus challenging the
circuit court's decision to deny his motion, arguing that
his sentence was illegal and that the circuit court erred
when it failed to correct his illegal sentence. In an
unpublished order, this Court denied Mosley's mandamus
petition. We found that " 'Mosley's non-prison
sentences of twenty years were authorized by statute and thus
complied with the Sentencing Guidelines,'" and
recognized that " Mosley may file a postconviction
petition attacking the legality of his sentence[s]." We
concluded that " Mosley cannot establish a clear legal
right to the relief sought." See Ex parte
Mosley (No. CR-12-0810, July 16, 2013), __ So.3d
__(Ala.Crim.App. 2013) (table).
December 6, 2013, Mosley filed the instant Rule 32
petition--his first. Although
he did not file the standard Rule 32 form found in the
appendix to Rule 32, Mosley, through his counsel, filed a
document entitled " Petition for Relief From Judgment
Pursuant to Rule 32 of the Alabama Rules of Criminal
Procedure." (C. 10-14.) In his petition, Mosley, relying
on this Court's decision in Little v. State, 129
So.3d 312 (Ala.Crim.App. 2012), alleged that his 20-year
sentences were " unconstitutional, not authorized by
law, and exceed the Court's jurisdiction" because,
he said, under § 15-22-50, Ala. Code 1975, the circuit
court could not suspend his 20-year sentences.
December 26, 2013, the State filed a motion to dismiss
Mosley's Rule 32 petition, arguing that Mosley's
claim is time-barred under Rule 32.2(c), Ala. R. Crim. P.,
and that Mosley's claim is without merit.
January 2, 2014, the circuit court issued a written order
summarily dismissing Mosley's Rule 32 petition pursuant
to Rule 32.7(d), Ala. R. Crim. P. Mosley then filed a timely
notice of appeal.
This Court will not reverse the circuit court's order
denying a Rule 32 petition absent an abuse of discretion.
Grady v. State, 831 So.2d 646, 648 (Ala.Crim.App.
2001). If the circuit court's decision is correct for any
reason, it will be affirmed. Id." Hawk v.
State, [Ms. CR-13-0253, May 2, 2014] 171 So.3d 96,
appeal, Mosley contends that the circuit court erred when it
summarily dismissed his petition because, he says, his
suspended 20-year sentences are illegal. Specifically, Mosley
argues that, although it complied with the guidelines to the
extent that it ordered " non-prison" sentences, the
circuit court erred when it imposed on Mosley sentence
lengths of 20 years' imprisonment because, he says, the
circuit court's " power to suspend a sentence is not
derived from [the guidelines,] but rather from the
Constitution and § 15-22-50[, Ala. Code 1975.]"
(Mosley's brief, p. 7.) Section 15-22-50 provides that
circuit courts may not " suspend the execution of a
sentence imposed upon any person who has been found guilty
and whose punishment is fixed at death or imprisonment in the
penitentiary for more than 15 years."  §
15-22-50, Ala. Code 1975.
we note that the allegation raised in Mosley's Rule 32
petition--that his sentences are illegal because, he said,
the circuit court could not suspend his 20-year sentences--is
jurisdictional. See Scott v. State, 148 So.3d 458,
462 (Ala.Crim.App. 2013) (" '" Matters
concerning unauthorized sentences are jurisdictional."
Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.
1994). ...'" (quoting Moore v. State, 40
So.3d 750, 753 (Ala.Crim.App. 2009))). This issue, however,
was previously addressed by this Court in Mosley's appeal
from the circuit court's denial of his motion to withdraw
his guilty plea.
appeal, Mosley argued that the circuit court erred when it
denied his motion to withdraw his guilty plea because, he
said, the circuit court failed to follow the negotiated plea
agreement. Specifically, Mosley contended that " he
agreed with the State that he would be sentenced pursuant to
the [guidelines], and the circuit court violated that
agreement when it sentenced him to two suspended terms of
twenty years which were, according to Mosley, above the
by the guidelines." (Emphasis added). The resolution of
Mosley's argument in that appeal required this Court to
determine whether, under the guidelines, the circuit court
had the authority to suspend Mosley's 20-year sentences;
this Court answered that question in the affirmative.
Consequently, Mosley's claim is precluded under Rule
32.2(a)(4), Ala. R. Crim. P.
we recognize that the State in its motion to dismiss
Mosley's Rule 32 petition did not specifically assert
Rule 32.2(a)(4), Ala. R. Crim. P., as a basis for summarily
dismissing Mosley's Rule 32 petition and that the circuit
court did not specifically cite Rule 32.2(a)(4), Ala. R.
Crim. P., as its basis for summarily dismissing Mosley's
Rule 32 petition, under the circumstances of this case, this
Court is not prevented from applying Rule 32.2(a)(4) as a
basis for affirming the circuit court's decision. Cf.
Ex parte Clemons, 55 So.3d 348 (Ala. 2007) (holding
that the preclusion grounds in Rule 32.2(a), Ala. R. Crim.
P., can be waived by the State and that, only in
extraordinary circumstances, can an appellate court sua
sponte apply a preclusion ground that has been waived). This
Court has recognized that " [t]he opinion in Ex
parte Clemons appears to be grounded in due-process
principles," which " requires that a petitioner be
given notice of that preclusion ground." A.G. v.
State, 989 So.2d 1167, 1179 (Ala.Crim.App. 2007)
(emphasis added). Here, Mosley was, in fact, given notice
that this claim had been previously addressed by this Court.
the State in its motion to dismiss Mosley's Rule 32
petition alleged, in part:
" At the same time [Mosley] was revoked from his
probation in June 2008, he filed a 'Motion to Withdraw
Guilty Plea.' The Court denied that motion and [Mosley]
appealed to the Alabama Court of Criminal Appeals. In
affirming this Court's judgment, the Court of Criminal
Appeals said in its memorandum, 'when a suspended
sentence is imposed in accordance with the first worksheet,
the length of the suspended sentence conforms to the
sentencing guidelines if it is authorized by law, i.e.,
authorized by statute or the second sentencing guideline
worksheet.' As the Court of Criminal Appeals concluded[,
Mosley] was sentenced pursuant to the sentencing guidelines
worksheets and not the Split Sentencing Act. Since [Mosley]
was convicted of class B felonies with a statutory range of
 to  years, his non prison sentence complied with the
statute and the guidelines. Based upon the fact that [Mosley]
was sentenced pursuant to the sentencing guidelines and not
the Suspended Sentence Act, his sentence was legal and his
claim is due to be denied.
" If [Mosley's] sentence was an illegal one, the
Alabama Court of Criminal Appeals would certainly have
remanded the case for resentencing when it addressed
Petitioner's 2008 appeal."
(C. 33-34; internal citations omitted; emphasis added.) Thus,
although not expressly citing Rule 32.2(a)(4), the State
clearly argued that Mosley's claim had been previously
addressed in Mosley's appeal from the denial of his
motion to withdraw his guilty plea.
although it did not expressly cite Rule 32.2(a)(4) in its
order summarily dismissing Mosley's petition, the circuit
court clearly relied on this Court's decision in
Mosley's appeal from the denial of his motion to withdraw
his guilty plea as a basis for dismissing Mosley's Rule
32 petition. Specifically, as set out above, the circuit
" In June of 2009, the Alabama Court of Criminal Appeals
Court's ruling and [Mosley's] sentence in [an