April 17, 2015
Alabama Department of Corrections
from Escambia Circuit Court. (CV-14-21).
Hanif, Appellant, Pro se.
Appellee: Anne Adams Hill, gen. counsel, and Albert S.
Butler, asst. gen. counsel, Alabama Department of
Presiding Judge. Welch and Joiner, JJ., concur. Kellum and
Burke, JJ., concur in the result.
WINDOM, Presiding Judge.
Hanif appeals the circuit court's dismissal of his
petition for a writ of habeas corpus in which he challenged
the calculation of his sentence by the Alabama Department of
Corrections (" DOC" ). For the reasons that follow,
this Court reverses the circuit court's decision and
remands this cause for further proceedings.
2012, Hanif was convicted of attempted solicitation of a
child by computer, see § § 13A-6-110 and 13A-4-2,
Ala. Code 1975, and was sentenced to 10 years in prison. On
appeal, this Court affirmed Hanif's conviction and
sentence by unpublished memorandum in which it summarized the
facts of Hanif's crime as follows:
" [I]n April 2006 Hanif used a computer to communicate
with an individual that he believed to be a 14-year-old girl
in Baldwin County and solicit her to engage in oral sex.
Although he believed he was communicating with a 14-year-old
girl named 'Jennifer' in a chatroom, Hanif was
actually communicating with Commander William Cowan of the
Gulf Shores police department. Hanif agreed to meet
'Jennifer' at a car wash in Gulf Shores. Once Hanif
arrived at the car wash, he was arrested.
Hanif v. State, (No. CR-12-0273, Sept. 27, 2013)
So.3d (Ala.Crim.App. 2013) (table).
2, 2014, Hanif filed a petition for a writ of habeas corpus
in which he
argued, among other things, that the DOC was improperly
denying him Class I Correctional Incentive Time ("
CIT" ) under § 14-9-41(e), Ala. Code 1975, on the
ground that he had been convicted of a sexual offense
involving a child under the age of 17. Specifically, Hanif
argued that his offense did not involve a child; rather, it
involved an adult posing as a child. According to Hanif,
because his offense did not involve an actual child, the DOC
had no grounds under § 14-9-41(e), Ala. Code 1975, to
deny him Class I CIT. The DOC filed a motion to dismiss in
which it argued that Hanif is prohibited from receiving Class
I C.I.T. under § 14-9-41(e), Ala. Code 1975. Along with
its motion to dismiss, the DOC filed an affidavit from Mark
Burton, the Director of Central Records, explaining that
§ 14-9-41(e), Ala. Code 1975, prohibits Hanif from
earning Class I C.I.T. because he had been convicted of an
attempted sex crime against a child under the age of 17.
Specifically, Hanif had been convicted of an attempt to
solicit a 14-year-old child by computer. Thereafter, the
circuit court granted the DOC's motion to dismiss.
appeal, Hanif reasserts his argument that the DOC is
improperly denying him Class I CIT. According to Hanif,
§ 14-9-41(e), Ala. Code 1975, does not prohibit him from
earning Class I C.I.T. because his crime did not involve an
actual child under the age of 17. Rather, he solicited an
adult who he thought was a child. According to Hanif, because
there was no child involved in his crime, he is entitled to
Class I CIT. The DOC, on the other hand, argues that Hanif is
prohibited under § 14-9-41(e), Ala. Code 1975, from
earning Class I C.I.T. because Hanif believed that he was
soliciting a child. Therefore, the circuit court correctly
dismissed Hanif's petition for a writ of habeas corpus.
This Court generally reviews the denial of a habeas petition
under an abuse-of-discretion standard." Shelly v.
Alabama Dep't of Corr., 109 So.3d 1145, 1147
(Ala.Crim.App. 2012) (citing Miller v. State, 668
So.2d 912, 917 (Ala.Crim.App. 1995)). However, "
'the interpretation of a statute presents a question of
law and, thus, mandates de novo review.'"
Shelly, 109 So.3d at 1147 (quoting Johnson v.
State, 89 So.3d 205, 206 (Ala.Crim.App. 2011)).
Accordingly, when the issue presented on appeal "
'involves a review of the circuit court's conclusion
of law and its application of the law to undisputed facts,
this Court applies a de novo standard of review.'"
Shelly, 109 So.3d at 1147 (quoting Johnson,
89 So.3d at 206).
" the first rule of statutory construction [is] that
where the meaning of the plain language of the statute is
clear, it must be construed according to the plain
language." Ex parte United Serv. Stations,
Inc., 628 So.2d 501, 504 (Ala. 1993) (citing King v.
Nat'l Spa & Pool Inst., 607 So.2d 1241, 1246 (Ala.
1992)). " '" The fundamental principle of
statutory construction is that words in a statute must be
given their plain meaning." '" Ex parte
Ruggs, 10 So.3d 7, 11 (Ala. 2008) (quoting Trott v.
Brinks, Inc., 972 So.2d 81, 85 (Ala. 2007), quoting in
turn, Mobile Infirmary Med. Ctr. v. Hodgen, 884
So.2d 801, 814 (Ala. 2003)). " When a court construes a
statute, '[w]ords used in [the] statute must be given
their natural, plain, ordinary, and commonly understood
meaning, and where plain language is used a court is bound to
interpret that language to mean exactly what it
says.'" Ex parte Berryhill, 801 So.2d 7, 10
(Ala. 2001) (quoting IMED Corp. v. Sys. Eng'g Assocs.
Corp., 602 So.2d 344, 346 (Ala. 1992)). Because courts
are bound to " interpret the plain language of [the]
statute to mean exactly what it says[, courts may not] engage
in judicial construction [unless] the language in the
statute is ambiguous." Ex parte Pratt, 815
So.2d 532, 535 (Ala. 2001) (citations omitted). In other
words, " '" [w]here plain language is used[,] a
court is bound to interpret that language to mean exactly
what it says," and ... " [i]f the language of the
statute is unambiguous, then there is no room for judicial
construction and the clearly expressed intent of the
legislature must be given effect." '" Ex
parte Alabama Great S. R.R., 788 So.2d 886, 889 (Ala.
2000) (quoting Blue Cross & Blue Shield v. Nielsen,
714 So.2d 293, 296 (Ala. 1998), quoting in turn IMED
Corp., 602 So.2d at 346).
14-9-41(e), Ala. Code 1975, provides, in pertinent part, that
" [n]o person may be placed in Class I if he or she has
been convicted of a crime involving the perpetration of
sexual abuse upon the person of a child under the age of 17
years."  The question before this Court is
whether " a crime involving the perpetration of sexual
abuse upon the person of a child under the age of 17
years," id., includes an attempted sex crime that did
not involve a child, but rather, involved an adult posing on
the Internet as a child. This Court holds that it does not.
Tennyson v. State, 101 So.3d 1256 (Ala.Crim.App. 2012),
this Court rejected the proposition that a statute
prohibiting the solicitation of a child by computer
encompassed soliciting an adult posing as a child.
" Tennyson admitted that he communicated with the online
profile of 'Amie Baxter,' whom he believed to be a
15-year-old female living in Demopolis. However, Tennyson was
actually communicating with Sgt. Tim Soronen, a detective
with the Demopolis Police Department, who was posing as
15-year-old 'Amie Baxter.'"
Id. at 1257. Based on his communication with a
detective posing as a child, Tennyson was convicted of
violating § 13A-6-110, Ala. Code 1975, which
" [A] person is guilty of solicitation of a child by a
computer if the person is 19 years of age or older and the
person knowingly, with the intent to commit an unlawful sex
act, entices, induces, persuades, seduces, prevails, advises,
coerces, or orders, by means of a computer, a child who is
less than 16 years of age and at least three years younger
than the defendant, to meet with the defendant or any other
person for the purpose of engaging in sexual intercourse,
sodomy, or to engage in a sexual performance, obscene sexual
performance, or sexual conduct for his or her benefit."
Id. at 1258 (some emphasis omitted).
appeal, Tennyson argued that he could not be convicted under
§ 13A-6-110, Ala. Code 1975, because " an actual
child was never solicited even though [he] believed that he
was soliciting an actual child." Id. at 1257.
This Court agreed.
Specifically, this Court held that " the plain language
of § 13A-6-110, Ala. Code 1975, ... required that a
defendant solicit an actual child and not an undercover
officer whom he believed to be a child." Id. at
Section 14-9-41(e), Ala. Code 1975, prohibits an inmate who
has been " convicted of a crime involving the
perpetration of sexual abuse upon the person of a child under
the age of 17 years," from earning Class I CIT.
(emphasis added). As in Tennyson, the plain language of
§ 14-9-41(e), Ala. Code 1975, requires that the victim
be an actual child under the age of 17, " not an
undercover officer whom [the inmate] believed to be a
child." Tennyson, 101 So.3d at 1262. Consequently,
Hanif, whose crime involved " an undercover officer whom
[he] believed to be a child," id., as opposed to an
actual child under the age of 17, is not prohibited under
§ 14-9-41(e), Ala. Code 1975, from earning Class I CIT.
the judgment of the circuit court is reversed, and this cause
is remanded to the circuit court for proceedings consistent
with this opinion.
and Joiner, JJ., concur.
and Burke, JJ., concur in the result.
Section 14-9-41(e), Ala. Code 1975, also
provides that " [n]o person may receive the benefits of
correctional incentive time if he or she has been convicted
of a criminal sex offense involving a child as defined in
Section 15-20-21(5)." At the time of Hanif's
offense, § 15-20-21(5), Ala. Code 1975, defined a
criminal sex offense involving a child as, " any
criminal sex offense in which the victim was a child under
the age of 12 and any offense involving child
pornography." Hanif was not convicted of attempting to
solicit a child under the age of 12 or an offense involving
child pornography. Therefore, this portion of §
14-9-41(e), Ala. Code 1975, does not apply to prohibit Hanif
from earning CIT.
Effective May 22, 2009, § 13A-6-110
was repealed and replaced by § 13A-6-122, Ala. Code
1975, which makes it a crime to use a computer to solicit a
child or " a person believed by the defendant to be a
child." Tennyson, 101 So.3d at 1257-58. See also
Rosier v. State, [Ms. CR-13-0736, Oct. 3, 2014] )__
So.3d __, __ (Ala.Crim.App. 2014).