Appeal from Mobile Circuit Court (CC-10-4451.70)
The appellant, Carlos Benard Singleton, appeals from the circuit court's revocation of his probation. On February 29, 2011, Singleton pleaded guilty to attempted sexual abuse of a child less than 12 years old, a violation of §§ 13A-4-2 and 13A-6-69.1, Ala. Code 1975. The circuit court sentenced Singleton to 15 years' imprisonment; the sentence was split, and he was ordered to serve 1 year in prison followed by 5 years' supervised probation. The circuit court ordered Singleton to pay $50 to the crime victims compensation fund and court costs.
On September 26, 2014, Singleton's probation officer filed a delinquency report alleging that Singleton had violated the terms and conditions of his probation by testing positive for cocaine in June 2014, by failing to complete drug testing when ordered, by failing to report, by failing to participate in a scheduled "maintenance polygraph, " and by failing to notify his probation officer of a change of address. (C. 21.)
The circuit court conducted a probation-revocation hearing on November 6, 2014. At the hearing, Singleton's probation officer, Laura Vandam, testified that Singleton tested positive for cocaine on June 30, 2014. According to Vandam, Singleton also failed to report for random drug screens in July 2014 and September 2014. Vandam testified that Singleton, who was homeless, failed to report weekly as required by law, refused to complete a scheduled "maintenance polygraph" as required by the Sex Offender Management Program, and failed to report a change to his address. Singleton testified that he was in poor health and had recently been hospitalized. Singleton admitted that he had used cocaine once while on probation. Singleton stated that he had stayed with his mother, who was also in poor health, for a week and a half to help her but that he did not inform his probation officer of his location. After considering the evidence presented at the revocation hearing, the circuit court entered an order on November 6, 2014, in which it revoked Singleton's probation and ordered Singleton to serve the balance of his sentence in the custody of the Alabama Department of Corrections. This appeal followed.
Singleton contends that the 15-year sentence originally imposed by the circuit court is illegal because, he argues, the sentence exceeded the maximum sentence allowed by law and grants an unauthorized term of probation under the law. Citing this Court's decision in Enfinger v. State, 123 So.3d 535 (Ala.Crim.App.2012), Singleton maintains that the circuit court's revocation of his probation is due to be reversed based on the illegality of the sentence.
Initially, we note that, although the legality of Singleton's sentence was not first argued in the circuit court, we have held that "[m]atters concerning unauthorized sentences are jurisdictional." Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994). Thus, this Court may take notice of an illegal sentence at any time. See, e.g., McCall v. State, 794 So.2d 1243 (Ala.Crim.App.2000); Pender v. State, 740 So.2d 482, 484 (Ala.Crim.App.1999).
The record indicates that Singleton pleaded guilty to attempted sexual abuse of a child less than 12 years old and was sentenced to 15 years' imprisonment. The 15-year sentence was split pursuant to the Split Sentence Act, § 15-18-8, Ala. Code 1975, and Singleton was ordered to serve 1 year in prison followed by 5 years' supervised probation.
The crime of sexual abuse of a child less than 12 years old is a Class B felony. See § 13A-6-69.1(b), Ala. Code 1975. An attempt of a Class B felony is punishable as a Class C felony, see § 13A-4-2(d)(3), Ala. Code 1975, and a person convicted of a Class C felony may be sentenced to "not more than 10 years or less than 1 year and 1 day" in prison. § 13A-5-6(a)(3), Ala. Code 1975. Section 13A-5-2(d), Ala. Code 1975, provides:
"Every person convicted of a felony, misdemeanor, or violation, except for the commission of a criminal sex offense involving a child as defined in Section 15-20-21(5), may be placed on probation as authorized by law."
Section 15–20–21(5), Ala. Code 1975, defines a "criminal sex offense involving a child" as "a conviction for any criminal sex offense in which the victim was a child under the age of 12 and any offense involving child pornography." The Split Sentence Act prohibits splitting the sentence of an offender convicted of "a criminal sex offense involving a child as defined in Section 15–20–21(5)." § 15–18–8(a), Ala. Code 1975. Further, under the Split Sentence Act, "[p]robation may not be granted for a criminal sex offense involving a child as defined in Section 15-20-21(5), which constitutes a Class A or B felony." § 15-18-8(b), Ala. Code 1975.
In this case, the record contains a pro se motion filed by Singleton in which he acknowledges that he was sentenced as a habitual felony offender. Even with one prior felony conviction, Singleton –- who pleaded guilty to a Class C felony –- could be sentenced to not more than 20 years or less than 2 years. See §§ 13A-5-9(a)(1) and 13A-5-6(a)(2), Ala. Code 1975. Therefore, contrary to Singleton's contention on appeal, the circuit court's 15-year sentence did not exceed the maximum authorized by law. The circuit court's imposition of a term of probation, however, was illegal.
In Holley v. State, [Ms. CR-12-2023, October 3, 2014] So.3d (Ala.Crim.App.2014), Holley pleaded guilty to first-degree sexual abuse of a child under the age of 12, a violation of § 13A-6-66(a)(3), Ala. Code 1975. The trial court sentenced Holley to 10 years' imprisonment; that sentence was split, and Holley was ordered to serve 3 years' imprisonment followed by 5 years' supervised probation. Holley subsequently violated the terms and conditions of his probation, and the trial court revoked Holley's probation. On appeal, this Court considered the legality of Holley's split sentence in light of his conviction for a criminal sex offense involving a child as defined in § 15-20-21(5) and reversed the judgment of the trial court, stating:
"In Enfinger v. State, 123 So.3d 535 (Ala.Crim.App.2012), this Court recently held that a trial court has no authority to revoke probation that was ...