June 26, 2015
Ex parte Robert Anthony Simmons
State of Alabama In re: Robert Anthony Simmons
Opinion is subject to formal revision before publication in
the advanced sheet of the Southern Reporter.
(Houston Circuit Court, CC-93-1046.60 and CC-93-1047.60;
Court of Criminal Appeals, CR-13-1727).
Justice. Stuart, Bolin, Parker, Shaw, Main, and Bryan, JJ.,
concur. Moore, C.J., and Murdock, J., dissent.
FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL
DENIED. NO OPINION.
Bolin, Parker, Shaw, Main, and Bryan, JJ., concur.
C.J., and Murdock, J., dissent.
Chief Justice (dissenting).
on the facts properly before us, I believe that Robert
Anthony Simmons is entitled to an evidentiary hearing on his
was convicted of first-degree sodomy and first-degree sexual
abuse. The victim was his then six-year-old stepdaughter,
D.Q. Although the events at issue occurred in 1986 when
Simmons was 30, the trial did not occur until almost 25 years
later. At trial, the victim, then more than 30 years old,
testified to the abuse. Simmons filed a timely Rule 32, Ala.
R. Crim. P., petition for postconviction relief, arguing
ineffective assistance of counsel on the basis of (1)
evidence that was not presented at trial and (2) inadequate
objections and cross-examination by trial counsel.
seeks certiorari review of the decision of the Court of
Criminal Appeals affirming, by unpublished memorandum, the
summary denial of his Rule 32 petition. Simmons v.
State (No. CR-13-1727, April 10, 2015), __ So.3d __
(Ala.Crim.App. 2015) (table). The merits of Simmons's
claims are not before us. The issues before us are (1)
whether Simmons alleged specific facts that, if true, would
entitle him to an evidentiary hearing on his Rule 32
allegations, and (2) whether he was entitled to a written
explanation from the trial court of its reasons for denying
his petition. As discussed below, I believe that
Simmons's argument that he was entitled to an evidentiary
hearing has merit and that it was properly
32 petition must be specific:
" Each claim in the [Rule 32] petition must contain a
clear and specific statement of the grounds upon which relief
is sought, including full disclosure of the factual basis of
those grounds. A bare allegation that a constitutional right
has been violated and mere conclusions of law shall not be
sufficient to warrant any further proceedings."
32.6(b), Ala. R. Crim. P. In its unpublished memorandum, the
Court of Criminal Appeals lists 17 reasons, derived from
Simmons's Rule 32 petition, why his trial counsel's
performance was deficient. Even though not described in
detail in the memorandum, at least some of the grounds listed
appear to have the specificity that would entitle Simmons to
an evidentiary hearing:
" Specifically, Simmons alleged that his trial counsel
was ineffective because, he said, his trial counsel (1)
failed to ask the State for its notice of intent to use Rule
404(b), Ala. R. Evid., before trial; (2) failed to object to
23 different questions and answers during D.Q.'s
testimony; (3) failed to effectively cross-examine D.Q.; (4)
failed to research D.Q.'s criminal history; (5)
'aroused sympathy' for D.Q. by saying she had been
abandoned by her family; (6) failed to ascertain the dates on
which the offense was alleged to have been committed; (7)
failed to prove the content of a Department of Human
Resources ('DHR') report which, he said, indicated
that 'the examination was not going to prove sexual abuse
had occurred'; (8) failed to subpoena the doctor who
examined D.Q. to testify at trial; (9) failed to question
juror no. 81, who was struck for cause and who, Simmons said,
might have been a witness at trial; (10) failed to subpoena
the DHR representative who had investigated the case; (11)
failed to present testimony of Simmons's background; (12)
failed to present testimony of D.Q.'s mother's
statement to Simmons in which she told Simmons that the
charges had been dropped; (13) failed to make an offer of
proof about Simmons's ex-wife's extramarital affair;
(14) failed to call witnesses to contradict parts of
D.Q.'s testimony; (15) failed to call character witnesses
for Simmons at trial and at the sentencing hearing; (16)
failed to show that the reason for the delay in trial was not
because Simmons was attempting to evade prosecution; and (17)
failed to file discovery requests."
Court of Criminal Appeals did not dispute that Simmons had
alleged deficient performance on the part of his trial
counsel sufficient to entitle him to an evidentiary hearing.
That court instead stated that Simmons had failed to allege
facts sufficient to prove that he had been prejudiced by the
deficient performance. " The defendant must show that
there is a reasonable probability that, but for counsel's
unprofessional errors, the results of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome." Strickland v. Washington, 466 U.S.
668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
pleading stage, a defendant need not prove his allegations
but need only present facts that, if true, would entitle him
to relief. Johnson v. State, 835 So.2d 1077, 1079-80
(Ala.Crim.App. 2001). Trivial or harmless error does not rise
to the level of prejudicial error. But many of the
allegations listed in the unpublished memorandum of the Court
of Criminal Appeals appear far from trivial. In particular,
allegation 7 (that counsel failed to prove the contents of
the Department of Human Resources (" DHR" ) report
that would show that sexual abuse had not occurred),
allegation 8 (that counsel failed to subpoena the doctor who
had examined D.Q. to testify), and allegation 10 (that
counsel failed to call as a witness the DHR representative
who had investigated the case) would, if true, create a
legally sufficient doubt as to Simmons's guilt in the
minds of the jurors, i.e., a reasonable probability that the
outcome of the proceeding would have been different.
Court of Criminal Appeals argued in a footnote that Simmons
did not sufficiently identify witnesses that Simmons's
trial counsel should have called or state what the testimony
of those witnesses would have been. But allegations 7, 8, and
10, taken together, specifically identify the examining
doctor and the DHR representative as witnesses and proof of
the facts alleged in the DHR report as the reason for their
testimony. At the pleading stage such allegations are
sufficient. Rule 32.6(b) requires only " a clear and
specific statement of the grounds upon which relief is
sought." The purpose of the evidentiary hearing is to
find the facts. Rule 32.9(a), Ala. R. Crim. P. After the
hearing, the court " shall make specific findings of
fact relating to each material issue of fact presented."
Rule 32.9(d), Ala. R. Crim. P.
this case no hearing occurred. Instead, the trial court
summarily dismissed the petition, an action that is
appropriate only if " the petition is not sufficiently
specific, or is precluded, or fails to state a claim, or ...
no material issue of fact or law exists which would entitle
the petitioner to relief under this rule and ... no purpose
would be served by any further proceedings." Rule
32.7(d), Ala. R. Crim. P.
included in his petition for a writ of certiorari five pages
of detailed examples of alleged failures to object to
portions of the victim's testimony and two pages
concerning the evidentiary significance of the DHR report
taken from his amended petition in the trial court. He also
included as an exhibit to his petition in this Court the DHR
report in question. Evidence from the trial record, however,
may not be considered by this Court in reviewing a petition
for a writ of certiorari unless those facts appeared either
in the opinion or unpublished memorandum of the Court of
Criminal Appeals or in a statement of facts in an application
for rehearing before that court. See Rule 39(d)(5)(A), Ala R.
App. P. Because Simmons did not verify that the additional
facts stated in his petition to this Court were " a
verbatim copy of the statement presented to the court of
appeals in the application for rehearing," Rule
39(d)(5)(A)(ii), Ala. R. App. P., the only facts this Court
may consider in evaluating Simmons's petition are those
stated by the Court of Criminal Appeals in its unpublished
facts stated by the Court of Criminal Appeals summarize the
DHR evidence with sufficient specificity. Simmons's
inclusion in his petition for a writ of certiorari of two
pages of allegations about the DHR evidence taken from his
amended Rule 32 petition in the trial court may, at first
blush, appear to be an improper attempt to import an
additional unverified statement of facts into his petition.
This concern, however, may be unfounded because those "
facts" in large measure repeat the facts stated in the
unpublished memorandum of the Court of Criminal Appeals,
facts we may consider. In particular, the statement of facts
in Simmons's petition for certiorari review refers to
" information regarding an examination of the alleged
victim by a physician which showed no sexual abuse had
occurred." This factual statement parallels allegation 7
in the unpublished memorandum of the Court of Criminal
Appeals. Another factual statement in the petition refers to
" fail[ure] to call as a witness for [Simmons] the DHR
representative who prepared the report." This statement
parallels allegation 10 in the unpublished memorandum of the
Court of Criminal Appeals. An additional factual statement
alleges deficient performance of counsel in failing to call
the examining physician as a witness. This statement
parallels allegation 8 in the unpublished memorandum.
the facts asserted as to the DHR report, the examining
doctor, and the DHR representative all parallel statements in
the unpublished memorandum of the Court of Criminal Appeals,
those facts are properly before us. The allegation that
Simmons's counsel failed to present critical evidence
supporting the proposition that sexual abuse had not occurred
would, if proven, create " a reasonable probability
that, but for counsel's unprofessional errors, the
results of the proceeding would have been different."
Strickland, 466 U.S. at 694.
petition for a writ of certiorari, Simmons clearly argues
that the deficient performance of his counsel caused him
" The deficient performance of [Simmons's] counsel
in failing to call as a witness for [Simmons] the DHR
representative who prepared the report ... and to introduce
the said report in evidence was actually prejudicial to
[Simmons] in that it was a failure to present evidence
strongly impeaching the alleged victim and evidence strongly
favorable to [Simmons] which would have justified an
acquittal on at least one charge made against him."
at 12. Furthermore, he argued that the " physician could
present testimony refuting one or both charges made in the
indictments and justifying an acquittal of [Simmons], and the
absence of such testimony was actually and highly prejudicial
to [Simmons]." Id.
was entitled to an evidentiary hearing on his allegations
about the DHR evidence. " Because [Simmons] presented
allegations that, if true, entitle him to relief, the trial
court erred in summarily dismissing this claim."
Carson v. State, 15 So.3d 554, 557 (Ala.Crim.App.
2008). I would issue the writ on this ground. Therefore, I
Simmons is incorrect in his assertion that
a trial court must provide a written explanation for the
summary denial of a Rule 32 petition. " Rule 32.7 does
not require the trial court to make specific findings of fact
upon a summary dismissal." Fincher v. State,
724 So.2d 87, 89 (Ala.Crim.App. 1998).
Although presented in the "
additional facts" section of Simmons's petition for
certiorari review, these statements are no more than argument
about the facts stated by the Court of Criminal Appeals in
its unpublished memorandum.