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W.B.S. v. State

Alabama Court of Criminal Appeals

April 28, 2017

State of Alabama

         Appeal from Etowah Juvenile Court (JU10-168.02; JU10-168.03; JU10-168.04; JU10-168.05; JU10-168.06)

          JOINER, Judge.

         W.B.S. appeals the Etowah Juvenile Court's summary dismissal of his petition for a writ of error coram nobis. We remand.

         Facts and Procedural History

         On June 9, 2010, delinquency petitions were filed in the Juvenile Court of Etowah County, charging W.B.S. with four counts of first-degree sexual abuse, see § 13A-6-66(a)(1), Ala. Code 1975, one count of first-degree sodomy, see § 13A-6-63(a)(1), Ala. Code 1975, and one count of resisting arrest, see § 13A-10-41, Ala. Code 1975. After conducting a hearing on the delinquency petitions, the juvenile court found five charges to be true--three counts of first-degree sexual abuse, one count of first-degree sodomy, and one count of resisting arrest--and adjudicated W.B.S. delinquent. The juvenile court then ordered that W.B.S. be committed to the Alabama Department of Youth Services sexual-offender program for an indefinite period and, further, ordered W.B.S. to register as a sex offender for the rest of his life.

         W.B.S. appealed his delinquency adjudications to this Court, which adjudications this Court affirmed in an unpublished memorandum issued on February 3, 2012. See W.B.S. v. State (No. CR-10-1806, Feb. 3, 2012), 130 So.3d 587 (Ala.Crim.App.2012) (table). In that unpublished memorandum, we summarized the facts supporting W.B.S.'s delinquency adjudications:

"W.B.S. was charged with the first-degree sexual abuse of A.S., R.J., and J.J.1 He was also charged with first-degree sodomy in relation to J.J. The incidents were alleged to have happened between 2006 and 2008.2 (C. 25-29.) At trial, A.S. testified that sometime in 2008, when she was nine years old, she was playing video games with W.B.S. and J.J. She stated that W.B.S. leaned over and began kissing her on the lips. (R. 30.) A.S. then testified that W.B.S. 'reached and touched [her] breast.' (R. 30.) According to A.S., W.B.S. touched her underneath her training bra with his hand. (R. 32.) A.S. stated that W.B.S. did not say anything to her nor did she ask him to stop.
"R.J., who was 12 years old at the time of the trial, testified that he, J.J., and W.B.S. were building a fort one day when W.B.S. touched him. R.J. indicated that W.B.S. touched him with his penis. (R. 73.) R.J. also testified that W.B.S.'s 'private' was outside of his clothes and that W.B.S. touched him with it. (R. 74.) R.J. stated that W.B.S. used his penis to touch the 'inside' of R.J.'s 'bottom.' (R. 74.) R.J. testified that W.B.S. stopped when he asked him to stop. (R. 75.)
"J.J., who was 15 years old at the time of trial, testified that when he was about 11 years old, W.B.S. began to want to play games that involved 'touching each other where you are not supposed to and stuff like that.' (R. 96.) J.J. testified that W.B.S. would put his penis in J.J.'s mouth and butt. (R. 97.) J.J. also stated that W.B.S. made J.J. put his penis in W.B.S.'s mouth and butt. (R. 100.) When J.J. was asked what W.B.S. did in order to make him do these things, J.J. replied, 'Peer pressure pretty much.' (R. 100.) J.J. testified that peer pressure was when '[s]omeone like keeps saying come on, come on, do it, do it, you know, just keeps talking you into it.' (R. 113-14.) However, J.J. denied that W.B.S. threatened him or did anything to hurt him. (R. 100-101.) He also stated that W.B.S. did not hold him down and make him do those things. (R. 115.) J.J. did state that W.B.S. told him that he would 'probably get in trouble too' if he told anyone what happened. (R. 101-102.)
"1 W.B.S. was also charged with the first-degree sexual abuse of J.M.J. However, the juvenile court did not find that there was sufficient evidence to adjudicate W.B.S. delinquent on that count. (R. 287.)
"2 W.B.S. was born on June 13, 1993. (C. 2.) Accordingly, he would have been no older than 15 at the time these incidents allegedly took place."

         In his direct appeal, W.B.S. argued that the juvenile court erred when it denied his motion for a judgment of acquittal because, he said, the State failed to present any evidence "regarding the element of forcible compulsion, a requirement for both first-degree sexual abuse and first-degree sodomy." In addressing this claim, this Court concluded that W.B.S.'s argument was not preserved for appellate review but explained:

"We note that in reviewing the record it appears that the State may have failed to present evidence regarding forcible compulsion. The witnesses' testimony did not appear to suggest that W.B.S. Used physical force nor did it suggest that W.B.S. made express or implied threats that would place the victims 'in fear of immediate death or serious physical injury to himself or another person.' Accordingly, the failure of W.B.S.'s trial attorney to state grounds for his motion for judgment of acquittal as well as his failure to file any post-trial motions challenging the sufficiency of the evidence may rise to the level of ineffective assistance of counsel. Since W.B.S.'s trial counsel did not file any post-trial motions, a postconviction petition filed pursuant to Rule 32, Ala. R. Crim. P., would be the first opportunity for W.B.S. to raise that issue."

(Emphasis added.)[1]

         Thereafter, on December 21, 2012, W.B.S. filed a Rule 32, Ala. R. Crim. P., petition for postconviction relief in the juvenile court. In his petition, W.B.S. alleged that his counsel was ineffective because, he said, his trial counsel failed to make a "proper motion for a judgment of acquittal at the close of the State's case." According to W.B.S.:

"Effective trial counsel would have argued to the [juvenile] court that [W.B.S.] could not be adjudicated a delinquent due to the State's failure to present evidence of forcible compulsion. Had this argument been made by trial counsel to the [juvenile] court, it is likely that the [juvenile] court would have granted [W.B.S.'s] motion for a judgment of acquittal."

(Record in W.B.S. v. State (CR-12-1336), C. 36.) The juvenile court concluded, however, that Rule 32 is applicable only to a "Defendant convicted of a criminal offense" and "a juvenile is not 'convicted of a criminal offense' so as to be able to take advantage of the provisions of Rule 32." (Record in CR-12-1336, C. 42-43.) W.B.S. appealed the juvenile court's decision to this Court.

         On appeal, this Court examined the record and determined that "[t]here is no indication from the documents filed with this Court that the juvenile judge certified the record as adequate to appeal directly to this Court. Nor has W.B.S. moved to supplement the record to correct this deficiency." We explained:

"Rule 28, Ala. R. Juv. P., allows for appeals directly to this Court only when the record has been certified as adequate by the juvenile court judge or when the parties stipulate that only questions of law are involved. The record filed in this case contains no certification from the juvenile judge. Neither does the record contain any stipulations by the parties. Also, W.B.S. did not move to correct this deficiency when the record was filed. According to J.C.C. v. State, 36 So.3d 577 (Ala.Crim.App.2009), this case is hereby TRANSFERRED to the Etowah Circuit Court for de novo proceedings."

W.B.S. v. State (No. CR-12-1336, Aug. 21, 2013) (order transferring case to the Etowah Circuit Court).

"Upon receipt of the case, the Etowah Circuit Court determined that the threshold question was: 'Do the provisions of Rule 32, [Ala. R. Crim. P.], apply in juvenile cases?' (C. 3.) The circuit court instructed the parties to file legal memorandums addressing this question. W.B.S. ... also filed what he styled as a 'Motion for Relief From Judgment Under Rule 60(b), [Ala. R. Civ. P.].' In that motion, W.B.S. argued that, if Rule 32, Ala. R. Crim. P., does not apply to juvenile proceedings, he should be able to obtain relief under Rule 60(b), Ala. R. Civ. P. The circuit court ... concluded that neither Rule 32, nor Rule 60(b) was applicable to juvenile-delinquency proceedings."

W.B.S. v. State, 192 So.3d 417, 417-19 (Ala.Crim.App.2015) (footnotes omitted).

         On W.B.S.'s appeal from that decision, this Court agreed with the circuit court and affirmed its judgment summarily dismissing W.B.S.'s Rule 32 petition. In doing so, this Court first rejected W.B.S.'s contention that Rule 60(b), Ala. R. Civ. P., could be used as a mechanism through which a juvenile could obtain "post-adjudication" relief, explaining:

"Because juvenile-delinquency proceedings are 'quasi-criminal in nature, ' the Alabama Rules of Civil Procedure are not applicable to those proceedings, see Rule 1(a), Ala. R. Juv. P., and Rule 60(b) cannot be the mechanism by which W.B.S.--or any other juvenile who has been adjudicated delinquent--can challenge trial counsel's effectiveness."

W.B.S., 192 So.3d at 419. This Court then addressed whether Rule 32 applies to a juvenile court adjudication, explaining:

"The language used in Rule 32.1 is plain and expressly extends 'postconviction' relief to only a 'defendant who has been convicted of a criminal offense.' (Emphasis added.) To conclude that Rule 32 applies to juvenile adjudications, this Court must hold that the phrase 'defendant who has been convicted of a criminal offense, ' includes both juveniles--who are certainly not classified as 'defendants'--and delinquency adjudications--which are not criminal convictions, see § 12-15-220(a), Ala. Code 1975.
"Thus, the plain language of Rule 32.1, Ala. R.Crim. P., does not include juveniles who have been adjudicated ...

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