from Jefferson Circuit Court (CC-12-2737.60 and
State of Alabama appeals the circuit court's order
granting Frank M. Kerley's Rule 32, Ala. R. Crim. P.,
petition for postconviction relief on one of the claims in
Kerley's petition. Kerley cross-appeals the circuit
court's denial of the other two claims raised in his
and Procedural History
2014, Kerley was convicted of one count of first-degree
sexual abuse of M.L. and one count of first-degree sexual
abuse of J.H. See § 13A-6-66(a)(1), Ala. Code 1975. The
trial court sentenced Kerley to five years' imprisonment
for each conviction. This Court affirmed Kerley's
convictions and sentences on direct appeal in an unpublished
memorandum issued on April 10, 2015. Kerley v. State
(No. CR-13-1628), 213 So.3d 611 (Ala.Crim.App.2015) (table).
This Court issued a certificate of judgment on September 18,
unpublished memorandum affirming Kerley's convictions and
sentences,  this Court set out the evidence presented
at trial by the State:
"The record indicates the following pertinent facts.
Kerley was married to E.K., the mother of J.H. and M.L., and
lived with E.K., J.H., and M.L. in Jefferson County. E.K. was
a nurse and worked the night shift in a hospital on weekends.
While E.K. worked, Kerley would keep M.L. and J.H. at home.
"M.L. testified that on her ninth birthday --January 2,
2002 -- the first incident of sexual abuse by Kerley
occurred. M.L. and Kerley were lying on the sofa watching
television together when Kerley began to 'rub ... his
penis against [her] butt.' (R. 43.) M.L. indicated that
they were both clothed and that Kerley told her that
'this is what dads and daughters did on their ninth
birthday.' (R. 44.) E.K. was at work and Kerley and M.L.
were alone in the house at the time this incident occurred.
"M.L. testified that, on multiple occasions, Kerley
would enter her bedroom to read her a bedtime story. Inside
the bedroom, Kerley would 'grind his penis on
[M.L.'s] vagina area.' (R. 45.) At first, Kerley
touched M.L. while she wore clothes but the abuse progressed
to the point where M.L. was unclothed. Kerley told M.L. that
it was 'really hot' in the room and told M.L. to
undress, making 'it seem like it was part of the bedtime
story.' (R. 45.) Kerley used his hands to touch
M.L.'s breasts and vagina. Kerley also penetrated
M.L.'s vagina with his fingers.
"M.L. testified that Kerley had his clothes on when
these incidents first began; however, as the abuse
progressed, Kerley would sometimes not wear any pants or
underwear. Kerley would tell M.L. to hold his penis. M.L.
testified that she did as Kerley asked because she did not
know what else to do. M.L. indicated that these incidents
continued until she was 12 years old. M.L. did not tell
anyone about the abuse because Kerley threatened to kill
M.L.'s family if she ever disclosed the abuse.
"J.H. was 8 years old and had her own bedroom down the
hall from M.L. when Kerley began abusing J.H. J.H. testified
that she would be asleep in her room and would be awakened by
Kerley touching her breasts and vagina with his fingers; the
touching occurred both over and underneath J.H.'s
clothing. After Kerley touched J.H., he would tell her that
she 'was loved.' (R. 86.) J.H. testified that Kerley
would touch her a couple of times each month. These incidents
ended when J.H. was either 12 or 13 years old and moved in
with her father to escape Kerley's abuse. When J.H.
moved, she wrote E.K. a letter and explained that she no
longer wanted to live with E.K. anymore. J.H. did not tell
anyone about the abuse because Kerley said that E.K. would be
angry at her. M.L. and J.H. eventually confided the abuse to
each other and the two contacted the police."
Kerley did not testify on his own behalf at trial, he called
two witnesses in his defense, and, through their testimony as
well as through cross-examination and argument, Kerley denied
the sexual-abuse allegations, asserted that M.L. and J.H. had
made up the allegations against him at the urging of their
mother, who was fighting Kerley for custody of M.L.'s and
J.H.'s half sister at the time M.L. and J.H. had made the
allegations against him in September 2010, and attacked
M.L.'s and J.H.'s credibility, including presenting
evidence impeaching portions of M.L.'s and J.H.'s
testimony. For example, Kerley presented evidence indicating
that the layout of the house that he shared with E.K., M.L.,
and J.H., was not as M.L. had testified; that he and M.L.
were not alone in the house on her ninth birthday, as M.L.
had testified; and that M.L. and J.H. had lived with their
father for several months in the summer of 2003, contrary to
their testimony that they had spent only two weeks with their
father that year.
September 19, 2016, Kerley, through counsel, timely filed the
instant Rule 32 petition. He filed an amendment on December 21,
2016, and a second amendment on March 24, 2017.In his petition
and amendments, Kerley alleged that his trial counsel was
ineffective for allegedly: (1) not requesting a unanimity
instruction; (2) not calling his brother to testify and not
eliciting testimony from his sister that M.L. had recanted
her allegations of sexual abuse; and (3) not calling to
testify Kerley's adult daughter to refute M.L.'s
testimony that she was abused on her ninth birthday. On
January 13, 2017, the State filed a response and a motion to
dismiss Kerley's petition and first amendment, arguing
that the claims raised therein -- claims (1) and (2), as set
out above -- were insufficiently pleaded and meritless.
March 15, 2017, the circuit court conducted an evidentiary
hearing on Kerley's petition. On March 29, 2017, the
circuit court issued an order granting Kerley's Rule 32
petition and setting aside his convictions and sentences on
the ground that his trial counsel had been ineffective for
not requesting a unanimity instruction, claim (1), as set out
above; the circuit court found that claims (2) and (3), as
set out above, had no merit. On April 25, 2017, both the
State and Kerley filed motions to reconsider the circuit
court's judgment. The circuit court did not issue a
ruling on either motion; therefore, both motions were denied
by operation of law 30 days after the circuit court's
March 29, 2017, order. See, e.g., Loggins v. State,
910 So.2d 146, 148-49 (Ala.Crim.App.2005). On April 7, 2017,
and May 5, 2017, respectively, the State and Kerley filed
notices of appeal.
there are disputed facts in a postconviction proceeding and
the circuit court resolves those disputed facts, '[t]he
standard of review on appeal ... is whether the trial judge
abused his discretion when he denied the petition.'"
Boyd v. State, 913 So.2d 1113, 1122
(Ala.Crim.App.2003) (quoting Elliott v. State, 601
So.2d 1118, 1119 (Ala.Crim.App.1992)). However, "when
the facts are undisputed and an appellate court is presented
with pure questions of law, that court's review in a Rule
32 proceeding is de novo." Ex parte
White, 792 So.2d 1097, 1098 (Ala. 2001). Additionally,
"where a trial court does not receive evidence ore
tenus, but instead makes its judgment based on the
pleadings, exhibits, and briefs, the ore tenus
standard's presumption of correctness does not apply to
the trial court's factual findings and it is the duty of
the appellate court to judge the evidence de
novo." Ex parte Horn, 718 So.2d 694, 705
(Ala. 1998). Likewise, where a trial court makes its judgment
based on the "cold trial record, " no presumption
of correctness applies to the trial court's findings, and
the appellate court must review the evidence de novo. Ex
parte Hinton, 172 So.3d 348, 353 (Ala. 2012).
"'The burden of proof in a Rule 32 proceeding rests
solely with the petitioner, not the State.' Davis v.
State, 9 So.3d 514, 519 (Ala.Crim.App.2006), rev'd
on other grounds, 9 So.3d 537 (Ala. 2007). '[I]n a Rule
32, Ala. R. Crim. P., proceeding, the burden of proof is upon
the petitioner seeking post-conviction relief to establish
his grounds for relief by a preponderance of the
evidence.' Wilson v. State, 644 So.2d 1326, 1328
(Ala.Crim.App.1994). Rule 32.3, Ala. R. Crim. P.,
specifically provides that '[t]he petitioner shall have
the burden of ... proving by a preponderance of the evidence
the facts necessary to entitle the petitioner to
Wilkerson v. State, 70 So.3d 442, 451
Strickland v. Washington, 466 U.S. 668, 687 (1984),
the United States Supreme Court articulated two criteria that
must be satisfied to show ineffective assistance of counsel.
A defendant has the burden of showing (1) that his or her
counsel's performance was deficient and (2) that the
deficient performance actually prejudiced the defense.
"To meet the first prong of the test, the petitioner
must show that his counsel's representation fell below an
objective standard of reasonableness. The performance inquiry
must be whether counsel's assistance was reasonable,
considering all the circumstances." Ex parte
Lawley, 512 So.2d 1370, 1372 (Ala. 1987).
"'This court must avoid using "hindsight"
to evaluate the performance of counsel. We must evaluate all
the circumstances surrounding the case at the time of
counsel's actions before determining whether counsel
rendered ineffective assistance.'" Lawhorn v.
State, 756 So.2d 971, 979 (Ala.Crim.App.1999) (quoting
Hallford v. State, 629 So.2d 6, 9
(Ala.Crim.App.1992)). "A court must indulge a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance."
Strickland, 466 U.S. at 689. To prove prejudice,
"[t]he defendant must show that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different." 466 U.S. at 694. "A reasonable
probability is a probability sufficient to undermine
confidence in the outcome." Id. "It is not
enough for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding."
Id. at 693. "The likelihood of a different
result must be substantial, not just conceivable."
Harrington v. Ricter, 562 U.S. 86, 112 (2011).
order to succeed on a claim of ineffective assistance of
counsel, a petitioner must meet both prongs of the standard
set out in Strickland." Davis v.
State, 184 So.3d 415, 430 (Ala.Crim.App.2014).
"Because both prongs of the Strickland test
must be satisfied to establish ineffective assistance of
counsel, the failure to establish one of the prongs is a
valid basis, in and of itself, to deny the claim, " and
a reviewing court need not "'address both components
of the inquiry if the [petitioner] makes an insufficient
showing on one.'" Clark v. State, 196 So.3d
285, 303 (Ala.Crim.App.2015) (quoting Strickland,
466 U.S. at 697).