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Duncan v. State

Alabama Court of Criminal Appeals

December 15, 2017

Jeffery Ray Duncan
v.
State of Alabama

         Appeal from Clay Circuit Court (CC-16-148 and CC-16-149)

          KELLUM, JUDGE.

         The appellant, Jeffery Ray Duncan, pleaded guilty on October 19, 2016, to unlawful possession of marijuana in the second degree, a violation of § 13A-12-214, Ala. Code 1975, and unlawful possession of a controlled substance, a violation of § 13A-12-212, Ala. Code 1975. A sentencing hearing was scheduled for January 11, 2017, but before the hearing was held Duncan made application to, and was accepted into, the Clay-Coosa Drug Court Program. The circuit court set Duncan's case on the next drug-court docket and continued the imposition of Duncan's sentence pending Duncan's successful completion of, or expulsion from, the Clay-Coosa Drug Court Program.

         On February 6, 2017, the circuit court issued a writ of arrest and ordered sanctions against Duncan, finding that Duncan had violated the terms and conditions established by the Clay-Coosa Drug Court Program by failing to report. The court ordered Duncan serve 48 hours in the Clay County jail. On February 17, 2017, the circuit court ordered sanctions against Duncan because he had violated the terms and conditions established by the Clay-Coosa Drug Court Program in that he failed his drug test. The circuit court ordered Duncan to serve 48 hours in the Clay County jail. On February 23, 2017, the circuit court issued a writ of arrest and ordered sanctions against Duncan based on a violation of the terms and conditions of drug court in that Duncan failed to report for monitoring and failed to report to drug court on February 23, 2017. The court ordered Duncan to serve 10 days in the Clay County jail. On April 13, 2017, the circuit court found that Duncan violated the terms and conditions of the Clay-Coosa Drug Court Program in that he failed a drug test. The court ordered Duncan to surrender himself and to serve 10 days in the Clay County jail. Again, on May 2, 2017, the circuit court ordered sanctions against Duncan for violating the terms and conditions of drug court because of a positive drug test --his fourth violation.

         On May 18, 2017, the circuit court issued an order finding that Duncan was serving his fourth drug-court sanction in jail. The court found that, over the course of four months in the drug-court program, Duncan had three positive drug tests, had missed court and monitoring sessions, and had failed to complete an assessment as directed by the court. Finding Duncan unwilling and/or unable to abide by the rules of the Clay-Coosa Drug Court Program and based on the recommendation of the Drug Court Coordinator, the circuit court removed Duncan from the Clay-Coosa Drug Court Program and ordered Duncan to appear for sentencing.

         At the sentencing hearing, defense counsel argued that the presumptive sentencing guidelines applied in Duncan's case. Specifically, defense counsel argued that the sentencing event in Duncan's case included both drug convictions and that "the most serious offense" in Duncan's case mandated no jail time under the presumptive sentencing standards. (R. 13.) The drug-court coordinator informed the circuit court that staff had attempted to get Duncan to go to AltaPointe Health to have a psychosocial assessment performed to determine the level of treatment Duncan needed and had made appointments at AltaPointe for Duncan; however, Duncan refused to go to the appointments. Defense counsel objected and moved to strike on the basis that the State had not provided notice of grounds to deviate from the presumptive sentencing guidelines. The circuit court overruled the objection on the basis that it did not consider Duncan's misdemeanor conviction in CC-16-148 to be a guidelines case and, therefore, there had been no deviation from the guidelines. The circuit court sentenced Duncan to 23 months' imprisonment for the unlawful-possession-of-a-controlled-substance conviction; that sentence was suspended, and Duncan was placed on 2 years' supervised probation. The circuit court sentenced Duncan to 12 months' in jail for his conviction for unlawful possession of marijuana in the second degree. The circuit court ordered the sentences to run concurrently. This appeal followed.

         On appeal, Duncan contends that the sentence imposed by the circuit court represented an improper departure from the presumptive sentencing standards. Specifically, Duncan contends that his sentence was improper because the circuit court imposed a period of incarceration; ordered him to serve time in jail, although he had been convicted of a Class D felony and had no prior felony convictions; and did not follow the guidelines for departing from the presumptive sentencing standards. The State contends that the circuit court properly sentenced Duncan to jail time pursuant to § 13A-5-8.1, Ala. Code 1975, because Duncan was terminated from a drug-court program for noncompliance.

         In 2012, the legislature enacted § 12-25-34.2, Ala. Code 1975, effective May 15, 2012, to implement presumptive sentencing standards. See Act No. 2012-473, Ala. Acts 2012. See also Hyde v. State, 185 So.3d 501, 502-04 (Ala.Crim.App.2015)(detailing the history of the 2012 amendment to the Alabama Sentencing Reform Act of 2003, codified at §§ 12-25-30 to -38, Ala. Code 1975). The presumptive sentencing standards became effective on October 1, 2013, see Clark v. State, 166 So.3d 147 (Ala.Crim.App.2014), and were amended on October 1, 2016, to "incorporate the new Class D felonies, " to add additional nonviolent crimes to the presumptive sentencing standards, and to "provide information on the new sentencing parameters for all Class C and Class D felony offenses." See Presumptive and Voluntary Sentencing Standards Manual 15.

         The Presumptive and Voluntary Sentencing Standards Manual, as amended, sets forth the offenses subject to the presumptive sentencing standards and provides circuit courts instructions and worksheets to use in imposing a sentence under the presumptive sentencing standards. When the presumptive sentencing standards apply, sentencing worksheets are presented to the prosecutor, the defendant and/or his attorney, and the sentencing judge before sentencing. Presumptive and Voluntary Sentencing Standards Manual 19. "Worksheets must be completed and considered when the 'most serious offense' at a sentencing event is a worksheet offense in the same venue." Presumptive and Voluntary Sentencing Standards Manual 23. "A sentencing event includes all convictions sentenced at the same time, whether included as counts in one case or in multiple cases, regardless of whether offenses are worksheet offenses." Presumptive and Voluntary Sentencing Standards Manual 23 (emphasis in original). The Presumptive and Voluntary Sentencing Standards Manual sets forth five rules used to determine the "most serious offense" at a sentencing event. "Rule 5" provides that, "[w]here a sentencing event includes both a worksheet offense and a non-worksheet offense and the worksheet offense has a higher statutory maximum penalty governed by the felony offense classification, the worksheet offense is the most serious offense and the Standards are applicable to the convictions in that sentencing event." Presumptive and Voluntary Sentencing Standards Manual 24.

         In this case, Duncan pleaded guilty to unlawful possession of a controlled substance, a Class D felony, see § 13A-12-212(b), Ala. Code 1975, and unlawful possession of marijuana in the second degree, a Class A misdemeanor, see § 13A-12-214(b), Ala. Code 1975. Possession of a controlled substance is a worksheet offense under the presumptive sentencing standards; however, possession of marijuana in the second degree is a non-worksheet offense. Presumptive and Voluntary Sentencing Standards Manual 21. Duncan was sentenced in both cases and for both convictions at the same time. Because Duncan's sentencing event included both a worksheet offense and a non-worksheet offense and his worksheet offense -- possession of a controlled substance -- carried a higher statutory maximum penalty as a Class D felony than the non-worksheet offense, the worksheet offense constituted the "most serious offense" and the presumptive sentencing standards were applicable to both convictions when the circuit court sentenced Duncan.

         Furthermore, the record contains worksheets that were prepared in anticipation of the application of the presumptive sentencing standards. The worksheets recommend a sentence disposition and a range of sentence length from which a sentence is chosen. Presumptive and Voluntary Sentencing Standards Manual 16. In Duncan's case, the circuit court received a "Drug Sentence Length Worksheet" that provided for a sentencing range of 13 to 32 months for a straight sentence and 6 to 14 months for a split sentence. The circuit court also received a "Drug Prison In/Out Worksheet" that recommended a "non-prison" sentence based, in part, on Duncan's having no prior felony convictions. Pursuant to the presumptive sentencing standards, "[i]f the most serious offense at a sentencing event is a Class D felony and the offender's presumptive Prison In/Out worksheet recommendation is 'OUT, ' a county jail sentence becomes a sentencing option only if the offender has been previously convicted of any three or more felonies, or previously convicted of any two or more felonies that are Class A or Class B felonies." Presumptive and Voluntary Sentencing Standards Manual 27. Because Duncan's Prison In/Out Worksheet recommendation was no prison time and because he had no prior felony convictions, the circuit court's imposition of a jail sentence was not allowed under the presumptive sentencing standards and, therefore, improper.

         Contrary to the State's contention otherwise, § 13A-5-8.1, Ala. Code 1975, does not give the circuit court the authority in this case to disregard the presumptive sentencing standards because Duncan was terminated from a drug-court program for noncompliance.

         Section 13A-5-8.1, Ala. Code 1975, states, in pertinent part:

"If a defendant is participating in a court supervised evidence-based treatment program, as that term is defined in Section 12-25-32, a court ordered faith-based program, or any other court ordered rehabilitative program and is subsequently terminated from that program, the court may then order that the defendant be confined in either a prison, jail-type institution, treatment institution, or a consenting community corrections program. The court shall impose a sentence length that ...

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