from Pickens Circuit Court (CC-87-83.61)
Joe Price appeals the circuit court's summary dismissal
of his petition for postconviction relief filed pursuant to
Rule 32, Ala. R. Crim. P. Price's petition attacked his
October 1988 guilty-plea conviction for first- degree
receiving stolen properly, see § 13A-8-17, Ala.
Code 1975, and his sentence, as a habitual offender, of life
imprisonment. Price did not file a direct appeal of his
guilty-plea conviction or sentence.
October 27, 2017, Price filed this, his second, Rule 32
petition, along with an in forma pauperis
declaration. In the petition, Price alleged that the
Habitual Felony Offender Act, § 13A-5-9, Ala. Code 1975
("the HFOA"), had been not invoked in his case. He
argued that, without application of the HFOA, the maximum
sentence he should have received for first-degree receiving
stolen property was 20 years. Thus, he argued that his
sentence of life imprisonment was illegal.
January 10, 2018, the State filed an answer in which it
argued that Price's petition was procedurally barred,
insufficiently pleaded, and without merit. On January 24,
2018, the circuit court issued an order summarily dismissing
Price's petition as being without merit. See
Rule 32.7(d), Ala. R. Crim. P.
appeal, Price argues that the circuit court erred in
summarily dismissing his petition. Price (1) challenges the
legality of his sentence and (2) argues that he was denied
due process because, he says, he did not receive the
State's answer and, therefore, did not have an
opportunity to respond to it. (Price's brief, pp. 9-10.)
reviewing a circuit court's summary dismissal of a
postconviction petition "'[t]he standard of review
this Court uses ... is whether the [circuit] court abused its
discretion.'" Lee v. State, 44 So.3d 1145,
1149 (Ala.Crim.App.2009) (quoting Hunt v. State, 940
So.2d 1041, 1049 (Ala.Crim.App.2005)). If, however, the
circuit court bases its determination on a "'cold
trial record, '" we apply a de novo standard of
review. Ex parte Hinton, 172 So.3d 348, 353 (Ala.
2012). Moreover, "when reviewing a circuit court's
rulings made in a postconviction petition, we may affirm a
ruling if it is correct for any reason." Bush v.
State, 92 So.3d 121, 134 (Ala.Crim.App.2009).
a circuit court may summarily dismiss a Rule 32 petition
pursuant to Rule 32.7(d), Ala. R. Crim. P.,
"[i]f the court determines that the petition is not
sufficiently specific, or is precluded, or fails to state a
claim, or that no material issue of fact or law exists which
would entitle the petitioner to relief under this rule and
that no purpose would be served by any further proceedings,
the court may either dismiss the petition or grant leave to
file an amended petition."
See also Hannon v. State, 861 So.2d 426, 427
(Ala.Crim.App.2003); Cogman v. State, 852 So.2d 191,
193 (Ala.Crim.App.2002); Tatum v. State, 607 So.2d
383, 384 (Ala.Crim.App.1992).
claim that the HFOA was not invoked in his case is not
subject to the procedural bars of Rule 32.2, Ala. R. Crim. P.
Adams v. State, 825 So.2d 239, 240-41
(Ala.Crim.App.2001) ("[Price] is not claiming that he
did not get notice of the State's intent to invoke the
HFOA or that he did not get notice of the prior convictions
upon which the State intended to rely; rather, [Price's]
sole claim is that his sentence is illegal because he was not
sentenced under the HFOA. There is no procedural bar to this
claim."). Price's claim, however, is refuted by the
record and is without merit.
August 2006, Price filed in the Pickens Circuit Court a
"Motion to Modify Sentence," pursuant to former
§ 13A-5-9.1, Ala. Code 1975. In that motion, Price
admitted that the HFOA had been invoked to enhance his
sentence in case no. CC-87-83. (C. 38 ("Defendant's
sentence in case no. CC 1987-0083 was enhanced pursuant to
Title § 13A-5-9(a)(2).").) Thus, Price's
allegation in the instant petition is refuted by Price's
allegation in his prior motion to reconsider his sentence
under former § 13A-5-9.1, Ala. Code 1975. Price is not
entitled to take inconsistent positions as to whether the
HFOA was applied to his sentence, and he is not entitled to
extent that Price now argues that he did not have an
opportunity to respond to the State's answer, the claim
is without merit. "Rule 32 does not require a circuit
court to permit a Rule 32 petitioner to file a response to
the State's answer or motion to dismiss."
Mashburn v. State, 148 So.3d 1094, 1114