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Price v. State

Alabama Court of Criminal Appeals

August 10, 2018

Kenneth Joe Price
v.
State of Alabama

          Appeal from Pickens Circuit Court (CC-87-83.61)

          JOINER, JUDGE.

         Kenneth 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.

         On October 27, 2017, Price filed this, his second, Rule 32 petition, along with an in forma pauperis declaration.[1] 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.

         On 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.

         On 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.)

         When 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).

         Furthermore, 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).

         Price's 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.

         In August 2006, Price filed in the Pickens Circuit Court a "Motion to Modify Sentence," pursuant to former § 13A-5-9.1, Ala. Code 1975.[2] 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 relief.

         To the 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 (Ala.Crim.App.2013). ...


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