Circuit Court, CC-16-148 and CC-16-149; Court of Criminal
PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
Facts and Procedural History
Ray Duncan pleaded guilty to unlawful possession of marijuana
in the second degree, a Class A misdemeanor, see §
13A-12-214, Ala. Code 1975, and to unlawful possession of a
controlled substance, a Class D felony, see §
13A-12-212, Ala. Code 1975. Before sentencing, Duncan made
application to, and was accepted into, the Clay-Coosa Drug
Court Program ("the drug-court program"). The Clay
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 drug-court program.
was accepted into the drug-court program in January 2017.
Less than a month later, Duncan was sentenced to 48 hours in
jail for violating the terms and conditions of the drug-court
program. Duncan was subsequently sentenced to jail on three
additional occasions for violating the terms and conditions
of the drug-court program. In May 2017, the circuit court
removed Duncan from the drug-court program, based on a
recommendation of the drug-court-program coordinator and on
the circuit court's finding that Duncan was
"unwilling and/or unable to abide by the rules ... of
the [drug-court program]." According to the May 2017 order,
over the course of four months participating in the
drug-court program, Duncan had tested positive for the
presence of drugs on three occasions, had "missed court
and monitoring sessions," and had "failed to
complete an assessment as directed by the court." In
addition to removing Duncan from the drug-court program, the
circuit court's order required Duncan to appear for a
sentencing hearing, defense counsel argued that the
presumptive sentencing standards applied and that they
mandated that Duncan's sentence not include
incarceration. See Ala. Code 1975, §§ 12-25-30 to
-38; Presumptive and Voluntary Sentencing Standards
Manual. Specifically, defense counsel argued that the
"sentencing event" in Duncan's case included
both drug convictions and that the presumptive sentencing
standard applicable to "the most serious offense"
in Duncan's case (the class D felony controlled-substance
conviction) mandated no jail time. The circuit court
determined, however, that Duncan's misdemeanor marijuana
conviction was not subject to the presumptive sentencing
standards, and it sentenced Duncan to 12 months in jail for
that conviction. For the felony controlled-substance
conviction, the circuit court applied the presumptive
sentencing standards and sentenced Duncan to 23 months'
imprisonment, which the court suspended, and placed Duncan on
2 years' supervised probation. The circuit court ordered
that Duncan's sentences were to run concurrently.
appealed his sentences to the Court of Criminal Appeals.
Duncan v. State, [Ms. CR-16-0890, December 15, 2017]
___ So.3d ___ (Ala.Crim.App.2017). On appeal, Duncan argued
that the sentences imposed by the circuit court
"represented an improper departure from the presumptive
sentencing standards," Duncan, ___ So.3d at
___, because the circuit court imposed a period of
incarceration, although he says the presumptive sentencing
standards did not provide for incarceration under the facts
of his case. The State argued 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."
Duncan, ___ So.3d at ___.
Court of Criminal Appeals reversed the judgment of the
circuit court, holding (1) that the presumptive sentencing
standards applied to both convictions, (2) that the
presumptive sentencing standards did not authorize a sentence
of imprisonment in Duncan's case, (3) that the circuit
court had no authority to sentence Duncan to jail on the
misdemeanor conviction, and (4) that § 13A-5-8.1
required a sentence imposed after termination from a
drug-court program to fully comply with the presumptive
sentencing standards, including the dispositional component
of the sentence. Judge Joiner dissented with an opinion,
which Judge Burke joined.
main opinion of the Court of Criminal Appeals discussed the
presumptive sentencing standards as follows:
"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. ...
'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 ...