PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL
APPEALS Houston Circuit Court, CC-00-353.60; Court of
Criminal Appeals, CR-13-1552)
BOLIN,
JUSTICE.
In
March 2004, Antonio Devoe Jones was convicted of capital
murder and was subsequently sentenced to death. The Court of
Criminal Appeals affirmed his conviction and sentence on
direct appeal. Jones v. State, 987 So.2d 1156
(Ala.Crim.App.2006) ("Jones I"). On
January 23, 2009, Jones filed a Rule 32, Ala. R. Crim. P.,
petition in the Houston Circuit Court challenging his
capital-murder conviction and sentence of death. On June 19,
2014, the trial court entered an order summarily dismissing
Jones's Rule 32 petition. Jones appealed the dismissal of
his Rule 32 petition, and the Court of Criminal Appeals, by
order, dismissed Jones's appeal in accordance with that
court's decision in Loggins v. State, 910 So.2d
146 (Ala Crim. App. 2005), and the Court of Civil
Appeals' decision in K.P. v. Madison County
Department of Human Resources, 243 So.3d 835 (Ala. Civ.
App. 2017). Jones v. State (No. CR-13-1552, Dec. 12,
2017), So.3d (Ala.Crim.App.2017)(table) ("Jones
II"). Jones then petitioned this Court for a writ
of certiorari, arguing that the decision of the Court of
Criminal Appeals dismissing his appeal of the dismissal of
his Rule 32 petition conflicts with this Court's
decisions interpreting Rule 29, Ala. R. Crim. P. We granted
the petition, and we reverse and remand.
Facts
and Procedural History
In
March 2004, Jones was convicted of capital murder for the
intentional killing of Ruth Kirkland during the course of a
burglary. The jury recommended, by a vote of 11 to 1, that
Jones be sentenced to death. The trial court accepted the
jury's recommendation and sentenced Jones to death.
Jones's conviction and sentence were affirmed on direct
appeal by the Court of Criminal Appeals. Jones I.
On
January 23, 2009, Jones filed a Rule 32, Ala. R. Crim. P.,
petition in the Houston Circuit Court attacking his
conviction and sentence. On February 23, 2009, a "Notice
of Recusal and Request for Assignment of Judge" was
submitted to this Court, stating that all the circuit judges
in the 20th Circuit had recused themselves and requesting
that a judge be appointed to preside over Jones's Rule 32
petition. On March 10, 2009, this Court assigned the case to
retired Alabama Supreme Court Associate Justice H. Mark
Kennedy. Since his retirement from this Court, Justice
Kennedy has occasionally taken appointments to preside over
cases on a temporary basis at the circuit-court level. At the
time the case was assigned to Justice Kennedy, he was no
longer practicing law and was working instead as an
economic-development consultant in Montgomery, where he
maintained a business office. Justice Kennedy did not
maintain a legal office and did not have access to a legal
staff, facilities for the electronic filing of orders, or
court facilities.
On July
10, 2009, Edward Hosp and Christine Green accepted
Jones's case on a pro bono basis and began preparing an
amended Rule 32 petition. Because Justice Kennedy was not a
sitting judge, counsel for Jones would send motions and
proposed orders to Justice Kennedy by e-mail and would also
mail materials to Justice Kennedy's business office in
Montgomery. Although it appears that counsel for Jones worked
diligently to prepare Jones's amended Rule 32 petition,
they were unaware of a previously entered deadline for filing
the amended Rule 32 petition. When that deadline passed
without an amended Rule 32 petition being filed, Justice
Kennedy entered an order on August 10, 2010, dismissing
Jones's Rule 32 petition for lack of prosecution.
On
August 26, 2010, counsel for Jones timely filed a motion to
reconsider the order of dismissal and to reinstate the case.
On September 3, 2010, Justice Kennedy arranged a conference
call with one of Jones's counsel and Clay Crenshaw, an
assistant attorney general for the State of Alabama. During
the conference call, counsel for Jones expressed his concern
that Justice Kennedy's jurisdiction to reinstate the Rule
32 petition would expire on September 9, 2010. Justice
Kennedy agreed to reinstate the case and asked counsel for
Jones to submit a proposed order to that affect. To expedite
the filing of the order reinstating the Rule 32 petition,
counsel for Jones offered to send a "runner" to
Justice Kennedy's Montgomery office on September 7, 2010,
to pick up the signed order and then to carry the order to
Houston County to file in the Houston Circuit Court. Justice
Kennedy proposed that he email the signed order reinstating
the Rule 32 petition to the Houston County circuit clerk for
filing. On September 7, 2010, Justice Kennedy e-mailed the
order reinstating Jones's Rule 32 petition to the Houston
County circuit clerk's office. The circuit clerk did not
enter that order into the State Judicial Information System
("the SJIS") at that time.
The
parties proceeded as if the circuit-court clerk had entered
the order reinstating Jones's Rule 32 petition. The
parties agreed to a proposed scheduling order, which Justice
Kennedy entered on September 24, 2010. Subsequently, Justice
Kennedy learned that the September 7, 2010, order reinstating
the Rule 32 petition had not been entered by the circuit
clerk. Upon learning that the order had not been entered,
Justice Kennedy again e-mailed the order to the clerk of the
circuit court. On September 29, 2010, the circuit clerk
stamped the order filed and entered the order in the SJIS.
The order filed by the circuit clerk is dated September 7,
2010, and contained the handwritten notation: "Lost in
mail, rec'd by email 9-29-10." In January 2011,
Justice Kennedy recused himself from the case. On January 24,
2011, this Court appointed Judge Thomas E. Head III to
preside over the Rule 32 proceedings.
Thereafter,
the case proceeded for over six years with Jones having filed
an extensive amended Rule 32 petition, which the Houston
Circuit Court eventually dismissed. Jones timely appealed
that decision to the Court of Criminal Appeals, which set the
case for oral argument in April 2017.
On
April 13, 2017, the Court of Criminal Appeals issued an order
identifying a potential jurisdictional defect in this case.
The Court of Criminal Appeals noted:
"On August 10, 2010, the circuit court issued an order
dismissing [the Rule 32] petition. Jones moved on August 26,
2010, that the circuit court reconsider its ruling and
reinstate the case. On September 29, 2010, the circuit court
granted Jones's motion and reinstated the case to its
docket.
"However, this Court in Loggins v. State, 910
So.2d 146 (Ala.Crim.App.2005), held that a trial court
retains jurisdiction to modify its judgment in a Rule 32
petition for only 30 days after a final order is entered and
that no postjudgment motion will extend the jurisdiction of
the circuit court beyond that 30-day period. ...
"Accordingly, it is hereby ORDERED that the appellant
shall have 30 days from the date of this order to present
argument and relevant legal authority addressing whether this
Court's decision in Loggins requires dismissal
of the appeal."
(References
to record omitted; footnote omitted; capitalization in
original.)
On June
26, 2017, Jones moved the Court of Criminal Appeals to stay
the proceedings in that court, or, in the alternative, to
remand the case to the trial court, because Jones intended to
file a motion pursuant to Rule 29, Ala. R. Crim. P., to
correct what he maintained was a clerical error in the record
that would address the Court of Criminal Appeals'
jurisdictional concern. The State joined the motion,
requesting that the Court of Criminal Appeals grant
Jones's motion for a stay to allow the trial court the
opportunity to resolve the issue whether the delayed entry of
Justice Kennedy's September 7, 2010, order was a clerical
error correctable under Rule 29, Ala. R. Crim. P. The Court
of Criminal Appeals granted the motion and remanded the case
to the trial court to consider Jones's Rule 29 motion.
On July
3, 2017, pursuant to Rule 29, Jones moved the trial court to
correct a clerical error in the record, arguing that it was
"clear that the failure to enter the order dated
September 7, 2010, was a clerical error, likely caused by a
failure on part of the Court Clerk," and that
"[t]estimony from the attorneys and the judge involved
support this conclusion." Jones further contended that
to allow an error of the circuit-court clerk to deprive the
appellate court of jurisdiction would be a clear denial of
due process of law. Jones supported his Rule 29 motion with
affidavits, including one from Justice Kennedy in which
Justice Kennedy swore that he e-mailed his order reinstating
Jones's Rule 32 petition to the circuit clerk's
office on September 7, 2010, and that he had "no reason
to believe" that the order reinstating the Rule 32
petition "had not been timely received by the clerk and
entered onto the docket." Jones also supported his
motion with copies of e-mails between Jones's counsel,
the State, and Justice Kennedy that indicate that Justice
Kennedy had indeed e-mailed the order reinstating the Rule 32
petition to the circuit clerk on September 7, 2010.
In its
July 12, 2017, response, the State noted that it had
conducted its own factual investigation into the
circumstances surrounding the potential jurisdictional defect
and that it found nothing refuting Justice Kennedy's
assertion that he had e-mailed his order reinstating
Jones's case to the circuit clerk's office on
September 7, 2010. Accordingly, the State joined Jones in
requesting that the trial court find that a clerical error
had occurred in this case and that it correct the error by
deeming Justice Kennedy's order reinstating the Rule 32
filed on September 7, 2010, effective, as Justice Kennedy had
intended.
On July
26, 2017, the trial court granted Jones's Rule 29 motion
and ordered that the record be corrected to reflect Justice
Kennedy's original intention that his order reinstating
the Rule 32 petition be entered effective September 7, 2010.
The trial court found that the error in the record was a
clerical error that fell within the scope of Rule 29 and that
the trial court had the authority to correct it. The trial
court further found that because the clerical error was
"based upon the recollection of the [trial] court"
and there were no facts presented that ...