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Ex parte Jones

Supreme Court of Alabama

April 26, 2019

Ex parte Antonio Devoe Jones
v.
State of Alabama In re: Antonio Devoe Jones

          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 ...


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