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Rel: December 16, 2022




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                 Alabama Court of Criminal Appeals
                               OCTOBER TERM, 2022-2023
                                _________________________

                                          CR-21-0478
                                   _________________________

                                   Devane Twon Reynolds

                                                      v.

                                         State of Alabama

                         Appeal from Houston Circuit Court
                                   (CC-09-318.62)


McCOOL, Judge.

        Devane Twon Reynolds appeals the Houston Circuit Court's

summary dismissal of his Rule 32, Ala. R. Crim. P., petition for

postconviction relief, in which he challenged his November 2, 2010,

guilty-plea convictions for first-degree robbery, see § 13A-8-41, Ala. Code
CR-21-0478

1975, first-degree theft of property, see § 13A-8-3, Ala. Code 1975, and

second-degree assault, see § 13A-6-21, Ala. Code 1975, and his sentences

of life imprisonment for each charge. Reynolds did not file a direct appeal

from his convictions.

     On December 14, 2021, Reynolds filed the instant petition, his

third, in which he claimed: 1) that his guilty-pleas were involuntary; 2)

that the circuit court did not have jurisdiction to render the judgment or

impose the sentence in his cases because, he says, his convictions violate

double-jeopardy principles in that his convictions for first-degree theft of

property and second-degree assault were lesser-included offenses of the

offense of first-degree robbery; 3) that his sentences were illegal because,

he says, the court improperly used three prior juvenile adjudications from

the state of Georgia to enhance his sentence under the Habitual Felony

Offender Act ("the HFOA"); and 4) that he was denied the effective

assistance of counsel during plea negotiations.

     The State filed a motion to dismiss Reynolds's petition, alleging

that the claims raised in his petition were meritless and precluded under

Rule 32.2(a)(2) through (5); that his petition was precluded as successive




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CR-21-0478

under Rule 32.2(b); and that his petition was time-barred under Rule

32.2(c).

      The circuit court summarily dismissed Reynolds's petition on

February 23, 2022. Reynolds timely filed a notice of appeal.

      On appeal, Reynolds reasserts the claims raised in his petition and

argues that the circuit court's summary dismissal of his petition was

improper.

                                    I.

      To the extent that Reynolds raises claims that his guilty plea was

involuntary or that his counsel was ineffective, these claims were

properly dismissed as precluded. It is well settled "that claims of

ineffective assistance of counsel and challenges to the voluntariness of a

guilty plea may be presented for the first time in a timely filed Rule 32

petition." Murray v. State,
922 So. 2d 961, 965
 (Ala. Crim. App. 2005)

(emphasis added). However, neither a claim of ineffective assistance of

counsel nor a challenge to the voluntariness of a guilty plea is

jurisdictional. See Burnett v. State,
155 So. 3d 304, 307
 (Ala. Crim. App.

2013)("A claim alleging ineffective assistance of counsel is not

jurisdictional."); and Fincher v. State,
837 So. 2d 876, 878
 (Ala. Crim.


                                    3
CR-21-
0478 App. 2002
) ("Claims relating to the voluntariness of guilty pleas are not

jurisdictional.").   Accordingly, because these claims were raised in

Reynolds's second Rule 32 petition, they were precluded under Rule

32.2(b). The claims were also time-barred under Rule 32.2(c) because

Reynolds's petition was filed more than a decade after his convictions and

sentences became final. Therefore, the circuit court's summary dismissal

of Reynolds's involuntary guilty-plea claims and his ineffective-

assistance-of-counsel claims was proper. See Rule 32.7(d), Ala. R. Crim.

P. ("If the court determines that the petition … is precluded … 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.").

                                    II.

      Next, Reynolds reasserts his claims that his guilty plea was

involuntary and that the circuit court did not have jurisdiction to render

the judgment or impose the sentence in his cases because, he says, his

convictions for first-degree theft of property and second-degree assault

were lesser-included offenses of the offense of first-degree robbery and,

thus, violate double-jeopardy principles. Specifically, Reynolds claimed

in his petition that he was alleged to have "assaulted a single victim


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CR-21-0478

during the course of committing the theft of a motor vehicle and [other

belongings of] the alleged victim" during a single course of conduct, or,

pursuant to one act or scheme." (C. 21.) Thus, he claimed, his "conviction

for first-degree robbery [under] §13A-8-41(a)(1) encompass[ed] his

convictions for theft of property and assault" because "the theft and

assault in this particular fact situation formed the basis" for his robbery

conviction. (C. 28.)

      Initially, we note that this type of double-jeopardy claim has been

recognized as a jurisdictional claim. See Ex parte Benefield,
932 So. 2d 92
   (Ala.    2005)(finding   that   double-jeopardy   claims    involving

simultaneous convictions for both a greater- and lesser-included offense

are jurisdictional and cannot be waived). Additionally, we note that,

although Reynolds raised this claim in a previous petition, this Court

affirmed the circuit court's summary dismissal of his claim because the

claim was insufficiently pleaded and, thus, his claim was not addressed

on its merits in the previous petition or on appeal. See Reynolds v. State,
184 So. 3d 471
 (Ala. Crim. App. 2014)(table).1 Therefore, although


      1This Court may take judicial notice of its own records on appeal.
See Nettles v. State,
731 So. 2d 626, 629
 (Ala. Crim. App. 1998), and Hull
v. State,
607 So. 2d 369
, 371 n.1 (Ala. Crim. App. 1992).
                                     5
CR-21-0478

Reynolds did raise this jurisdictional claim in a previous petition, the

claim is not precluded as successive because it was not adjudicated on

the merits.

     To the extent that Reynolds alleges that his conviction for second-

degree assault was a lesser-included offense of first-degree robbery in his

case, we disagree. In Bradley v. State, this Court explained:

     "Bradley was charged with first-degree robbery under § 13A–
     8–41(a)(1)[, Ala. Code 1975,]—using or threatening the
     imminent use of force against the victim while armed with a
     deadly weapon or dangerous instrument—not under § 13A–
     8–41(a)(2)[, Ala. Code 1975,]—using or threatening the
     imminent use of force against the victim and causing serious
     physical injury to the victim. Second-degree assault under §
     13A–6–21(a)(2)[, Ala. Code 1975,] requires proof of physical
     injury, whereas first-degree robbery under § 13A–8–41(a)(1)
     requires proof only of force, see § 13A–1–9(a)(1)[, Ala. Code
     1975,]; thus, second-degree assault under § 13A–6–21(a)(2)
     actually requires greater injury than that required for first-
     degree robbery under § 13A–8–41(a)(1), not lesser injury, see
     § 13A–1–9(a)(4)[, Ala. Code 1975]. In addition, second-degree
     assault under § 13A–6–21(a)(2) does not 'consist[] of an
     attempt or solicitation to commit [first-degree robbery] or to
     commit a lesser included offense,' § 13A–1–9(a)(2)[, Ala. Code
     1975,], nor is second-degree assault under § 13A–6–21(a)(2)
     'specifically designated by statute as a lesser degree' of first-
     degree robbery under § 13A–8–41(a)(1). § 13A–1–9(a)(3)[, Ala.
     Code 1975,]. Thus, we hold that second-degree assault under
     § 13A–6–21(a)(2) is not a lesser-included offense of first-
     degree robbery under § 13A–8–41(a)(1)."




                                    6
CR-21-0478
925 So. 2d 221, 224-25
 (Ala. Crim. App. 2004). Reynolds conceded in his

petition that he was charged with and convicted of first-degree robbery

under § 13A-8-41(a)(1), Ala. Code 1975, and second-degree assault, under

§ 13A-6-21(a)(2), Ala. Code 1975. Therefore, in this particular case,

Reynolds's claim that his conviction of second-degree assault and his

conviction of first-degree robbery constituted a double-jeopardy violation

was meritless.

     Reynolds also reasserts on appeal his contention that, because first-

degree theft of property is a lesser-included offense of first-degree

robbery, his convictions for both first-degree theft of property and first-

degree robbery violated double-jeopardy principles.

     Section 13A-1-8(b), Ala. Code 1975, states, in pertinent part:

     "When the same conduct of a defendant may establish the
     commission of more than one offense, the defendant may be
     prosecuted for such offense. He may not, however, be
     convicted of more than one offense if … one offense is included
     in the other, as defined in Section 13A-1-9."

Section 13A-1-9, Ala. Code 1975, provides, in pertinent part:

           "(a) A defendant may be convicted of an offense included
     in an offense charged. An offense is an included one if:

                "(1) It is established by proof of the same or
           fewer than all the facts required to establish the
           commission of the offense charged."

                                    7
CR-21-0478


Additionally, this Court has explained that "[t]he test for determining

whether two offenses are the same for double-jeopardy purposes was

established in Blockburger v. United States,
284 U.S. 299
,
52 S. Ct. 180
,
76 L. Ed. 306
 (1932)." Heard v. State,
999 So. 2d 992, 1007
 (Ala. 2007).

"First, 'the threshold inquiry under Blockburger is whether the alleged

statutory violations arise from "the same act or transaction." ' " Williams

v. State,
104 So. 3d 254, 256
 (Ala. Crim. App. 2012) (quoting State v.

Watkins,
362 S. W. 3d 530, 545
 (Tenn. 2012)). "Second, if the offenses

did arise from the same act or transaction, then it must be determined

whether each offense requires proof of an additional fact which the other

does not, i.e., whether the two offenses are the 'same' for double-jeopardy

purposes." Williams,
104 So. 3d at 257
.

     Section 13A-8-41(a)(1) provides that "[a] person commits robbery in

the first degree if he violates Section 13A-8-43[, Ala. Code 1975,] and he

… is armed with a deadly weapon or dangerous instrument." Section

13A-8-43, Ala. Code 1975, states that a person commits third-degree

robbery if, "in the course of committing a theft," he either "uses force

against the person or owner or any person present with intent to

overcome his physical resistance or physical power of resistance," or if he

                                    8
CR-21-0478

"threatens the imminent use of force against the person of the owner or

any person present with intent to compel acquiescence to the taking of or

escaping with the property."

     "A person commits the crime of theft of property if he or she …

[k]nowingly obtains or exerts unauthorized control over the property of

another, with intent to deprive the owner of his or her property." § 13A-

8-2, Ala. Code 1975. Section 13A-8-3(b), Ala. Code 1975, provides that

"the theft of a motor vehicle, regardless of its value, constitutes theft-of-

property in the first degree."

     The record in the instant case does not contain the indictments

against Reynolds or a copy of the plea agreement. However, in his

petition, Reynolds alleged that he was indicted under § 13A-8-41(a)(1)

and § 13A-8-3, and he claimed that the theft of the motor vehicle giving

rise to his first-degree-theft-of-property conviction was also the

underlying theft giving rise to his first-degree-robbery conviction. This

Court has recognized that, in cases where the theft that forms the basis

of a theft conviction is the same theft underlying a defendant's robbery

conviction, a conviction for both crimes violates the Double Jeopardy

Clause of the Fifth Amendment. See Gholston v. State,
57 So. 3d 178
 (Ala.


                                     9
CR-21-0478

Crim. App. 2010)(holding that convictions for first-degree theft of

property and first-degree robbery based on the theft of the same motor

vehicle constituted a double-jeopardy violation). See also Crayton v.

State,
949 So. 2d 946, 978
 (Ala. Crim. App. 2006). Therefore, Reynolds's

claim that his first-degree robbery conviction and first-degree theft of

property conviction violated his protection against double jeopardy may

be meritorious. Therefore, this case is due to be remanded for the circuit

court to hold an evidentiary hearing on this issue. See Peterson v. State,
842 So. 2d 734
 (Ala. Crim. App. 2001).

                                   III.

     Additionally, Reynolds reasserts his claim that his sentence was

illegal because, he says, the circuit court improperly used prior juvenile

adjudications from the State of Georgia that were allegedly "under seal"

to enhance his sentence under the HFOA. (Reynolds's brief, at 8). In his

petition, Reynolds alleged that, although he stipulated to having three

prior felony convictions when he pleaded guilty, those prior convictions

were juvenile adjudications that could not have been used for sentence-

enhancement purposes under the HFOA.




                                   10
CR-21-0478

      "[T]he use of an invalid prior conviction for sentence enhancement

renders a sentence illegal." Ginn v. State,
894 So. 2d 793, 796
 (Ala. Crim.

App. 2004). The Alabama Supreme Court "has held that ' "a challenge to

an illegal sentence is jurisdictional and can be raised at any time." ' " Ex

parte Jarrett,
89 So. 3d 730, 732
 (Ala. 2011) (quoting Ex parte Batey,
958 So. 2d 339, 341
 (Ala. 2006), quoting in turn Ginn,
894 So. 2d at 796
). See

also Ex parte Trawick,
972 So. 2d 782, 783
 (Ala. 2007)("Trawick's claim

that his sentence is illegal under the HFOA presents a jurisdictional

claim.").

      Further,

            "[t]he Alabama Supreme Court in Ex parte Thomas,
435 So. 2d 1324
 (Ala. 1982) held that:

            " '... [A] prior youthful offender adjudication is
            properly considered in determining the sentence to
            be imposed within the statutory range for a later
            crime for which the defendant has been convicted.
            That same youthful offender determination,
            however, may not be considered a prior felony
            conviction, as contemplated by the Habitual
            Offender Act, so as to bring the defendant within
            the purview of the higher sentence categories of
            that Act.'

      "
435 So. 2d at 1326
. See also Thomas v. State,
445 So. 2d 992
      (Ala. Crim. App. 1984)."

Pickens v. State,
475 So. 2d 637, 639
 (Ala. Crim. App. 1985).

                                    11
CR-21-0478

     In Ex parte Dixon,
804 So. 2d 1075
 (Ala. 2000), the Alabama

Supreme Court recognized:

     "In regard to sentence enhancement under the HFOA, the
     general rule is that 'the burden of proof [is] on the state to
     show that the defendant has been convicted of a previous
     felony or felonies.' Rule 26.6(b)(3)(iii), Ala. R.Crim. P.; see
     Shumate v. State,
676 So. 2d 1345, 1347
 (Ala. Crim. App.
     1995). However, by admitting prior felony convictions, the
     defendant relieves the State of its burden of proof. See Burrell
     v. State,
429 So. 2d 636, 637
 (Ala. Crim. App. 1982)."
804 So. 2d at 1076-77
. However, in Ex parte Dixon, the Alabama

Supreme Court also explained that, even where a defendant admits to

having prior felonies, the use of a defendant's prior felony convictions to

invoke the HFOA is invalid unless the defendant is informed "that

youthful-offender convictions are not considered prior convictions for

purposes of sentence enhancement under the HFOA."
Id., at 1077-78
.

     Reynolds alleged in his petition that he had stipulated to having

three prior felony convictions in the state of Georgia when he pleaded

guilty in the instant case; however, he also alleged that the prior felony

offenses that he stipulated to were offenses that were adjudicated under

Georgia's juvenile-adjudication statute. The record in this case is unclear

whether Reynolds conceded that he had three prior felony convictions

that were not juvenile adjudications when he pleaded guilty in the

                                    12
CR-21-0478

instant case or whether he merely stipulated to the three prior juvenile

adjudications that occurred in Georgia.

      Therefore, like his double-jeopardy claim, because Reynolds's claim

that his sentence is illegal is potentially meritorious, this case is also due

to be remanded for the court to hold an evidentiary hearing and to make

specific findings of fact on the illegal-sentence claim. See Barnes v. State,
708 So. 2d 217
 (Ala. Crim. App. 1997).

      Accordingly, we remand this case to the circuit court with

instructions that the court hold an evidentiary hearing on the merits of

Reynolds's double-jeopardy and illegal-sentence claims. The circuit court

shall make specific, written findings of fact regarding Reynolds's double

jeopardy claim and his illegal-sentence claim in compliance with Rule

32.9(d), Ala. R. Crim. P. If the court determines that Reynolds is entitled

to relief on either or both of his claims, the court shall take all necessary

action to render the appropriate relief. Additionally, due return shall be

filed in this Court as soon as possible and within 56 days after the release

of this opinion. The return to remand shall include the circuit court's

specific, written findings of fact and a transcript of the evidentiary

hearing.


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CR-21-0478

      Based on the foregoing, this case is remanded with instructions.

      REMANDED WITH INSTRUCTIONS.

      Windom, P.J., and Kellum and Minor, JJ., concur. Cole, J., concurs

in the result.




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