June 24, 2013
Recently, the Alabama Court of Criminal Appeals has taken up a number of cases involving defendants who have pleaded guilty, received a split sentence (which was illegal in some form or fashion) and had the split sentence revoked. The central question in these cases has been this: what is the Court to do when someone’s probation has been revoked, but they’ve been given an illegal split sentence?
For now, the answer has come out in favor of the defendants.
In Enfinger v. State, CR-11-0458 (December 14, 2012) (Ala. Crim. App. 2012), the defendant pleaded guilty and was sentenced to a term of 20 years’ imprisonment. The trial court then split that sentence to a term of “time served” and order a term of 3 years’ probation. The defendant picked up new charges and after a hearing, his probation was revoked and the remainder of his 20-year sentence was imposed.
On appeal, the Court of Criminal Appeals took notice that the defendant’s sentence – 20 years, split to “time served” – was not authorized by the Split Sentence Act, § 15-18-8, Ala. Code 1975; as such, the Court held it was an illegal sentence. But what to do now?
Concerned that the defendant may have pleaded guilty because he was offered this (illegal) sentence, the Court concluded that it was necessary for the trial court to determine whether the sentence was a part of the defendant’s “plea bargain.” Additionally, if the sentence was a part of the defendant’s “plea bargain” and if the defendant moved to have the guilty plea withdrawn, the Court of Criminal Appeals ordered that the trial court conduct a hearing on the motion. All said, the Court took great steps to make sure that the defendant pleaded guilty knowing exactly what sentence he would received.
Presiding Judge Windom had a very interesting dissent, one that I believe criminal defense practitioners should be aware of. According to Presiding Judge Windom, the defendant’s underlying sentence – 20 years imprisonment – was legal for his conviction, a Class B felony with two prior felony convictions, but the manner in which it was executed – split to “time served” – was illegal. In Presiding Judge Windom’s view, because the illegal-executed portion of the defendant’s sentence – the split for “time served” was removed by the revocation of his probation, the issue regarding the legality of the defendant’s sentence has been mooted. As such Presiding Judge Windom believed that the defendant was currently serving a legal, 20-year sentence and chided the majority for sending the case back to the trial court to consider “hypothetical” issues not raised on appeal.
My Thoughts: This issue has reappeared at the Court of Criminal a number of times already: Scott v. State, CR-10-1418, Feb. 15, 2013 (Ala. Crim. App. 2013), Hicks v. State, CR-11-1974, March 29, 2013 (Ala. Crim. App. 2013), and Adams v. State, CR-11-1580, June 7, 2013 (Ala. Crim. App. 2013), and Pardue v. State, CR-10-1951, June 7, 2013 (Ala. Crim. App. 2013), with the same result: the majority remanding the revocation of probation wherein an illegal split was present over the dissent of Presiding Judge Windom. For now these line of cases are very pro-defense. However, I believe it is very important for criminal defense attorneys to be extremely careful when dealing with sentences. Presiding Judge Windom’s dissent in Enfinger is very well-reasoned and legally sound. Should Judge Windom’s reasoning ever become the majority view through a line-up shift at the Court or if the Alabama Supreme Court ever takes up the issue, our clients face the grim prospect of serving harsh sentences. Of equal importance, we criminal defense attorneys will likely be staring down the barrel of a claim of ineffective assistance of counsel in a Rule 32 petition, at the best, or a bar complaint, at the worst. Making sure our clients receive the lowest legal split is of utmost importance.