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SUPREME COURT OF ALABAMA

OCTOBER TERM, 2013-2014

____________________

1130649

____________________

Ex parte Robert Gill

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF CRIMINAL APPEALS

(In re: Robert Gill

v.

State of Alabama)

(Morgan Circuit Court, CC-95-43;

Court of Criminal Appeals, CR-12-1972)

BOLIN, Justice.

WRIT DENIED. NO OPINION.
1130649

Stuart, Parker, Murdock, Shaw, Main, Wise, and Bryan,

JJ., concur.

Moore, C.J., dissents.

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MOORE, Chief Justice (dissenting).

I would grant inmate Robert Gill's petition for a writ of

certiorari to review the Court of Criminal Appeals' affirmance

of the trial court's denial of Gill's motion for sentence

reconsideration filed pursuant to § 13A-5-9.1, Ala. Code 1975.

Gill v. State (No. CR-12-1972, Feb. 7, 2014), ___ So. 3d ___

(Ala. Crim. App. 2014)(table). Therefore, I dissent from the

denial of his petition. I believe that Gill's case is

representative of a systemic problem associated with the

Habitual Felony Offender Act, § 13A-5-9, Ala. Code 1975 ("the

HFOA").

Gill was convicted of first-degree robbery, a Class A

felony, and was sentenced as a habitual felony offender to

life imprisonment without the possibility of parole. His prior

convictions included convictions for distribution of a

controlled substance and for two counts of possession of a

controlled substance. This petition for certiorari review

arises out of Gill's fourth motion for sentence

reconsideration, which the circuit court summarily denied. On

his appeal of that denial to the Court of Criminal Appeals,

Gill argued that, because he was a nonviolent offender, the

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circuit court had exceeded its discretion in denying his

motion for sentence reconsideration. Affirming the circuit

court's denial of Gill's motion, the Court of Criminal Appeals

issued an unpublished memorandum quoting its ruling in the

appeal involving Gill's third motion for sentence

reconsideration: "'Suffice it to say, we have reviewed the

record and, considering that Gill was armed with a knife

during the robbery, we find no abuse of discretion on the part

of the circuit court in finding him to be a violent offender

and thus ineligible for sentence reconsideration.'" This

statement presupposes that the offense for which Gill was

convicted determined whether he was a violent offender. As

explained below, I reject this assumption. I believe that §

13A–5–9.1 and Kirby v. State, 899 So. 2d 968(Ala. 2004), and

its progeny prohibit a sentencing or presiding judge from

determining whether an inmate is a violent offender for

purposes of sentence reconsideration based solely on the

offense of which the inmate was convicted. The statutory

requirement that the sentencing or presiding judge must

consider "evaluations performed by the Department of

Corrections and approved by the Board of Pardons and Paroles"

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in determining whether to reconsider a defendant's sentence

suggests that the offense for which the inmate was convicted

may not serve as the sole basis for determining whether an

inmate is a violent or a nonviolent offender for purposes of

§ 13A–5–9.1.

Before 2000, the HFOA read, in pertinent part:

"(c) In all cases when it is shown that a

criminal defendant has been previously convicted of

any three felonies and after such convictions has

committed another felony, he must be punished as

follows:

"(1) On conviction of a Class C

felony, he must be punished by imprisonment

for life or for any term not more than 99

years but not less than 15 years.

"(2) On conviction of a Class B

felony, he must be punished for life in the

penitentiary.

"(3) On conviction of a Class A

felony, he must be punished by imprisonment

for life without parole."

(Emphasis added.) The HFOA was amended effective May 25, 2000;

subsection (c) now reads:

"(c) In all cases when it is shown that a

criminal defendant has been previously convicted of

any three felonies and after such convictions has

committed another felony, he or she must be punished

as follows:

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"(1) On conviction of a Class C

felony, he or she must be punished by

imprisonment for life or for any term of

not more than 99 years but not less than 15

years.

"(2) On conviction of a Class B

felony, he or she must be punished by

imprisonment for life or any term of not

less than 20 years.

"(3) On conviction of a Class A

felony, where the defendant has no prior

convictions for any Class A felony, he or

she must be punished by imprisonment for

life or life without the possibility of

parole, in the discretion of the trial

court.

"(4) On conviction of a Class A

felony, where the defendant has one or more

prior convictions for any Class A felony,

he or she must be punished by imprisonment

for life without the possibility of

parole."

(Emphasis added.) The Amendment Notes to the HFOA describe the

changes effectuated by the 2000 amendment:

"The 2000 amendment ... inserted 'or she' in

eleven places; in subsection (a), in the

introductory matter substituted 'a felony and after

the' for 'any felony and after such'; in subsection

(c), in subdivision (1) inserted 'of' following

'term', in subdivision (2) substituted 'by

imprisonment for life or any term of not less than

20 years' for 'life in the penitentiary', in

subdivision (3) substituted 'where the defendant has

no prior convictions for any Class A felony, he or

she must be punished by imprisonment for life or

life without the possibility of parole, in the

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discretion of the trial court' for 'he must be

punished by imprisonment for life without parole',

and added subdivision (4); and made nonsubstantive

changes."

Amendment Notes, § 13A-5-9(c), Ala. Code 1975. 

In Kirby, this Court described the reasoning behind, and

the implementation of, the 2000 amendment to the HFOA:

"In 2000, the Legislature amended the HFOA to allow

a sentence to be imposed for certain habitual

offenders less severe than life imprisonment without

parole under certain circumstances. Specifically,

and relevant to this proceeding, § 13A–5–9(c)(3) was

amended so that a defendant with three prior felony

convictions, none of which was for a Class A felony,

who is subsequently convicted of a Class A felony

may be sentenced to imprisonment for life or life

imprisonment without the possibility of parole, in

the discretion of the trial court.[ ] Before that 1

amendment, a sentence of life imprisonment without

Justice Stuart has explained that "the 2000 amendment 1

provided judges with the discretion, when sentencing a

defendant, to order the defendant to serve a sentence of life

imprisonment when convicted of a fourth felony offense,

provided that the fourth felony conviction was not for a Class

A felony and the defendant had not previously been convicted

of a Class A felony." Holt v. State, 960 So. 2d 740, 745 (Ala.

2006)(dissenting from quashing the writ of certiorari).

Nabers, C.J., and See, Stuart, and Parker, JJ., dissented in

that case. Justice See dissented on the ground that § 13A-5-

9.1 may violate the separation-of-powers doctrine insofar as

the legislature in enacting it may have usurped powers

reserved for the judiciary by requiring trial courts to

recognize jurisdiction over criminal defendants more than 30

days after the criminal defendants were sentenced and by

mandating that trial courts entertain motions for sentence

reconsideration in certain circumstances. Holt, 960 So. 2d

at 741-44.

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the possibility of parole was mandatory under §

13A–5–9(c)(3) for a Class A felony offender with

three prior felony convictions. In 2001, the

Legislature passed Act No. 2001–977 ('the Act') in

an attempt to make the 2000 amendments to § 13A–5–9

retroactive. The stated purpose of the Act was 'to

provide further for eligibility for parole

consideration of non-violent offenders.' The Act,

now codified as § 13A–5–9.1, states in its entirety:

"'The provisions of Section 13A–5–9

shall be applied retroactively by the

sentencing judge or presiding judge for

consideration of early parole of each

nonviolent convicted offender based on

evaluations performed by the Department of

Corrections and approved by the Board of

Pardons and Paroles and submitted to the

court.'

"The Act became effective on December 1, 2001.

However, because the Department of Corrections ('the

DOC') and the Board of Pardons and Paroles ('the

Parole Board') concluded that there were significant

problems with § 13A–5–9.1, it ha[d] not ... been

implemented or applied [as of August 2004].

"On September 29, 2001, the same day he approved

the Act, then Governor Siegelman signed Executive

Order Number 62 ('EO 62') calling for the

development of a 'process for evaluating non-violent

offenders possibly affected by [§ 13A–5–9.1].' EO 62

directed the DOC to develop guidelines and

procedures for determining which inmates would be

eligible for reconsideration of their sentences

under § 13A–5–9.1. EO 62 also purported to suspend

operation of § 13A–5–9.1 until June 1, 2002, 'by

which time the Department of Corrections should have

developed an evaluation process to determine which

offenders are "non-violent."'"

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899 So. 2d at 969-70 (footnote omitted; all but initial

emphasis added). "At the time § 13A-5-9.1, Ala. Code 1975,

became effective the question arose as to how a circuit court

retained the authority to reconsider an inmate's sentence when

that court normally loses jurisdiction to modify a defendant's

sentence in a criminal case within 30 days of sentencing if a

postjudgment motion is not filed." Holt v. State, 960 So. 2d

740, 745 (Ala. 2006)(Stuart, J., dissenting from quashing the

writ of certiorari). This Court resolved that question in

Kirby, which held that an inmate need not have a case pending

before the circuit court in order to file a motion for

reconsideration of sentence under § 13A-5-9.1 and also that §

13A-5-9.1 vested the circuit courts with jurisdiction to

consider such motions for sentence reconsideration. Kirby, 899

So. 2d at 971. Therefore, under Kirby, "an inmate may ask the

sentencing judge or the presiding judge for relief from a

previous sentence imposed pursuant to the HFOA." Id. 

As a result of Kirby and subsequent cases interpreting

Kirby, a three-step "test" has developed for evaluating

motions for sentence reconsideration under § 13A-5-9.1. Step

one is to determine whether the motion was filed in the

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appropriate court and assigned to the appropriate judge (i.e.,

the sentencing judge or the presiding judge). Ex parte

Sandifer, 925 So. 2d 290, 295-96 (Ala. Crim. App. 2005). Step

two is to determine whether the motion is a successive motion.

Under Ex parte Gunn, 993 So. 2d 433, 435-37 (Ala. 2007), a

circuit court does have jurisdiction to consider successive

motions for sentence reconsideration; however, the fact that

a motion for sentence reconsideration is successive has been

held to be a valid basis for denying the motion. Ashford v.

State, 12 So. 3d 160, 162 (Ala. Crim. App. 2008).

Step three consists of three parts and addresses an

inmate's eligibility for sentence reconsideration. Merely

because an inmate is eligible for sentence reconsideration

does not mean that the inmate must be resentenced. Holt, 960

So. 2d at 735 n.3 ("[A] circuit court is not required to

resentence an inmate merely because it determines that the

inmate is eligible for reconsideration of his or her

sentence.").

"There are three requirements for eligibility to

have a sentence reconsidered under § 13A-5-9.1: (1)

the inmate was sentenced before May 25, 2000, the

date the 2000 amendment to the HFOA became

effective; (2) the inmate was sentenced to life

imprisonment without the possibility of parole

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pursuant to § 13A-5-9(c)(3) and had no prior Class

A felony convictions or was sentenced to life

imprisonment pursuant to § 13A-5-9(c)(2)...; and (3)

the inmate is a 'nonviolent convicted offender.' An

inmate must satisfy all three requirements before he

or she is eligible for reconsideration of the

sentence under § 13A-5-9.1. If a circuit court

determines that an inmate is eligible for

reconsideration of his or her sentence, the court

then has the authority pursuant to § 13A-5-9.1 to

resentence the inmate, within the bounds of § 13A-5-

9(c)(2) or § 13A-5-9(c)(3), as amended, if it so

chooses. If, on the other hand, the circuit court

determines that the inmate fails to meet any or all

of the eligibility requirements then the circuit

court must deny the inmate's § 13A-5-9.1 motion

because a circuit court has jurisdiction to

resentence only those inmates who meet the

eligibility requirements of § 13A-5-9.1. ..."

Holt, 960 So. 2d at 734-35 (emphasis added). 

Because § 13A-5-9.1 does not define "nonviolent convicted

offender," circuit courts have had difficulty determining

whether an inmate is "nonviolent" and hence eligible for

sentence reconsideration. Although it is appropriate for a

circuit court to consider whether the offense committed by an

inmate seeking reconsideration of his or her sentence is

statutorily defined as a "violent offense," this fact alone

does not necessarily render an inmate a violent convicted

offender. Holt, 960 So. 2d at 736. Accordingly, committing a

"violent offense" as defined by statute does not permanently

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brand an inmate as a "violent offender" for purposes of §

13A–5–9.1, which maintains that the sentencing or presiding

judge must consider the "evaluations performed by the

Department of Corrections and approved by the Board of Pardons

and Paroles." Holt, 760 So. 2d at 736; § 13A–5–9.1.

"[I]n determining whether an inmate is a 'nonviolent

convicted offender' within the meaning of § 13A-5-9.1, what

weight to afford each factor presented to [the circuit court]

is within the circuit court's discretion." Holt, 960 So. 2d at

738. 

"A circuit court is not required to make specific

findings of fact regarding the weight it affords

each factor, and in reviewing a circuit court's

determination of whether an inmate is a 'nonviolent

convicted offender,' this Court will give the trial

court great deference regarding the weight it

afforded the factors presented to it, and we will

presume that the circuit court properly considered

and weighed each factor presented, unless the record

affirmatively shows otherwise."

960 So. 2d at 738. "[W]hether an inmate is a 'nonviolent

convicted offender' is based on a totality of the

circumstances." Id. By "totality of the circumstances," this

Court means "the totality of the information before the

circuit court when it rules on the § 13A-5-9.1 motion [for

sentence reconsideration]." Id. "[A] circuit court is not

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precluded from considering, nor may it refuse to consider, all

of the factors presented to it by either party." Id. 

One factor involves "evaluations" of the inmate

"performed by the Department of Corrections and approved by

the Board of Pardons and Paroles and submitted to the court."

§ 13A-5-9.1. Kirby implies that a presumption of nonviolence

attaches to a motion for sentence reconsideration by holding

that "if the DOC [Department of Corrections] does not provide

the evaluation in a timely fashion, the State will have waived

any input as to the inmate's conduct while incarcerated that

the sentencing judge or the presiding judge might otherwise

have considered in determining whether the inmate is a

nonviolent offender." Kirby, 899 So. 2d at 975. Moreover,

"[w]hile the information available to the trial court in the

DOC's evaluation will be helpful in making its determination,"

the Department of Corrections' failure to submit an evaluation

waives the State's input regarding whether the inmate is a

violent offender. 899 So. 2d at 874. If the Department of

Corrections does not submit an evaluation, then it presents no

evidence to rebut an inmate's claim that the inmate is a

nonviolent convicted offender. I disagree that "§ 13A-5-9.1

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does not require a circuit court to order, or the Department

of Corrections to submit, an inmate evaluation, [and that] it

merely permits the consideration by the circuit court of such

an evaluation." Holt, 960 So. 2d at 737. The circuit court is

required to order the Department of Corrections to submit an

inmate evaluation.

I note in conclusion that the legislature repealed 13A-5-

9.1, Ala. Code 1975, effective March 13, 2014. See Act No.

2014-165, Ala. Acts 2014. Therefore, the HFOA, as amended in

2000, will no longer be applied retroactively. Act No. 2014-

165 states that "this act shall be applied prospectively

only." Section 2, Act No. 2014-165. Nevertheless, the repeal

of 13A-5-9.1 is not effective as to all cases: "Any case, on

the effective date of this act, in which a motion filed

pursuant to 13A-5-9.1, Code of Alabama 1975, is pending in the

trial court or is subject to an appeal or pending in an

appellate court on appeal from the denial or dismissal of a

motion shall not be affected by this act." Id. 

The retroactive application of the amended HFOA corrected

an unjust sentencing scheme that mandated the imprisonment of

many nonviolent convicted offenders for life with no

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opportunity for parole. The recent repeal of § 13A-5-9.1

eliminates all chances of release for nonviolent inmates who

are serving a term of life imprisonment without the

possibility of parole but who are reformed or rehabilitated

while in prison. Recent petitions before this Court have

argued that, in contravention of § 13A-5-9.1, the Department

of Corrections was not submitting inmate evaluations to the

circuit courts when inmates moved for a reconsideration of

their sentence and that, even when the Department of

Corrections submitted such evaluations, circuit courts were

not considering the inmate evaluations before ruling on

motions for sentence reconsideration. See, e.g., Ex parte

Pate, [Ms. 1120348, August 30, 2013] ___ So. 3d ___ (Ala.

2013) (noting that circuit court did not consider inmate's

motion for sentence reconsideration on its merits); Ex parte

Manley (No. 1120382, March 8, 2013), ___ So. 3d ___ (Ala.

2013)(table)(denying petition for a writ of certiorari in a

case in which an inmate alleged that, instead of considering

his inmate evaluations, the circuit court determined that he

was a violent offender even though the previous felonies used

to enhance his sentence under the HFOA were nonviolent

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offenses and the offense for which he was convicted and

sentenced under the HFOA was classified as robbery simply

because he stole guns); and Ex parte Harper, [No. 1130496](a

pending petition for certiorari review in which the inmate

alleges that the circuit court refused to consider the

evidence he submitted to the circuit court, including his

prison records, before ruling, solely on the basis of his

underlying offense of robbery, that he was a violent

offender). If these allegations are true, then § 13A-5-9.1 is

not being followed in letter or spirit.

Therefore, because I believe there are special and

important reasons for this Court to grant Gill's petition for

a writ of certiorari in this case and the petitions in

numerous other cases, I respectfully dissent. 

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