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0649), of any typographical or other errors, in order that corrections may be made before
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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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1130649

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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1130649

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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1130649

               "(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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1130649

    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.[1] Before that
    amendment, a sentence of life imprisonment without

    1
      Justice Stuart has explained that "the 2000 amendment
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.
                              7
1130649

    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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1130649

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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1130649

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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1130649

    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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1130649

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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1130649

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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1130649

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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1130649

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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1130649

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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