Rel: 12/12/14




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          SUPREME COURT OF ALABAMA
                           OCTOBER TERM, 2014-2015
                            ____________________

                                    1131279
                             ____________________

                       Ex parte Shannon Ray Johnson

                     PETITION FOR WRIT OF CERTIORARI
                    TO THE COURT OF CRIMINAL APPEALS

                        (In re: Shannon Ray Johnson

                                           v.

                               State of Alabama)

                 (Lauderdale Circuit Court, CC-11-485;
                Court of Criminal Appeals, CR-12-2086)

BRYAN, Justice.

      WRIT DENIED.         NO OPINION.

      Stuart, Bolin, Shaw, Main, and Wise, JJ., concur.
1131279

    Moore, C.J., and Parker and Murdock, JJ., dissent.




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MOORE, Chief Justice (dissenting).

    I respectfully dissent from the Court's decision to deny

petitioner   Shannon      Ray   Johnson's     request   for      a    writ   of

certiorari directed to the Alabama Court of Criminal Appeals.

                  Facts and Procedural History

    In    March   2011,    Johnson       pleaded   guilty   to       resisting

arrest, a violation of § 13A-10-33, Ala. Code 1975, in the

district court of Lauderdale County. The Court of Criminal

Appeals' unpublished memorandum, Johnson v. State (No. CR-12-

2086, April 25, 2014), ___ So. 3d ___ (Ala. Crim. App.

2014)(table), provides the following facts:

         "The district court judge sentenced Johnson to
    six months in the Lauderdale County Work Release
    Center ('LCWRC'). The LCWRC is operated by the
    Lauderdale County Community Corrections Authority.
    Johnson reported to the LCWRC that evening and was
    given a classification that prevented him from
    leaving the LCWRC for any reason. Johnson was
    informed that night of his classification. The next
    day Johnson was again told that he could not leave
    the LCWRC.

         "At 7:00 p.m. on March 31, 2011, an Alcoholics
    Anonymous meeting was held in a common area of the
    LCWRC. A corrections officer announced that the
    meeting was beginning, and Johnson went to the
    common area along with other inmates. Shortly after
    the meeting began, Johnson walked out of the common
    area and off the LCWRC grounds. A corrections
    officer reported the escape to law enforcement, and
    the next day, April 1, 2011, Daryl Williams,

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    supervisor of the LCWRC, obtained a warrant for
    Johnson's arrest.

         "Later that day, Robbie Howard of the Florence
    Police Department saw Johnson near a Johnson family
    business. Johnson got into a vehicle and drove away.
    Howard   followed  Johnson   before   stopping   and
    arresting him without incident."

    Johnson was convicted in the Lauderdale Circuit Court of

third-degree escape under § 13A-10-33, Ala. Code 1975. The

State offered four of Johnson's prior felony convictions in

support of its request to have Johnson sentenced under the

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

HFOA"). Two of the four convictions were felony convictions

from Georgia.

    Johnson      objected       to     the    admission       of    the     Georgia

convictions      on    the    ground       that   they   were       not   properly

authenticated,        that    the    State    failed     to   lay     the    proper

foundation for admitting them, and that the State failed to

provide advance notice of its intent to use the Georgia

convictions.      The        circuit    court      admitted         the     Georgia

convictions over Johnson's objection and sentenced Johnson as

a habitual offender to life imprisonment under the HFOA.

    Johnson appealed to the Court of Criminal Appeals, which

affirmed   his    conviction         and     sentence    in    an    unpublished

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memorandum. That court overruled Johnson's application for

rehearing. Johnson then filed this petition for certiorari

review.

      Subject-Matter Jurisdiction of the Circuit Court

    Before the Court of Criminal Appeals, Johnson argued that

the evidence of his Georgia convictions was inadmissible

because the State failed to prove that the conduct underlying

his Georgia convictions would have constituted felonies in

Alabama. The Court of Criminal Appeals held that Johnson

failed to preserve the issue of the admissibility of his

Georgia convictions because he made only a general objection

at trial.

    In his certiorari petition before this Court, Johnson

argues that the Court of Criminal Appeals' holding conflicts

with appellate decisions holding that a general objection is

sufficient to preserve for appeal a challenge to patently

illegal evidence. See, e.g., Satterwhite v. State, 364 So. 2d

359, 360 (Ala. 1978) ("[A] general objection to admission of

evidence should be sustained if the evidence is illegal for

any purpose and cannot be made legal by introducing other

evidence or by otherwise framing the inquiry."). Whether


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Johnson's alleged conflict ground has any merit, I believe

that we should have granted certiorari review to determine

whether the circuit court had subject-matter jurisdiction to

consider Johnson's Georgia convictions.

    Rule 26.6(b)(3)(iv), Ala. R. Crim. P., provides, in

relevant part:

    "Any conviction in any jurisdiction, including
    Alabama, shall be considered and determined to be a
    felony conviction if the conduct made the basis of
    that conviction constitutes a felony under Act 607,
    § 130(4), Acts of Alabama 1977, p. 812 (§ 13A-1-
    2(4), Alabama Criminal Code), or would have
    constituted a felony under that section had the
    conduct taken place in Alabama on or after January
    1, 1980 ...."

Under the plain language of Rule 26.6(b)(3)(iv), not every

prior conviction may be used to enhance the sentence of a

criminal defendant as a habitual felon. Only those convictions

that satisfy the criteria set forth in the rule may properly

be considered. Therefore, the question whether a prior out-of-

state conviction qualifies to enhance a sentence goes to the

jurisdiction of the sentencing court. As the Court of Criminal

Appeals has stated:

    "A challenge to the use of a prior conviction from
    another jurisdiction to enhance a sentence under the
    HFOA on the grounds that the prior conviction arose
    from conduct that was not a felony in Alabama is a

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     jurisdictional issue challenging the legality of the
     sentence."

Skinner v. State, 987 So. 2d 1172, 1175 (Ala. Crim. App. 2006)

(holding that a challenge similar to the one at issue was

jurisdictional and therefore not subject to the bar against

successive petitions in Rule 32, Ala. R. Crim. P.).

     "'Subject-matter jurisdiction cannot be waived, and the

lack of subject-matter jurisdiction may be raised at any time

by a party or by a court ex mero motu.'" Ex parte Siderius,

144 So. 3d 319, 323 (Ala. 2013) (quoting Ex parte Punturo, 928

So. 2d 1030, 1033 (Ala. 2002)). Therefore, Johnson's first

ground supporting his petition for a writ of certiorari has a

probability of merit.

          Applicability of Misdemeanor-Escape Statute

     Additionally, I believe that Johnson states a cognizable

conflict with Terrell v. State, 621 So. 2d 402 (Ala. Crim.

App. 1993). Johnson was convicted of third-degree escape under

§ 13A-10-33, Ala. Code 1975, which classifies that escape as

a felony and supports Johnson's life sentence. Section 13A-10-

33   prohibits   "escap[ing]   or       attempt[ing]   to   escape   from

custody." (Emphasis added.) Section 14-8-42, Ala. Code 1975,

is a misdemeanor-escape statute that provides:

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         "The willful failure of an inmate to remain
    within the extended limits of his confinement or to
    return to the place of confinement within the time
    prescribed shall be deemed an escape from a state
    penal institution in the case of a state inmate and
    an escape from the custody of the sheriff in the
    case of a county inmate and shall be punishable
    accordingly."

(Emphasis added.)

    The Court of Criminal Appeals held in its unpublished

memorandum that the misdemeanor-escape statute does not apply

"[i]n circumstances where an inmate of any type escapes from

the detention center itself." In support of its holding, the

court relied upon Nichols v. State, 518 So. 2d 851 (Ala. Crim.

App. 1987), which in turn cited Hall v. State, 386 So. 2d 765

(Ala. Crim. App. 1980).

    However, the inmate in Hall was being transported by two

correctional counselors when he broke free and escaped. The

court held that, "[u]nder the particular facts of this case,"

the inmate escaped from "actual custody" under the felony-

escape statute and did not fail "to remain within the extended

limits of his confinement" under a former misdemeanor-escape

statute. 386 So. 2d at 766. Johnson, however, did not break

free from the custody of officials, but failed to remain at

the work-release center. I believe that the conclusion by the

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Court of Criminal Appeals that departing a work-release center

without authorization does not constitute misdemeanor escape

finds no support in the language of § 14-8-42, which prohibits

"[t]he willful failure of an inmate to remain within the

extended limits of his confinement."

    Johnson alleged that the Court of Criminal Appeals'

holding conflicts with its decision in Terrell v. State, 621

So. 2d 402 (Ala. Crim. App. 1993), in which the court held

that a county inmate who escaped while serving time for a

misdemeanor could be found guilty of only misdemeanor escape,

and not felony third-degree escape. Like Terrell, Johnson "was

a county inmate serving time for a misdemeanor." Petition, at

10. Therefore, I believe that Johnson's second ground for

certiorari review has a probability of merit.

                           Conclusion

    For the above-stated reasons, I would grant Johnson's

petition for a writ of certiorari to consider his challenge to

the use of his Georgia convictions to enhance his sentence and

the adverse construction of the misdemeanor-escape statute, §

14-8-42, Ala. Code 1975.




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