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623 So. 2d 352

Whited v. State

Court of Criminal Appeals of Alabama

Decided July 24, 1992

Court of Criminal Appeals of Alabama · decided 1992-07-24

Cited by 2 later decisions — most recently March 1993

2 state decisions

Key passage — most relied on by later courts

““1. Petitioner avers that his counsel was ineffective for failure to subpoena a tape recording of the transaction made the basis of the charge. Evidence revealed that this narcotics transaction took place at a service station in Auburn, Alabama. The Petitioner was with other individuals ... at that point. The evidence of his guilt was overwhelming from oral testimony in the case and other evidence presented. The Court finds there is no merit to this contention. “2. Petitioner avers that his trial counsel was ineffective for failure to subpoena telephone records. In the judgment of this Court, telephone records would have done nothing to change the situation as presented at the trial of this case. Again, Petitioner was present at the time the transaction went down and evidence of his guilt was overwhelming. There is no merit in this contention. “3. Petitioner avers that his trial counsel was ineffective for failure to file pretrial motions to make the State elect. The Court finds that there was no question as to the Section of the Statute under which this Petitioner was prosecuted and that a Motion to Elect would have done nothing to clarify the situation. The Court finds that there was no merit to this contention. “4. Petitioner avers that his counsel was ineffective for failing to object to jury instructions. The Court finds that there is no merit to this contention. “5. The Court finds that the verdict of the jury is sustained by the overwhelming weight of the evidence and ”

quoted by 1 later decision, including Whited v. State

Relies on 451 So. 2d 373 - Watson v. State · Henderson v. State · 582 So. 2d 590 - Grant v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1992-07-24

View the full empirical analysis of this case →

TAYLOR, Judge.

¶1The petitioner, Billie Nelson Whited, was convicted of trafficking in cocaine, a violation of § 13A-12-231, Code of Alabama 1975. He was sentenced to 99 years’ imprisonment.

¶2Pursuant to Rule 32, A.R.Crim.P., the petitioner requested post-conviction relief, contending, among other things, that he had been denied effective assistance of counsel. Without an evidentiary hearing, the circuit court granted the state’s motion for dismissal of the petition, stating that the petition was not sufficiently specific, that it failed to state a claim, that no material issue of fact exists that would entitle the petitioner to relief under Rule 32, and that no purpose would be served by further proceedings.

¶3After reviewing the Rule 32 petition, we find that all of the petitioner’s claims, except that alleging ineffective assistance of counsel, are precluded under Rule 32.2(a)(5), A.R.Crim.P., because each could have been presented on direct appeal.

¶4Regarding the ineffectiveness claim, the petition set out four main contentions regarding trial counsel’s alleged ineffectiveness. In his Rule 32 petition, the petitioner initially alleges that his counsel was ineffective for failing to subpoena a tape of the transaction based upon which the subject indictment and charge were brought, which tape, allegedly, had been spliced and/or altered. He also alleged in his petition that counsel should have subpoenaed certain telephone records, which, he says, would have been beneficial to the defense. Further, the petitioner stated that counsel had been ineffective in failing “to file appropriate pretrial motions in order to make the state ‘elect’ which portion of the statute charging [him that the state] intended to proceed upon.” Additionally, the Rule 32 petition stated that counsel had been ineffective in failing to preserve objections to various jury instructions.

¶5The grounds for ineffective assistance of counsel are alleged with sufficient specificity to merit a hearing. If the court knows that these allegations are without factual foundation, then that fact must be stated by the court as the ground relied on for the denial. Thus, “[wjithout ruling on the truth or substance of the allegations, we conclude that the petitioner is entitled to an evidentiary hearing at the trial court level.” Watson v. State, 451 So.2d 373, 374 (Ala.Cr.App.1984). See also Arnold, v. State, 562 So.2d 296 (Ala.Cr.App.1990); Eddins v. State, 555 So.2d 319 (Ala.Cr.App.1989). Cf., Henderson v. State, 586 So.2d 1009 (Ala.Cr.App.1991); Henley v. State, 582 So.2d 590 (Ala.CrApp.1991).

¶6This cause is remanded to the Circuit Court for Lee County with instructions to hold an evidentiary hearing on the merits of the petitioner’s allegation, of ineffectiveness of counsel and to “make specific findings of fact relating to each material issue of fact presented.” Rule 32.9(d), A.R.Crim.P. Due return should be filed with this court within 30 days.

¶7REMANDED WITH INSTRUCTIONS.

All the Judges concur.
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