
    Ex parte Darin K. SWEARINGEN. (In re Darin K. Swearingen v. State of Alabama).
    1000796.
    Supreme Court of Alabama.
    Nov. 16, 2001.
    W. Lloyd Copeland, Mobile, for petitioner.
    Bill Pryor, atty. gen., and Cecil G. Bren-dle, Jr., asst. atty. gen., for respondent.
   LYONS, Justice.

Darin K. Swearingen was convicted of burglary in the second degree, a violation of § 13A-7-6, Ala.Code 1975. The trial court sentenced him to life imprisonment upon application of the Habitual Felony Offender Act (the “HFOA”), § 13A-5-9, Ala.Code 1975. On November 27, 2000, the Court of Criminal Appeals affirmed Swearingen’s conviction and sentence, in an unpublished memorandum. Swearingen v. State, (No. CR-99-1805) 820 So.2d 172 (Ala.Crim.App.2000) (table). We granted certiorari review to determine whether the Court of Criminal Appeals erred in holding 1) that the State presented sufficient evidence to convict Swearin-gen of second-degree burglary, and 2) that Swearingen was not entitled to a new sentencing hearing.

I.

Swearingen first contends that the evidence presented at trial was insufficient to sustain a conviction for second-degree burglary. The Court of Criminal Appeals held that the State presented sufficient evidence to sustain Swearingen’s conviction. We agree with the Court of Criminal Appeals as to this holding and affirm as to that issue.

II.

Swearingen also contends that the Court of Criminal Appeals erred in holding that he was not entitled to a new sentencing hearing. At Swearingen’s sentencing hearing, the State introduced evidence indicating that, in offenses unrelated to the charged offense, Swearingen had previously pleaded guilty to two charges of third-degree burglary and two charges of stalking. Because Swearingen had prior felony convictions, the trial court applied the HFOA when it sentenced Swearingen. The record indicates that although the trial court ultimately sentenced Swearingen to life imprisonment, the court initially sentenced him to 15 years’ imprisonment, based upon the mistaken belief that Swearingen had been convicted of a Class C felony. The prosecutor pointed out that second-degree burglary is a Class B felony. The following then occurred:

“THE COURT: Wait just a minute. I’m sorry. This was a Class B felony offense. You are correct. And the Court is incorrect in the sentence. Yes, it is mandatory life sentence.
“THE COURT: All right. Let me re-sentence him, then. Mr. Swearingen, the Court sentences you to a term of life in the state penitentiary.... ”

Neither the trial court nor the parties were aware at the time of Swearingen’s sentencing hearing that the HFOA had been amended six days earlier. Before the amendment, effective May 25, 2000, the HFOA required a mandatory life sentence following the conviction for a Class B felony when the defendant had three prior felony convictions. § 13A~5-9(c)(2), Ala. Code 1975. The amendment gave the trial court the option of sentencing Swearingen to “imprisonment for life or any term of not less than 20 years.” Act No. 2000-759, § 1, Ala. Acts 2000 (effective May 25, 2000).

Swearingen timely filed a motion to vacate the sentence and to hold a new sentencing hearing so that the trial court could sentence him according to the HFOA, as amended. The trial court denied the motion. The Court of Criminal Appeals affirmed Swearingen’s sentence, noting that the trial court retained jurisdiction to modify the sentence for 30 days after the sentence was pronounced. It held that because Swearingen’s motion made the trial court aware of the fact that the HFOA had been amended, the trial court was within its discretion to refuse to modify the sentence. The Court of Criminal Appeals also concluded that where the sentence is within the statutory range, it would not overturn the trial court’s sentencing decision absent a clear abuse of discretion by the trial court.

Swearingen contends that the Court of Criminal Appeals’ decision conflicts with Ex parte Thomas, 435 So.2d 1324 (Ala.1982), in which this Court reversed a sentence of 10 years’ imprisonment and remanded the case for resentencing because in sentencing the defendant the trial court had erroneously considered his pri- or adjudication as a youthful offender. Swearingen also contends that the Court of Criminal Appeals’ decision conflicts with its decisions in McClintock v. State, 773 So.2d 1057, 1059 (Ala.Crim.App.2000), and Pickens v. State, 475 So.2d 637, 640 (Ala.Crim.App.1985). In both cases, the Court of Criminal Appeals remanded for new sentencing hearings because there was evidence indicating that the trial courts had relied upon improper information in sentencing the defendants.

In Ex parte Thomas, the defendant had been convicted of third-degree burglary; he was sentenced as a habitual offender to 10 years’ imprisonment. 435 So.2d at 1325. The trial court based the sentence upon one previous felony conviction and a youthful-offender adjudication. Id. On appeal this Court concluded .that the trial court should not have considered the youthful-offender adjudication in determining the defendant’s sentence. Id. The State argued that, although the trial court had relied on improper information — i.e., the youthful-offender adjudication — to sentence the defendant, the sentence should not have been reversed because the 10-year sentence was within the statutory range for a defendant having only one previous felony conviction. Id. This Court rejected that argument, holding instead that the defendant was entitled to a new sentencing hearing at which the trial court’s sentencing decision was based upon proper information. Id. at 1326. This Court agreed with the language of Judge Bowen’s dissent to the Court of Criminal Appeals’ opinion: “ ‘Merely because the defendant could have been sentenced to ten years does not mean he would have been if the trial judge had not considered the youthful offender conviction.’ ” Id., quoting Thomas v. State, 435 So.2d 1319, 1324 (Ala.Crim.App.1981) (Bowen, J., dissenting).

The Court of Criminal Appeals applied this rationale in Pickens v. State, supra. In Pickens, the defendant argued that he was entitled to a new sentencing hearing because the trial court had improperly relied upon a youthful-offender adjudication to enhance his sentence. 475 So.2d at 640. The State responded that the sentence should be affirmed because the sentence imposed was within the allowable range of punishment. Id. The Court of Criminal Appeals rejected this argument, relying on this Court’s opinion in Ex parte Thomas. According to the Court of Criminal Appeals, the trial judge had sentenced the defendant under the mistaken belief that life imprisonment was the mandatory sentence, when in fact there was a broad range of possible sentences that could have been imposed. Id. The Court of Criminal Appeals vacated the defendant’s sentence and remanded the cause for the trial court to conduct a new sentencing hearing. Id.

Similarly, in McClintock, supra, the Court of Criminal Appeals held that the defendant was entitled to a new sentencing hearing because the trial court had relied upon improper information in sentencing the defendant. 773 So.2d at 1059. The Court rejected the State’s argument that although the trial court had relied upon an invalid prior felony conviction to enhance the defendant’s sentence under the HFOA, the original sentence was still within the range authorized under the HFOA. Id. According to the Court of Criminal Appeals, fundamental fairness required that the cause be remanded for a new sentencing hearing, so that it might be established with certainty that the trial court exercised the discretion allowed in imposing the sentence. Id.

We agree that the result reached by the Court of Criminal Appeals in the present case is inconsistent with the rationale expressed in Ex parte Thomas, McClintock, and Pickens. There is no dispute that the trial court sentenced Swearingen under a version of the HFOA that was no longer effective. The record clearly indicates that the trial court believed that a life sentence was mandatory and that it had no discretion to sentence Swearingen to a term shorter than life imprisonment, when, in fact, a broad range of possible sentences was available.

We are unpersuaded by arguments that Swearingen’s life sentence was within the statutorily authorized range under the amended HFOA and that because the trial court retained jurisdiction to modify the sentence for 30 days it considered the amended HFOA and determined not to resentence Swearingen. Merely because life imprisonment was within the statutory range available under the amended HFOA, given the wide sentencing .range of 20 years’ imprisonment to life imprisonment available to the trial court under the amended HFOA, we cannot say that the trial court would have sentenced Swearin-gen to life imprisonment had the court applied the amended version of the HFOA. Indeed, the record reflects that the trial court sentenced Swearingen to 15 years’ imprisonment before it was erroneously informed that the HFOA mandated a sentence of life imprisonment. The trial court resentenced Swearingen to life imprisonment only after it was erroneously advised that a sentence of life imprisonment was mandatory. The trial court quite clearly expressed its view, albeit erroneous, that such a sentence was mandatory. Under these circumstances, we decline to accept the State’s argument that we should infer merely from the fact that the trial court denied the motion calling its attention to the recent amendment to the HFOA that the trial court at that time fully considered and then rejected a sentence other than life imprisonment. Fundamental fairness requires that Swearingen receive a new sentencing hearing to establish with certainty that the trial court exercised the discretion allowed under the amended HFOA. We affirm the judgment of the Court of Criminal Appeals insofar as it affirmed Swearingen’s burglary conviction. We reverse the judgment of the Court of Criminal Appeals insofar as it affirmed Swearingen’s sentence, and we remand the cause for that court to order a new sentencing hearing consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

HOUSTON, SEE, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.

MOORE, C.J., concurs in part and dissents in part.

JOHNSTONE, J., concurs as to Part II and dissents as to Part I.

MOORE, Chief Justice

(concurring in part and dissenting in part).

I dissent from the majority’s holding that the State submitted sufficient evidence at trial to sustain a conviction for second-degree burglary.

Because the majority opinion does not include the facts relevant to the suffieien-cy-of-evidence issue, I will recount them here in order to adequately express my reasons for dissenting. The Court of Criminal Appeals, in its unpublished memorandum, stated the facts in this case as follows:

“The evidence at trial tended to establish the following. Angela Humes testified that at approximately 10:30 one evening, Swearingen entered the apartment that she shared with Allison Segal through an unlocked door. According to Humes, she was upstairs in the bathroom when she heard some keys rattle. She walked out and found Swearingen at the top of the stairs. Humes testified that when she confronted Swearingen, he asked where Segal was, said he needed to talk with her, and indicated that he was going to Segal’s bedroom. Humes, uncertain whether Swearingen was a friend of Segal’s, asked him his name; he gave the name ‘Ted.’ Humes asked Swearingen to leave, and he did. Humes testified in a photographic lineup.
“Segal testified that she did not know Swearingen or anyone named Ted. (R. 110.) She further testified that she had left the apartment for only a few minutes to return a video on the evening Humes encountered Swearingen. According to Segal, when she was getting into her car to leave the apartment, a red van was parked so close to her driver’s door that she had to enter her car from the passenger’s side. When she returned to the apartment approximately 10 minutes later, the van was gone and she learned that an uninvited man had entered the apartment. A few days later, [Segal] saw the van that she believes was parked closely to her car on the night of the intrusion at her apartment complex. She got the tag number and reported it to law-enforcement officers, who determined that the red van belonged to Swearingen’s father.
“Humes and Segal testified that they did not know Swearingen and that he did not have permission to enter their apartment.
“The defense presented testimony that Swearingen was at Humes and Se-gal’s apartment complex that night, but maintained that Swearingen was not the man who had entered the apartment.”

Swearingen v. State, (No. CR-99-1805, November 27, 2000) 820 So.2d 172 (Ala.Crim.App.2000) (table). The Court of Criminal Appeals then affirmed Swearingen’s conviction for second-degree burglary under § 13A-7-6, Ala.Code 1975.

On appeal, Swearingen argues that there was insufficient evidence from which a jury could reasonably conclude that he had the intent to commit a theft in Segal’s apartment. The State argues that sufficient evidence from which to infer an intent to commit a theft may be found in Swearingen’s unlawful and unexplained presence in the apartment and bedroom and in the fact that, when confronted, he gave a false name to Humes.

Swearingen may be convicted of burglary in the second degree only if he “unlawfully enter[ed] a lawfully occupied dwelling-house with intent to commit a theft or a felony therein.” § 13A-7-6(b), Ala.Code 1975 (emphasis added). The intent-to-commit-a-theft-or-a-felony element distinguishes the crime of burglary from the crime of trespass in the first degree. Intent is, of course, a state of mind, and must usually be inferred from surrounding circumstances and the facts testified to by witnesses. McCord v. State, 501 So.2d 520, 528-29 (Ala.Crim.App.1986). This Court has held that the intent to commit a theft may be inferred from “ ‘the unexplained breaking and entering into a dwelling house in the nighttime.’ ” Popwell v. State, 480 So.2d 41, 44 (Ala.Crim.App.1985) (quoting Cliatt v. State, 348 So.2d 509, 511 (Ala.Crim.App.1977)) (emphasis omitted).

In the past, this Court and the Court of Criminal Appeals have affirmed burglary convictions in cases where the defendant did not actually commit a theft but where the defendant’s actions evidenced an intent to steal. In those cases, the jury could infer such an intent from the evidence. See, e.g., Popwell v. State, 480 So.2d 41 (a homeowner saw the defendant attempting to remove a window screen with a screwdriver); Burell v. State, 680 So.2d 975 (Ala.Crim.App.1996) (a homeowner returned to the house to see the defendant running out the back door and, after the homeowner went inside and was struck by another person in the house, the homeowner found a duffel bag filled with his property); Frazier v. State, 567 So.2d 879 (Ala.Crim.App.1990) (the defendant used a fire poker to pry open the kitchen door, walked toward the homeowner’s purse, which was lying on a table, but the defendant ran away when he saw the homeowner on the stairway); Manning v. State, 568 So.2d 327 (Ala.Crim.App.1990) (before officer found him in an automobile with weapons, ski mask, and gloves, the defendant had pounded on doors and windows of a home, had entered and had then retreated at tip of the homeowner’s 12-gauge shotgun to an automobile, the engine of which was running and the trunk open); Holmes v. State, 497 So.2d 1149 (Ala.Crim.App.1986) (the defendant removed a window screen and rummaged through some billfolds and papers in kitchen, but ran away when the homeowner yelled at him); Gaskin v. State, 53 Ala.App. 64, 297 So.2d 388 (Ala.Crim.App.1974) (the defendant looked through windows and was refused access to the house, but gained access by cutting a screen door, left bloodstains in the house, and was later found asleep in his car parked out front, with a small cut on his hand); Young v. State, 51 Ala.App. 400, 286 So.2d 76 (Ala.Crim.App.1973) (homeowner arrived home to find a door pried open, several pieces of property missing, and the defendant diving out of her window).

In all of the above cases the defendant took steps beyond merely unlawfully entering the dwelling place of another— namely, steps that indicated an intent to steal. The cases cited above involved evidence of forced entry, disturbances of property, or flight, or some combination thereof. Though such evidence is not necessary to sustain a conviction for burglary, such evidence certainly contributes to the likelihood that the defendant had the requisite intent to steal.

Unlike the cases cited above, in this case there is no evidence of forced entry, disturbance of any property, or flight; neither do we have a case of an “unexplained breaking and entering into a dwelling house in the nighttime.” Popwell, supra (emphasis on “breaking and entering” added). Swearingen entered the apartment through an unlocked door and went upstairs toward the absent tenant’s bedroom. Swearingen did not break in, he did not touch any personal property, he did not flee when Humes confronted him, and he applied no force or threat of force to anyone. He explained to Humes that he was looking for “Allison.”

The best evidence we have before us regarding Swearingen’s intent are his own words: he expressed a desire to talk to Allison Segal. This Court appears to permit the jury merely to speculate, not infer, by permitting the jury to find here an intent to steal. It is just as likely that Swearingen had an intent to talk to Segal, or to leave a secret love note, or to commit a felony. But it is the glaring lack of evidence that allows such speculation.

The significant fact is that Swearingen was unlawfully in Humes’s dwelling, which for the majority of this Court is apparently sufficient to permit a jury to infer that Swearingen had the intent to commit a theft or a felony. I believe that allowing such an inference in this case unduly stretches the language of the burglary statute and this Court’s interpretations of that statute. In future cases, the distinction between second-degree burglary (a Class B felony) and first-degree criminal trespass (a Class A misdemeanor) will undoubtedly be blurred by the majority’s holding today.

However, the majority disagrees with me and affirms Swearingen’s conviction for burglary in the second degree. Therefore, I find it necessary to address Part II of the opinion. I concur with the majority’s holding in Part II that Swearingen is entitled to a new sentencing hearing. 
      
      . One is guilty of criminal trespass in the first degree if he or she "knowingly enters or remains unlawfully in a dwelling." § 13A-7-2(a), Ala.Code 1975.
     
      
      . Even a conviction under common-law burglary required more evidence of intent than was shown here:
      “As to the intent; it is clear, that such breaking and entry must be with a felonious intent, otherwise it is only a trespass. And it is the same, whether such intention be actually carried into execution, or only demonstrated by some attempt or overt act, of which the jury is to judge.”
      4 William Blackstone, Commentaries on the Laws of England, 227 (1769) (emphasis added).
     