
    Christian Emerson CORNELISON v. STATE of Alabama.
    CR-10-1297.
    Court of Criminal Appeals of Alabama.
    July 12, 2013.
    
      Christian Emerson Cornelison, pro se.
    Luther Strange, atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.
   On Return to Remand

JOINER, Judge.

DISMISSED BY UNPUBLISHED MEMORANDUM.

WINDOM, P.J., and BURKE, J., concur; WELCH, J., concurs in part and dissents in part, with opinion; KELLUM, J., dissents, with opinion.

WELCH, Judge,

concurring in part and dissenting in part.

This case- is before us on return to remand, and the majority dismisses Christian Emerson Cornelison’s appeal as moot. I agree that the issue regarding trial counsel’s failure to challenge the search warrant and the issue regarding the sentence were resolved below and are now moot. I disagree with the majority as to its resolution of the third issue — whether trial counsel was ineffective because he failed to file a motion to withdraw Cornelison’s guilty plea.

The case before us originated as a Rule 32, Ala. R.Crim. P., petition. The circuit court dismissed the petition and, on appeal, this Court remanded the case by order on June 20, 2012, stating, in relevant part:

“Therefore, we remand this case to the circuit court to conduct an evidentiary hearing pursuant to Rule 32.9(a), Ala. R.Crim. P., to address the allegations of ineffective assistance of trial counsel raised by Cornelison in his petition and to ‘make specific findings of fact relating to each material issue of fact presented.’ Rule 32.9(d), Ala. R.Crim. P. The court is further instructed to take any necessary action as a consequence of the evi-dentiary hearing.”

The circuit court held an evidentiary hearing on Cornelison’s Rule 32 petition and, on August 17, 2012, the court entered an order it styled as “Preliminary Order on Rule 32 Petition.” (SRTR-C.12.) A copy of the order was served on this Court. In that order, the circuit court stated that it had held a hearing on the Rule 32 petition, that the parties had stipulated that Cornelison had withdrawn his claim that counsel should have challenged the search warrant, that Cornelison’s claim for relief as to his sentence was granted, and that a revised sentencing order would be issued. As to Cornelison’s claim regarding counsel’s failure to file a motion to withdraw the guilty plea the circuit court stated: “[Cornelison’s] relief with regard to prior counsel not filing a written motion to withdraw his guilty plea GRANTED.” (SRTR-C.12.) At that point, the circuit court should have permitted Cornelison to withdraw his guilty plea, and the prosecution would have proceeded anew.

If the circuit court had submitted its remand at that point, dismissal of the appeal as moot would have proper. See, e.g., Boykin v. State, 708 So.2d 210 (Ala.Crim.App.1997)(addressing whether counsel was ineffective for failing to argue in a motion to withdraw the guilty plea that the appellant was misinformed of the minimum sentence, remanding the case to the trial court to determine whether the appellant was correctly informed of the minimum sentence, and, on return to remand, dismissing the appeal after the trial court, finding that the appellant was misinformed as to the minimum sentence, set aside the appellant’s guilty plea); Wright v. State, 845 So.2d 836, 841 (Ala.Crim.App. 2001) (on return to first remand) (instructing the Rule 32 court that if it determined that trial counsel was ineffective for misinforming Wright before he entered his guilty plea and that the guilty plea was involuntary, it should set aside the guilty plea).

However, the circuit court in this case went further than to grant Cornelison relief on his ineffective-assistance-of-counsel claim. In its “Preliminary Order on Rule 32 Petition,” the court stated:

“3. [Cornelison’s] relief with regard to prior counsel not filing a written motion to withdraw his guilty plea GRANTED. [Cornelison’s] current counsel is ORDERED to file a written motion to withdraw his guilty plea within seven (7) days of this date. Upon receipt of said motion, the Court will set a second evi-dentiary hearing on the motion to withdraw guilty plea.
“4. Upon completion of the second evidentiary hearing, the Court will submit a final order on remand to the Alabama Court of Criminal Appeals.”

(SRTR-C.12.)(Emphasis added.)

Cornelison, through appointed counsel, filed a motion to withdraw the guilty plea. On August 23, 2012, the circuit court held a hearing on Cornelison’s motion to withdraw the guilty plea. Before evidence was taken at that hearing, the circuit court stated: “This originated as a Rule 32. The Court essentially granted [Corneli-son’s] Rule 32 petition and said that he was entitled to a hearing on his motion to withdraw the guilty plea.” (SRTR-R.18.) The circuit court denied Cornelison’s motion to withdraw his guilty plea.

The majority has correctly stated that, on return to remand, this Court is to review the circuit court’s disposition of Cornelison’s Rule 32 petition. However, because the circuit court not only disposed of the Rule 32 petition but also ordered the filing of a motion to withdraw the guilty plea and further disposed of that motion, that court created a hybrid Rule 32/mo-tion-to-withdraw proceeding that is, based on my research, without prior precedent, and is certainly outside the bounds of the law and the directions of this Court on remand. The problems presented by this proceeding are manifold, and the majority has recognized at least two of them, as evidenced by footnote 3 in the unpublished memorandum.

First, the majority has implicitly sanctioned a procedure that is not provided for by the Alabama Rules of Criminal Procedure or by any Alabama case or other authority. The majority states in a footnote:

“We note that, given the instructions in our remand order ‘to take any necessary action as a consequence of the evi-dentiary hearing,’ the circuit court did not exceed the scope of remand when it allowed Cornelison to move to withdraw his guilty plea and allowed Cornelison to present evidence in support of his motion.”

I strongly disagree. It can never be “necessary” to conduct a proceeding that is not permitted by law. Moreover, this Court cannot, by way of its directions on remand or otherwise, empower a circuit court to proceed in a manner that contradicts the law. The only “necessary action” for the trial court to take in this case, having granted relief on Cornelison’s Rule 32 claim that counsel was ineffective for failing to file a motion to withdraw the guilty plea, was to set aside Cornelison’s guilty plea. The additional actions were not contemplated by the directions on remand, and they were outside the authority of the circuit court in this Rule 32 proceeding. The majority’s statement to the contrary suggests that the majority believes that, if Cornelison had not withdrawn his claim regarding counsel’s failure to challenge the search warrant, and if the trial court had granted relief on that claim of ineffective assistance of counsel, then the trial court could have ordered new counsel to file a motion challenging the warrant, and could have held a third hearing in order to consider the validity of the search warrant. If the circuit court denied Cornelison relief on the search-warrant issue, Cornelison would presumably attempt to appeal from that ruling, too. The scenario I have described is not sheer fantasy but would be the direct result of the majority’s resolution of this case, and it demonstrates the reasons this Court should now correct the errors in this case. The repercussions of our failing to do so at this point extend beyond the boundaries of this case.

Another difficulty left unresolved by the majority’s resolution of this case is that Cornelison has filed an appeal from the circuit court’s denial of his motion to withdraw his guilty plea. If the hybrid Rule 32/motion-to-withdraw-guilty-plea proceeding had not been created, and if the proceeding on remand had been limited to the resolution of the claims raised in the Rule 32 petition, and if a new motion to withdraw the guilty plea had not been ordered, filed, and disposed of following a second hearing in this Rule 32 proceeding, Corne-lison’s appeal from that motion would not be an issue now. But we are faced with that issue, and the majority states in footnote 3:

“We further recognize that, on October 12, 2012, Cornelison filed a notice of appeal from the denial of his motion to withdraw his guilty plea. The correctness of the circuit court’s ruling on Cornelison’s motion to withdraw his guilty plea, however, is not properly before this Court on return to remand. Instead, Cornelison filed a notice of appeal from the circuit court’s denial of his motion to withdraw his guilty plea and that matter is now the subject of a separate appeal.”

Because there is no mechanism in The Alabama Rules of Criminal Procedure or in our caselaw that provides for this hybrid proceeding, there is also no provision for an appeal of the denial of a motion to withdraw a guilty plea when the ruling was issued as part of a Rule 32 proceeding. The fact that Cornelison has filed a notice of appeal does not mean that this Court will review the underlying ruling and, more to the point, I believe that this Court will likely dismiss that appeal based on the majority’s holding in this case — that Cornelison was granted relief on the ineffective-assistance-of-counsel claim, and that, on return to remand, the appeal from that proceeding was dismissed.

The hybrid proceeding conducted in this case is an aberration. The majority has chosen to deal with this aberration by stating: “On return to remand, we recognize that Cornelison either withdrew his Rule 32 claims or he was granted relief to which he was entitled and, thus, Cornelison has received all the relief sought.” I believe that this aberration has created significant problems for both Cornelison and this Court, and that the majority’s dismissal of the appeal leaves open the potential for the additional problems discussed above, and perhaps more that are, as yet, unforeseen. Having been presented with an unsanctioned hybrid proceeding, this Court has an obligation to set aside the results of that unsanctioned proceeding and to correct the apparent errors created by that proceeding. Dismissing this appeal on the ground that it is moot evades this Court’s obligation.

Therefore, the portion of the circuit court’s judgment granting relief on the Rule 32 claim should be affirmed, and Cornelison should be permitted to withdraw his guilty plea. This Court should reverse that portion of the circuit court’s judgment denying Cornelison’s newly filed motion to withdraw his guilty plea. The appeal from the denial of that motion should then be dismissed.

For all the foregoing reasons, I concur in part with the majority’s unpublished memorandum, and I dissent in part.

KELLUM, Judge,

dissenting.

I cannot agree to dismiss this appeal as moot on the ground that Christian Emerson Cornelison received all the relief he sought in his Rule 32, Ala. R.Crim. P., petition for postconviction relief.

In March 2010, Cornelison pleaded guilty to the unlawful manufacture of a controlled substance and was subsequently sentenced in May 2010 to 25 years’ imprisonment. This Court dismissed Corneli-son’s appeal on July 28, 2010, on the ground that Cornelison had failed to properly invoke his right to a direct appeal under Rule 14.4(a)(l)(viii) or Rule 26.9(b), Ala. R.Crim. P.

Cornelison filed a Rule 32 petition on or about March 16, 2011. In his petition, Cornelison alleged (1) that the $2,000 fine imposed pursuant to § 13A-12-218(a), Ala.Code 1975, was illegal because, he said, § 13A-12-218(a) did not apply to the unlawful manufacture of a controlled substance; (2) that his trial counsel was ineffective for not challenging the search warrant that led to the search and seizure of the evidence giving rise to the charge against him; and (3) that his trial counsel was ineffective for not filing a written motion to withdraw his guilty plea after he had orally moved to withdraw his plea at the sentencing hearing and that counsel’s failure to do so resulted in his appeal being dismissed. The circuit court summarily dismissed Cornelison’s petition.

On appeal, this Court remanded the case by order for the circuit court to allow Cornelison an opportunity to prove his three claims and for the court to issue specific findings of fact regarding each claim. On remand, the circuit court appointed counsel to represent Cornelison and scheduled an evidentiary hearing on the petition. The court then issued an order making three findings.

First, the circuit court found that, at the hearing on his petition, Cornelison had “withdraw[n] his claim that his attorney should have challenged the search warrant.” (Record on Return to Remand (“RTR”), C. 12.) The record on return to remand, however, does not contain a transcript of the hearing that was apparently conducted on Cornelison’s Rule 32 petition. As a result, it is impossible to adequately review whether the circuit court’s finding in this regard was correct, i.e., whether Cornelison did, in fact, withdraw this claim. Therefore, I cannot agree that this claim is moot at this time.

Second, the circuit court found that Cornelison’s “request to delete the $2,000.00 Drug-Demand-Reduction Act Assessment is GRANTED,” and the court issued a separate order striking the $2,000 fine imposed on Cornelison. (C. 12.) Because Cornelison was granted relief on this claim, I agree that it is now moot and need not be considered by this Court on return to remand.

Finally, the circuit court found:
“[Cornelison’s] relief with regard to prior counsel not filing a written motion to withdraw his guilty plea is GRANTED. [Cornelison’s] current counsel is ORDERED to file a written motion to withdraw his guilty plea within seven (7) days of this date. Upon receipt of said motion, the Court will set a second evi-dentiary hearing on the motion to withdraw [the] guilty plea.”

(RTR, C. 12; capitalization in original.) The record on return to remand indicates that Rule 32 counsel complied with the court’s order and filed a written motion to withdraw Cornelison’s guilty plea on August 21, 2012, over two years after Corne-lison had been sentenced. The circuit court conducted a hearing on that motion on August 23, 2012, and subsequently entered an order denying the motion.

It is well settled that “[a] motion to withdraw a guilty plea is the functional equivalent of a motion for a new trial.” Wallace v. State, 701 So.2d 829, 830 (Ala.Crim.App.1997). Section 15-17-5, Ala. Code 1975, provides that a new trial may be granted on various grounds “[o]n motion filed within 30 days from entry of judgment.” Rule 24.1(b), Ala. R.Crim. P., likewise provides that “[a] motion for a new trial must be filed no later than thirty (30) days after sentence is pronounced.” “The 30-day ... statutory period for filing a motion for a new trial is jurisdictional.” Ex parte O’Leary, 417 So.2d 232, 240 (Ala.1982). See also Ex parte Ingram, 675 So.2d 863, 865 (Ala.1996) (describing the 30-day time limit for filing a motion for a new trial as “jurisdictional”). Indeed, it is well settled that a “trial court has no jurisdiction to consider an issue raised in an untimely motion for new trial.” Ross v. State, 581 So.2d 495, 496 (Ala.1991). As the functional equivalent of a motion for a new trial, a motion to withdraw a guilty plea must also “be filed with the trial court no later than thirty days after imposition of ... sentence in order for the trial court to have jurisdiction to review the merits of the claim” or claims raised therein. Evans v. State, 722 So.2d 778, 780 (Ala.Crim.App.1997).

Because Cornelison’s written motion to withdraw his guilty plea was untimely filed over two years after he was sentenced, the circuit court had no jurisdiction to consider the motion. Therefore, although the circuit court purported to grant Cornelison “relief’ on the claim in his Rule 32 petition that his trial counsel was ineffective for not filing a written motion to withdraw the guilty plea, because the “relief’ that was granted was to permit Cornelison to file an untimely written motion to withdraw his guilty plea over which the circuit court had no jurisdiction, Cornelison was, for all intents and purposes, denied relief on this ineffective-assistance-of-counsel claim. Thus, I cannot agree that this claim is moot. Rather, I believe this Court should review whether the circuit court’s effective denial of relief on this claim of ineffective assistance of counsel was appropriate.

For these reasons, I respectfully dissent. 
      
       Note from the reporter of decisions: On June 20, 2012, the Court of Criminal Appeals remanded this case by order.
     
      
      . Citations to the clerk’s record in the supplemental record on return to remand are designated (SRTR-C.).
     
      
      . Citations to the transcript in the supplemental record on return to remand are designated (SRTR-R.).
     
      
      . In granting relief on Cornelison’s claim alleging that trial counsel was ineffective for failing to file a motion to withdraw the guilty plea, the circuit court necessarily found that counsel’s performance was deficient and that the deficient performance resulted in actual prejudice. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). It seems inconsistent to find prejudice based on counsel’s failure to file a motion to withdraw the guilty plea, when prejudice requires a showing "that there is a reasonable probability, that but for counsel's unprofessional errors, the result of the proceeding would have been different,” Strickland, 466 U.S. at 694, and then to deny the motion to withdraw the guilty plea.
     
      
      . The written motion appears to contain the same claims Cornelison raised in the oral motion to withdraw his plea made at his sentencing hearing, a transcript of which is contained in the record before this Court.
     
      
      . Cornelison filed a separate notice of appeal from the denial of his motion to withdraw his guilty plea. That notice of appeal has not yet been docketed by this Court.
     
      
      . For purposes of this dissent, it is unnecessary for me to express an opinion as to the propriety of the circuit court’s denial of relief on this claim, and I decline to do so.
     