
    Charles DYSON v. STATE.
    CR-96-1999.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1997.
    Opinion on Return to Remand May 29, 1998.
    
      Charles Dyson, appellant pro se.
    Bill Pryor, atty. gen., and Robin Blevins, asst. atty. gen., for appellee.
   BROWN, Judge.

The appellant, Charles Dyson, appeals from the summary denial of his petition for post-conviction relief filed pursuant to Rule 32, Ala.R.Crim.P. In the petition, he attacked his 1995 convictions for attempted murder, first-degree rape, first-degree sodomy, first-degree sexual abuse, first-degree burglary, first-degree theft of property, second-degree kidnapping, and aggravated stalking. The appellant was sentenced as a habitual felony offender to five consecutive sentences of life imprisonment without the possibility of parole, and three consecutive sentences of life imprisonment. This Court affirmed the appellant’s convictions by unpublished memorandum. Dyson v. State, 698 So.2d 799 (Ala.Cr.App.1996) (table). The certificate of judgment was issued on October 29,1996.

The appellant filed the Rule 32 petition that is the subject of this appeal in April 1997. In the petition, the appellant alleged that the trial court lacked jurisdiction to render the judgment or to impose the sentence because, he claimed, the jury that convicted him was never placed under oath. The appellant attached several pages from the trial transcript in support of his claim that the jury was never sworn. The first excerpt from the transcript reveals that following jury selection, the prosecution requested — because of double jeopardy concerns — that the oath not be administered to the jury until after the suppression hearing. The trial court apparently consented, because the record discloses that the trial court dismissed the jury without administering the oath, and the suppression hearing began. The second excerpt shows that, at the conclusion of the suppression hearing, the trial court denied the appellant’s motion to suppress and the court recessed for lunch. When the court reconvened, the parties presented their opening arguments, and the trial began. The excerpt from the transcript contains no indication that the jury was sworn following the suppression hearing and before opening arguments. The final excerpt from the record reflects that following closing arguments, the trial court charged the jury. There is no evidence that the jury was sworn prior to being charged.

The state filed a motion to dismiss the petition, averring that the appellant’s claim that the trial court lacked jurisdiction to render the judgment or to impose the sentence was not pleaded with sufficient specificity. The circuit court granted the state’s motion to summarily dismiss the petition.

The appellant maintains that the circuit court erred in summarily dismissing his petition. We agree.

Rule 32.6(b), AJa.R.Crim.P.,- states, “The petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds.” We cannot agree ■with the trial court’s finding that the appellant’s allegation was not sufficiently pleaded. The appellant alleged that the oath was never administered to the petit jury — a simple, straightforward allegation — and he attached, excerpts from the record that adequately set forth the factual basis for his claim. Accordingly, we find that this claim was sufficiently pleaded.

A criminal defendant has a fundamental right to a trial by jury. See Rule 18.1(a), Ala.R.Crim.P., and the committee comments to the rule. The failure to administer the oath to the jury renders the jury’s verdict a nullity. See Foshee v. State, 672 So.2d 1387 (Ala.Cr.App.1995). As noted, the state’s response did not refute the appellant’s contention that the jury was not sworn. Moreover, the record on direct appeal from the appellant’s convictions does not affirmatively indicate that the petit jury was placed under oath. This Court cannot presume that the jury was sworn;, the record must affirmatively reflect that the jury was sworn.

“The administration of the oath to a petit jury is a statutory requirement under § 12-16-170, Code of Alabama 1975. Numerous Alabama cases indicate that a presumption that the jury was sworn cannot be made from a silent record. See e.g., Porter v. State, 520 So.2d 235, 237 (Ala.Cr.App.1987); Wilson v. State, 57 Ala.App. 591, 329 So.2d 649, 649 (1976); Whitehurst v. State, 51 Ala.App. 613, 288 So.2d 152, cert. denied, 292 Ala. 758, 288 So.2d 160 (1973). ‘There must be some affirmative showing in the record that the oath to the jury was administered.’ Porter v. State, 520 So.2d at 237 (citing Gardner v. State, 48 Ala. 263 (1872)). An unsworn jury is a non-jury. Wilson v. State, 329 So.2d at 649.”

Marks v. State, 575 So.2d 611, 613 (Ala.Cr.App.1990).

The appellant’s claim that the jury was never sworn is meritorious on its face; if the claim proves to be true, the appellant is entitled to relief. Ex parte Boatwright, 471 So.2d 1257 (Ala.1985). The state did not refute the merits of the appellant’s allegation, but rather asserted that the appellant’s claim was not pleaded with the requisite specificity. As discussed above, the claim was sufficiently pleaded. Accordingly, the appellant'was entitled to an opportunity to prove his allegation.

Thus, we must remand this cause to the circuit court with instructions that it conduct an evidentiary hearing, or take evidence in accordance with Rule 32.9, Ala.R.Crim.P., to determine whether the jury was placed under oath as required by § 12-16-170, Code of Alabama 1975. In determining whether the oath was administered, the trial court is authorized to take sworn testimony from the clerk, trial counsel, the jurors, the court reporter, or whomever else the court deems necessary in order to resolve the matter. See Hellums v. State, 630 So.2d 480 (Ala.Cr.App.) cert. denied, 630 So.2d 481 (Ala.1993) (testimony from the circuit clerk established that the clerk administered the oath to the jurors required by § 12-16-170, Code of Alabama 1975). See. also, Deramus v. State, 721 So.2d 239 (Ala.Cr.App.1997) (the affidavit from the circuit clerk indicated that the oath administered by the clerk to the jury venire encompassed the language of § 12-16-170, Code of Alabama 1975, as well as the language of the initial qualification oath required by Rule 12.1(c)(2), Ala.R.Crim.P; thus, the failure of the record to affirmatively reflect that the petit jury was resworn or that the trial court reminded the petit jury that they were still under oath was harmless as “the jurors who were eventually selected to try the case did, in fact, swear to the substance of the oath contained in § 12 — 16— 170, Ala.Code 1975”).

In the event the circuit court determines that the oath was administered to the jury, it shall make a written finding of fact, which shall be forwarded, along with a transcript of the hearing and any other evidence submitted, to this Court within 48 days from the date of this opinion. If, however, the trial court determines that the oath was not administered to the jury, or if the trial court is unable to determine whether the oath was administered, the trial court is directed to grant the Rule 32 petition and grant the appellant a new trial or other relief consistent with this opinion. Any order voiding the convictions and granting relief shall be forwarded to this Court within 48 days from the date of this opinion.

The failure to administer the oath to the jury has serious consequences to the defendant, the victims, and the taxpayers. Accordingly, we encourage both trial courts and counsel to take measures to ensure that the oath required by § 12-16-170 is administered to the jury, and that evidence of the administration of the oath is contained in the record.

REMANDED WITH INSTRUCTIONS.

All the Judges concur.

On Return to Remand

BASCHAB, Judge.

This case was originally assigned to another Judge on the Alabama Court of Criminal Appeals. It was reassigned to me on April 21,1998.

On April 15, 1997, the appellant filed a petition for post-conviction relief pursuant to Rule 32, Ala. R. Crim. P. In that petition, he argued that the trial court was without jurisdiction to impose sentence against him because the jury allegedly was never placed under oath. He also argued that his sentence exceeded the maximum authorized by law because he received separate punishments for a burglary and a theft arising out of the same transaction. Finally, he argued that his trial counsel and appellate counsel had been ineffective. The State responded that the appellant did not plead the unsworn jury and unauthorized sentence claims with sufficient specificity under Rule 32.6. As to the ineffective assistance of counsel claims, the State argued that they were precluded because they could have been, but were not, raised at trial or on direct appeal. The trial court summarily denied the petition finding that the ineffective assistance of counsel claims could have been raised on appeal and because the other allegations were not pled with sufficient specificity. On appeal from that denial, we remanded this case to the trial court either to conduct an evidentiary hearing or to take evidence, in accordance with Rule 32.9, Ala. R. Crim. P., to determine whether the appellant’s jury had been placed under oath. Dyson v. State, 722 So.2d 782 (Ala.Cr.App.1997). We did not address the appellant’s claims relating to the alleged unauthorized sentence and ineffective assistance of counsel at that time.

I.

On remand, the trial court took affidavits from the victim, Sylvia Knight; eight jurors who served on the appellant’s jury; Jackie Bonnett, the official court reporter who transcribed the appellant’s trial; and Rebecca Watts, the court specialist for the Circuit Court of Montgomery County. The court reporter stated in her affidavit that she had reviewed the transcript on appeal and the audiotape of the proceedings. She further stated that her review of the audiotape showed that she had inadvertently omitted from the transcript that the oath had been administered to the jury. Rebecca Watts stated that she had listened to the audiotape and believed that she was the clerk who had administered the oath to the jury. Based on the affidavits presented, the trial court found that the oath had been administered to the jury on two separate occasions. Therefore, the appellant’s argument is without merit.

II.

Next, the appellant argues that his sentence was unauthorized by law. Specifically, he argues that he could not receive two separate punishments for burglary and theft because both charges allegedly arose from the same transaction.

The appellant bases his argument on Ex parte McKelvey, 630 So.2d 56 (Ala.1992). McKelvey had been indicted for burglary with the intent to commit a theft and for theft of the property taken during the burglary. The Alabama Supreme Court held that an accused charged with both burglary and theft may receive only one punishment if the charges arose from a single transaction. Ex parte McKelvey, 630 So.2d at 57 (citing Vason v. State, 574 So.2d 860, 863 (Ala.Cr.App.1990)). A person commits the crime of burglary if he knowingly enters or remains unlawfully in a building with the intent to commit a felony therein. The prohibition against double punishments for theft and burglary has been applied when the accused has been charged with unlawfully entering a building with the intent to commit a theft therein. In those cases, we have held that the prohibition against double punishments applies when the only evidence to show that the accused intended to commit a felony is evidence of the completed theft. Vason v. State, 574 So.2d at 862; Rutherford v. State, 49 Ala.App. 246, 247, 270 So.2d 678, 679 (Ala.Cr.App.), cert. denied, 289 Ala. 751, 270 So.2d 679 (1972); Wildman v. State, 42 Ala.App. 357, 165 So.2d 396 (Ala.Cr.App.1963), cert. denied, 276 Ala. 708, 165 So.2d 403 (1964).

Here, the appellant was indicted for burglary with the intent to commit an assault or an attempted murder. He threatened to kill the victim and her family, and he shot the victim numerous times after entering her home. The appellant took a child as a hostage and fled the scene in the victim’s car. The theft of the victim’s car was not evidence that proved the appellant’s intent to commit an assault or an attempted murder. Because the theft of the car was not used to prove the appellant’s intent at the time he entered the victim’s home, the prohibition against double punishment for burglary and theft does not apply. Based on the foregoing, the trial court did not err in imposing separate sentences for the burglary and theft charges.

III.

The appellant also argues that the trial court erred in summarily denying his ineffective assistance of appellate counsel claim.

Any claims regarding the ineffectiveness of his trial counsel would be precluded. However, the appellant properly raised his claims regarding the ineffectiveness of his appellate counsel in the Rule 32 petition because that was his first opportunity to present the claims to the trial court. Alderman v. State, 647 So.2d 28 (Ala.Cr.App.1994). Contrary to the circuit court’s finding, those claims are not waived, and the trial court should have addressed them. Therefore, we remand this cause to the trial court with directions that the State be allowed to respond to the allegations of ineffective assistance of appellate counsel. On remand, the trial court shall determine, based on the State’s response, whether an evidentiary hearing should be held on the appellant’s allegations regarding ineffective assistance of appellate counsel. The trial court shall enter written findings with regard to the appellant’s allegations of ineffective assistance of appellate counsel, and it shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 56 days of the release of this opinion. Should a hearing be granted, the return to remand shall include a transcript of the proceedings in the trial court.

IV.

After reviewing the sentencing hearing, it appears that the trial court sentenced the appellant to life imprisonment without parole on the charge of sexual abuse in the first degree. The case action summary sheet for the charges of first-degree sodomy and first-degree sexual abuse properly shows that the appellant was convicted of both charges. However, it reflects a single term of life imprisonment without parole and makes no reference to either charge within the sentence. The sentence of life imprisonment without parole is correct for the sodomy conviction. However, life without parole is not the appropriate sentence for first-degree sexual abuse.

Sexual abuse in the first degree is a Class C felony. The State presented evidence that the appellant had three prior felony convictions. Therefore, under the Habitual Felony Offender Act, the proper range of punishment for first-degree sexual abuse would be “imprisonment for life or for any term not more than 99 years but not less than 15 years.” § 13A-5-9(c)(l), Ala.Code 1975. Therefore, a term of life imprisonment without parole for sexual abuse would exceed the sentence authorized by law.

Should the trial court determine that the appellant is not due relief on the claim of ineffective assistance of appellate counsel, the trial court shall re-sentence the appellant consistent with our holding today. The trial court should specify the sentence imposed on the first-degree sexual abuse charge and the sentence imposed on the first-degree sodomy charge. The trial court shall take necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 56 days of the release of this opinion. The return to remand shall include a transcript of the remand proceedings, if any, conducted by the trial court.

AFFIRMED IN PART; REMANDED WITH DIRECTIONS.

LONG, P.J., and McMILLAN and COBB, JJ., concur.

BROWN, J., recuses. 
      
      . Section 12-16-170, Code of Alabama 1975, provides, in relevant part:
      "The following oath shall be administered by the clerk, in the presence of the court, to each of the petit jurors: 'You do solemnly swear (or affirm, as the case may be) that you will well and truly try all issues which may be submitted to you during the present session (or week, as the case may be), and true verdicts render according to the evidence — so help you God’....”
      Rule 18.5(a), Ala.R.Crim.P., provides:
      "The court shall either remind the jurors that they are still under oath [see Rule 12.1(c)(2), Ala.R.Crim.P., for the oath that is to be administered to the juiy venire, which also encompasses the substance of the oath to be administered to the petit jury], or may give the jurors the following oath:
      " 'You do solemnly swear, or affirm, that you will well and truly try all issues joined between the defendant(s) and the State of Alabama and render a true verdict thereon according to the law and evidence, so help you God.' ”
      The Committee Comments to Rule 18.5 indicate that the above-cited section conforms to the oath required by § 12-16-170, Code of Alabama 1975.
     
      
      . The appellant raised additional allegations in his Rule 32 petition. Specifically, he alleged that the trial court's imposition of consecutive life sentences for his burglary and theft convictions violated the prohibition against double jeopardy because, he asserted, both convictions arose from the same transaction. In addition, the appellant made numerous allegations of ineffective assistance of trial and appellate counsel. These claims will not be addressed at this time.
     
      
      . This Court has carefully reviewed both the trial transcript and the clerk’s record, including the minute entries on the case action summary sheets and the jury verdict forms, and there is no indication that the jury was sworn. See Tarver v. State, 500 So.2d 1232, 1242 (Ala.Cr.App.), aff'd, 500 So.2d 1256 (Ala.1986), cert. denied, 482 U.S. 920, 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987) ("[a] minute entry is deemed to be a sufficient showing that the oath was administered”); Porter v. State, 520 So.2d 235, 237 (Ala.Cr.App.1987) ("statements in the record such as 'upon their oaths’ are sufficient to show that a jury was sworn”); McGruder v. State, 560 So.2d 1137, 1142 (Ala.Cr.App.1989) ("[ajlthough the trial transcript does not indicate that the jury was sworn after the. selection process, both the judgment entry and the case action summary state that the jury was 'duly empaneled, sworn and charged by the Court according to law’ ”). (Emphasis in original.)
     
      
      . The appellant was convicted on December 14, 1995. The Ex parte Jackson procedure for presenting an ineffective assistance of counsel claim was still in effect. 598 So.2d 895 (Ala.1992), overruled by Ex parte Ingram, 675 So.2d 863 (Ala.1996). The appellant was represented by different counsel at trial and on appeal. However, he did not raise the issue of ineffective assistance of counsel in his motion for a new trial. Under Ex parte Jackson, an appellant who is represented by different counsel at trial and on appeal must present a claim of ineffective assistance of counsel in a motion for new trial in order to preserve that issue for review. Therefore, the appellant’s claim of ineffective assistance of trial counsel is precluded because he did not raise it before the trial court. Rule 32.3, Ala. R. Crim. P.
     
      
       Note from the reporter of decisions: On August 14, 1998, on return to remand, the Court of Criminal Appeals affirmed, without opinion.
     