
    Andre Legay WALLACE v. STATE.
    CR-94-1078.
    Court of Criminal Appeals of Alabama.
    June 16, 1995.
    Andre Legay Wallace, pro se.
    Jeff Sessions, Atty. Gen., and Jack Willis, Asst. Atty. Gen., for Appellee.
   TAYLOR, Presiding Judge.

The appellant, Andre Legay Wallace, appeals the denial of his petition for post-conviction relief filed pursuant to Rule 32, Ala. R.Crim.P. In 1974, the appellant, a 16-year-old, pleaded guilty to murder, robbery, rape, and mayhem. He was sentenced to concurrent terms of life in the penitentiary for each conviction. At the time of the appellant’s guilty pleas, a statute applicable only to Jefferson County, provided that male and female children between the ages of 16 and 18 were treated differently for purposes of determining their juvenile status. A female between 16 and 18 was considered a juvenile and a male over the age of 16 no longer had access to the juvenile courts. Title 62, § 311, Code of Alabama 1940 (Recomp.1958). A state statute, Title 13, § 350, Code of Alabama 1940 (Recomp.1958), defined a juvenile as any child under the age of 16. Because the appellant was 16 in 1974 when he committed the offenses, there was no provision for treatment as a juvenile offender and the appellant was transferred to circuit court.

The appellant, in 1994, filed a post-conviction petition attacking his convictions, arguing that the court was without jurisdiction to render a judgment in his ease because, Title 62, § 311, violated the principles of equal protection. He also asserted in his petition that his trial counsel’s performance was deficient because counsel failed to challenge the constitutionality of the statute. After the appellant’s conviction, Title 62, § 311, was held unconstitutional based on principles of equal protection of the laws because it discriminated on the basis of sex. Falkner v. State, 686 So.2d 39 (Ala.CrApp.1991).

The state asserts that this issue is barred from our review. However, for the reasons stated by this court in Falkner, we will address this issue on appeal.

The state relies on Penn v. Attorney General of the State of Alabama, 930 F.2d 838 (11th Cir.1991), and asserts that the subsequent holding that Title 62, § 311, violated principles of equal protection does not render the appellant’s underlying convictions void. We agree and adopt the reasoning of the Eleventh Circuit Court of Appeals. The Eleventh Circuit Court of Appeals stated in Penn:

“Penn argues that Title 62, section 311 of the Code of Alabama, (1940, Recompiled 1958) which dealt with the jurisdiction to try juvenile offenders only in Jefferson County, Alabama, was unconstitutional as violative of the equal protection clause because it singled out males for different treatment than females. Under the terms of this statute males between the ages of sixteen and eighteen years of age were tried as adults in the Circuit Court of Jefferson County, while young women under the age of eighteen years of age were under the exclusive jurisdiction of the juvenile court. As a result, he maintains, the two convictions are invalid and the state court should not have been able to use these convictions to enhance his current sentence.
“Penn does not challenge the underlying criminal laws he was charged with violating in 1969 and 1970. Nor, is he attacking the validity of the Alabama Habitual Felony Offender Act. He is only concerned with the constitutionality of the jurisdictional language of the Jefferson County juvenile code and its effect on his convictions as an adult in 1969 and 1970.
“The magistrate, after determining that the issue was properly before the court, agreed with Penn that the Jefferson County juvenile code violated the constitutional guarantee of equal protection. However, the magistrate then considered what would have happened if the law had been challenged in 1969 or 1970. He concluded that if Title 62, section 311, Code of Alabama (1940, Recompiled 1958) was struck down as violative of the equal protection clause, then Penn would have tried as an adult under Title 13, sections 350 and 363, Code of Alabama (1940, Recompiled 1958) which applied to the entire state of Alabama except Jefferson County. Under this title all children under the age of sixteen were treated as juveniles. However, those youths between the ages of sixteen and eighteen were under the exclusive jurisdiction of the courts of general jurisdiction unless the court exercised its discretion to transfer the case to juvenile court. Therefore, the magistrate was of the opinion that since Penn was sixteen or older in 1969 and 1970 he suffered no prejudice and that the convictions obtained in Jefferson County could be used to enhance his sentence under the Habitual Felony Offenders Act. The district court adopted the recommendation of the magistrate.
“We agree with the district court and the state that Penn’s 1969 and 1970 convictions were properly used to enhance his sentence under Alabama’s Habitual Felony Offender Act. By simply holding that Title 62, section 311, deprived Penn of his right to equal protection of the law does not mean that those convictions as an adult were not valid and set aside for enhancement purposes. In these circumstances it makes little difference whether the jurisdiction to try Penn as a juvenile in Jefferson County was constitutional. If the jurisdictional language of the Jefferson County statute was unconstitutional, then the court is still faced with the question of the proper remedy available to the petitioner. In the past the Supreme Court has voided convictions imposed under habitual offender statutes because some of the convictions used for enhancement purposes were obtained when the defendant was not represented by counsel. These decisions focused on the validity of the trial itself. Because of these prior uncoun-seled convictions the Court ordered a new sentencing hearing for reconsideration of the defendant’s sentence in light of the prior invalid sentences. The Court reasoned that it would be impossible to speculate what sentence the trial court would impose if the court was precluded from taking into consideration the invalid convictions. In other cases, where the underlying criminal law was declared unconstitutional, the conviction did not redress any legal wrong. ‘An unconstitutional law is void, and is as no law. An offense created by it is no crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment.’ Ex Parte Siebold, 100 U.S. 371, 376-377, 25 L.Ed. 717 (1879). Neither of these scenarios fits the mold of the case before us. In situations more analogous to the facts here, if a law is held violative of the fourteenth amendment’s guarantee of equal protection, the remedy has been to either extend the privileges to the unprotected class or ‘declare it a nullity and order that its benefits not extend to the class that the legislature intended to benefit.’ Welsh v. United States, 398 U.S. 333, 361, 90 S.Ct. 1792, 1807-08, 26 L.Ed.2d 308, 331 (1970) (Harlan, J., concurring) (citations omitted); see also California Federal Savings and Loan Assoc, v. Guerra, 479 U.S. 272, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987). In this case if we held that the Jefferson County juvenile statute was unconstitutional for jurisdictional reasons, we would have to declare it a nullity because to extend its benefits to Penn would create a conflict with the state-wide statute and still violate equal protection. Likewise, to extend section 31 to all juveniles in the state would also violate equal protection. Assuming, for the sake of argument, that the code section in question was violative of equal protection our conclusion would be the same. As a matter of law Penn would have been tried as an adult under sections 350 and 363 of Title 13. Also, under our analysis, it does not matter whether the jurisdictional language of the Jefferson County code was declared unconstitutional because Penn suffered no constitutional harm. Therefore, he has no standing to challenge the constitutionality of section 311. Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508, reh’g. denied, 458 U.S. 1133, 103 S.Ct. 20, 73 L.Ed.2d 1404 (1982). The only difference between section 350 and section 311 is that under section 311 female delinquents between the ages of sixteen and eighteen years of age were under the exclusive jurisdiction of the Jefferson County juvenile court system.
“The jurisdictional language in Title 13, sections 350 and 363 makes it clear that the legislature intended that the juvenile court have exclusive jurisdiction over all delinquent children under the age of sixteen in all of Alabama except Jefferson county. Title 13, § 350 and § 363 Code of Alabama (1940, Recompiled 1958). The same is true for Title 62, section 311, the only difference being that, in addition, the juvenile court retained exclusive jurisdiction over females under the age of eighteen. Title 62, section 311 of the Code of Alabama (1940, Recompiled 1958), since repealed by the 1975 code of Alabama, reads in pertinent part:
“ ‘ “[Delinquent child” shall mean any male child who while under sixteen years of age, or any female child who while under eighteen years of age, being or residing in such county, violates any penal law of the United States or of this state, or any regulation, ordinance or law of any city, town, or municipality of such county; or who commits any offense or act for which he or she could be prosecuted in a method partaking of the nature of a criminal action or proceeding; or who is beyond the control of his or her parent, parents, guardian or custodian, or who defies their authority, or who is otherwise incorrigible; or who is guilty of immoral conduct; or who is leading, or from any cause is in danger of leading an idle, dissolute, lewd, or immoral life, or who is found in any place, for permitting which, an adult may be punished by law; or a male child between the ages of sixteen and eighteen years of age, who has been brought before any other court, charged with a crime, and which court has by proper order transferred said child to the said juvenile and domestic relations court to be dealt with under the terms of this subdivision.’

“Id. (Emphasis added.)

“As can be seen, the Jefferson County law also contained language, which gave the local criminal court jurisdiction over male delinquents between the ages of sixteen and eighteen years, unless the court in its discretion saw fit to transfer the case to juvenile court. The section of the code dealing with juveniles for the rest of the state defined a delinquent child as any child under sixteen years of age who violates any penal law. Section 350 does not address the question of jurisdiction over delinquents between the ages of sixteen and eighteen. That language is contained in section 363 of Title 13.

“Title 13, section 363 entitled ‘Transferring jurisdiction; transfer to the juvenile court’ states that any criminal court which has before it a ‘child between the ages of sixteen and eighteen,’ has the discretion to ‘transfer such child ... to the jurisdiction of the juvenile court.’ Id. This is the same option available to the Jefferson County courts in transferring a male child, between the ages of sixteen and eighteen years of age, to the juvenile court. The jurisdictional section of section 311 allows a court of criminal jurisdiction to transfer:

“‘[A] male child between the ages of sixteen and eighteen years of age, who has been brought before any other court, charged with a crime, and which court has by proper order transferred said child to the said juvenile and domestic relations court to be dealt with under the terms of his subdivision.’ •

“Title 62, § 311 Code of Alabama, (1940, Recompiled 1958).

“The courts of general jurisdiction had exclusive jurisdiction over male juveniles between sixteen and eighteen in section 311 and all juveniles between those ages in section 363 unless the court exercised its discretion to transfer the case to juvenile court. As far as the exercise of that discretion is concerned, we can find no cases or statute that give any guidance that limits the judge’s discretion. If the benefits of the ‘under eighteen years of age’ provisions of section 311 could not have been extended to include Penn as we have held, the only alternative was to try him under sections 350 and 363. It is obvious to us that the Jefferson County courts in 1969 and 1970 declined to exercise their discretion to transfer the eases to the juvenile court and proceeded to try him as an adult, the same result that would have been obtained if he had been tried under sections 350 and 363.

“Therefore, despite the fact that certain portions of the jurisdictional language of the Jefferson County juvenile code may have been violative of the guarantee of equal protection, Penn suffered no constitutional harm. There existed a privilege to have his case transferred to the juvenile court. However, that option was only a privilege, there was no constitutional or statutory right for a youth between sixteen and eighteen years old to be tried as a juvenile.”

930 F.2d at 840-43. (Footnotes omitted.)

Penn conflicts, in part, with this court’s holding in Falkner v. State, 586 So.2d 39 (Ala.Cr.App.1991), which was released six weeks after the Eleventh Circuit Court of Appeals released Penn. In Falkner, this court held that the petitioner satisfied the first prong of the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), test by showing that his counsel’s performance was ineffective for failing to object to the constitutionality of the statute. However, this court in Falkner, held that because we could not say whether the petitioner suffered any prejudice, the case had to be remanded to the circuit court. We believe that the better reasoning is contained in Penn. The court in Penn reasoned that in 1974, based on the general statute, Title 13, § 350, Code of Alabama 1940, the appellant would have been treated as an adult. It also stated that because whether to be treated as a juvenile was a privilege and not a right, the appellant failed to show how he was prejudiced. Falkner is overruled to the extent that it conflicts with our holding in this case and the reasoning of the Eleventh Circuit Court of Appeals in Penn.

We hold that appellant’s convictions for murder, robbery, rape, and mayhem are not void because of the subsequent finding that Title 62, § 311, violated the Equal Protection Clause of the United States Constitution. The appellant has not satisfied the test in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in that he has failed to show that his counsel rendered ineffective assistance. Though counsel’s performance may have been deficient, the appellant failed to show how he was prejudiced. Relying in part on the federal court’s interpretation of the United States Constitution in the Penn case, and in part on our own analysis, we hold that the trial court’s denial of the appellant’s petition for post-conviction relief is due to be affirmed.

AFFIRMED.

All the Judges concur.  