Opinion
CR-17-1153
05-24-2019
Manuel Ali TOWNS v. STATE of Alabama
Christopher H. Daniel, Birmingham, for appellant. Steve Marshall, atty. gen., and Michael A. Nunnelley, asst. atty. gen., for appellee.
Christopher H. Daniel, Birmingham, for appellant.
Steve Marshall, atty. gen., and Michael A. Nunnelley, asst. atty. gen., for appellee.
KELLUM, Judge.
Manuel Ali Towns was convicted of one count of robbery in the first degree, see § 13A-8-41(a)(1), Ala. Code 1975, one count of kidnapping in the first degree, see § 13A-6-43(a)(3), Ala. Code 1975, and two counts of fraudulent use of a credit or debit card, see § 13A-9-14(b)(1), Ala. Code 1975. He was sentenced, as a habitual offender with seven prior felony convictions, to life imprisonment without the possibility of parole for the robbery conviction and for the kidnapping conviction and to 15 years' imprisonment for each of the fraudulent-use-of-a-credit-or-debit-card convictions.
I.
Towns contends that the trial court erred in denying his motion for a new trial because, he says, the evidence was insufficient to sustain his convictions for robbery and kidnapping and because, he says, the verdicts finding him guilty of those offenses were against the great weight of the evidence. Specifically, as to both his sufficiency and weight-of-the-evidence arguments, Towns contends that the victim's identification of him as the perpetrator was unreliable in light of the circumstances of the crimes, her prior inconsistent statements, and the testimony of his expert on eyewitness identification.
Towns does not challenge the weight or sufficiency of the evidence relating to his convictions for fraudulent use of a credit or debit card.
The evidence adduced at trial indicated the following. At approximately 10:00 p.m. the night of March 14, 2017, Brittany Diggs was walking from her Nissan automobile to her apartment when she was approached by a man brandishing a gun who demanded "anything that [she had] that's valuable." (R. 377.) Diggs said that the man was wearing jeans and a striped hoodie. In both a pretrial photographic lineup and at trial, Diggs identified Towns as the man who accosted her that night. When Diggs informed Towns that the only thing she had of value was her cellular telephone, Towns forced Diggs to drive him around Birmingham in her vehicle to help him rob other people. After two failed robbery attempts, Towns ordered Diggs to pull over, at which point he forced Diggs into the trunk of her vehicle. Towns then began driving. At some point while Diggs was in the trunk, Towns discovered Diggs's wallet in the passenger compartment of the vehicle and asked Diggs for the personal identification number ("PIN") associated with her debit card, which Diggs gave him.
According to Diggs, Towns stopped a total of three times while she was in the trunk, each time getting out of the vehicle and then returning. After one stop, Towns told her that the PIN number did not work, and after another stop, Towns told her that he had obtained $80. Before the third stop, Diggs said, Towns told her that if the PIN number did not work, he would rape her and kill her. Diggs testified that the whole time she was in the trunk, she was trying to find a way to escape, and that, just before the third stop, she was able to find the trunk latch using the backlight on her insulin pump. Diggs waited, and when Towns started driving away after the third stop, Diggs used the latch and jumped out of the trunk. She immediately ran inside the gasoline station/convenience store where they had stopped and informed the clerk, Yosef Alsabah, that she needed help.
Alsabah testified that he was working at the gasoline station/convenience store located at 1800 Bessemer Road the night of March 14, 2017, when, at approximately 11:30 p.m., a man entered the store and tried to use the automated teller machine ("the ATM"). Alsabah positively identified Towns as the man who had entered the store. Alsabah testified that he tried to help Towns use the ATM but that Towns was unable to withdraw any money. According to Alsabah, Towns left the store briefly but then came back inside the store and tried to use the ATM a second time, again without success. As Towns was driving away, Alsabah said, he saw Diggs jump out of the trunk of the vehicle Towns was driving and run toward the store. He allowed Diggs into the enclosed area behind the counter for her safety and telephoned emergency 911. Diggs spoke with the 911 dispatcher and police responded to the scene.
The State introduced into evidence surveillance video from the store at which Diggs escaped and from another gasoline station/convenience store located at 2301 Ensley Avenue, as well as the recording of the 911 call. Testimony from James Vildibill, a patrol officer with the Birmingham Police Department, indicated that, the night of the crimes, $102.80 had been withdrawn from Diggs's bank account using an ATM located at 1801 Avenue V and $82.80 had been withdrawn from Diggs's bank account using an ATM located at 2301 Ensley Avenue. The State presented evidence indicating that Diggs's vehicle was later discovered abandoned and that Towns's fingerprints were on the trunk and the driver's door. In addition, the State presented testimony that, when Towns was apprehended, a striped hoodie was found in his possession.
Towns's defense at trial was that he was not the perpetrator of the crimes, and he attacked Diggs's identification of him. He vigorously cross-examined Diggs, impeached portions of her testimony with prior inconsistent statements, and highlighted her description of the perpetrator. For example, Diggs testified at trial that she had told police that the perpetrator was about her height, but testimony indicated that Diggs is 5 feet 7 inches tall and the State stipulated that Towns is 5 feet 11 inches tall. Diggs also testified at trial that the perpetrator was wearing a striped hoodie, but Towns presented evidence indicating that Diggs had never told police that. Diggs denied on cross-examination having told police that Towns was wearing a hat, and Towns impeached her with footage from the body camera of the police officer who interviewed Diggs at the scene, which indicates that Diggs told the officer that Towns was wearing a hat. Surveillance videos from the store where Diggs escaped and from the store on Ensley Avenue also showed that Towns was wearing a hat. Towns also impeached Diggs's testimony that he had approached her from the front while she was walking to her apartment with a statement she had made during a media interview saying that Towns had approached her from behind. In addition, Diggs testified that she did not recall speaking with the 911 dispatcher, but she admitted on cross-examination that she had listened to the recording of the call and that she had told the 911 dispatcher that she did not know what the perpetrator looked like.
Towns also presented testimony from Dr. Jeffrey Neuschatz, a cognitive psychologist specializing in eyewitness identification. Dr. Neuschatz testified, essentially, that eyewitness identifications are generally unreliable because the events giving rise to the identifications usually happen quickly in a stressful environment and are usually made long after the events occurred. In this particular case, Dr. Neuschatz said, the presence of a weapon, the fact that the perpetrator was wearing a hat, and the fact that the photographic lineup was shown to Diggs a week after the crimes lessened the reliability of Diggs's identification of Towns. According to Dr. Neuschatz, it is more likely that Diggs's statement during the 911 call that she did not know what the perpetrator looked like was accurate and her subsequent identification of Towns was not. In addition, Dr. Neuschatz testified that the photographic lineup from which Diggs identified Towns was biased because Towns was the only person in the lineup wearing a striped shirt.
"The weight of the evidence is clearly a different matter from the sufficiency of the evidence. The sufficiency of the evidence concerns the question of whether, ‘viewing the evidence in the light most favorable to the prosecution, [a] rational fact finder could have found the defendant guilty beyond a reasonable doubt.’ Tibbs v. Florida, 457 U.S. 31, 37, 102 S.Ct. 2211, 2216, 72 L.Ed.2d 652 (1982). Accord, Prantl v. State, 462 So.2d 781, 784 (Ala. Cr. App. 1984)....
"In contrast, ‘[t]he "weight of the evidence" refers to "a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other." ’ Tibbs v. Florida, 457 U.S. at 37-38, 102 S.Ct. at 2216 (emphasis added)."
Johnson v. State, 555 So.2d 818, 819-20 (Ala. Crim. App. 1989), on return to remand, 576 So.2d 1279 (Ala. Crim. App. 1990), rev'd on other grounds, 576 So.2d 1281 (Ala. 1991).
" ‘ "In determining the sufficiency of the evidence to sustain a conviction, a
reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution." ’ Ballenger v. State, 720 So.2d 1033, 1034 (Ala. Crim. App. 1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala. Crim. App. 1984), aff'd, 471 So.2d 493 (Ala. 1985). ‘ "The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt." ’ Nunn v. State, 697 So.2d 497, 498 (Ala. Crim. App. 1997), quoting O'Neal v. State, 602 So.2d 462, 464 (Ala. Crim. App. 1992). ‘ "When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court's decision." ’ Farrior v. State, 728 So.2d 691, 696 (Ala. Crim. App. 1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala. Crim. App. 1990). ‘The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.’ Ex parte Bankston, 358 So.2d 1040, 1042 (Ala. 1978)."
Gavin v. State, 891 So.2d 907, 974 (Ala. Crim. App. 2003).
Any "inconsistencies and contradictions in the State's evidence, as well as [any] conflict between the State's evidence and that offered by the appellant, [go] to the weight of the evidence and [create a question] of fact to be resolved by the jury." Rowell v. State, 647 So.2d 67, 69-70 (Ala. Crim. App. 1994). " ‘ "[T]he credibility of witnesses and the weight or probative force of testimony is for the jury to judge and determine." ’ " Johnson, 555 So.2d at 820 (quoting Harris v. State, 513 So.2d 79, 81 (Ala. Crim. App. 1987), quoting in turn Byrd v. State, 24 Ala. App. 451, 451, 136 So. 431, 431 (1931) ). More importantly, " ‘[t]he question of the victim['s] credibility [is] one for the jury and not for this Court." Rowell, 647 So.2d at 69 (quoting Coats v. State, 615 So.2d 1260, 1260 (Ala. Crim. App. 1992) ). "We have repeatedly held that it is not the province of this court to reweigh the evidence presented at trial." Johnson, 555 So.2d at 820. " ‘When the jury has passed on the credibility of evidence tending to establish the defendant's guilt, this Court cannot disturb its finding.’ " Rowell, 647 So.2d at 69 (quoting Collins v. State, 412 So.2d 845, 846 (Ala. Crim. App. 1982) ). "Any issues regarding the weight and credibility of the evidence are not reviewable on appeal once the state has made a prima facie case." Jones v. State, 719 So.2d 249, 255 (Ala. Crim. App. 1996), aff'd, 719 So.2d 256 (Ala. 1998).
Viewed in the light most favorable to the State, the evidence here, as set forth above, was more than sufficient to sustain Towns's convictions for robbery and kidnapping. Not only did Diggs positively identify Towns as the man who had robbed and kidnapped her, Alsabah identified Towns as the man he saw driving the vehicle from which Diggs escaped and sought his help. In addition, Towns's fingerprints were found on Diggs's vehicle. The credibility of Diggs's identification of Towns was a question for the jury to resolve, and the jury obviously resolved that question adversely to Towns. We will not disturb that finding on appeal. Therefore, the trial court properly denied Towns's motion for a new trial.
II.
Towns also contends, as he did by written objection before sentencing and in his motion for a new trial, that the Habitual Felony Offender Act, § 13A-5-9, Ala. Code 1975 ("the HFOA"), is unconstitutional as applied to him and that his sentences of life imprisonment without the possibility of parole for the robbery conviction and for the kidnapping conviction constitute cruel and unusual punishment. Relying on Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), he argues that five of the prior convictions used to enhance his sentences (five prior convictions for first-degree robbery) occurred when he was a juvenile and that it is unconstitutional to use juvenile-age convictions to enhance an adult's sentence to mandatory life imprisonment without the possibility of parole. See § 13A-5-9(c)(4), Ala. Code 1975 ("In all cases when it is shown that a criminal defendant has been previously convicted of any three felonies that are Class A, Class B, or Class C felonies and after such convictions has committed another Class A, Class B, or Class C felony, he or she must be punished ... [o]n conviction of a Class A felony, where the defendant has one or more prior convictions for any Class A felony ... by imprisonment for life without the possibility of parole.").
This Court has repeatedly upheld the constitutionality of the HFOA against Eighth Amendment challenges. See Wooden v. State, 822 So.2d 455, 458 (Ala. Crim. App. 2000) ; Harris v. State, 741 So.2d 1112, 1114-15 (Ala. Crim. App. 1999) ; Frazier v. State, 663 So.2d 1035, 1037-38 (Ala. Crim. App. 1995) ; and Mosley v. State, 500 So.2d 108, 109 (Ala. Crim. App. 1986).
Moreover, Miller is inapplicable to Towns, who was 28 years old at the time of the crimes. In his special concurrence in Jackson v. State, 291 So.3d 1220 (Ala. Crim. App. 2019), Judge McCool aptly explained why Miller, as well as Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), do not prohibit the use of juvenile-age convictions to enhance a sentence under the HFOA for an adult offender:
"Jackson cites Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed. 2d 825 (2010), and Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed. 2d 407 (2012), in support of his contention that it is unconstitutional to sentence a juvenile offender to life imprisonment without the possibility of parole for a nonhomicide offense. Although Jackson concedes he was 24 years old when he committed the nonhomicide offense that resulted in his sentence of life imprisonment without the possibility of parole, he relies on Graham and Miller to argue that it is equally unconstitutional to use an adult offender's juvenile-age convictions to enhance the adult's sentence for a nonhomicide offense to life imprisonment without the possibility of parole....
"....
"... [O]n their faces, Graham and Miller do not entitle Jackson to relief. In Graham, the United States Supreme Court held that ‘[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide,’ Graham, 560 U.S. at 82, 130 S.Ct. at 2034 (emphasis added), and in Miller, the Court held that ‘the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.’ Miller, 567 U.S. at 479, 132 S.Ct. at 2469 (emphasis added). Thus, neither Graham nor Miller recognized a constitutional limit on a life-without-parole sentence for an adult offender. Accordingly, because Jackson was undisputedly an adult when he committed the offense that resulted in his sentence of life imprisonment without the possibility of parole, his sentence does not violate Graham or Miller. See
Romero v. State, 105 So.3d 550, 552 (Fla. Dist. Ct. App. 2012) (‘Not a single court in this country has extended Graham to an adult offender. On the contrary, several courts have reaffirmed that Graham is inapplicable to adult offenders.’); Jean-Michel v. State, 96 So.3d 1043, 1044 (Fla. Dist. Ct. App. 2012) (rejecting appellant's contention that Graham barred a sentence of life imprisonment without the possibility of parole for an offense he committed when he was 19 years old because Graham ‘limited the application of the rule to juveniles, meaning persons less than eighteen years of age’); and Sloan v. State, 418 S.W.3d 884, 892 (Tex. App. 2013) (noting that ‘ Miller's holding is limited to juveniles’).
"As noted, however, Jackson argues that the principles of Graham and Miller should be extended to prohibit an adult who commits a nonhomicide offense from receiving a sentence of life imprisonment without the possibility of parole when that sentence is the result of an enhancement by the adult's juvenile-age convictions. Multiple federal circuits have considered and rejected this argument. Regarding the scope of Graham, in United States v. Scott, 610 F.3d 1009 (8th Cir. 2010), the Eighth Circuit stated:
" ‘Finally, Scott argues that the Eighth Amendment prohibits enhancing his sentence based on his previous felony drug convictions because he was a juvenile when he committed those crimes. We note that while Scott committed his prior felony drug offenses as a juvenile, he was charged and convicted of both crimes as an adult....
" ‘The U.S. Supreme Court cases that Scott cites, Roper [v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed. 2d 1 (2005),] and Graham, ... established constitutional limits on certain sentences for offenses committed by juveniles. However, Scott was twenty-five years old at the time he committed the conspiracy offense in this case. Neither Roper nor Graham involved the use of prior offenses committed as a juvenile to enhance an adult conviction, as here.... [T]he Court's analysis in Graham was limited to defendants sentenced to life in prison without parole for crimes committed as juveniles. The Court in Graham did not call into question the constitutionality of using prior convictions, juvenile or otherwise, to enhance the sentence of a convicted adult.'
" Scott, 610 F.3d at 1018 (emphasis added).
"Similarly, in United States v. Banks, 679 F.3d 505 (6th Cir. 2012), the United States Court of Appeals for the Sixth Circuit stated:
" ‘Relying on Graham ..., Banks insists that using an offense committed as a juvenile to enhance the maximum penalty to life without parole ... categorically violates the Eighth Amendment's prohibition against cruel and unusual punishment. But Graham ... only categorically prohibited sentencing a juvenile to life without parole when neither the current conviction nor the predicate convictions involved a homicidal offense; the Supreme Court has yet to categorically prohibit courts from considering juvenile-age offenses when applying enhancements to an adult's conviction. See United States v. Graham ..., 622 F.3d 445, 462–63 (6th Cir. 2010) (collecting cases from other circuits concluding that Graham v. Florida limited its holding to juvenile offenders, leaving untouched the practice of considering juvenile-age criminal history when sentencing an adult offender ).’
" Banks, 679 F.3d at 507 (some emphasis added).
"In United States v. Orona, 724 F.3d 1297 (10th Cir. 2013), the United States Court of Appeals for the Tenth Circuit explained why Graham's restriction on a sentence of life imprisonment without the possibility of parole for a juvenile offender does not preclude the use of juvenile-age convictions to enhance an adult offender's sentence:
" ‘Orona argues that the practice of using a juvenile adjudication as a predicate offense under [the Armed Career Criminal Act ("ACCA") ] conflicts with the Supreme Court's holdings regarding juvenile offenders in Roper[ v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005),] and Graham. In the former case, the Court concluded that the imposition of the death penalty upon juvenile offenders violates the Eighth Amendment. Roper, 543 U.S. at 560, 125 S.Ct. 1183. It reached this conclusion based in large part on the differences between juveniles and adults. Juveniles, the Court held, have "a lack of maturity and an underdeveloped sense of responsibility." Id. at 569, 125 S.Ct. 1183 (alteration and quotation omitted). They "are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure." Id. And the "personality traits of juveniles are more transitory, less fixed." Id. at 570, 125 S.Ct. 1183. These differences "render suspect any conclusion that a juvenile falls among the worst offenders." Id. Juvenile offenders must be considered less culpable because they "have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment," and "a greater possibility exists that a minor's character deficiencies will be reformed." Id. The Graham Court extended this logic, prohibiting the imposition of mandatory life without parole sentences for non-homicide juvenile offenders. 130 S.Ct. at 2034. This holding was again based on the "fundamental differences between juvenile and adult minds." Id. at 2026. And in Miller, the Court held that mandatory life without parole sentences for juveniles are entirely impermissible for the same reasons. 132 S.Ct. at 2464.
" ‘Orona argues that the use of a juvenile adjudication as a predicate offense under ACCA similarly violates the Eighth Amendment because juveniles are less morally culpable. The problem with this line of argument is that it assumes Orona is being punished in part for conduct he committed as a juvenile. This assumption is unfounded. The Supreme Court "consistently has sustained repeat-offender laws as penalizing only the last offense committed by the defendant." Nichols v. United States, 511 U.S. 738, 747, 114 S.Ct. 1921, 128 L.Ed. 2d 745 (1994) (quotation omitted). "When a defendant is given a higher sentence under a recidivism statute ... 100% of the punishment is for the offense of conviction. None is for the prior convictions or the defendant's status as a recidivist." United States v. Rodriquez, 553 U.S. 377, 386, 128 S.Ct. 1783, 170 L.Ed. 2d 719 (2008) (quotation omitted).
" ‘Unlike the defendants in Roper and Graham, Orona is being punished for his adult conduct. As we recently explained in rejecting a substantive due process challenge to ACCA's use of juvenile adjudications, the cases upon which Orona relies "involve sentences imposed directly for crimes committed while the defendants were young. In the case before us, an adult
defendant faced an enhanced sentence for a crime he committed as an adult." United States v. Rich, 708 F.3d 1135, 1140 (10th Cir. 2013). A juvenile's lack of maturity and susceptibility to negative influences, see Roper, 543 U.S. at 569, 125 S.Ct. 1183, cannot explain away Orona's decision to illegally possess a firearm when he was twenty-eight years old.’
" Orona, 724 F.3d at 1307-08 (emphasis added).
"Federal circuits have reached the same conclusion regarding the scope of Miller. In United States v. Hoffman, 710 F.3d 1228 (11th Cir. 2013), the United States Court of Appeals for the Eleventh Circuit stated:
" ‘Hoffman points to Miller, in which the Supreme Court recently held that the Eighth Amendment prohibits a mandatory life-without-parole sentence for defendants who were under age 18 when they committed the crime. But Miller is inapposite because it involved a juvenile offender facing punishment for a crime committed when he was a juvenile, and thus it focused on the reasons why it would be cruel and unusual for a juvenile to face a mandatory life sentence. See id. at 2464–68. Nothing in Miller suggests that an adult offender who has committed prior crimes as a juvenile should not receive a mandatory life sentence as an adult, after committing a further crime as an adult.... [T]he Supreme Court in Miller did "not deal specifically -- or even tangentially -- with sentence enhancement," and it is a far different thing to prohibit sentencing a juvenile offender to a mandatory sentence of life imprisonment without parole than it is "to prohibit consideration of prior youthful offenses when sentencing criminals who continue their illegal activity into adulthood." [ United States v.] Wilks, 464 F.3d [1240,] 1243 [ (11th Cir. 2006) ].’
" Hoffman, 710 F.3d at 1233 (some emphasis added).
"Similarly, in United States v. Hunter, 735 F.3d 172, 175 (4th Cir. 2013), the United States Court of Appeals for the Fourth Circuit considered whether it violates Miller to use juvenile-age convictions to enhance an adult offender's sentence. After noting that Miller ‘emphasized that "children are constitutionally different from adults for purposes of sentencing" due to their "diminished culpability and greater prospects for reform," ’ Hunter, 735 F.3d at 174 (quoting Miller, 567 U.S. at 471, 132 S.Ct. 2455 ), the Fourth Circuit concluded that ‘[n]one of this helps Defendant, however, because the sentence he challenges punishes only his adult criminal conduct.’ Id. at 175.
" ‘In this case, Defendant is not being punished for a crime he committed as a juvenile, because sentence enhancements do not themselves constitute punishment for the prior criminal convictions that trigger them. See [United States v.] Rodriquez, 553 U.S. [377,] 385–86, 128 S.Ct. 1783[, 170 L.Ed.2d 719 (2008) ]. Instead, Defendant is being punished for the recent offense he committed at thirty-three, an age unquestionably sufficient to render him responsible for his actions. Accordingly, Miller's concerns about juveniles’ diminished culpability and increased capacity for reform do not apply here.
"In sum, Defendant was no juvenile when he committed the crime for which he was sentenced here. Miller , with its concerns particular to juvenile offenders, thus does not apply, and Defendant's Eighth Amendment challenge
to his sentence, grounded in Miller, must fail.'
" Id. at 176 (emphasis added).
"Although this Court is not bound by federal courts' interpretation of decisions from the United States Supreme Court, I find the above-quoted cases persuasive insofar as they conclude that Graham's and Miller's restrictions on sentences of life imprisonment without the possibility of parole are limited to juvenile offenders and do not ‘categorically prohibit courts from considering juvenile-age offenses when applying enhancements to an adult's conviction.’ Banks, 679 F.3d at 507. As the Eleventh Circuit stated, ‘it is a far different thing to prohibit sentencing a juvenile offender to life imprisonment without parole than it is "to prohibit consideration of prior youthful offenses when sentencing criminals who continue their illegal activity into adulthood." ’ Hoffman, 710 F.3d at 1233 (quoting United States v. Wilks, 464 F.3d 1240, 1243 (11th Cir. 2006) ). Thus, because Jackson was 24 years old when he committed the offense that resulted in his sentence of life imprisonment without the possibility of parole, ‘an age unquestionably sufficient to render him responsible for his actions,’ Hunter, 735 F.3d at 176, the ‘concerns particular to juvenile offenders’ discussed in Graham and Miller do not apply to Jackson. Id. Put differently, Jackson's ‘lack of maturity and susceptibility to negative influences’ at the time he committed his juvenile-age offenses simply cannot ‘explain away’ his decision to commit attempted murder as an adult, Orona, 724 F.3d at 1308, and Jackson's sentence of life imprisonment without the possibility of parole punishes only that offense. See id. at 1307 (noting that ‘repeat-offender laws ... penaliz[e] only the last offense committed by the defendant’ (quoting Nichols v. United States, 511 U.S. 738, 747, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994) ). Thus, Jackson, who ‘elected to continue a course of illegal conduct’ after becoming an adult, id. at 1308, is now ‘an adult "being punished for his adult conduct," ’ Hunter, 735 F.3d at 176 (quoting Orona, 724 F.3d at 1307 ), and neither Graham nor Miller ‘mandate[s] that we wipe clean [Jackson's criminal] records ... on his ... eighteenth birthday.’ Hoffman, 710 F.3d at 1232 (quoting Wilks, 464 F.3d at 1243 ). Accordingly, Jackson's sentence of life imprisonment without the possibility of parole for an offense he committed as an adult does not violate either Graham or Miller, even though the sentence was enhanced by Jackson's juvenile-age convictions."
291 So.3d at 1221-25 (McCool, J, concurring specially).
We adopt Judge McCool's special concurrence as part of this opinion. Neither the HFOA as applied to Towns nor Towns's sentences of life imprisonment without the possibility of parole are unconstitutional.
III.
Although Towns's sentences of life imprisonment without the possibility of parole are proper and although he does not challenge on appeal his 15-year sentences for his 2 convictions for fraudulent use of a credit or debit card, we must nevertheless take notice that those 15-year sentences are illegal. It is well settled that "[m]atters concerning unauthorized sentences are jurisdictional." Hunt v. State, 659 So.2d 998, 999 (Ala. Crim. App. 1994). Therefore, this Court may take notice of an illegal sentence "at any time and may do so even ex mero motu." Moore v. State, 40 So.3d 750, 753 (Ala. Crim. App. 2009).
Effective January 30, 2016, § 13A-9-14 was amended to make fraudulent use of a credit or debit card a Class D felony. See § 13A-9-14(e), Ala. Code 1975. Also effective January 30, 2016, § 13A-5-9, Ala. Code 1975, was amended to add subsections (d) and (e) as follows:
"(d) In all cases when it is shown that a criminal defendant has been previously convicted of any two or more felonies that are Class A or Class B felonies and after such convictions has committed a Class D felony, upon conviction, he or she must be punished for a Class C felony.
"(e) In all cases when it is shown that a criminal defendant has been previously convicted of any three or more felonies and after such convictions has committed a Class D felony, upon conviction, he or she must be punished for a Class C felony."
A Class C felony is punishable by imprisonment of "not more than 10 years or less than 1 year and 1 day." § 13A-5-6(a)(3), Ala. Code 1975.
Section 13A-5-6(a)(3) was also amended effective January 30, 2016, to provide that a sentence for a Class C felony "must be in accordance with subsection (b) of Section 15-18-8 unless sentencing is pursuant to Section 13A-5-9."
" ‘A defendant's sentence is determined by the law in effect at the time of the commission of the offense.’ " Moore, 40 So.3d at 753 (quoting Davis v. State, 571 So.2d 1287, 1289 (Ala. Crim. App. 1990) ). See also Minnifield v. State, 941 So.2d 1000, 1001 (Ala. Crim. App. 2005) ("It is well settled that the law in effect at the time of the commission of the offense controls the prosecution."). The crimes in this case occurred on March 14, 2017, after the effective date of the amendments to §§ 13A-9-14 and 13A-5-9. At the time the crimes were committed, fraudulent use of a credit or debit card was a Class D felony, and the record reflects that Towns had seven prior felony convictions, five of which were for Class A felonies. Under § 13A-5-9(d) or § 13A-5-9(e), the trial court should have sentenced Towns for a Class C felony, or for not more than 10 years or less than 1 year and 1 day in prison. Therefore, Towns's sentences of 15 years' imprisonment were illegal.
Based on the foregoing, we affirm Towns's convictions for first-degree robbery, first-degree kidnapping, and two counts of fraudulent use of a credit or debit card, and his sentences of life imprisonment without the possibility of parole for the robbery and kidnapping convictions. However, we remand this cause for the trial court to conduct a new sentencing hearing, at which Towns must be present and represented by counsel, and to resentence Towns for his two convictions for fraudulent use of a credit or debit card in accordance with this opinion. Due return shall be filed with this Court within 63 days of the date of this opinion and shall include a transcript of the sentencing hearing conducted on remand as well as the trial court's amended sentencing order.
AFFIRMED AS TO CONVICTIONS; REMANDED WITH DIRECTIONS AS TO SENTENCING.
Note from the reporter of decisions: On August 9, 2019, on return to remand, the Court of Criminal Appeals affirmed, without opinion.
Windom, P.J., and McCool, Cole, and Minor, JJ., concur.