 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Altherr v. State8/20/2004
The opinion of January 30, 2004, is withdrawn and the following opinion is substituted therefor. We are taking the opportunity in this substituted opinion to address the State's assertion in its application for rehearing that Altherr's conviction for felony driving under the influence ("DUI") need not be reversed and that Altherr is entitled only to a new sentencing hearing.
John Anthony Altherr was convicted of driving under the influence of alcohol after having been previously convicted of three or more DUI offenses, violations of § 32-5A-191(a), Ala.Code 1975, and 32-5A-191(h), Ala.Code 1975. He was also convicted of unlawfully possessing prohibited liquor, a violation of § 28-4-20, Ala.Code 1975. Altherr was sentenced to 6 years' imprisonment for the DUI conviction and to 12 months in jail for the conviction for violating the prohibition law. The trial court ordered that the sentences were to run concurrently. This appeal followed.
Altherr contends that he received ineffective assistance of trial counsel because counsel failed to object to an officer's testimony concerning the horizontal gaze nystagmus ("HGN") field-sobriety test when the State failed to lay the proper predicate for the admission of the officer's testimony. Altherr did not present his ineffective-assistance-of-counsel claim to the trial court. "Such claims cannot be presented on direct appeal where they were not first presented to the trial court." Willingham v. State, 796 So.2d 440, 445 (Ala.Crim.App.2001).
" ' "[A]n ineffective-assistance-of-counsel claim must be presented in a new trial motion filed before the 30-day jurisdictional time limit set by Rule 24.1(b), Ala. R.Crim. P., expires, in order for that claim to be properly preserved for review upon direct appeal." ' [Montgomery v. State, 781 So.2d 1007,] at 1010 [(Ala.Crim.App.2000)](quoting Ex parte Ingram, 675 So.2d 863, 865 (Ala.1996)).''
Id.
Because Altherr did not present his claim in a motion for a new trial, it was not preserved for appellate review.
Even if Altherr had preserved his claim for review, however, he would not be entitled to any relief. To prevail on an ineffective-assistance-of-counsel claim, Altherr must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Altherr must show that counsel's performance was deficient and that that deficient performance so prejudiced him that he was deprived of a fair trial. Id.
Without finding that counsel's performance was deficient, we find that Altherr has not shown that he has suffered prejudice. Any evidence regarding the HGN test was harmless. In Cumbie v. City of Montgomery, 703 So.2d 423 (Ala.Crim.App.1997), this Court, in applying a harmless-error analysis, held that because the evidence of the defendant's intoxication was overwhelming, even without the evidence provided by the HGN test, any error in the admission of the results of the HGN test was harmless. Here, even without the evidence provided by the HGN test, the evidence of intoxication was overwhelming. Altherr was driving in an erratic manner, running off the right side of the road and crossing over the center line until finally pulling back into his traffic lane. When Altherr got out of his vehicle, he was unsteady on his feet. Altherr smelled of alcohol. Altherr could barely stand when he was asked to perform a series of field-sobriety tests. When the officer asked him to perform the "walk-and-turn test," Altherr declined to do so. The officer testified that Altherr's eyes were red and that his pupils were constricted. After placing Altherr under arrest, the officer found in Altherr's vehicle four unopened 12- ounce cans of beer and one opened can about three-fourths full. Moreover, Altherr refused t
Page 1 2 3 4 5 6 7 Alabama DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|