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Poole v. State8/31/2001
The appellant, Larry James Poole, Sr., was convicted of four counts of distributing controlled substances, violations of § 13A-12-211, Ala. Code 1975, and one count of possessing a controlled substance, a violation of § 13A-12-212, Ala. Code 1975. After a sentencing hearing, the trial court sentenced Poole, on one distribution count, to 20 years' imprisonment, plus an additional 5 years' imprisonment under § 13A-12-250 and an additional 5 years' imprisonment under § 13A-12-270, Ala. Code 1975 -- for a total of 30 years' imprisonment. On each of the other three distribution counts, the trial court sentenced Poole to 15 years' imprisonment, plus an additional 5 years under both § 13A-12-250 and § 13A-12-270 -- for a total of 25 years' imprisonment on each count. On the possession conviction Poole was sentenced to two years' imprisonment. The base sentences were to be served concurrently and the enhanced portions of each sentence were to be served consecutively.
The State's evidence tended to show the following. On March 31, 1995, a confidential informant purchased cocaine from Poole on two separate occasions. On April 1, 1995, the confidential informant made another purchase. On May 10, 1995, a large quantity of a cocaine-based substance was purchased at Poole's house. On the basis of information supplied by the informant regarding the drug transactions, officers obtained a search warrant for Poole's house. A search of Poole's house revealed crack cocaine. Poole admitted that the cocaine in the house was his, but stated that it was for his personal use.
Poole raises six issues on this direct appeal. We have resolved five of those issues by an unpublished memorandum issued today. See Poole v. State, (No. CR-99-1200) ___ So. 2d ___ (Ala.Crim.App. 2001) (table). Because of the significance of one issue Poole raises, we have chosen to address it exclusively in this opinion.
Poole argued at trial and on appeal that the portions of his sentences for his distribution convictions enhanced by § 13A-12-250 and 13A-12-270 are unconstitutional because, he says, the underlying facts upon which the enhancements were based were not proven beyond a reasonable doubt. Poole was charged in a five-count indictment with four counts of distributing controlled substances, violations of § 13A-12-211, and one count of possessing a controlled substance, a violation of §13A-12-212. The indictment did not contain any reference to § 13A-12-250 and § 13A-12-270, Ala. Code 1975. Poole's indictment tracked the language of § 13A-12-211, which states: "A person commits the crime of unlawful distribution of controlled substances if, except as otherwise authorized, he sells, furnishes, gives away, manufactures, delivers or distributes a controlled substance enumerated in Schedules I through V." Poole was given notice of the State's intention to seek the enhanced sentences for his distribution convictions. He filed an extensive brief opposing the implementation of these two statutory enhancements. This issue was preserved for appellate review.
The Apprendi Decision
The argument raised at trial and on appeal requires an examination of the United States Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466 (2000). In that case, Apprendi pleaded guilty to two counts of second-degree possession of a firearm for an unlawful purpose and to one count of unlawfully possessing an "antipersonnel bomb." A New Jersey statute provided that a sentence could be enhanced if the crime was motivated by "bias." New Jersey sought to invoke this statute. After a hearing, the trial court, based on the testimony from the witness stand, found by a preponderance of the evidence that the crime was motivate
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