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Poole v. State8/31/2001
rror is surely great, though, as when a defendant is deprived of counsel, see Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), or when the trial judge is biased, see Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed.2d 749 (1927). ...
"The error in this case is not of that dimension. No interest in safeguarding fair trials or vindicating compelling constitutional policies would be served by classifying the error here as structural. Nor do we think the integrity of the judicial system is implicated. See Johnson, 520 U.S. at 469-70, 117 S.Ct. 1544 [(1997)]. The reasons the indictment in this case did not specify that a semiautomatic assault weapon or AK-47 had been used in the robbery was that circuit precedent at the time did not require it. After the defendants in this case were convicted, but prior to their sentencing, we decided that § 924(c)(1)'s subsections defined sentencing factors and not elements of separate offenses. See United States v. Shea, 150 F.3d 44, 51 (1st Cir.), cert denied, 525 U.S. 1030, 119 S.Ct. 568, 142 L.Ed.2d 473 (1998). It is one thing to vacate a conviction or sentence where the prosecutor failed to indict in accordance with the current state of the law. It is quite another thing to vacate a conviction or sentence based on an indictment that was entirely proper at the time. Neither the prosecution nor the defense counsel in this case anticipated that the Supreme Court would rule as it did in Castillo [v. United States, 530 U.S. 120 (2000)]." 229 F.3d at 309-10.
We do not believe that Apprendi requires a finding of a "structural" defect in the proceedings against Poole. This is consistent with our holding that Apprendi should not be applied retroactively to cases on collateral review. (See cases cited above.) The failure to include in the indictment any applicable sentence-enhancement factors, although error, would not void the indictment or annul the jurisdiction of the trial court. Therefore, it is not necessary for this Court to vacate Poole's convictions. Poole agrees. Poole argues in his brief to this Court that he should be resentenced. We agree that Poole should be resentenced without regard to the statutory sentencing-enhancement provisions of §§ 13A-12-250 and 13A-12-270.
Moreover, constitutional defects must be objected to in the trial court before we may review them on appeal. See Barrett v. State, 705 So. 2d 529 (Ala.Crim.App. 1996); Puckett v. State, 680 So. 2d 980 (Ala.Crim.App. 1996); Anderson v. State, 418 So. 2d 967 (Ala.Crim.App. 1992); Hansen v. State, 598 So. 2d 1 (Ala.Crim.App. 1991); Cagle v. State, 504 So. 2d 1225 (Ala.Crim.App. 1987); Crosslin v. State, 540 So. 2d 98 (Ala.Crim.App. 1983). Therefore, before this Court will review an alleged Apprendi violation, the defendant must object in the trial court. The United States Supreme Court in Jones v. United States, 526 U.S. 227 (1999), a case released one year before Apprendi, forecast its holding in Apprendi; the Court in Jones held that any fact that increases a penalty above the statutory range must be alleged in a federal indictment.
Should the Enhancement be Charged in the Indictment?
The parties and the amici curiae have asked us to adopt the position that, a fact that could elevate a sentence above the statutory maximum, must be alleged in the indictment. After much debate, we decline to endorse this position.
Unlike the two judges of this Court who have chosen to write specially in this case, we do not believe that the decision in Apprendi is a precursor to the United States Supreme Court's holding that the fact that increases a penalty above the statutory maximum must be charged in a state indictment. A footnot
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