REL: 11/02/2012
Notice: This opinion is subject to formal revision before publication in the advance
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ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2012-2013
_________________________
CR-11-1618
_________________________
Nathan Shelly
v.
Alabama Department of Corrections
Appeal from Limestone Circuit Court
(CV-12-98.60)
JOINER, Judge.
Nathan Shelly appeals the summary denial of his petition
for a writ of habeas corpus challenging the calculation of his
sentence
by
Department").
the
Alabama
Department
of
Corrections
("the
For the reasons set forth below, we reverse.
CR-11-1618
In
January
2009,
Shelly
was
sentenced
to
10
years'
imprisonment on a manslaughter conviction and placed in the
custody
of
the
Department. (C.
12.)
As
the
Department
recognized in its pleadings below, under § 14-9-41, Ala. Code
1975 ("the Act") Shelly is generally "entitled to earn a
deduction from the term of his sentence" because he is serving
a term of imprisonment of 15 years or less, and because he has
not been convicted of a Class A felony or a criminal sex
offense involving a child. Prior to March 9, 2012, Shelly was
classified as a "Class I Prisoner" and earning a deduction-commonly referred to as "good time"--of 75 days for every 30
days he served. (C. 12.) See § 14-9-41(a)(1), Ala. Code 1975.
Effective March 9, 2012, however, the Department determined-based on a 1997 opinion of the Alabama Attorney General
interpreting the good-time statute--that inmates convicted of
manslaughter could be considered only "Class II prisoners"
and, thus, could earn good time at a rate of no more than 40
days for every 30 days served. (Department's brief, pp. 5-6.)
"Consequently, [those] inmates' good time balances and minimum
release dates were recalculated by the Department Central
Records Division." (Department's brief, p. 6.) As a result of
2
CR-11-1618
the Department's determination, Shelly's rate of earning good
time was changed, his earned-good-time balance dropped, and
his minimum-release date changed from April 2, 2012, to June
13, 2013. (C. 12-13.)
In May 2012, Shelly filed in the Limestone County Circuit
Court a petition for a writ of habeas corpus. (C. 7.)
In his
petition, Shelly argued that he had been deprived of his
earned good time without due process and that the Department
was incorrectly interpreting the good-time statute. (C. 8-10.)
In
response,
implemented
the
Department
interpretation
of
asserted
the
that
good-time
its
newly
statute
was
correct and consistent with the 1997 Attorney General opinion;
the Department also argued that Shelly had not been unlawfully
deprived of his earned good time because, the Department
argued, Shelly could hold no interest in deductions to which
he was not lawfully entitled.
The circuit court agreed with
the Department and summarily dismissed Shelly's petition.
On appeal, Shelly argues, among other things, that
"[the Department] fail[ed] to demonstrate[] before
the [circuit] court how Shelly was prohibited from
earning good time credit in Class I earning status,
how he was not entitled to the good time credit he
had accumulated in Class I earning status, and how
3
CR-11-1618
manslaughter is a violent
constitute an assault."
attack
which
would
(Shelly's brief, p. 13.) The Department argues, however, that
"[t]he trial court correctly held that inmates convicted of
manslaughter are ineligible to receive good time in Class I
earning status and ... that [the] attorney general opinion ...
is a correct interpretation of the [good-time statute]."
(Department's brief, p. 9.) As the Department acknowledges in
its brief, "[a]t issue in this case is the interpretation of
a single sentence in the [good-time statute]." (Department's
brief, p. 9.)
The issue before this Court is whether the Act prohibits
prisoners like Shelly--who were convicted of manslaughter and
sentenced to not more than 15 years--from being classified as
a "Class I prisoner" for the purposes of earning good time.
We hold that it does not.
This Court generally reviews the denial of a habeas
petition under an abuse-of-discretion standard. Miller v.
State, 668 So. 2d 912, 917 (Ala. Crim. App. 1995). See also
Montgomery v. State, 967 So. 2d 103 (Ala. Crim. App. 2007);
Ward v. State, 929 So. 2d 1048 (Ala. Crim. App. 2005).
However,
4
CR-11-1618
"[b]ecause the issue presented here involves a
review of the circuit court's conclusion of law and
its application of the law to undisputed facts, this
Court applies a de novo standard of review.
Further, the interpretation of a statute presents a
question of law and, thus, mandates de novo review."
Johnson v. State, 89 So. 3d 205, 206 (Ala. Crim. App. 2011)
(citations omitted)).
As a threshold matter, we note that
"'"[t]he touchstone of legislative
construction is to ascertain and effectuate
the intent of the legislature as expressed
in the statute." Horn v. Citizens Hosp.,
425 So. 2d 1065, 1070 (Ala. 1982) (emphasis
added). This Court gives effect to the
intent of the legislature as expressed in
the plain, unambiguous language of the
statute.
Jefferson
County
Comm'n
v.
Edwards, 32 So. 3d 572, 586 (Ala. 2009).'
"Ex parte Catlin, 72 So. 3d 606, 607–08 (Ala. 2011)
(Cobb, C.J., concurring specially).
"'It is a well established principle
of statutory interpretation that "[w]here
the meaning of the plain language of the
statute is clear, it must be construed
according to its plain language." Ex parte
United Serv. Stations, Inc., 628 So. 2d
501, 504 (Ala. 1993). "Principles of
statutory construction instruct this Court
to interpret the plain language of a
statute to mean exactly what it says and to
engage in judicial construction only if the
language in the statute is ambiguous." Ex
parte Pratt, 815 So. 2d 532, 535 (Ala.
2001).
5
CR-11-1618
"'....'
"Crawford v. State, [Ms. CR–09–1227, April 29, 2011]
___ So. 3d ___, ___ (Ala. Crim. App. 2011)."
J.D.I. v. State, 77 So. 3d 610, 616 (Ala. Crim. App. 2011).
In sum, this Court must determine whether the language of §
14-9-41,
Ala.
Code
1975,
is
plain
or
ambiguous.
If
the
language of the statute is plain, this Court must apply the
plain language to mean exactly what it says.
The relevant portions of § 14-9-41, Ala. Code 1975,
states:
"(a) Each prisoner who shall hereafter be
convicted of any offense against the laws of the
State of Alabama and is confined, in execution of
the judgment or sentence upon any conviction, in the
penitentiary or at hard labor for the county or in
any municipal jail for a definite or indeterminate
term, other than for life, whose record of conduct
shows that he has faithfully observed the rules for
a period of time to be specified by this article may
be entitled to earn a deduction from the term of his
sentence as follows:
"(1) Seventy-five days for each 30
days actually served while the prisoner is
classified as a Class I prisoner.
"....
"(e) Provided, however, no person may receive
the benefits of correctional incentive time if he or
she has been convicted of a Class A felony or has
been sentenced to life, or death, or who has
received a sentence for more than 15 years in the
6
CR-11-1618
state penitentiary or in the county jail at hard
labor or in any municipal jail. No person may
receive the benefits of correctional incentive time
if he or she has been convicted of a criminal sex
offense involving a child as defined in Section
15-20-21(5). No person may be placed in Class I if
he or she has been convicted of an assault where the
victims of such assault suffered the permanent loss
or use or permanent partial loss or use of any
bodily organ or appendage. No person may be placed
in Class I if he or she has been convicted of a
crime involving the perpetration of sexual abuse
upon the person of a child under the age of 17
years."
(Emphasis added.)
It is undisputed that the only question is whether the
above-underlined "assault" provision prohibits prisoners like
Shelly--who were convicted of manslaughter and received a
sentence of 15 years or less--from being classified as a
"Class I prisoner" for the purpose of earning good time.
In
deciding in May 2012 that a prisoner convicted of manslaughter
could not be classified as a Class I prisoner for the purpose
of earning good time, the Department relied on a 1997 opinion
from the attorney general. In the 1997 opinion, the Office of
the Attorney General addressed whether the Department may
"classify a defendant convicted of manslaughter as a Class I
prisoner for the purposes of computing correctional incentive
time under [§ 14-9-41, Ala. Code 1975]." (C. 23.)
7
The
CR-11-1618
attorney general concluded that a defendant convicted of
manslaughter could not lawfully be classified as a Class I
prisoner for the purpose of earning good time. (C. 25.)
analysis
underpinning
this
conclusion
is,
in
total,
The
as
follows:
"Any person convicted of manslaughter has caused
the death of another person and, therefore, has
committed an assault resulting in the permanent loss
or use of the victim's bodily organs or appendages.
A person convicted of manslaughter is not eligible
for classification as a Class I prisoner for the
purposes of § 14-9-41."
(C. 25.)
Although
the
1997
attorney
general's
opinion
may
constitute persuasive authority, it is advisory in nature, and
this Court is not obligated to follow it. See State Dep't of
Revenue v. Arnold, 909 So. 2d 192, 194 (Ala. 2005) (noting
that
"such
opinions
are
not
controlling,
but
merely
advisory"); State v. Corley, 831 So. 2d 59, 61 (Ala. Crim.
App. 2001) ("We recognize that '[w]hile an opinion of the
attorney general is not binding, it can constitute persuasive
authority.'" (quoting Alabama-Tennessee Natural Gas Co. v.
Southern Natural Gas Co., 694 So. 2d 1344, 1346 (Ala. 1997));
Cantrell v. Walker Builders, Inc., 678 So. 2d 169, 173 (Ala.
8
CR-11-1618
Civ.
App.
advisory
1996)
in
("Opinions
nature, and
we
of
the
are
not
attorney
general
obligated
to
are
follow
them.").
The Department contends on appeal that the term "assault"
as used in § 14-9-41, Ala. Code 1975, "does not particularly
reference ... any of the felonies specifically denominated as
'assault' in the Alabama Criminal Code" and that "the phrase
'an assault' is a generic reference to any criminal offense in
the nature of an assault." (Department's brief, p. 10.)
The
Department also argues that "the notion of 'an assault'
including manslaughter is not contrary to the plain language
of [the Act]." (Department's brief, p. 11.)
We disagree with
these contentions for two reasons.
First, the Act speaks to individuals "convicted of an
assault," § 14-9-41(e), Ala. Code 1975. The legislature could
have, but did not, use the word "offense" or "crime"; instead,
it used the word "assault."
"We must ... bear in mind that '"[t]here is a
presumption that every word, sentence, or provision
was intended for some useful purpose, has some force
and effect, and that some effect is to be given to
each, and also that no superfluous words or
provisions were used.'"
9
CR-11-1618
State v. Adams, 91 So. 2d 724, 736 (Ala. Crim. App. 2010)
(quoting Sheffield v. State, 708 So. 2d 899, 909 (Ala. Crim.
App. 1997), quoting in turn 82 C.J.S. Statutes § 316, at pp.
551-52 (1953)). In Alabama, an "assault" is generally a crime
in which one person causes physical injury to another. §§ 13A6-20, 13A-6-21, and 13A-6-22, Ala. Code 1975.
Manslaughter,
unlike assault, is a crime in which one person causes the
death of another. § 13A-6-3, Ala. Code 1975.
Department
contends
that
manslaughter
Although the
definitionally
constitutes a violent assault, Alabama law makes a distinction
between those crimes that result in injury, however great-assault--and
those
crimes
that
result
in
death--murder,
manslaughter, and criminally negligent homicide. Accordingly,
the plain reading of § 14-9-41(e), Ala. Code 1975, does not
support reading "convicted of an assault" to encompass a
defendant convicted of manslaughter.
Second, "convicted of an assault" as referenced in § 149-41(e) does not stand alone; even if this Court were to agree
with the Department that the phrase "convicted of an assault"
in § 14-9-41(e) encompassed a manslaughter conviction, such a
conclusion would be insufficient to support a finding that the
10
CR-11-1618
"assault" provision of § 14-9-41(e) applies to manslaughter.
Instead, reading the statute as a whole, the question is
whether manslaughter is an assault "where the victims of such
assault suffered the permanent loss or use or permanent
partial loss or use of any bodily organ or appendage." § 14-941(e), Ala. Code 1975. The Department contends that "[i]t is
axiomatic ... that manslaughter constitutes a violent assault
which permanently deprives the victim of the use of his or her
body, including all its organs and appendages." (Department's
brief, p. 12.)
The Department's argument, however, is not supported by
the
language
of
the
Act;
specifically,
the
Department's
interpretation necessarily inserts into the Act a word that is
not used--death.
This Court is required to give meaning and
effect to the language used in the statute, and the language
in § 14-9-41(e) speaks to injury, not death.
This conclusion
is bolstered by the resemblance of the assault provision to §
13A-6-20(a)(2), Ala. Code 1975, which recognizes that firstdegree assault is committed if "[w]ith intent to disfigure
another person seriously and permanently, or to destroy,
11
CR-11-1618
amputate or disable permanently a member or organ of his body,
he causes such an injury to any person."
In support of its interpretation of § 14-9-41(e), the
Department relies on Hasty v. State, 615 So. 2d 1323 (Ala.
Crim. App. 1993).
In that case, Hasty was convicted of
second-degree rape and did not earn good-time deductions as a
Class I prisoner; Hasty filed a petition for a writ of habeas
corpus and argued that he was "being unjustly denied Class I
good time deductions." 615 So. 2d at 1323.
In Hasty, this
Court addressed the following language from an earlier version
§ 14-9-41(e): "No person shall be placed in Class I if he or
she has been convicted of a crime involving the perpetration
of sexual abuse upon the person of a child under the age of 17
years." 615 So. 2d at 1323.
With regard to this provision of
§ 14-9-41(e), this Court held:
"Clearly, the legislature was using the generic term
'sexual abuse' and did not intend to deny Class I
benefits only to those offenders convicted of the
offenses of sexual abuse in the first and second
degree while awarding Class I benefits to those
offenders convicted of the more serious offenses of
rape and sodomy. Obviously, the legislature's use of
the words 'perpetration of sexual abuse' was
intended to include any sexual offense committed
against a person under 17 years of age."
Hasty, 615 So. 2d at 1323.
12
CR-11-1618
Relying on Hasty, the Department argues that, like that
portion of former § 14-9-41(e) that references "sexual abuse,"
the phrase "an assault" is a "generic term." (Department's
brief, p. 10.)
We disagree.
We agree with the Department that the phrase interpreted
by this Court in Hasty spoke to general type of crime.
Although the provision discussed in Hasty referenced "sexual
abuse," it did not reference the specific crime of "sexual
abuse";
instead,
"'the
legislature's
use
of
the
words
"perpetration of sexual abuse" [in § 14-9-41(e)] was intended
to include any sexual offense committed against a person under
the age of 17 years of age."
D.L.S. v. State, 675 So. 2d
1363, 1364 (Ala. Crim. App. 1995) (quoting Hasty, supra).
As
this Court noted in D.L.S., "[o]bviously, the legislative
intent of § 14-9-41(e) is to protect children from sexual
predators." 675 So. 2d at 1364.
The language of § 14-9-41(e) being construed in Hasty
speaks to an inmate "convicted of a crime involving the
perpetration of sexual abuse upon the person of a child under
the age of 17 years." Hasty, 615 So. 2d at 1323.
In this
provision, the legislature first broadly identified an inmate
13
CR-11-1618
"convicted
of
a
crime"
and
then
modified
that
broad
identification with the phrase "involving the perpetration of
sexual abuse ..."
As explained above, the language in the assault provision
of the Act is not as broad.
In the assault provision of § 14-
9-41(e), the legislature did not broadly identify an inmate
convicted of a "crime" or "offense," but instead, first
identified an inmate convicted of the specific crime of
assault; from this specific identification, the legislature
then narrowed that assault conviction to those "where the
victims of such assault suffered the permanent loss or use or
permanent
partial
loss
or
use
of
any
bodily
organ
or
appendage." § 14-9-41(e), Ala. Code 1975.
Moreover, the protections in the sexual-abuse provision
of § 14-9-41(e) and the protections envisioned by the assault
provision are simply different; the sexual-abuse provision was
designed to broadly protect children from all manner of childsex
offenders,
while
the
assault
provision
is
narrowly
designed to protect a small subset of assault victims.
As
noted above, the assault provision resembles one portion of
the first-degree assault statute, and it is clear that the
14
CR-11-1618
assault provision applies only to a small set of assault
convictions. Accordingly, it is not simply a generic assault,
but an assault resulting in very specific injuries to a
victim.
For these reasons, the assault provision of § 14-9-
41(e), Ala. Code 1975, is not analogous to the child-sex
offender provision construed in Hasty.
The dissent contends that "assault," as used in § 14-941(e), Ala. Code 1975, encompasses manslaughter, and states
that "[t]he conclusion that the legislature intended for § 149-41(e), Ala. Code 1975, to prohibit inmates convicted of
manslaughter
from
receiving
Class
I
good-time
credit
is
buttressed by the fact that assault is a lesser-included
offense of manslaughter." Shelly v. State, [Ms. CR-11-1618,
___ ___, 2012] ___ So. 3d ___, ___ (Ala. Crim. App. 2012)
(Windom, P.J., dissenting).
In support of the idea that a
assault is a lesser-included offense of manslaughter, the
dissent relies on Coleman v. State, 344 So. 2d 1249, 1250
(Ala. Crim. App. 1977), and Beason v. State, 5 Ala. App. 103,
105, 59 So. 712, 712 (1912).
15
CR-11-1618
In
Coleman,
a
case
involving
the
"possession
of
prohibited narcotics," this Court stated that the "[c]harge of
murder includes assault with intent to murder."
344 So. 2d
1250. Notably, however, this statement is supported by Thomas
v. State, 125 Ala. 45, 27 So. 920 (Ala. 1900), and Letcher v.
State, 145 Ala. 669, 39 So. 922 (Ala. 1906), two cases
discussing "assault with intent to murder" as a lesserincluded offense of murder.
These cases, however, were
decided well before the effective date of the current Alabama
criminal code, and "assault with intent to murder" is no
longer a recognized offense in Alabama. For all that appears,
"assault with intent to murder" would now be characterized as
attempted murder. See generally Langley v. State, 381 So. 2d
223, 224 (Ala. Crim. App. 1980) ("[T]o constitute an assault
with intent to murder there must be both intent to kill and
malice, that an assault with intent to murder is an assault
with the intent to take life, under circumstances which if
successful would constitute murder, either in the first degree
or in the second degree.").
In Beason, an individual charged with manslaughter was
convicted of "assault and battery." 5 Ala. App. at 104, 59 So.
16
CR-11-1618
at 712.
The Beason court concluded that "[i]t is manifest
that the offense of an assault and battery upon the person of
the wife by the defendant by stamping her with his foot or
feet is included in this charge of manslaughter." 5 Ala. App.
at 105, 59 So. at 712. As with Thomas and Letcher, the 1912
Beason decision involves a lesser-included offense that no
longer exists, specifically, assault and battery; at the time
Beason was decided, the crime of assault was not defined as it
is now. See generally Bennett v. State, 57 Ala. App. 568, 570,
329 So. 2d 627, 629 (Ala. Crim. App. 1976) ("'An assault is
any attempt or offer, with force or violence, to do a corporal
hurt to another, whether from malice or wantonness, with such
circumstances as denote, at the time, an intention to do it,
coupled with a present ability to carry such intention into
effect.'" (quoting Tarver v. State, 43 Ala. 354 (1869))).
The dissent provides no caselaw interpreting current
Alabama law to support the proposition that assault is a
lesser-included offense of manslaughter and to now so hold
would change Alabama law.
The dissent quotes C.P. v. State,
597 So. 2d 246, 247 (Ala. Crim. App. 1992) for the proposition
that "it would be impossible to commit [manslaughter] without
17
CR-11-1618
committing [assault]." (Brackets in dissent.)
This Court in
C.P.--a case involving an individual indicted for attempted
third-degree burglary but found guilty of criminal mischief-actually stated that "it would be impossible to commit a
greater offense without committing the included offense." 597
So. 2d at 246 (emphasis added). The sweeping statement by the
dissent
that
assault
is
a
lesser-included
offense
of
manslaughter fails to recognize that the two crimes have
differing elements and varying mens rea.
Compare § 13A-6-
3(a)(1), Ala. Code 1975 ("A person commits the crime of
manslaughter if: [h]e recklessly causes the death of another
person ...."), with § 13A-6-20(a)(1), Ala. Code 1975 ("A
person commits the crime of assault in the first degree if:
[w]ith intent to cause serious physical injury to another
person, he causes serious physical injury to any person by
means of a deadly weapon or a dangerous instrument ....").
Without deciding a question that is not before us, it is clear
that the broad assertion in the dissent that an assault is a
lesser-included offense of manslaughter is legally untenable.
See generally § 13A-1-9(a)(1), Ala. Code 1975 ("An offense is
an included one if: [i]t is established by proof of the same
18
CR-11-1618
or
fewer
than
all
the
facts
required
to
establish
the
commission of the offense charged ....").
In the end, the Department seeks to have this Court
equate assault with manslaughter and injury with death; § 149-41(e), Ala. Code 1975, however, does not support such an
interpretation.1
Finally, the Department argues that "if this Court were
to construe 'an assault' to not include manslaughter, the
result of that decision would be both absurd and contrary to
public policy." (Department's brief, p. 12.)
Specifically,
the Department contends that such an interpretation "would
impose a harsher outcome on an inmate who maims his victim
1
The dissent characterizes our reading of the word
"assault" in § 14-9-41(e), Ala. Code 1975, as "literal." ___
So. 3d at ___ ("To interpret the term 'assault' literally and
exclude manslaughter from the prohibition of Class I good-time
credit in § 14-9-41(e), Ala. Code 1975, leads 'to [a] absurd
and unjust result' ....") (Windom, P.J., dissenting). This
statement appears to concede that our interpretation of the
word "assault" is consistent with the plain language of the
statute. See DeKalb County LP Gas Co. v. Suburban Gas, Inc.,
729 So. 2d 270, 275-76 (Ala. 1998) ("Words used in a statute
must be given their natural, plain, ordinary, and commonly
understood meaning, and where plain language is used a court
is bound to interpret that language to mean exactly what it
says." (quotations omitted)).
19
CR-11-1618
versus one who takes his victim's very life." (Department's
brief, p. 12.)
We disagree for two reasons.
First, our holding applies only to those individuals who,
like Shelly, are convicted of manslaughter and who receive a
sentence of 15 years' imprisonment or less.
The dissent
contends that our conclusions lead "'to [the] absurd and
unjust result' of prohibiting Class I good-time credit for
inmates convicted of an assault that resulted in serious
injury but allowing that same credit for inmates convicted of
an assault that resulted in death, i.e., manslaughter." ___
So. 3d at ___ (Windom, P.J., dissenting).
As noted above,
however, assault is not generally a lesser-included offense of
manslaughter and, further, each crime encompasses varying
elements and mens rea.
The legislature could have reasonably
concluded that individuals whose reckless conduct resulted in
death
may
be
treated
differently
than
individuals
whose
intentional actions resulted in "the permanent loss or use or
permanent
partial
loss
or
use
of
any
appendage." § 14-9-41(e), Ala. Code 1975.
bodily
organ
or
This conclusion is
bolstered by the fact that the legislature's decision to draw
a distinction based on the length of the sentence imposed.
20
CR-11-1618
The
legislature
could
have
reasonably
concluded
that
a
prisoner who receives a longer sentence and meets the other
requirements to be classified as a Class I prisoner for the
purpose
of
earning
incentive
good
time
may
be
treated
differently than a prisoner who has a shorter sentence and
meets those same qualifications.
Although we might not deem
the classifications drawn by the legislature in § 14-9-41(e),
Ala. Code 1975, as the most reasonable or efficient, we cannot
say they are unreasonable or absurd.
"It is true that when looking at a statute we
might sometimes think that the ramifications of the
words are inefficient or unusual. However, it is our
job to say what the law is, not to say what it
should be. Therefore, only if there is no rational
way to interpret the words as stated will we look
beyond those words to determine legislative intent.
To apply a different policy would turn this Court
into a legislative body, and doing that, of course,
would be utterly inconsistent with the doctrine of
separation of powers."
DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So. 2d
270, 275-76 (Ala. 1998).
Second,
the
result
about
which
the
Department
now
complains already exists. Specifically, § 14-9-41(e) does not
prohibit those individuals convicted of criminally negligent
homicide, see § 13A-6-4(c), Ala. Code 1975, or homicide by
21
CR-11-1618
vehicle or vessel, see § 32-5A-192, Ala. Code 1975, from being
classified as a Class I prisoner for the purposes of good-time
deductions;
manslaughter,
these
have
individuals,
taken
the
like
lives
those
of
convicted
their
of
victims.
Likewise, those individuals convicted of an assault who have
been sentenced to 15 years' imprisonment or less are eligible
to be classified as a Class I prisoner for the purpose of
earning good-time deductions so long as the assault did not
result in the "permanent loss or use or permanent partial loss
or use of any bodily organ or appendage." § 14-9-41(e), Ala.
Code 1975. Therefore, this argument is without merit.
The judgment of the circuit court is reversed, and this
matter is remanded to the circuit court for proceedings
consistent with this opinion.
REVERSED AND REMANDED.
Welch, Kellum, and Burke, JJ., concur.
dissents with writing.
22
Windom, P.J.,
CR-11-1618
WINDOM, Presiding Judge, dissenting.
I disagree with the majority's conclusion that Shelly is
eligible to be classified as a "Class I Prisoner" under § 149-41(e),
Ala.
Code
1975.
Specifically,
I
believe
that
Shelly's conviction for manslaughter, see § 13A-6-3, Ala. Code
1975,
bars
him
incentive-time
from
being
deduction
eligible
(hereinafter
to
receive
"good-time
Class
I
credit")
under § 14-9-41(e), Ala. Code 1975. Therefore, I respectfully
dissent.
Initially, I note that:
"'The fundamental rule of statutory
construction is that this Court is to
ascertain and effectuate the legislative
intent as expressed in the statute. League
of Women Voters v. Renfro, 292 Ala. 128,
290 So.
2d
167
(1974).
In
this
ascertainment, we must look to the entire
Act instead of isolated phrases or clauses;
Opinion of the Justices, 264 Ala. 176, 85
So. 2d 391 (1956).'
"Darks Dairy, Inc. v. Alabama Dairy Comm'n, 367 So.
2d 1378, 1380 (Ala. 1979) (emphasis added).
To
discern the legislative intent, the Court must first
look to the language of the statute. If, giving the
statutory language its plain and ordinary meaning,
we conclude that the language is unambiguous, there
is no room for judicial construction.
Ex parte
Waddail, 827 So. 2d 789, 794 (Ala. 2001).
If a
literal construction would produce an absurd and
unjust result that is clearly inconsistent with the
purpose and policy of the statute, such a
23
CR-11-1618
construction is to be avoided.
So. 2d 423 (Ala. 1996)."
Ex parte Meeks, 682
City of Bessemer v. McClain, 957 So. 2d 1061, 1074–75 (Ala.
2006) (emphasis added).
Section
14-9-41(e),
Ala.
Code
1975,
provides,
in
pertinent part,
"No person may be placed in Class I if he or she
has been convicted of an assault where the victims
of such assault suffered the permanent loss or use
or permanent partial loss or use of any bodily organ
or appendage. No person may be placed in Class I if
he or she has been convicted of a crime involving
the perpetration of sexual abuse upon the person of
a child under the age of 17 years."
(Emphasis added.)
Shelly argues, and the majority agrees, the he is not
prohibited
from
being
placed
in
Class
I
because
he
was
convicted of manslaughter, see § 13A-6-3, Ala. Code 1975, as
opposed to assault, see § 13A-6-22, Ala. Code 1975.
For the
reasons that follow, I disagree.
In Hasty v. State, 615 So. 2d 1323 (Ala. Crim. App.
1993),
this
Court
reviewed
and
rejected
substantially similar to Shelly's position.
an
argument
Specifically,
this Court held:
"The appellant contends that because he was
convicted of rape in the second degree and not the
24
CR-11-1618
offense of sexual abuse as defined by §§ 13A-6-66
through 67, Code of Alabama 1975, he should not be
denied Class I benefits. Clearly, the legislature
was using the generic term 'sexual abuse' and did
not intend to deny Class I benefits only to those
offenders convicted of the offenses of sexual abuse
in the first and second degree while awarding Class
I benefits to those offenders convicted of the more
serious offenses of rape and sodomy. Obviously, the
legislature's use of the words 'perpetration of
sexual abuse' was intended to include any sexual
offense committed against a person under 17 years of
age.
Thus, there is no merit to the appellant's
argument and the denial of his petition is
affirmed."
Id. at 1323.
Like the Court in Hasty, I believe that the legislature
used the generic term "assault."
Thus, the legislature
intended that all inmates convicted of a crime in which they
recklessly or intentionally caused physical injury to another
person, see § 13A-6-22(a)(1), Ala. Code 1975,2 that results in
2
Section 13A-6-22(a)(1)-(2), Ala. Code 1975, provides:
"A person commits the crime of assault in the
third degree if:
"(1) With intent to cause physical injury to
another person, he causes physical injury to any
person; or
"(2) He recklessly causes physical injury to
another person[.]"
25
CR-11-1618
"permanent loss or use or permanent partial loss or use of any
bodily organ or appendage," § 14-9-41(e), Ala. Code 1975, are
prohibited from receiving Class I good-time credit regardless
of the title of the conviction.
Accordingly, an inmate, like
Shelly, who has been convicted of manslaughter and therefore
he recklessly or intentionally caused an injury that resulted
in the victim's death (the permanent loss of all bodily
organs), see § 13A-6-3, Ala. Code 1975,3 is prohibited under
§ 14-9-41(e), Ala. Code 1975, from receiving Class I good-time
credit.
The conclusion that the legislature intended for § 14-941(e), Ala. Code 1975, to prohibit inmates convicted of
3
Section 13A-6-3(a), Ala. Code 1975, provides:
"(a) A person commits the crime of manslaughter
if:
"(1) He recklessly causes the death of another
person, or
"(2) He causes the death of another person under
circumstances that would constitute murder under
Section 13A-6-2; except, that he causes the death
due to a sudden heat of passion caused by
provocation recognized by law, and before a
reasonable time for the passion to cool and for
reason to reassert itself."
26
CR-11-1618
manslaughter
from
receiving
Class
I
good-time
credit
is
buttressed by the fact that assault is a lesser-included
offense of manslaughter.
See Coleman v. State, 344 So. 2d
1249, 1250 (Ala. Crim. App. 1977); Beason v. State, 5 Ala.
App. 103, 105, 59 So. 712, 712 (1912).
That is, assault,
which requires evidence that the defendant recklessly or
intentionally caused an injury to a person, § 13A-6-22, Ala.
Code 1975, "is established by proof of the same or fewer than
all
the
facts
required
to
establish
the
commission
of
[manslaughter]," § 13A-1-9(a)(1), Ala. Code 1975, a crime in
which the defendant recklessly or intentionally caused death.
See Chapman v. Railway Fuel Co., 212 Ala. 106, 108, 101 So.
879, 880 (1924) (recognizing that death is an injury); Kemner
v. Hemphill, 199 F. Supp. 2d 1264, 1270 (N.D. Fla. 2002)
("There can be no quarrel with the proposition that death is
physical injury.").
Accordingly, "it would be impossible to
commit [manslaughter] without committing [assault]."
State, 597 So. 2d 246, 247 (Ala. Crim. App. 1992).
Owens v. State,
C.P. v.
See also
683 So. 2d 31, 33 (Ala. Crim. App. 1996)
(holding that "'"a lesser offense is necessarily included in
the elements of the greater offense and therefore it would be
27
CR-11-1618
impossible to commit a greater offense without committing the
included offense"'" (quoting Vinson v. State, 601 So. 2d 196,
198 (Ala. Crim. App. 1992), quoting in turn C.P., 597 So. 2d
at
247)).
For
that
reason,
upon
a
conviction
for
manslaughter, the lesser-included offense of assault merges
with the greater offense of manslaughter and becomes one
conviction.
Ex parte Beverly, 497 So. 2d 519, 524 (Ala. 1986)
(recognizing
that
"although
a
single
act
may
constitute
separate offenses, only one prosecution may be sustained, for
the
reason
greater");
that
the
Black's
lesser
Law
offense
Dictionary
is
merged
into
the
1078
(2009)
(defining
"merger" as "the absorption of a lesser included offense into
a more serious offense ..."); Champagne v. State,
199 Md.
App. 671, 678, 24 A.3d 149, 153 (Md. App. 2011) (recognizing
"'a conviction for a greater offense constitutes a finding of
guilt
for
all
lesser
included
offenses'";
therefore,
an
appellate court may, upon reversing the conviction for the
greater offense, remand a cause to the trial court with
instructions for it to enter a guilty verdict for the lesser
offense (quoting Smith v. State, 412 Md. 150, 165, 985 A.2d
1204 (2009), citing in turn Brooks v. State, 314 Md. 585, 601,
28
CR-11-1618
552 A.2d 872 (1989))).
Accordingly, an inmate who has been
convicted of manslaughter has committed an assault resulting
in the victim's death.
To interpret the term "assault" literally and exclude
manslaughter from § 14-9-41(e), Ala. Code 1975, leads "to
[the] absurd and unjust result" of prohibiting Class I goodtime credit for inmates convicted of an assault that resulted
in serious injury but allowing that same credit for inmates
convicted
of
manslaughter.
an
assault
that
resulted
in
McClain, 957 So. 2d at 1075.
death,
i.e.,
See C.P., 597 So.
2d at 247 ("[I]t would be impossible to commit [manslaughter]
without
committing
[assault].").
Such
a
"literal
construction" of § 14-9-41(e), Ala. Code 1975, produces a
result "that is clearly inconsistent with the purpose and
policy of the statute,"
McClain, 957 So. 2d at 1075, "of
preventing the early release of serious offenders."
v. Hunt,
852 F.2d 526, 527 (11th Cir. 1988).
Thornton
See also Hasty,
615 So. 2d at 1323 (recognizing that the legislature "did not
intend to deny Class I benefits only to those offenders
convicted of the offenses of sexual abuse in the first and
second
degree
while
awarding
29
Class
I
benefits
to
those
CR-11-1618
offenders convicted of the more serious offenses of rape and
sodomy").
Because I do not believe that the legislature
intended to punish inmates convicted of the lesser offense of
assault while rewarding the greater offense of manslaughter,
I would, consistent with Hasty, hold that the terms contained
in § 14-9-41(e), Ala. Code 1975, were used generically;
therefore, inmates who have been convicted of manslaughter -an assault resulting in death -- are prohibited from receiving
Class
I
good-time
credit.
Accordingly,
dissent.
30
I
respectfully