On Application for Rehearing
In an opinion issued on May 27, 2022, this Court affirmed L.M.L.s convictions for nine sex offenses against her daughter, C.J., and her stepdaughter, S.L., and her sentences for six of those offenses, but we remanded the cause for the trial court to set aside the periods of post-release supervision it imposed pursuant to § 13A-5-6(c), Ala. Code 1975, for her convictions under Counts 5, 14, and 19 of the indictment because those crimes were committed before § 13A-5-6(c) took effect in 2005. L.M.L. v. State, [Ms. CR-20-0157, May 27, 2022] ––– So. 3d ––––, 2022 WL 1721575 (Ala. Crim. App. 2022).
The State of Alabama has filed an intervening application for rehearing requesting that we set aside that portion of our judgment remanding the cause for the trial court to set aside the periods of post-release supervision imposed under Counts 5, 14, and 19 of the indictment and that we affirm those sentences. We stayed the proceedings in the trial court pending further order of this Court, accepted the States intervening application and, for the reasons stated below, overrule it.
First, the States argument on rehearing that the periods of post-release supervision imposed under Counts 5, 14, and 19 of the indictment were legal and should be affirmed is contrary to its argument on original submission that “the trial court erred in ordering L.M.L. to serve additional sentences of ten years of post-release supervision on Counts 5 and 14 because the statute under which she was sentenced, Section 13A-5-6(c) of the Code of Alabama (1975), was not in effect at the time of those offenses” and that a remand was necessary for the trial court to determine whether the offense in Count 19 was committed before or after the effective date of § 13A-5-6(c).
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(States brief, p. 23; capitalization and emphasis omitted.) The general rule is that a party may not assume inconsistent positions at trial and on appeal, see, e.g., Ex parte Sharp, 151 So. 3d 329, 337 (Ala. 2009), and we believe that applies equally to a party assuming inconsistent positions on original submission and on rehearing in this Court.
Second, we reject the States argument that this Court remanded this cause on a ground not asserted by L.M.L. on appeal, specifically on the ground that § 13A-5-6(c) was unconstitutional as applied to her. This Court did not hold that § 13A-5-6(c) was unconstitutional as applied to L.M.L. Rather, we held that § 13A-5-6(c) did not apply to L.M.L. Specifically, we held, as L.M.L. argued, that § 13A-5-6(c) does not apply retroactively to crimes committed before its effective date and that because the crimes in Counts 5, 14, and 19 of the indictment occurred before the effective date of § 13A-5-6(c), the trial court erred in sentencing L.M.L. under that statute. Although our second reason for holding that § 13A-5-6(c) does not apply retroactively was that § 13A-5-6(c) increased the sentence for a Class A felony sex offense involving a child and that construing it to apply retroactively would result in an ex post facto law, recognizing the consequences of interpreting § 13A-5-6(c) as applying retroactively is not the equivalent of holding § 13A-5-6(c) to be unconstitutional.
Third, we point out that the State does not take issue with the first reason for our holding that § 13A-5-6(c) does not apply retroactively -- that this Court has consistently held since 2007 that § 13A-5-6(c) does not apply retroactively, see Garner v. State, 977 So. 2d 533 (Ala. Crim. App. 2007), and S.R.A. v. State, 292 So. 3d 1108 (Ala. Crim. App. 2019). Although this reason alone necessitated the remand in this case, neither on original submission nor on application for rehearing has the State requested that we overrule our holding in Garner, supra, or reject the statement a plurality of this Court made in S.R.A., that § 13A-5-6(c) does not apply retroactively to crimes committed before its effective date. See, e.g., Ex parte McKinney, 87 So. 3d 502, 509 n.7 (Ala. 2011) (“[T]his Court has long recognized a disinclination to overrule existing caselaw in the absence of either a specific request to do so or an adequate argument asking that we do so.”).
Rather, the State focuses its argument on rehearing on the second reason we held that § 13A-5-6(c) does not apply retroactively, and the bulk of the States argument in this regard simply adopts the view expressed by the special writing dissenting from our opinion on original submission, i.e., that § 13A-5-6(c) may be construed as applying retroactively without posing an ex post facto problem because § 15-20A-20(d), Ala. Code 1975, which sets out the manner in which post-release supervision imposed pursuant to § 13A-5-6(c) must be served, is part of the Alabama Sex Offender Registration and Community Notification Act (“ASORCNA”), § 15-20A-1 et seq., Ala. Code 1975, a civil regulatory scheme that is not punitive and that applies retroactively. A majority of this Court has already rejected that view; we need not do so again here.
We do note, however, that the States assertion that our statement that “the plain language of § 13A-5-6(a) and § 15-20A-20(d) establish that the legislature intended post-release supervision to be punishment” L.M.L., ––– So. 3d at ––––, “calls into question the constitutionality of § 15-20A-20(d) standing alone” (States brief on rehearing, p. 5), is unavailing. It is § 13A-5-6(c), not § 15-20A-20(d), that authorizes the imposition of post-release supervision; § 15-20A-20(d) does nothing more than set out the manner or method by which that supervision must be served, i.e., via electronic monitoring. See Bishop v. State, [Ms. CR-19-0726, July 9, 2021] ––– So. 3d ––––, ––––, 2021 WL 2885801 (Ala. Crim. App. 2021). Neither the specific statement questioned by the State nor any other statement in our opinion could reasonably be construed as questioning the constitutionality of electronic monitoring as the manner or method of serving post-release supervision, especially considering that the issue in this case is not whether electronic monitoring as a method of serving post-release supervision is constitutional, but whether § 13A-5-6(c) applies retroactively to crimes committed before its effective date.
Finally, we note that, on rehearing, the State “reserves the right to seek review of that precedent from the Alabama Supreme Court” holding that a challenge to an illegal sentence is jurisdictional. (States brief on rehearing, p. 16.) Although we question the States odds of success on this issue given that it argued on original submission that “L.M.L.s claim alleging that her sentence was unauthorized implicates the jurisdiction of the trial court” (States brief, pp. 23-24), and that the Alabama Supreme Court, just last year, reiterated that an illegal sentence is a jurisdictional defect, Ex parte McGowan, [Ms. 1190090, April 30, 2021] ––– So. 3d ––––, ––––, 2021 WL 1805703 (Ala. 2021), the State has correctly recognized that the Alabama Supreme Court is the only court with the authority to consider this issue. See § 12-3-16, Ala. Code 1975.
Based on the foregoing, the States application for rehearing is overruled.
APPLICATION OVERRULED.
I adhere to the positions in my separate opinion on original submission in which I dissented from this Courts judgment holding illegal the periods of post-release supervision the circuit court imposed on L.M.L.s convictions under Counts 5, 14, and 19 of the indictment. I would grant the States application for rehearing. Thus, I respectfully dissent.
FOOTNOTES
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. We rejected the requests of the State and L.M.L. to remand for a determination of when the crime charged in Count 19 of the indictment occurred, finding that record indicated that it had occurred sometime between 2001 and 2003.
PER CURIAM.
Windom, P.J., and Kellum, J., concurs. McCool, J., concurs in the result. Cole, J., dissents. Minor, J., dissents, with opinion.