David Dungan v. State of Alabama

Rel: May 5, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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Alabama Court of Criminal Appeals
OCTOBER TERM, 2022-2023
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CR-2022-1135
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David Dungan

v.

State of Alabama

Appeal from Washington Circuit Court
(CC-21-900008)

KELLUM, Judge.

David Dungan pleaded guilty to assault in the second degree. See

§ 13A-6-21, Ala. Code 1975. The trial court sentenced him to 10 years'

imprisonment, split the sentence, and ordered him to serve 2 years in
CR-2022-1135

confinement followed by 5 years on probation. Dungan timely filed a

notice of appeal. We dismiss.

A defendant who pleads guilty has only a limited right to appeal his

or her conviction and sentence, and that limited right must be properly

invoked or this Court has no authority to consider the appeal. See

Williams v. State, 854 So. 2d 625 (Ala. Crim. App. 2003). A defendant

may invoke the right to appeal by expressly reserving the right to appeal

a particular issue or issues at the time he or she enters the plea, see Rule

14.4(a)(1)(viii), Ala. R. Crim. P., or by timely filing a motion to withdraw

the guilty plea, see Rule 26.9(b)(4)(ii), Ala. R. Crim. P. In addition, this

Court has recognized, at least implicitly, that a motion to reconsider

sentence is sufficient to invoke the right to appeal. See, e.g., Green v.

State, 200 So. 3d 677 (Ala. Crim. App. 2015) (accepting an appeal where

the defendant filed a motion to reconsider his sentence but did not file a

motion to withdraw his guilty plea, thereby implicitly recognizing that a

motion to reconsider sentence was sufficient to invoke the limited right

to appeal a guilty-plea conviction and sentence). 1

1We likewise implicitly recognized a motion to reconsider sentence
as sufficient to invoke the right to appeal a guilty plea in Hyde v. State,
185 So. 3d 501 (Ala. Crim. App. 2015), Walker v. State, 137 So. 3d 943
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CR-2022-1135

Dungan did not expressly reserve the right to appeal with respect

to any issues at the time he entered his guilty plea, nor did he file a

motion to withdraw his guilty plea or any other postjudgment motion.

Therefore, he failed to properly invoke his right to appeal, and this appeal

is due to be dismissed. See Williams, supra.

In dismissing this appeal, we note that the sole argument Dungan

makes on appeal is that the five-year probationary portion of his split

sentence is illegal. Dungan is correct. Section 15-18-8(b), Ala. Code 1975,

provides, in relevant part:

"Unless a defendant is sentenced to probation, drug court, or
a pretrial diversion program, when a defendant is convicted
of an offense that constitutes a Class C or D felony offense and
receives a sentence of not more than 15 years, the judge
presiding over the case shall order that the convicted
defendant be confined in a prison, jail-type institution,
treatment institution, or community corrections program for
a Class C felony offense or in a consenting community
corrections program for a Class D felony offense, except as
provided in subsection (e), for a period not exceeding two years
in cases where the imposed sentence is not more than 15
years, and that the execution of the remainder of the sentence
be suspended notwithstanding any provision of the law to the
contrary and that the defendant be placed on probation for a
period not exceeding three years and upon such terms as the
court deems best."

(Ala. Crim. App. 2013), and Goodson v. State, 101 So. 3d 804 (Ala. Crim.
App. 2012), as well as in a plethora of unpublished memoranda.

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CR-2022-1135

(Emphasis added.) The maximum probationary term the trial court could

order is three years. Therefore, the five-year probationary term is illegal,

and the trial court should conduct another sentencing hearing, at which

Dungan is entitled to be present and to be represented by counsel, and

resentence Dungan in compliance with § 15-18-8(b). Cf., Ex parte

McGowan, 346 So. 3d 10, 16 (Ala. 2021); Thrash v. State, [Ms. CR-20-

0992, June 3, 2022] ___ So. 3d ___, ___ (Ala. Crim. App. 2022); and

Bloodgood v. State, [Ms. CR-20-0990, February 11, 2022] ___ So. 3d ___,

___ (Ala. Crim. App. 2022) (all recognizing that, even when dismissing an

appeal, this Court may note an illegal sentence). Because the 10-year

base sentence and the 2-year confinement portion of the split sentence

are valid, the trial court may not change them.

APPEAL DISMISSED.

Windom, P.J., and Cole and Minor, JJ., concur. McCool, J., concurs

in the result.

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