Teresa Darwin Phillips v. State of Alabama (Appeal from DeKalb Circuit Court: CC-22-432)

Rel: March 28, 2025

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, 2024-2025
_________________________

CR-2024-0078
_________________________

Teresa Darwin Phillips

v.

State of Alabama

Appeal from DeKalb Circuit Court
(CC-22-432)

COLE, Judge.

Teresa Darwin Phillips pleaded guilty to two counts of first-degree

theft of property, violations of § 13A-8-3, Ala. Code 1975, two counts of

first-degree theft by deception, violations of § 13A-8-3, Ala. Code 1975,

one count of first-degree financial exploitation of an elderly person, a
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violation of § 13A-6-195, Ala. Code 1975, one count of second-degree theft

of property, a violation of § 13A-8-4, Ala. Code 1975, one count of second-

degree financial exploitation of an elderly person, a violation of § 13A-6-

196, Ala. Code 1975, one count of third-degree theft of property, a

violation of § 13A-8-4.1, Ala. Code 1975, and one count of third-degree

theft by deception, a violation of § 13A-8-4.1, Ala. Code 1975. 1 Phillips

was sentenced to 20 years' imprisonment, which was split for Phillips to

serve 4 years' imprisonment followed by 5 years' supervised probation,

for each count of first-degree theft of property, each count of first-degree

theft by deception, and the count of first-degree financial exploitation of

an elderly person; 10 years' imprisonment, which was split for Phillips to

serve 3 years' imprisonment followed by 5 years' supervised probation for

the count of second-degree theft of property and the count of second-

degree financial exploitation of an elderly person; and 5 years'

imprisonment, which was split for Phillips to serve 1 year of

imprisonment followed by 2 years' supervised probation, for the count of

1In exchange for Phillips's guilty pleas to those counts, the State

nol-prossed one count of first-degree theft by deception, see § 13A-8-3,
Ala. Code 1975, two counts of third-degree forgery, see § 13A-9-3.1, Ala.
Code 1975, and five counts of unlawful practice of law, see § 34-3-1, Ala.
Code 1975.
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third-degree theft of property and the count of third-degree theft by

deception; all sentences were to run concurrently. On appeal, Phillips

argues that the trial court erred when it departed from the presumptive

sentencing standards because the State did not file its notice of

aggravating factors before she entered her guilty pleas and because, she

says, no good cause existed to excuse the State's late notice.

Facts and Procedural History

Phillips was previously a licensed attorney practicing law in the

State of Alabama. However, Phillips was suspended and subsequently

disbarred from the practice of law in the State of Alabama. The DeKalb

County District Attorney's Office, on February 28, 2020, received a report

from the Alabama Bar Association on Phillips that concerned " 'possible

misappropriation and theft of funds related to a real estate closing in

October of 2019.' " (R. 85.) This led to a more thorough investigation of

Phillips's law practice and the uncovering of multiple victims of Phillips's

deception.

On November 7, 2022, the State and Phillips entered into a written

plea agreement. While the State and Phillips did not agree upon

sentencing terms, the agreement did provide that Phillips would plead

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guilty to nine felony counts and, in exchange for those pleas, the

remaining counts Phillips faced would be dismissed. Phillips also agreed

to pay restitution to her victims in the following manner: $10,000 to L.

Ronald Pannell or Lance and Cynthia Kittle; $94,000 to Donna Schultz;

$777 to Ron Gifford; $1,050 to Janice Woo; $68,000 to Terri Cornett or

Carol Newsome, as personal representatives of the estate of Mary Helen

Slaton; and $7,600 to Janice Woo, as personal representative of the estate

of Anna Price.2 The parties agreed to postpone the sentencing hearing

for a minimum of 60 days to allow Phillips time before the sentencing

hearing to make payments toward restitution owed to the victims. The

written agreement stated:

"The Defendant understands that her payment of restitution
pending sentencing shall be used as a determinative factor in
the State's arguments related to sentencing. The State
reserves the right to oppose Defendant's application for
probation or community corrections, dependent in part upon
her payment of restitution pending sentencing."

(C. 30-31.) The trial court also reviewed these provisions with Phillips

during the guilty-plea colloquy. The written plea agreement further

2An additional $56,000 in restitution was owed to Dale Chisholm,

but he died before the sentencing hearing and had no heir. Also, an
additional $1,500 in restitution was owed to Howard Gant, but he also
died and left no heir. (C. 131.)
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stated that Phillips did not reserve any issues for appeal except "the right

to appeal issues related to sentencing if said appeal should become

necessary." (C. 30-31; R. 8-10.) This agreement was signed by the State,

Phillips, and Phillips's attorney. On November 7, 2022, the trial court

accepted the plea agreement, and Phillips entered guilty pleas to the

aforementioned charges. (C. 32.)

At the time Phillips entered her guilty pleas, the State had not filed

any notice of aggravating factors. The presumptive sentencing standards

indicated a nonprison recommendation and a durational range of 24 to

46 months on a straight sentence and 6 to 12 months on a split sentence.

However, under the statutory sentencing scheme, Phillips faced, for her

Class B felonies, a range of 2 to 20 years' imprisonment; for her Class C

felonies, a range of 1 year and 1 day to 10 years' imprisonment; and for

her Class D felonies, a range of 1 year and 1 day to 5 years' imprisonment.

On the day that the sentencing hearing was originally scheduled,

February 2, 2023, the State filed its notice of aggravating factors. At the

sentencing hearing, Phillips "object[ed] to any aggravating factors being

considered" for sentencing because she "never agreed to any" aggravating

factors and none had been found by a jury. (R. 20.) The State argued

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that Phillips should have been on notice of some aggravating factors

based upon the offenses that she had pleaded guilty to, particularly, the

offenses involving victims with advanced age or who were unable to care

for themselves. The State also argued that the written plea agreement

expressly noted that its recommendation on sentencing was to be

determined by Phillips's payment of restitution pending sentencing.

Phillips indicated that if the trial court were to allow the State to proceed

with proving aggravating factors, she would likely move to withdraw her

guilty pleas. The trial court set a hearing to determine whether the State

had good cause for its late notice of aggravating factors and, if it did,

whether Phillips desired to withdraw her guilty pleas.

At a hearing on May 31, 2023, the State informed the trial court

that there had been extensive settlement negotiations between the

parties in the case. Those discussions centered around the victims'

concerns of getting restitution as soon as possible. Throughout the

discussions, the sentencing durational terms discussed were 15- to 20-

year terms because of the large amount of restitution owed to the victims;

however, a reverse split was suggested because the priority was "to make

sure [the victims] got paid back as much as possible as quickly as

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possible." (R. 51-52.) According to the State, Phillips suggested the blind

plea agreement with her sentencing determination being contingent

upon her payment of restitution pending sentencing in the hopes that she

could receive a more favorable sentence after showing "her good faith

effort to make things right." (R. 53-54.) That agreement and

postponement of sentencing to allow payment toward restitution "was

supposed to be to her benefit as well as to the benefit of the victims." (R.

53.) The State told the trial court that all the negotiations were based on

a 15-year or 20-year term of imprisonment and that there was no

discussion regarding a durational term "anywhere in the range of 46

months." (R. 54.) Based on the settlement discussions, the State did not

file its notice of aggravating factors before the date of the original

sentencing hearing, but it filed its notice on the date of the hearing, after

it confirmed that Phillips had paid nothing toward restitution. The State

explained that there was then "nothing left for us to do but to ask for her

to be sentenced at the maximum range" and argued that it had relied in

good faith on the discussions with Phillips, which it said provided good

cause for the late notice based on her not paying anything toward

restitution. (R. 57.) Phillips did not refute the State's assertions but

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simply argued that settlement negotiations are not admissible evidence,

alluding to Rule 410, Ala. R. Evid., 3 and that the State's failure to provide

proper notice of aggravating factors before Phillips pleaded guilty made

her pleas involuntary.

In finding that good cause existed for the late notice, the trial court

determined that, considering the extensive negotiations, the large

amount of restitution at issue, and the nature of Phillips's relationship

with her victims, 4 it was reasonable to assume that aggravating factors

would be considered at sentencing. Moreover, the trial court noted that

the plea discussions, which included statutory ranges of punishment,

also indicated that aggravating factors were to be considered. After

3While Rule 410, Ala. R. Evid., provides that settlement
negotiations are not admissible "against the defendant who made the
plea or was a participant in the plea discussions," it does not go so far as
to preclude settlement negotiations from ever becoming relevant
evidence in a hearing to determine whether there was an agreement and,
if so, what the terms of the agreement were. See Ex parte Yarber, 437
So. 2d 1330, 1332-33 (Ala. 1983) (showing discussion of plea negotiations
to determine whether a plea agreement was made and, if so, what its
terms were). Likewise, the parties' settlement negotiations are relevant
here to determine whether good cause existed for the State's late notice
of aggravating factors.

4Phillipswas acting in her capacity as a lawyer for each victim
when the offenses occurred.
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discussion, Phillips declined to withdraw her guilty pleas, and a jury trial

was set for the State to prove its aggravating factors.

On November 13, 2023, Phillips ensured that her objections to the

late notice of aggravating factors were noted and notified the court that

she was preserving and reserving her argument regarding the late notice

for appeal. (R. 68-69.) Thereafter, Phillips stipulated to three

aggravating factors: (1) "[e]ach of the offenses to which the Defendant

pled guilty involved a fiduciary relationship that existed between the

Defendant and the victim"; (2) "[t]he offenses to which the Defendant pled

guilty involved an attempted or actual taking or receipt of property of

great monetary value or damage causing great monetary loss to the

victim(s)"; and (3) "[f]our of the victims involved in the charges to which

the Defendant pled guilty were particularly vulnerable due to age,

infirmity, or reduced physical capacity that was known or should have

been known to the Defendant." (C. 111; R. 69-73.)

On January 25, 2024, Phillips was sentenced as outlined above. All

the sentences were ordered to run concurrently. This appeal follows.

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Discussion

On appeal, Phillips raises two arguments: (1) whether she properly

preserved for appellate review her argument regarding the State's late

notice of aggravating factors and (2) whether good cause existed for the

State's late notice of aggravating factors.

I. Preservation

We must first determine whether Phillips preserved her argument

for appellate review. Section 12-25-34.2(c), Ala. Code 1975, states:

"Durational and dispositional departures from the
presumptive sentencing standards shall be subject to
appellate review. Along with the modifications provided for
in subsection (b), the Alabama Sentencing Commission shall
recommend a narrowly defined scope of appellate review
applicable to departures from presumptive sentencing
recommendations. The scope of appellate review shall become
effective upon approval by an act of the Legislature enacted
by bill."

Therefore, a trial court's decision to depart from either a durational or

dispositional recommendation of "the presumptive sentencing standards

is, in fact, subject to appellate review." Hyde v. State, 185 So. 3d 501,

507 (Ala. Crim. App. 2015). Moreover, this Court applies "an abuse-of-

discretion standard of review" to departure sentences. Id. at 508.

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At the time Phillips entered her guilty pleas, Phillips reserved the

right to appeal any sentencing issue should it become necessary. Just

before Phillips's sentencing hearing, the State filed its notice of

aggravating factors to request sentences that departed from those

recommended under the presumptive sentencing standards. Phillips

objected to the State's late notice of aggravating factors and requested

that no aggravating factors be considered by the trial court. The trial

court set a hearing to determine whether there was good cause for the

State's late notice and, if there was good cause, whether Phillips desired

to withdraw her guilty pleas. The trial court determined that good cause

existed for the State's late notice and allowed Phillips an opportunity to

withdraw her guilty pleas. Phillips did not desire to withdraw her guilty

pleas; instead, Phillips preserved and reserved her argument regarding

whether the State had provided good cause to excuse its late notice of

aggravating factors to seek departure sentences.

We find that Phillips properly preserved her argument for appellate

review. At the time Phillips entered her guilty pleas, Phillips was not

aware, and could not have been aware, that the trial court would depart

from the presumptive sentencing standards. See Hyde, 185 So. 3d at 510-

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11 (discussing when timing is appropriate for notice of appeal of a

sentence that departs from a sentence recommended under the

presumptive sentencing standards). However, before she entered her

guilty pleas, Phillips expressly reserved the right to object to sentencing

matters. Then, once Phillips was aware of the trial court's decision to

depart from the presumptive sentencing standards, Phillips objected to

the State's late notice of aggravating factors and received an adverse

ruling. Those actions both reserved and preserved Phillips's argument

for appellate review. We now turn to the merits.

II. Good Cause

Phillips argues that the trial court erred when it found good cause

existed to excuse the State's late notice of aggravating factors to seek

sentences that departed from those recommended under the presumptive

sentencing standards. (Phillips's brief, pp. 15-26.)

We first note that when Phillips entered her guilty pleas on

November 7, 2022, Phillips's sentences were controlled by the

presumptive sentencing standards. See Presumptive and Voluntary

Sentencing Standards Manual, p. 26 ("Where a sentencing event includes

both a worksheet offense and a non-worksheet offense and both carry the

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same statutory maximum penalty as governed by the felony offense

classification, the worksheet offense is the most serious offense. The

other offense should be scored as an additional offense where

appropriate."). For instance, because Phillips pleaded guilty to Class B

worksheet offenses -- first-degree theft of property and first-degree theft

by deception -- and to a Class B nonworksheet offense -- first-degree

financial exploitation of an elderly person -- the presumptive sentencing

standards controlled Phillips's sentences. The presumptive sentencing

standards recommended a nonprison sentence and a durational sentence

of between 24 to 46 months, on a straight sentence, and 6 to 12 months,

on a split sentence. (C. 33-34.) However, the statutory range of

punishment for a Class B felony offense was a sentence of not less than

2 years' imprisonment and not more than 20 years' imprisonment. § 13A-

5-6(a)(2), Ala. Code 1975. The State did not file notice of aggravating

factors before Phillips entered, and the trial court accepted, Phillips's

guilty pleas.

On February 2, 2023, the day that Phillips's sentencing hearing was

initially set, the State filed its notice of aggravating factors seeking

sentences that departed from the presumptive sentencing standards.

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The procedure to depart from the presumptive sentencing standards is

as follows:

"1. In General -- Departures Should be Rare -- The Standards
are designed to provide appropriate recommendations for
sentences in covered cases and are presumptive for non-
violent covered offenses as defined in Ala. Code § 12-25-32.
However, in exceptional cases, upon a finding of aggravating
and/or mitigating factors, the sentencing court may depart
from either a dispositional or durational sentence
recommendation or from both. Departure sentences should
be rare, with the court following the presumptive
recommendation in the vast majority of sentenced cases.

"Dispositional Departures are only allowed for Class D felony
convictions if the offender has been previously convicted of
any three or more felonies, or previously convicted of any two
or more felonies that are Class A or Class B felonies.

"2. Two Decisions -- The disposition and the duration of
sentence are two separate decisions requiring separate,
although not necessarily different, aggravating and/or
mitigating factors for each departure.

"3. Consideration of Aggravating and Mitigating Factors --
The Court must consider all aggravating and/or mitigating
factors proven for a sentencing event, but the decision to
depart from the presumptive sentence recommendation is the
in the discretion of the court.

"-- Recognized aggravating and mitigating factors
are provided below.

"-- Worksheet scoring factors for the most serious
offense may not be used as aggravating factors for
the sentencing event.

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"-- A necessary element of the most serious offense
may not be used as an aggravating factor for the
sentencing event.

"4. Burden of Proof -- Aggravating Factors -- The prosecutor
bears the burden of proving beyond a reasonable doubt that
an aggravating factor exists. The defendant is entitled to a
jury trial on the existence of any aggravating factor, unless
the aggravating factor is admitted by the defendant or both
the defendant and the prosecutor waive a jury determination
and request the judge alone to decide. It is within the
discretion of the trial court whether to bifurcate the trial and
sentencing phase of a covered case.

"5. Burden of Proof -- Mitigating Factors -- The defendant
bears the burden of proving by a preponderance of the
evidence that a mitigating factor exists. A jury is not required
to determine the existence of a mitigating factor.

"6. Notice -- Aggravation -- The prosecutor shall give the
defendant notice of aggravating factors no less than seven (7)
days before trial. Once given, notice is deemed sufficient for
any future trial settings. For good cause shown, notice may
be given at any time with the consent of the trial court,
provided the defendant is given an opportunity to research
and rebut the aggravating factor. Notice can be waived.

"7. Notice Requirements -- Mitigation -- The defendant shall
give the prosecutor notice of mitigating factors no less than
seven (7) days before sentencing. Once given, notice is
deemed sufficient for any future sentencing settings. For good
cause shown, notice may be given at any time with the consent
of the trial court, provided the prosecutor is given an
opportunity to research and rebut the mitigating factor.
Notice can be waived.

"8. Stating Reasons for Departure -- The aggravating and/or
mitigating factors found as reasons for any departure must be

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stated in the written sentencing order, even if the departure
sentence is the result of a plea agreement and the parties have
agreed to the existence of the aggravating and/or mitigating
factors."

Presumptive and Voluntary Sentencing Standards Manual, pp. 30-31

(footnote omitted). Contained within the list of aggravating factors are

the three aggravating factors that Phillips admitted to in this case: (1)

"[t]he offense involved a fiduciary relationship, including a domestic

relationship, which existed between the defendant and victim"; (2) "[t]he

victim was particularly vulnerable due to age, infirmity, or reduced

physical capacity that was known or should have been known to the

defendant"; and (3) "[t]he offense involved an attempted or actual taking

or receipt of property of great monetary value or damage causing great

monetary loss to the victim(s)." Presumptive and Voluntary Sentencing

Standards Manual, p. 32. The only issue presented here is whether the

State's notice of aggravating factors was timely and, if not, whether good

cause existed to allow the State's late disclosure.

The State was required to give Phillips "notice of aggravating

factors no less than seven (7) days before trial." Presumptive and

Voluntary Sentencing Standards Manual, p. 31. Phillips did not proceed

to trial in this case. Rather, a week before Phillips's scheduled trial,

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Phillips entered guilty pleas. (C. 27-28.) This Court has found, in a

speedy-trial analysis, that "where the defendant pleads guilty, the 'trial'

date is the date he or she pleads guilty." Horton v. State, 369 So. 3d 1128,

1132 (Ala. Crim. App. 2022). However, even if we use the initial date of

the sentencing hearing for this notice requirement, the State failed to

give timely notice. Yet, the State's untimely notice does not end our

inquiry. Notice can, "[f]or good cause shown, … be given at any time with

the consent of the trial court, provided the defendant is given an

opportunity to research and rebut the aggravating factor[s]."

Presumptive and Voluntary Sentencing Standards Manual, p. 31.

Although "good cause" is not defined in the manual, good cause is

generally defined as "[a] legally sufficient reason." Cause, Black's Law

Dictionary (12th ed. 2024). Moreover, "the presumptive sentencing

standards were implemented to '[a]llow judges to retain significant

discretion in arriving at a sentencing decision[]." Hyde, 185 So. 3d at 508;

see Presumptive and Voluntary Sentencing Standards Manual p. 18; see

also § 12-25-2(a)(5), Ala. Code 1975.

The State argued to the trial court that good cause existed because

the aggravating factors were clear from the nature of the offenses Phillips

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pleaded guilty to; it was agreed that the State's recommendation at

sentencing would be dependent upon Phillips's payments toward

restitution before sentencing; and, at the time the open pleas were

entered, the State expressly reserved the right to oppose Phillips's

"application for probation or community corrections dependent in part

upon [Phillips's] payment of restitution pending sentencing." (C. 30-31;

R. 8, 21, 25-26.) And a nonprison recommendation under the

presumptive sentencing standards encompasses sentences of probation,

community corrections, county jail or work release, a reverse split, and a

split sentence with a suspended split. 5 Presumptive and Voluntary

Sentencing Standards Manual, p. 29.

After hearing arguments, the trial court found that good cause

existed to excuse the State's late notice for the following expressly stated

reasons: (1) because Phillips and the State had conducted extensive

settlement negotiations, which included the State's reservation of the

5Likewise, a prison recommendation under the presumptive
sentencing standards would encompass sentences to the Department of
Corrections, community corrections, a split sentence to the Department
of Corrections, a split sentence to community corrections, or high-
intensity probation. Presumptive and Voluntary Sentencing Standards
Manual, p. 29.
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right to oppose probation or community corrections; (2) because a large

amount of restitution (nearly $250,000) was at issue in the case; (3)

because of Phillips's relationship as a lawyer (a fiduciary) to the victims

when she committed the criminal acts against them; and (4) because the

plea negotiations between the parties discussed statutory ranges of

punishment, indicating that the State had relied, in good faith, upon

Phillips's desire to pay restitution, or as much as possible, before her

sentencing to get the most favorable sentencing outcome. Given these

circumstances, we cannot say that the trial court's finding of good cause

was an abuse of discretion.

Like the trial court, we note that the State should have provided its

notice of aggravating factors earlier, even though it intended to seek

sentencing based on whether, and to what extent, Phillips had paid

restitution by the time of sentencing. Nonetheless, the trial court's

finding that good cause existed to allow the State's late notice of

aggravating factors was not an abuse of discretion.

The most compelling evidence is the written plea agreement signed

by the parties and presented to the trial court. The written plea

agreement specifically states:

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"The Defendant understands that her payment of restitution
pending sentencing shall be used as a determinative factor in
the State's arguments related to sentencing. The State
reserves the right to oppose Defendant's application for
probation or community corrections, dependent in part upon
her payment of restitution pending sentencing."

(C. 30-31.) The trial court reiterated this provision before accepting

Phillips's pleas. Phillips stated that she understood that her sentencing

determination would be dependent upon her payment of restitution and

that the State had reserved its right to oppose probation or community

corrections accordingly. Moreover, the State's reservation of the right to

oppose Phillips's request for probation or community corrections would

be, for the most part, meaningless if the State could not seek sentences

that departed from the presumptive sentencing standards. The plea

agreement itself refutes Phillips's insistence that she relied upon the

presumptive sentencing standards when she made her pleas. We do not

read the agreement as narrowly as Phillips requests. The State and

Phillips's discussion of statutory ranges of punishment and the failure to

agree to any specific sentencing terms all support the trial court's finding

that aggravating factors were, at a minimum, discussed during

settlement negotiations. Finally, we recognize the significance that, as

of the initial sentencing hearing on February 2, 2023, Phillips had not

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paid any amount toward restitution, which by the agreement determined

the sentences the State would seek and necessitated the notice of

aggravating factors. Interestingly, as of the sentencing hearing on

January 25, 2024, Phillips had still not paid any money toward

restitution. In sum, we hold that the trial court did not abuse its

substantial discretion in determining that good cause existed for the

State's late notice of aggravating factors when considering all the facts

and circumstances of this case.

We also note that our holding that the trial court did not abuse its

discretion by finding good cause to excuse the State's late notice in this

case is further supported by the great lengths the trial court went to

prevent any harm to Phillips. The trial court provided Phillips an

opportunity to withdraw her guilty pleas, which she declined, as well as

"an opportunity to research and rebut the aggravating factor[s]."

Presumptive and Voluntary Sentencing Standards Manual p. 31.

Phillips received the State's notice of aggravating factors on February 2,

2023, and the trial court held a hearing regarding whether good cause

existed for the late notice of those aggravating factors on May 31, 2023,

approximately four months later. After finding good cause, the trial court

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set a jury trial on the aggravating factors for November 13, 2023.

However, on the trial date, approximately nine months' later, Phillips

stipulated to three aggravating factors. Clearly, the trial court gave

Phillips ample "opportunity to research and rebut the aggravating

factor[s]," as well as the State's assertion of good cause.

For these same reasons, had there been error, it would have been

error without injury. Phillips was aware that the presumptive

sentencing standards recommended a nonprison sentence and provided

a durational range, but Phillips was also advised at her plea hearing of

the statutory range of punishment for each of her offenses. On February

2, 2023, after Phillips received the State's late notice of aggravating

factors, the trial court asked whether Phillips would like to withdraw her

guilty pleas, and the State was not opposed to the withdrawal. At the

May 31, 2023, hearing on whether good cause existed for the State's late

notice, Phillips argued that the State's failure to provide timely notice of

aggravating factors made her guilty pleas involuntary. After the trial

court ruled that it would allow the State to proceed with proving

aggravating factors, Phillips, after learning the range of punishment and

being given nearly four months to consider the withdrawal of her guilty

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pleas, informed the trial court that she did not desire to withdraw her

guilty pleas. Because Phillips was given an opportunity to withdraw her

guilty pleas and refused, the trial court did not err. See Andrews v. State,

12 So. 3d 728, 732 (Ala. Crim. App. 2009) (holding that, once defendant

had full understanding of the trial court's intention to not follow the plea

agreement, a defendant must be allowed an opportunity to withdraw his

or her guilty plea); see also Brooks v. State, 606 So. 2d 615, 616 (Ala.

Crim. App. 1991) (recognizing that a defendant must be apprised of the

range of punishment before pleading guilty but that erroneous

information renders the plea involuntary only if the defendant would

have changed her mind about pleading guilty once she understood the

proper range of punishment). In addition, Phillips later stipulated to the

three aggravating factors. Thus, even had the trial court abused its

discretion, which we hold it did not, any error from the State's late notice

was harmless. See Rule 45, Ala. R. App. P.

In sum, the trial court did not abuse its significant discretion in

finding that good cause existed to excuse the State's late notice of

aggravating factors to seek sentences that departed from those

recommended under the presumptive sentencing standards. This is an

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exceptional case that warrants departure sentences. Moreover, the late

notice does not appear to have injured Phillips, who, after learning of the

proper range of punishment applicable to the offenses for which she

pleaded guilty, declined to withdraw her guilty pleas. Phillips is due no

relief on this argument.

III. Illegal Sentences

Although not raised by either the State or Phillips, this Court must

take notice that the sentences imposed on four of the charges against

Phillips are illegal. Phillips's convictions and sentences for two counts of

first-degree theft of property, two counts of first-degree theft by

deception, and one count of first-degree financial exploitation of an

elderly person are proper. However, the split sentences imposed for

Phillips's convictions for one count of second-degree theft of property, one

count of second-degree financial exploitation of an elderly person, one

count of third-degree theft of property, and one count of third-degree theft

by deception are illegal. "It is well settled that '[m]atters concerning

unauthorized sentences are jurisdictional.' Hunt v. State, 659 So. 2d 998,

999 (Ala. Crim. App. 1994). Therefore, this Court may take notice of an

illegal sentence 'at any time and may do so even ex mero motu.' Moore

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v. State, 40 So. 3d 750, 753 (Ala. Crim. App. 2009)." Towns v. State, 293

So. 3d 975, 985 (Ala. Crim. App. 2019).

Second-degree theft of property, see § 13A-8-4, Ala. Code 1975, and

second-degree financial exploitation of an elderly person, see § 13A-6-

196, Ala. Code 1975, are classified as Class C felonies. A Class C felony

is punishable by imprisonment for "not more than 10 years or less than

one year and one day." § 13A-5-6(a)(3), Ala. Code 1975. Third-degree

theft of property and third-degree theft by deception, see § 13A-8-4.1, Ala.

Code 1975, are classified as Class D felonies. A Class D felony is

punishable by imprisonment for "not more than five years or less than

one year and one day." § 13A-5-6(a)(4), Ala. Code 1975. However,

" ' "[a] defendant's sentence is determined by the law in effect
at the time of the commission of the offense." ' Moore[ v.
State], 40 So. 3d [750,] 753 [(Ala. Crim. App. 2009)] (quoting
Davis v. State, 571 So. 2d 1287, 1289 (Ala. Crim. App. 1990)).
See also Minnifield v. State, 941 So. 2d 1000, 1001 (Ala. Crim.
App. 2005) ('It is well settled that the law in effect at the time
of the commission of the offense controls the prosecution.')."

Towns, 293 So. 3d at 986. At the time of Phillips's offenses, § 15-18-8(b),

Ala. Code 1975, stated, in pertinent 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

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CR-2024-0078

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 … 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."

Phillips was not sentenced pursuant to the Habitual Felony

Offender Act, § 13A-5-9, Ala. Code 1975. She was sentenced to 10 years'

imprisonment, which was split for Phillips to serve 3 years' imprisonment

followed by 5 years' supervised probation for both second-degree theft of

property and second-degree financial exploitation of an elderly person,

which are Class C felonies. Alabama law, however, required that

Phillips's imposed sentences for her Class C felonies be probated for a

term of up to five years or split for her to serve a period of no more than

two years followed by a period of probation for no more than three years.

Because the execution of these two sentences is illegal, we must remand

this case to the trial court for it to impose sentences that comply with §

15-18-8(b). Because Phillips's underlying 10-year sentences are valid,

26
CR-2024-0078

the trial court cannot change those base sentences. See Born v. State,

331 So. 3d 626, 638 (Ala. Crim. App. 2020).

Additionally, Phillips was sentenced to five years' imprisonment,

which was split for Phillips to serve one year of imprisonment followed

by two years' supervised probation for both third-degree theft of property

and third-degree theft by deception, which are Class D felonies. The

duration of those sentences are valid and cannot be changed. See Born

v. State, 331 So. 3d at 638. However, Alabama law required that

Phillips's sentences for her Class D felonies be either probated or served

either in a community-corrections program or, if no program exists in

DeKalb County "and no alternative program options are available under

subsection (e) of Section 15-18-172," Ala. Code 1975, that she be

sentenced "to high-intensity probation under the supervision of the

Board of Pardons and Paroles in lieu of community corrections." § 15-18-

8(b) and (e), Ala. Code 1975. See, e.g., Laakkonen v. State, 293 So. 3d

439, 444 (Ala. Crim. App. 2019) (holding that the circuit court abused its

discretion by departing from the sentencing standards because § 15-18-

8(b) requires the defendant's sentence for a Class D felony be split and

"served in community corrections"). Thus, we must remand this case to

27
CR-2024-0078

the trial court for it to impose sentences on Phillips's convictions for third-

degree theft of property and third-degree theft by deception that comply

with § 15-18-8(b) and (e).

Conclusion

For these reasons, Phillips's convictions for two counts of first-

degree theft of property, two counts of first-degree theft by deception, and

one count of first-degree financial exploitation of an elderly person and

the resulting concurrent sentences of 20 years' imprisonment, which

were split for Phillips to serve 4 years' imprisonment followed by 5 years'

supervised probation, are affirmed. Phillips's convictions for one count

of second-degree theft of property, one count of second-degree financial

exploitation of an elderly person, one count of third-degree theft of

property, and one count of third-degree theft by deception are also

affirmed. However, this case is remanded to the trial court for that court

to resentence Phillips, in open court with Phillips and her attorney

present, in accordance with this opinion for her convictions of second-

degree theft of property, second-degree financial exploitation of an

elderly person, third-degree theft of property, and third-degree theft by

28
CR-2024-0078

deception. Due return shall be made to this Court within 42 days of the

date of this opinion.

AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.

Windom, P.J., and Kellum, Minor, and Anderson, JJ., concur.

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