John Michael Cosper v. State of Alabama (Appeal from Cullman Circuit Court: CC-21-59 and CC-21-180)

Rel: December 15, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

Alabama Court of Criminal Appeals
OCTOBER TERM, 2023-2024
_________________________

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_________________________

John Michael Cosper

v.

State of Alabama

Appeal from Cullman Circuit Court
(CC-21-59 and CC-21-180)

McCOOL, Judge.

John Michael Cosper appeals his convictions for two counts of

second-degree aggravated stalking, see § 13A-6-91.1, Ala. Code 1975, and

one count of violating a domestic-violence order, see § 13A-6-142, Ala.

Code 1975. The trial court sentenced Cosper to serve 10 years'
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imprisonment for each of his stalking convictions and to serve 1 year of

incarceration in the Cullman County jail for his violating-a-domestic-

order conviction, with the sentences to run concurrently.

Facts and Procedural History

In March 2020, Cosper's former wife, Brandi, obtained from the

trial court a protection-from-abuse order ("the PFA order") that

prohibited Cosper from "harassing, stalking, annoying, threatening, or

engaging in conduct that would place [Brandi] in reasonable fear of bodily

injury." (C. 156.) At trial, the State asked Brandi to explain the basis for

the PFA order, and she testified as follows:

"Q. What was the basis for you asking for [the PFA order]?

"A. The basis of that was because [Cosper] was following me
everywhere I was going. At work, he was leaving
voicemails cussing me out. I was working at the
Diagnostic Center at that time. It was interfering with
-- I was trying to hide it the best I could, but then it
started getting really, really bad to where he knew
where I was at all times. If I was at, you know, Walmart,
he's texting me, you know, why are you here, why are
you there, threatening, threatening me or -- he would
start hallucinating if I was -- that I was always a whore
and seeing somebody and --

"Q. But you were divorced?

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"A. Yes, we were, but we were off and on. But still, at that
time, I was trying to keep him away, completely away
from me because he was so paranoid and crazy."

(R. 47-48.)

According to Brandi, Cosper continued to harass her after she

obtained the PFA order. Specifically, Brandi testified that Cosper had

placed a tracking device on her automobile on two separate occasions (a

fact Cosper admitted at trial), that he had repeatedly followed her to

various places, that he "would be calling [her] all night" (R. 70), that he

had "show[n] up every day knocking on [her] back door" (R. 81-82), that

he had "busted [her] front door" (R. 81), and that he had been "violent

and verbally abusive." (R. 83.) Regarding the effect Cosper's actions had

on her, Brandi testified as follows:

"Q. Did the fact that [Cosper] was doing this, did this cause
you any kind of mental anguish or emotional anguish? Were
you scared?

"A. Yes, sir, I was because he was pretty bad off."

(R. 57.) Brandi also testified that Cosper's actions had threatened her

employment; specifically, she testified that she "[got] in trouble at work"

because Cosper "would not stop calling [her] work." (R. 70.)

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Cosper disputed Brandi's testimony that he had caused her any fear

and, in support of that contention, testified that, even after Brandi

obtained the PFA order, she would initiate contact with him "[e]very

day." (R. 148.) Cosper specifically testified to one telephone call he had

received from Brandi around July 4, 2020:

"Q. So you had a telephone call from [Brandi], and what was
the call?

"A. She called and said the 4th of July was coming up next
weekend. She said that she wanted to rent a motel room
and watch the fireworks. She said she would buy some
steaks, her treat, and I told her that I was scared to; I
didn't want to get in any more trouble than what I
already was. But I'd love to, wish I could, but -- you
know. And I've got it recorded if anybody don't believe
me.

"Q. All right. So you have a recording of that particular
telephone call that you've just described?

"A. I do. Yes, sir.

"Q. And tell the court, how is it recorded?

"A. I downloaded an app on my phone and recorded it."

(R. 153-54.) Cosper's court-appointed counsel, Edward Coey, then sought

to have the recording of that telephone call admitted into evidence "for

the purpose of authenticating" Cosper's testimony (R. 156), and the State

objected on various grounds. The trial court stated that it could not make

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an admissibility ruling until it heard the recording, at which point the

following colloquy occurred:

"[THE STATE]: I'd like to hear the whole thing, by the
way, not just the part where --

"[COSPER]: It's a 37-minute video recording and only
just a portion of it is --

"COEY: The only -- the whole thing is lengthy. We
weren't intending to inject that whole thing into this. We
were only intending to inject the part that was directly
relevant to what [Cosper] just said.

"….

"THE COURT: But in the interest of completeness if
we're going to include any of it, I have to know what all of it
says so I can determine if any of it should be admitted. So
let's have it.

"[COSPER]: The whole thing?

"THE COURT: Yes, sir.

"[COSPER]: I'm not sure if I have -- I don't have enough
battery to play the whole thing.

"[THE STATE]: Judge, we object.

"THE COURT: Mr. Coey, it's just a black-letter rule, you
can't offer just a portion of something without --

"COEY: Yes. I understand. Well … [w]e don't have the
electronic capability to play the whole thing, so I guess we'll
just have to move on.

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"[THE STATE]: Once again, Judge, the part they're
wanting to enter is not relevant to anything. [Brandi] has
testified that that conversation took place.

"THE COURT: Right, I understand. I'm assuming that
there's not anything that she blurted out on the phone that
she didn't admit on the stand. I just don't know that. But
you're not indicating that she said anything other than what
she testified to and what Mr. Cosper just testified to?

"COEY: That's the crux of it, yes.

"THE COURT: Well, I think that would be cumulative.
And since we can't hear the whole thing, I'm not going to allow
just a portion.

"COEY: I understand."

(R. 159-60.)

The jury convicted Cosper of two counts of second-degree

aggravated stalking and one count of violating a domestic-violence order.

On August 16, 2022, the trial court held the sentencing hearing and

pronounced Cosper's sentences, and the court issued a written sentencing

order the next day. Following the sentencing hearing, Coey withdrew

from the case, and Cosper obtained new counsel.

On September 2, 2022, Cosper, through his new counsel, filed a

motion for a new trial in which he raised two claims of ineffective

assistance of counsel. First, Cosper argued that Coey should have

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objected to Brandi's testimony that she had sought the PFA order

because Cosper was "hallucinating," "paranoid," and "crazy." Second

Cosper argued that Coey should have ensured that the recording of

Brandi's telephone call to Cosper was "transferred from [Cosper's]

cellular telephone to a medium that would have allowed it to have been

heard by [the trial court] and the jury in its entirety." (C. 66.)

Approximately 10 days later, the trial court issued an order scheduling a

hearing on Cosper's motion for October 11, 2022.

On September 22, 2022, Cosper filed an amended motion for a new

trial in which he raised a third claim of ineffective assistance of counsel

-- namely, that Coey had had a conflict of interest that required him to

withdraw from the case. Specifically, Cosper alleged that Coey had

"represented Cosper's landlord in an eviction proceeding against Cosper

during his representation of Cosper in the criminal matter." (C. 69.)

On October 11, 2022, the trial court held the scheduled

postjudgment hearing and denied Cosper's motion for a new trial. Cosper

filed a timely notice of appeal.

Discussion

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On appeal, Cosper argues that the trial court erred by denying his

motion for a new trial because, he says, he raised three meritorious

ineffective-assistance-of-counsel claims.

" ' " ' "It is well established that a ruling on a
motion for a new trial rests within the sound
discretion of the trial judge. The exercise of that
discretion carries with it a presumption of
correctness, which will not be disturbed by this
Court unless some legal right is abused and the
record plainly and palpably shows the trial judge
to be in error." ' " Hosea O. Weaver & Sons, Inc. v.
Towner, 663 So. 2d 892, 895 (Ala. 1995) (quoting
Kane v. Edward J. Woerner & Sons, Inc., 543 So.
2d 693, 694 (Ala. 1989), quoting in turn Hill v.
Sherwood, 488 So. 2d 1357 (Ala. 1986)).'

"Ex parte Hall, 863 So. 2d 1079, 1081-82 (Ala. 2003).

"In McNair v. State, 706 So. 2d 828 (Ala. Crim. App.
1997), this Court explained:

" 'In order to prevail on an ineffective
assistance of counsel claim, a defendant must meet
the two-pronged test set out by Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984).

" ' "First, the defendant must
show that counsel's performance was
deficient. This requires showing that
counsel made errors so serious that
counsel was not functioning as the
'counsel' guaranteed the defendant by
the Sixth Amendment [to the United
States Constitution]. Second, the

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defendant must show that the deficient
performance prejudiced the defense.
This requires showing that counsel's
errors were so serious as to deprive the
defendant of a fair trial, a trial whose
result is unreliable. Unless a
defendant makes both showings, it
cannot be said that the conviction …
resulted from a breakdown in the
adversary process that renders the
result unreliable."

" 'Id. at 687, 104 S. Ct. at 2064.

" ' "The performance component outlined in
Strickland is an objective one: that is, whether
counsel's assistance, judged under 'prevailing
professional norms,' was 'reasonable considering
all the circumstances.' " Daniels v. State, 650 So.
2d 544, 552 (Ala. Cr. App. 1994) (quoting
Strickland, 466 U.S. at 688, 104 S. Ct. at 2065).
Once a defendant has identified the specific acts or
omissions that allegedly were not the result of
reasonable professional judgment on counsel's
part, the court must determine whether those acts
or omissions fall outside the wide range of
professionally competent assistance. Id.

" 'When reviewing a claim of ineffective
assistance of counsel, we indulge a strong
presumption that counsel's conduct was
appropriate and reasonable. Hallford v. State, 629
So. 2d 6 (Ala. Cr. App. 1992), cert. denied, 511 U.S.
1100, 114 S. Ct. 1870, 128 L. Ed. 2d 491 (1994);
Luke v. State, 484 So. 2d 531 (Ala. Cr. App. 1985).

" ' "….."

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"'….

" 'And, even if an attorney's performance is
determined to be deficient, the petitioner is not
entitled to relief unless it is also established that
"there is a reasonable probability that, but for
counsel's unprofessional error, the result of the
proceeding would have been different. A
reasonable probability is a probability sufficient to
undermine confidence in the outcome."
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

" 'In an ineffective assistance of counsel
claim, the burden is on the claimant to show that
his counsel's assistance was ineffective. Ex parte
Baldwin, 456 So. 2d 129 (Ala. 1984), aff'd, 472 U.S.
372, 105 S. Ct. 2727, 86 L. Ed. 2d 300 (1985).'

"706 So. 2d at 839."

Hutcherson v. State, 243 So. 3d 855, 862-64 (Ala. Crim. App. 2017). With

these principles in mind, we turn to Cosper's ineffective-assistance-of-

counsel claims.

I.

Cosper argues that Coey provided ineffective assistance by not

objecting to Brandi's testimony that she had sought the PFA order

because Cosper was "hallucinating," "paranoid," and "crazy." In support

of his contention that Brandi's testimony was inadmissible, Cosper

argues that, if the State wanted Brandi to offer an opinion on his mental

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state, it should have qualified her as an expert witness under Rule 702,

Ala. R. Evid., which provides that an expert witness may testify in the

form of an opinion if certain requirements are met.

However, Rule 701, Ala. R. Evid., provides that, in limited

circumstances, a lay witness may also testify in the form of an opinion.

Specifically, Rule 701 states:

"If the witness is not testifying as an expert, the
witness's testimony in the form of opinions or inferences is
limited to those opinions or inferences which are (a) rationally
based on the perception of the witness and (b) helpful to a
clear understanding of the witness's testimony or the
determination of a fact in issue."

Moreover,

"[t]he Alabama Supreme Court in Ex parte Lee, 506 So.
2d 301 (Ala. 1987), stated:

" 'In Alabama, a lay witness may give his
opinion on the question of a defendant's sanity or
insanity as long as the proper predicate has been
laid. Williams v. State, 291 Ala. 213, 279 So. 2d
478 (1973); Lokos v. State, 434 So. 2d 818 (Ala.
Crim. App. 1982), affirmed, 434 So. 2d 831 (Ala.
1983); Carroll v. State, 370 So. 2d 749 (Ala. Crim.
App.), cert. denied, 370 So. 2d 761 (Ala. 1979). To
lay a proper predicate for the admission of such an
opinion, a witness must first have testified: (1) to
facts showing that he had an adequate opportunity
to observe such defendant's conduct in general,
and (2) to his personal observation of specific
irrational conduct of the defendant. See Williams

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v. State, supra; Lokos v. State, supra; Carroll v.
State, supra. See also C. Gamble, McElroy's
Alabama Evidence, § 128.02 (3d ed. 1977). …'

"506 So. 2d at 303."

Albarran v. State, 96 So. 3d 131, 174 (Ala. Crim. App. 2014).

In this case, Brandi's testimony that Cosper was "hallucinating,"

"paranoid," and "crazy" was based on her personal observations of

Cosper's " 'specific irrational conduct.' " Albarran, 96 So. 3d at 174

(citation omitted). Specifically, Brandi testified that, even after she

obtained the PFA order, Cosper "follow[ed] [her] everywhere [she] was

going," that he "le[ft] voicemails cussing [her] out," that he sent her

threatening text messages, that he believed she "was always a whore and

seeing somebody," that he was violent toward her and caused physical

damage to her home, and that he was verbally abusive to her. Thus,

there was a sufficient predicate for Brandi to testify to her opinion of

Cosper's mental state, which is to say that her testimony in that regard

was admissible. See Albarran, 96 So. 3d at 174 (holding that a witness

could testify as to whether he believed that the defendant was "crazy"

because the witness's testimony was based on his personal observations

of the defendant's conduct). Therefore, there was no merit to the

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objection that Cosper argues Coey should have raised, and it is well

settled that defense counsel cannot be deemed ineffective for failing to

raise a meritless objection. See Van Pelt v. State, 202 So. 3d 707, 732

(Ala. Crim. App. 2015) (holding that, because the witness's testimony was

admissible, "trial counsel was not ineffective for failing to object to the

testimony"). Accordingly, Cosper has failed to demonstrate that Coey

performed deficiently by not objecting to Brandi's opinion of his mental

state.

Furthermore, even if that part of Brandi's testimony was

inadmissible, Cosper has not demonstrated that " ' "there is a reasonable

probability that … the result of the proceeding would have been

different" ' " if her testimony had been excluded. Hutcherson, 243 So. 3d

at 864 (citations omitted). According to Cosper, there was a "substantial"

likelihood that, given Brandi's testimony, "the jury perceived him to be

someone suffering from severe mental illnesses." (Cosper's reply brief, p.

4.) However, even if that contention is true, Cosper does not explain why

the jury's belief that he was suffering from "severe mental illnesses"

would have impacted the jury's verdict. The jury was tasked with

determining whether Cosper committed second-degree aggravated

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stalking and whether he violated a domestic-violence order, and there

was ample evidence to support a finding that Cosper committed those

offenses. Also, the trial court expressly instructed the jury that guilty

verdicts on those charges had to be based solely on the jury's

determination that the State had proven the elements of those offenses

beyond a reasonable doubt, and we presume the jury followed the trial

court's instructions. Anderson v. State, 360 So. 3d 1117, 1122 (Ala. Crim.

App. 2022). Thus, there is not a reasonable probability that the jury's

verdict turned on Brandi's opinion of Cosper's mental state.

For the foregoing reasons, the trial court did not err by denying

Cosper's first ineffective-assistance-of-counsel claim.

II.

Cosper argues that Coey provided ineffective assistance by failing

to ensure that the recording of Brandi's telephone call to Cosper "had

been … transferred from [Cosper's] cellular telephone to a medium that

would have allowed it to have been heard by [the trial court] and the jury

in its entirety." (Cosper's brief, p. 15.) However, even if Coey performed

deficiently in this regard (and we do not suggest that he did), Cosper

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suffered no prejudice. 1 As Coey explained at trial, the purpose of

introducing the recording of Brandi's telephone call was to demonstrate

that, despite her allegation that she was afraid of Cosper, she had

contacted him a few months after obtaining the PFA order and had told

him that "she wanted to rent a motel room" with him. However, Brandi

admitted on cross-examination that she and Cosper had been "talking

about getting a motel room" around that time. (R. 83-84.) Thus, the trial

court correctly found that the recording of Brandi's telephone call would

have been cumulative to other evidence presented at trial, and, as this

Court has repeatedly stated, defense counsel cannot be deemed

ineffective "for failing to present evidence that would have been

cumulative to other evidence presented at trial." Peraita v. State, [Ms.

CR-17-1025, Aug. 6, 2021] ___ So. 3d ___, ___ (Ala. Crim. App. 2021).

Accordingly, the trial court did not err by denying Cosper's second

ineffective-assistance-of-counsel claim.

III.

1"In reviewing claims of ineffective assistance of counsel, this Court

need not consider both prongs of the Strickland test" because "the failure
to establish one of the prongs is a valid basis, in and of itself, to deny the
claim." Hutcherson, 243 So. 3d at 864 (internal citations omitted).
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Cosper argues that Coey provided ineffective assistance as the

result of an alleged conflict of interest. Specifically, Cosper alleged that

Coey had "represented Cosper's landlord in an eviction proceeding

against Cosper during his representation of Cosper in the criminal

matter."

In Lowery v. State, 340 So. 2d 830, 834 (Ala. Crim. App. 1976), this

Court stated:

"It has been uniformly held that after the expiration of
thirty days from the rendition of a final judgment, no
additional grounds can be assigned to a motion for a new trial
filed within the thirty-day period that are not germane to, or
merely elaborative of, grounds previously assigned."

Likewise, in Jones v. State, 362 So. 2d 1303, 1313 (Ala. Crim. App. 1978),

this Court held that one of the defendant's claims on appeal was "not

properly presented to this Court for review" because, although the

defendant had filed a timely motion for a new trial, the motion had "made

no mention whatsoever of the [claim]"; instead, the defendant had raised

the claim for the first time after the time for filing a motion for a new

trial had expired.

In this case, Cosper first raised his conflict-of-interest claim in the

amended motion for a new trial that he filed on September 22, 2022,

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which was more than 30 days after his sentences were pronounced, and

that claim was "not germane to, or merely elaborative of, [the] grounds

[he] previously assigned" in his original motion for a new trial but,

instead, was an entirely new claim being presented for the first time.

Lowery, 340 So. 2d at 843. Thus, because Cosper did not raise this claim

within 30 days of the pronouncement of his sentences, "the issue is not

properly presented to this Court for review." Jones, 362 So. 2d at 1313.

IV.

Although Cosper has not demonstrated that he is entitled to relief

from his convictions, we must remand this case for the trial court to

correct Cosper's sentences for his second-degree-aggravated-stalking

convictions because the sentences are illegal. Neither party raises an

issue concerning those sentences, but it is well settled that an illegal

sentence is a jurisdictional issue that this Court must notice ex mero

motu. Towns v. State, 293 So. 3d 975, 985 (Ala. Crim. App. 2019).

Aggravated stalking in the second degree is a Class C felony. See §

13A-6-91.1(b). At the time of Cosper's offenses, § 13A-5-6(a)(3), Ala. Code

1975, provided that the sentence for a Class C felony had to be "not more

than 10 years or less than 1 year and 1 day and must be in accordance

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with subsection (b) of Section 15-18-8[, Ala. Code 1975,] unless

sentencing is pursuant to Section 13A-5-9[, Ala. Code 1975]," i.e., the

Habitual Felony Offender Act. 2 At the time of Cosper's offenses, § 15-18-

8(b), provided, 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 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

2Effective July 1, 2023, the Alabama Legislature amended § 13A-5-

6(a)(3) to remove the requirement that a sentence for a Class C felony
"must be in accordance with subsection (b) of Section 15-18-8 unless
sentencing is pursuant to Section 13A-5-9." See Act No. 2023-461, Ala.
Acts 2023. However, " 'a criminal offender must be sentenced pursuant
to the statute in effect at the time of the commission of the offense, at
least in the absence of an expression of intent by the legislature to make
the new statute applicable to previously committed crimes.' "
Zimmerman v. State, 838 So. 2d 404, 406 n.1 (Ala. Crim. App. 2001)
(quoting 24 C.J.S. Criminal Law § 1462 (1989)). We have reviewed Act
No. 2023-461, and we find no indication that the Legislature intended for
the amended version of § 13A-5-6(a)(3) to apply retroactively. Thus, the
trial court was required to sentence Cosper for his Class C felonies based
on the version of § 13A-5-6(a)(3) that was in effect at the time of his
offenses.

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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." 3

(Emphasis added.)

In short, then, at the time of Cosper's offenses,

"§§ 13A-5-6(a)(3) and 15-18-8(b), Ala. Code 1975, d[id] not
allow a trial court to impose a 'straight' sentence for a Class
C felony when the Habitual Felony Offender Act does not
apply. Instead, under §[§] 13A-5-6(a)(3) and 15-18-8(b), once
the trial court impose[d] on a defendant a sentence length
between 1 year and 1 day and 10 years, the trial court [had
to] either:

"(1) Sentence the defendant to probation,
drug court, or a pretrial diversion program; or

"(2) 'Split' the confinement portion of the
defendant's sentence to a period not exceeding two
years, suspend the remainder of the defendant's
sentence, and impose a term of probation on the
defendant that does not exceed three years.

"Here, [Cosper] is not a habitual felony offender and was
not sentenced under § 13A-5-9, Ala. Code 1975. Yet the trial
court sentenced [Cosper] to a 'straight' 10-year sentence in the
Alabama Department of Corrections [for each of his second-

3Act No. 2023-461, Ala. Acts 2023, amended § 15-18-8, and, under

the amended statute, a trial court is not required to split a sentence for a
Class C felony but has the discretion to do so. However, because there is
no indication that the Legislature intended for the amended version of §
15-18-8 to apply retroactively, the trial court was required to sentence
Cosper under the version of the statute that was in effect at the time of
his offenses. Zimmerman v. State, 838 So. 2d 404, 406 n.1 (Ala. Crim.
App. 2001).
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degree-aggravated-stalking convictions], which, as explained
above, [was] impermissible under § 13A-5-6(a)(3), Ala. Code
1975[, at the time of Cosper's offenses]. Thus, we must
remand this case to the trial court to impose a sentence on
[Cosper] for [each of] his conviction[s] for [second-degree
aggravated stalking] that complies with [the versions of] §§
13A-5-6(a)(3) and 15-18-8(b) [that existed at the time of his
offenses].

"In so doing, however, we note that [Cosper's] 10-year
sentence[s] [are] valid; thus, the trial court cannot change the
underlying sentence[s]. See generally Moore v. State, 871 So.
2d 106, 110 (Ala. Crim. App. 2003) (recognizing that, when
the base sentence imposed by the trial court is valid, the trial
court cannot alter it on remand)."

Born v. State, 331 So. 3d 626, 637-38 (Ala. Crim. App. 2020) (footnotes

and citations to record omitted).

Conclusion

We affirm Cosper's convictions and his sentence for his violating-a-

domestic-order conviction. We reverse Cosper's sentences for his second-

degree-aggravated-stalking convictions and remand the case for the trial

court to hold a new sentencing hearing at which it imposes sentences that

comply with the versions of §§ 13A-5-6(a)(3) and 15-18-8(b) that existed

at the time of Cosper's offenses. The trial court shall take all necessary

action to ensure that the circuit clerk makes due return to this Court

within 42 days of the date of this opinion, and the record on return to

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remand shall include the transcript of the sentencing hearing and the

trial court's amended sentencing order.

AFFIRMED AS TO CONVICTIONS; AFFIRMED IN PART AND

REVERSED IN PART AS TO SENTENCES; AND REMANDED WITH

INSTRUCTIONS.

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

specially, with opinion.

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MINOR, Judge, concurring specially.

I concur in the Court's decision. I write separately to explain more

fully why I concur with Part III, in which the Court holds that John

Michael Cosper's conflict-of-interest claim is not properly before this

Court for review. As the Court explains, although Cosper timely moved

for a new trial, he did not raise the conflict-of-interest claim in that

motion. Instead, he waited until more than 30 days after the trial court

had pronounced his sentences. The Court, citing Lowery v. State, 340 So.

2d 830, 834 (Ala. Crim. App. 1976), and Jones v. State, 362 So. 2d 1303,

1313 (Ala. Crim. App. 1978), holds that the claim is not properly before

us.

In my research, I have found only one citation to Lowery or Jones

for that same point after the Rules of Criminal Procedure became

effective in 1991: Judge Welch's separate writing concurring in the result

in Edwards v. State, 991 So. 2d 787 (Ala. Crim. App. 2008). In Edwards,

Judge Welch "concur[red] in the result reached in the unpublished

memorandum affirming the trial court's denial of Johnny C. Edwards's

motion for a new trial." 991 So. 3d at 787 (Welch, J., concurring in the

result). Edwards had timely moved for a new trial. More than 30 days

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later, new counsel for Edwards had filed an amended motion for a new

trial in which Edwards, for the first time, alleged claims of ineffective

assistance of counsel. According to Judge Welch, this Court in its

unpublished memorandum rejected those ineffectiveness claims on the

merits. In his view, however, under Lowery the ineffectiveness claims

were not properly before this Court.

In Wesson v. State, 644 So. 2d 1302 (Ala. Crim. App. 1994), this

Court stated:

"It is well settled that a motion for a new trial is
'addressed to the sound discretion of the trial court and [his
decision thereon] will not be revised on appeal unless it clearly
appears that the discretion has been abused.' Nichols v.
State, 267 Ala. 217, 228, 100 So. 2d 750, 760-61 (1958).
Accord, e.g., Ashley v. State, 606 So. 2d 187, 191 (Ala. Cr. App.
1992); Maddox v. State, 520 So. 2d 143, 154 (Ala. Cr. App.
1986). This principle, of necessity, must grant to the trial
court the discretion to decide whether it will consider grounds
at a hearing on a motion for a new trial that were not set forth
in that motion. We observe that Rule 24.1, [Ala. R. Crim. P.],
which governs motions for new trial, clearly contemplates the
filing of a written motion. See Form 90 (entitled 'Motion For
New Trial'); Rule 24.3 (motion need not be presented to judge
in order to perfect filing). Indeed, Justice Maddox has stated
that 'a motion for a new trial must be in writing.' H. Maddox,
Alabama Rules of Criminal Procedure § 24.1 at 636 (1990)
(emphasis added).

"In this case, a written motion for a new trial was filed
on August 15, 1993. This motion did not contain the allegation
that trial counsel provided erroneous information concerning

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good time incentive credit. On August 19, only four days after
the motion was filed, the motion was set for hearing on
September 20, 1993. C.R. 4, 17 (Motion for New Trial). The
motion for a new trial was not amended at any time between
August 19 and September 20 to add the allegation of good
time misinformation. The trial judge essentially stated that
he had not received notice that this particular allegation was
being raised and that he was therefore not in a position to
address the allegation. Under the circumstances presented,
we find no abuse of the trial court's discretion in declining to
consider this allegation."

644 So. 2d at 1315-16.

This Court's memorandum in Edwards—and Judge Welch's special

writing—are not controlling precedent. See Rule 54, Ala. R. App. P.

Although in Wesson this Court suggested that the trial court had

discretion to consider an amendment filed before the hearing on a motion

for a new trial, this Court in Wesson did not mention Lowery or Jones in

that portion of its analysis.4 It is thus unclear that this Court has

abrogated the Lowery-Jones rule. At most, I read Wesson as implicitly

recognizing that a trial court has discretion to consider an amendment

like that filed in Wesson or in this case—but the court need not consider

it.

4This Court in Wesson cited Jones for a different point. See Wesson,

644 So. 2d at 1311.
24
CR-2022-1168

The trial court did not state its reasons for denying the conflict-of-

interest claim that Cosper raised in his amended motion for a new trial.

Under Lowery and Jones, the trial court's denial of the conflict-of-interest

claim was proper. And, under Wesson, the trial court's denial of that

claim was a proper exercise of its discretion.

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