Marvin Bernard McMillian v. State of Alabama

Rel: June 27, 2025

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, 2024-2025
_________________________

CR-2023-0898
_________________________

Marvin Bernard McMillian

v.

State of Alabama

Appeal from Mobile Circuit Court
(CC-21-868 and CC-21-1894)

ANDERSON, Judge.

Marvin Bernard McMillian was convicted in case number CC-21-

868 of driving under the influence, a violation of § 32-5A-191, Ala. Code

1975. He was sentenced to one year of imprisonment; however, that

sentence was split, and he was ordered to serve 10 months' imprisonment
CR-2023-0898

followed by 2 years of formal probation. The suspension of McMillian's

sentence was conditioned upon the payment of $100 to the Department

of Forensic Sciences, a $1,000 donation to Mothers Against Drunk

Driving, a $50 Crime Victim Assessment, and court costs. In case number

CC-21-1894, McMillian pleaded guilty to the unlawful possession of a

controlled substance, a violation of § 13A-12-212, Ala. Code 1975, and

was sentenced to five years' imprisonment. This appeal followed.

Facts and Procedural History

A. Case Number CC-21-868

In March 2021, McMillian was indicted on one count of first-degree

assault, see §13A-6-20(a)(5), Ala. Code 1975, one count of driving under

the influence, see § 32-5A-191, Ala. Code 1975, and one count of

disorderly conduct, see § 13A-11-7, Ala. Code 1975.

The following evidence was presented at trial:

David Darnell testified that, on August 15, 2020, he was working

as a security guard at a venue hall called "The Steeple," located on the

corner of Joachim Street and St. Francis Street in Mobile. At 6:49 p.m.

that evening, Darnell was standing outside The Steeple near the

intersection of Joachim Street and St. Francis Street. Darnell observed a

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Ford Explorer drive into the intersection and then witnessed a

motorcycle hit the Explorer from the side. Darnell testified that the

Explorer spun and proceeded down St. Francis Street before stopping.

According to Darnell, the motorcycle was laying in the street, wheels

spinning, and the motorcycle driver was on the ground. Darnell testified

that "it was a gruesome scene," because the motorcycle driver's jaw was

"just hanging" and there was "a lot of blood." (R. 95.) Darnell yelled for

someone to call 911. Darnell then went to check on the driver of the

Explorer, later identified as McMillian. McMillian informed Darnell that

he was not injured.

Sharon Summerlin, a wedding coordinator who was working an

event at The Steeple on the night of the incident, testified that, at

approximately 6:45 p.m., she was outside waiting on guests to arrive.

Summerlin testified that she turned toward the intersection of Joachim

Street and St. Francis Street and that she could "hear something coming"

and then heard "the impact." (R. 100.) Summerlin testified that she saw

the motorcycle spinning and observed the motorcycle driver on the

ground. Summerlin yelled for the motorcycle driver to "stay put," and she

stayed with him as much as she could while also tending to her

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responsibilities inside the venue. (Id.) Summerlin claimed that the

motorcycle driver was "in shock," that his jaw was displaced, and that

"his lips were almost coming off." (R. 101.) Summerlin described the

aftermath of the incident by stating there was "so much blood" coming

from the motorcycle driver’s injuries and that she had "never seen

anybody with that type of facial [damage]" and still be able to understand

what was going on. (Id.)

Corporal Paul Lee with the Mobile Police Department (the "MPD")

testified that, at approximately 6:45 p.m. on the night of the incident, he

responded to a dispatch call regarding a wreck at the intersection of

Joachim Street and St. Francis Street. When Corporal Lee arrived, he

observed a damaged motorcycle laying on its side, as well as a male with

"obvious injuries to his face" sitting upright in the intersection. (R. 85.) A

copy of Corporal Lee's body-camera video footage was entered into

evidence and played for the jury. Corporal Lee testified that he stayed

with the motorcycle driver until personnel from the fire department

arrived; however, he noted that the motorcycle driver had, what Corporal

Lee described as an "open fracture" of the lower jaw, abrasions on his

body, "injuries to his arms," and "a couple tears on his pants." (R. 89.)

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Corporal James Mistrot, an officer with the MPD's Major Crimes

Unit, also responded to the dispatch call about the incident. When

Corporal Mistrot arrived, he observed the Ford Explorer at a 45-degree

angle crossing both lanes of St. Francis Street. He also saw the

motorcycle driver sitting in the middle of the intersection beside the

motorcycle, which was lying on its side. Corporal Mistrot checked on the

motorcycle driver and notified dispatch that the motorcycle driver had

suffered "very severe" injuries. (R. 106.) Corporal Mistrot had another

officer assist the paramedics who were providing treatment to the

motorcycle driver.

Corporal Mistrot then went to the Explorer and began speaking

with McMillian. According to Corporal Mistrot, McMillian's eyes were

"bloodshot and glassy," his speech was slurred, and the "moderate smell

of an alcoholic beverage was coming off of his breath and person." (R.

108.) Corporal Mistrot testified that McMillian was able to walk

unobstructed but that his steps were "somewhat staggered." (R. 108.)

Corporal Mistrot administered two field-sobriety tests, which McMillian

failed to perform successfully. A copy of Corporal Mistrot's body-camera

footage showing the administration of the field-sobriety tests, and

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McMillian's performance on those tests, was admitted into evidence and

played for the jury. Corporal Mistrot testified that, based off his "initial

observations and speaking with [McMillian] and observations during the

Standardized Field Sobriety Tests, [Corporal Mistrot] felt that

[McMillian] was impaired beyond the ability to safely operate a motor

vehicle on an Alabama roadway." (R. 115.) Corporal Mistrot then placed

McMillian under arrest.

Corporal Mistrot transported McMillian to the MPD station to run

the "Draeger chemical breath test on him"; however, McMillian became

“belligerent and argumentative" and "refused to give a sample of his

breath." (R. 115.) Corporal Mistrot testified that he subsequently

obtained a search warrant to acquire samples of McMillian's blood to

determine the alcohol content of his blood. McMillian was taken to

University Hospital and placed in a triage room. There, he "became very

belligerent and boisterous, was cussing and yelling and making several

threats to officers and hospital staff." (R. 116.) Corporal Mistrot stated

that McMillian did not comply with the blood draw at the hospital.

According to Corporal Mistrot, McMillian then had to be placed in

a trauma bay, where two officers and several nurses and doctors

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attempted to secure McMillian to the bed. While attempting to secure

McMillian to the bed, Corporal Mistrot testified, McMillian "became

extremely combative and even more irate, threatening all of our lives and

safety." (R. 121.) Corporal Mistrot claimed that the hospital then deemed

it a "necessary safety precaution to allow us to obtain his blood lawfully

without any intrusion or any risk of injury to himself or to us" to sedate

McMillian using Ketamine. After the Ketamine took effect, the hospital

staff were able to obtain two separate blood draws from McMillian at

approximately 10:00 p.m. and 11:00 p.m., respectively. Corporal Mistrot

explained that he was present and involved in the blood draws, that he

secured the vials and sealed them with the evidence seals, and that he

remained in possession of the blood draws until he deposited them with

the records unit at the MPD station. After the Ketamine wore off,

McMillian was transported to the Mobile County Metro Jail.

Corporal Mistrot claimed that, based on his training and

experience, he concluded that McMillian, who was traveling southbound

on Joachim Street, failed to yield the right-of-way by stopping at a stop

sign, causing the motorcycle driver, who was traveling westbound on St.

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Francis Street on his motorcycle, to strike McMillian's Explorer. The

motorcycle driver was thrown into the air on impact.

The motorcycle driver testified about the incident and detailed the

severity of his injuries and recovery.

Kristen Tidwell, the toxicology section chief for the Alabama

Department of Forensic Sciences (the "DFS"), testified as a blood-

toxicology expert. She conducted a toxicological analysis on McMillian's

blood, which revealed that .092 grams per 100 milliliters of ethanol, or

drinking alcohol, were present in the blood that was drawn from

McMillian at approximately 11:30 p.m. on the night of the incident.

Additionally, the analysis revealed the presence of "Delta-9-

tetrahydrocannabinol," the primary psychoactive ingredient in

marijuana, and "9-carboxy-11-Nor-Delta-9-THC," the metabolite of

marijuana, in McMillian's blood. Using retrograde extrapolation, a

calculation to estimate what a person's blood-alcohol concentration would

have been at an earlier point in time than when the person's blood was

drawn, Tidwell estimated that McMillian's blood-alcohol concentration

would have been "between 0.137 and 0.205" at the time of the incident.

(R. 159.)

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McMillian testified in his own defense. He claimed that he stopped

at the stop sign on Joachim Street and that, when he did not see traffic

on St. Francis Street, he proceeded into the intersection. According to

McMillian, once he got into the intersection, he saw the motorcycle

speeding toward his vehicle. McMillian testified that he tried to speed

away but that the motorcycle was going "so fast" that it hit his Explorer,

hard, before he could clear the intersection. (R. 185.) McMillian claimed

that he got out of his Explorer and went to check on the motorcycle driver

immediately following the incident.

At the conclusion of the trial, the jury found McMillian guilty of the

charge of driving under the influence and acquitted McMillian on the

charges of first-degree assault and disorderly conduct. At the sentencing

hearing on September 26, 2023, the Mobile Circuit Court sentenced

McMillian to one year of imprisonment. That sentence was split, and he

was ordered to serve 10 months' imprisonment followed by two years of

formal probation.

B. Case Number CC-21-1894

In June 2021, McMillian was indicted on one count of unlawful

possession of a controlled substance, a violation of § 13A-12-212, Ala.

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Code 1975, and one count of unlawful possession of marijuana in the

second degree, a violation of § 13A-12-214, Ala. Code 1975. On September

26, 2023, during the same proceedings as the circuit court's sentencing in

case number CC-21-868, the circuit court accepted McMillian's guilty

plea to one count of unlawful possession of a controlled substance. The

State represented that the evidence would show that "on or about

February 1, 2020, an officer pulled over [McMillian]. During the … lawful

traffic stop, [McMillian] was found to be in possession of cocaine." (R.

250.) The circuit court adjudged McMillian guilty and, per the plea

agreement, sentenced him to five years' imprisonment. His sentence was

ordered to run concurrently with his sentence in case number CC-21-868.

As part of the plea agreement, the State moved to nolle pros Count II in

the indictment.

On October 26, 2023, McMillian filed a motion to alter, amend, or

vacate his sentence in each case, claiming that "the sentence[s] imposed

in these cases are contrary to the sentencing guidelines" and that "the

sentence[s] imposed [are] in excess of the statutory provisions of the law."

(C. 78.) The circuit court denied his motion to vacate his sentences on

October 30, 2023.

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Discussion

On appeal, McMillian argues 1) that, in case number CC-21-868, he

is entitled to a remand for an evidentiary hearing because, he says, the

circuit court improperly denied his oral motion to suppress the evidence

pertaining to the blood draws taken in his case without holding a hearing

and 2) that in case number CC-21-1894, his sentence was illegal and his

guilty plea was involuntary because he was not properly informed of the

minimum possible sentence he could receive for unlawful possession of a

controlled substance or the appropriate dispositional outcome of his

sentence under the presumptive sentencing guidelines.

I.

McMillian argues that, in case CC-21-868, he is entitled to a

remand for an evidentiary hearing because, he says, the trial court

improperly denied his oral motion to suppress the evidence pertaining to

the blood draws without holding a hearing, as required by Rule 104(c),

Ala. R. Evid. The State argues that, because McMillian failed to

adequately specify any legal grounds in support of his oral motion to

suppress before the circuit court, the circuit court's denial of the motion

without a hearing was proper. The State also contends that, in the

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alternative, any error in the circuit court's refusal to hold an evidentiary

hearing was harmless.

McMillian did not file a written, pretrial motion to suppress.

Instead, during Corporal Mistrot's testimony at trial -- regarding

McMillian's lack of cooperation at the hospital -- defense counsel

requested a sidebar conference. The circuit court subsequently removed

the jury from the courtroom, and, outside the presence of the jury,

defense counsel vaguely asserted -- at McMillian's apparent insistence --

that the seizure of his blood was "unreasonable":

"[Defense counsel]: Judge, he still wants me to assert that
it was not reasonable and he thought it
was an improper seizure of his blood for
purposes of this prosecution, so --

"THE COURT: Okay. On what grounds? Motion to
suppress on what grounds? You said
illegal. That's fairly broad.

"[Defense counsel]: Yes ma'am. Unreasonable.

"THE COURT: Unreasonable. Well, I think I need you
to be a little more elaborate.

"[Defense counsel]: Judge, the whole nature of this
subsequent charge -- and, I think, this
is now we're getting into the disorderly
conduct charge -- is -- and I don't know
if they're planning on playing that
video or what was said in that, but it

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was his response to them trying to
draw blood that got him so irate.

"THE COURT: Okay, so you want me to have a hearing
on a motion to suppress a blood draw
because it was unreasonable?

"[Defense counsel]: That's right.

"[McMillian]: Uh-huh.

"[Defense counsel]: That's what he wants.

"THE COURT: Well, that request is denied. You've
made no legal basis on which I can
conduct a motion to suppress, so that
motion is denied."

(R. 118-19.) As reflected by this exchange, defense counsel offered

nothing in response to the circuit court's request for a legal or factual

ground more precise than a vague assertion of unreasonableness. "A

motion to suppress should be specific with reference to the grounds upon

which the movant relies." Kaercher v. State, 554 So. 2d 1143, 1147 (Ala.

Crim. App. 1989). Nor does McMillian shed additional light on this issue

in his brief; instead, he merely repeats the bare claim of

unreasonableness and argues that it is "impossible" to know what might

have been offered to support the claim. (McMillian's brief at 24.)

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Immediately after the circuit court's ruling, trial proceedings

resumed and the video recording from Corporal Mistrot's body camera

depicting the events at the hospital, including McMillian's uncooperative

behavior before his blood was drawn, was played for the jury and entered

into evidence. Later in the proceedings, Tidwell, a blood-toxicology expert

with the DFS, testified about the toxicological analysis performed on

McMillian's blood, which revealed that .092 grams per 100 milliliters of

ethanol, or drinking alcohol, were present in McMillian's blood when it

was drawn at approximately 11:30 p.m. on the night of the incident. A

copy of the toxicological-analysis report was also entered into evidence.

McMillian did not object to Tidwell's testimony regarding the toxicology

analysis, nor did he object to the admission of the toxicological-analysis

report. Nor did McMillian ever state any specific grounds for excluding

or suppressing the blood-draw evidence. On appeal, McMillian argues

that "[n]othing more was required" than to state that the blood draw was

"unreasonable." (McMillian's brief at 24.) We disagree.

Initially, we must determine whether McMillian has preserved this

issue for our review. As we have previously noted, the better practice

when challenging evidence is to bring a suppression motion before trial;

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however, a defendant may challenge the admissibility of evidence when

it is offered at trial. Lewis v. State, 27 So. 3d 600, 602 (Ala. Crim. App.

2008). Had McMillian filed a pretrial motion to suppress, as allowed by

Rules 3.13 and 15.6, Ala. R. Evid., he could have obtained a ruling that

would have clearly preserved the issue because the denial of such a

motion is a final ruling on the admissibility of the evidence. Bacot v.

State, 597 So. 2d 754, 756 (Ala. Crim. App. 1992) (citing Newsome v.

State, 570 So. 2d 703 (Ala. Crim. App. 1989)). Similarly, had McMillian

made a timely objection when the evidence was offered, he would have

preserved the issue for our review. Lewis, 27 So. 3d at 602.

But McMillian did neither of those things. Instead, during Corporal

Mistrot's testimony about the circumstances of the blood draws,

McMillian caused a disturbance in the trial. His trial counsel requested

permission to approach the bench and obtained time to speak with his

client outside the presence of the jury. (R. 117.) Afterwards, also outside

the presence of the jury, defense counsel conveyed McMillian's assertion

that the blood draws were unreasonable. However, to "preserve an issue

for appellate review, it must be presented to the trial court by a timely

and specific motion setting out the specific grounds in support thereof."

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Ex parte Coulliette, 857 So. 2d 793, 794 (Ala. 2003); see also McKinney

v. State, 654 So. 2d 95, 99 (Ala. Crim. App. 1995). McMillian's objection

to the blood-draw evidence, such as it was, was not timely because it was

neither raised in a pretrial motion nor as an objection when the allegedly

illegal evidence was offered. "Objections to the admission of evidence

must be made when the evidence is offered, along with specific grounds

to allow the trial court to rule." Craig v. State, 616 So. 2d 364, 366 (Ala.

Crim. App. 1992); see also Nation v. State, 627 So. 2d 1156, 1158-59 (Ala.

Crim. App. 1993). Consequently, McMillian failed to preserve this issue

for our review.

Even if McMillian had preserved this issue, however, he would be

due no relief because his motion failed to raise any specific legal or factual

challenge to the State's method of acquiring the evidence. "A motion to

exclude must state proper specific grounds or it may be properly

overruled by the trial court." Yarbrough v. State, 405 So. 2d 721, 724 (Ala.

Crim. App. 1981). Indeed, McMillian has never offered any specific

grounds to support his motion. As noted previously, the State seized

McMillian by means of an arrest, and McMillian's body was searched,

and his blood was drawn pursuant to a search warrant. See Brown v.

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State, 11 So. 3d 866, 899 (Ala. Crim. App. 2007) (noting that a blood

seizure pursuant to a search warrant is "presumed valid").

Finally, for two important reasons, the circumstances of this case

are distinguishable from those of previous cases in which we have found

error in a trial court's failure to hold a suppression hearing outside the

presence of a jury. First, in Lewis, the defendant properly preserved the

issue by raising a specific objection to the admission of his confession at

the time that it was offered. Lewis, 27 So. 3d at 602. Similarly, in Ex

parte Jackson, 836 So. 2d 973 (2001), the defendant filed a pretrial

motion1 specifically arguing extensive grounds for suppression of his

confession, and he objected when the statement was offered "specifically

referencing the pretrial motion to dismiss." Ex parte Jackson, 835 So. 2d

at 974. Likewise, in Lane v. State, 169 So. 3d 1076 (Ala. Crim. App.

2013), vacated, Lane v. Alabama, 577 U.S. 802 (2015), the defendant

made a pretrial motion to suppress his confession, and no hearing was

held before or during trial. 169 So. 3d 1108-09.

1Also, unlike in the present case, Jackson's pretrial motion
preserved the issue for review. Ex parte Jackson, 835 So. 2d at 974.
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Second, all three of those previous cases involved motions to

suppress confessions and relied heavily on Jackson v. Denno, 378 U.S.

368, 385 (1964), a case concerned with "involuntary confessions," not

unreasonable searches. There are important legal differences between

challenging a confession and challenging an item of evidence seized

pursuant to a search warrant. Indeed, it is noteworthy that, under

Alabama law, an extrajudicial confession is presumed to be involuntary

but that no such presumption applies to searches conducted pursuant to

a search warrant. Compare Ex parte Matthews, 601 So. 2d 52, 53 (Ala.

1992) (noting that "extrajudicial confessions are presumed to be

involuntary and, therefore, are prima facie inadmissible"), with Brown,

supra (holding that a seizure of blood drawn pursuant to a search

warrant was presumed valid); cf. State v. Taylor, 676 So. 2d 951, 952

(Ala. Crim. App. 1995) (quoting German v. State, 492 So.2d 622 (Ala.

Crim. App. 1985)) ("The burden was on the [defendant] to establish that

his own Fourth Amendment rights were violated by the challenged

search and seizure."). Thus, while Jackson v. Denno, Ex parte Jackson,

and Lewis all stand for the proposition that a hearing outside the

presence of the jury is required on a bona fide motion to suppress a

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confession, 2 they do not stand for the proposition that such a hearing is

required on a conclusory motion to suppress or exclude physical evidence

such as was made in the present case. Nor does Rule 104(c), Ala. R. Evid.,

require an extensive hearing on every motion to exclude evidence.

We note, however, that when such a hearing is held, it is governed

by Rule 104(c), which provides, in pertinent part, that, "[i]n criminal

cases, hearings on the admissibility of confessions or evidence alleged to

have been obtained unlawfully shall be conducted out of the hearing and

presence of the jury." (Emphasis added.) In the present case, McMillian

was offered the opportunity to make an argument outside the presence

of the jury. The circuit court did not overrule his objection out of hand;

rather, McMillian was provided an opportunity to "elaborate" on his bare

motion. In response, McMillian's counsel could offer nothing more than

his client's subjective opinion that the blood draws, conducted pursuant

to a search warrant, were "unreasonable." For these reasons, based on

2Not every vague challenge to a confession requires a hearing. As

we recently held in Ketchum v. State, [Ms. CR-2023-0611, May 3, 2024]
__ So. 3d __, __ (Ala. Crim. App. 2024), defense counsel's argument
regarding the voluntariness of a confession "[p]robably … should be taken
up outside the presence of the jury" was not sufficient to require a
hearing.

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the record before us, we cannot say that the circuit court erred by not

holding a more extensive hearing outside the presence of the jury.

II.

Next, McMillian alleges that, in case number CC-21-1984, his

sentence of five years' imprisonment for his guilty-plea conviction of

unlawful possession of a controlled substance was illegal because, he

says, the sentence failed to comply with the presumptive sentencing

guidelines or with "applicable law." (McMillian's brief at 10.) Thus, he

argues, his sentence must be reversed and this matter remanded for

resentencing and an opportunity to withdraw his guilty plea. In its brief,

the State concedes that McMillian's sentence is illegal. (State's brief at

15.)

During McMillian's plea colloquy, the circuit court acknowledged

that McMillian had one prior felony conviction. Before accepting

McMillian's plea of guilty to the charge of unlawful possession of a

controlled substance, the circuit court stated:

"You're entering a plea of guilty today to a Class D felony,
which carries up to, in your case, a year and a day up to five
years in the State penitentiary and a fine up to $7,500. Is that
you're understanding?"

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(R. 249.) McMillian responded, "Yes, ma'am." Id. McMillian then pleaded

guilty to unlawful possession of a controlled substance, which is a Class

D felony. See § 13A-12-212(b), Ala. Code 1975. The record indicates that,

before the sentencing hearing, a "Drug (Class D) Prison In/Out

Worksheet" and a "Drug (Class D) Sentence Length Worksheet" were

completed. See (C. 63-64.) McMillian received a score of 9 on his Prison

In/Out Worksheet, which fell into the "prison" range for sentencing. (C.

63.) McMillian received a total score of 107 on the Sentence Length

Worksheet, giving a possible sentence range of 15 to 97 months for a

straight sentence, or 8 to 24 months for a split sentence. (C. 64.) The

circuit court ultimately sentenced McMillian pursuant to the plea

agreement for a term of five years' imprisonment.

The possession of a controlled substance is an offense that is

covered by the Presumptive Sentencing Standards. Presumptive and

Voluntary Sentencing Standards Manual, at 23 (2019) (the "manual").

The Presumptive Sentencing Standards provide, in pertinent part:

"When choosing a sentence from the recommended sentence
range, the sentence chosen must not be less than the statutory
sentences specified in [§ 13A-5-6(a)(1)-(4), Ala. Code 1975],
provided, however, that the sentence must in some cases, and
could in others, be 'split' pursuant to [§ 15-18-8, Ala. Code

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1975], as specified in the instructions relating to the
imposition of sentence.

"….

"For a Class D felony, the minimum sentence imposed must
be at least 12 months and 1 day."

The Manual, at 28. Regarding Class D felonies, the Presumptive

Sentencing Standards also provide, in pertinent part:

"If the most serious offense at a sentencing event is a Class D
felony and the offender is not sentenced to probation, drug
court, or a pretrial diversion program, the offender must be
sentenced to a 'split sentence' pursuant to the requirements
specified in [Section §15-18-8(b), Ala. Code 1975,] and the
presumptive sentencing ranges.

The Manual, at 29 (emphasis added).

This Court addressed a similar situation in Laakkonen v. State, 293

So. 3d 439 (Ala. Crim. App. 2019), wherein Laakkonen, who has two prior

felony convictions, pleaded guilty to unlawful possession of a controlled

substance, and was sentenced to 24 months in the county jail. Laakkonen

claimed that his sentence was illegal because, he said, the trial court had

failed to properly inform him of the possible sentence range that could be

imposed for his conviction and, he said, the trial court had failed to

properly split his sentence under § 15-18-8, Ala. Code 1975. Id. In

Laakkonen, this Court recognized that, "[i]n addition to conforming to

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the disposition recommendation of the Prison In/Out Worksheet and the

sentence-length range from the Sentence Length Worksheet, a sentence

for a Class D felony must also comport with the requirements of § 15-18-

8, Ala. Code 1975, under the circumstances of this case." 293 So. 3d at

443 (citing The Manual at 25, 27).

In this case, the underlying offense occurred on February 1, 2020.

Section 13A-5-6(a)(4), Ala. Code 1975, states that the sentence for a Class

D felony shall be a term of imprisonment of "not more than five years or

less than one year and one day." Additionally, at the time of the

underlying offense, § 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
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."

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(Emphasis added.) Additionally, "[a] sentence that does not conform to

the Presumptive [Sentencing] Standards … is a departure sentence and

may be entered only upon a finding of aggravating and/or mitigating

factors that justify a departure from the presumptive sentence

recommendations." The Manual at 29 (emphasis added).

Here, there is nothing in the record suggesting that the State

presented or alleged the existence of an aggravating factor; nor is there

a finding by the circuit court or any evidence of an agreement by the

parties pertaining to the existence of an aggravating factor. Thus, the

circuit court should have sentenced McMillian under the Presumptive

Sentencing Standards and pursuant to the requirements of § 15-18-8. See

Laakkonen, 293 So. 3d at 443.

Under the Presumptive Sentencing Standards, the term of

imprisonment for McMillian's Class D felony offense could not have been

less than one year and one day, which was the smallest sentence he could

receive for a Class D felony under § 13A-5-6(a)(4). McMillian's five-year

sentence of imprisonment was within the range of punishment under §

13A-5-6(a)(4). However, in compliance with the Presumptive Sentencing

Standards, McMillian's sentence must also comport with the

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requirements of § 15-18-8, which required that he be sentenced to a

community-corrections program for a period not exceeding two years,

that the execution of the remainder of his sentence be suspended, and

that he be placed on probation for a period not exceeding three years.

Additionally, under the relevant worksheets, McMillian's possible

sentence range was 8 to 24 months for a split sentence. (C. 64.) Therefore,

McMillian's straight sentence of five years' imprisonment was illegal.

Despite the fact that the State and McMillian agreed on the

sentence in question, " 'a [circuit] court cannot accept a plea agreement

that calls for an illegal sentence.' " Wells v. State, 381 So. 3d 508, 511

(Ala. Crim. App. 2022) (quoting Calloway v. State, 860 So. 2d 900, 906

(Ala. Crim. App. 2002)). Therefore, we must reverse McMillian's sentence

for his unlawful possession of a controlled substance conviction and

remand the case for the circuit court to resentence McMillian for that

conviction. However, as previously noted, McMillian's five-year

underlying sentence was within the appropriate range of punishment

under § 13A-5-6(a)(4), and, thus, the circuit court cannot change it.

Reynolds v. State, 334 So. 3d 262, 277 (Ala. Crim. App. 2020) (citing

Moore v. State, 871 So. 2d 106, 110 (Ala. Crim. App. 2003)).

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Further, McMillian's illegal sentence was part of a plea agreement,

and, thus, " '[r]esentencing [will] be a rejection of the plea agreement.' "

Wells, 381 So. 3d at 512 (quoting Pate v. State, 884 So. 2d 1, 3 (Ala. Crim.

App. 2003)). "When an illegal sentence is imposed in accordance with a

plea agreement[,] the [defendant] is entitled to withdraw his plea."

Williams v. State, 203 So. 3d 888, 894 (Ala. Crim. App. 2015). Therefore,

the circuit court must allow McMillian to withdraw his guilty plea to the

unlawful possession of a controlled substance conviction, if he timely

moves to withdraw his plea after he is resentenced. Wells, 381 So. 3d at

512; Williams, 203 So. 3d at 894. We note, however, that McMillian is not

required to withdraw his guilty plea; he may elect not to do so. See Wells,

381 So. 3d at 512. Consequently, we reverse McMillian's sentence in case

number CC-21-1984, and we remand that case to the circuit court for it

to resentence McMillian in accordance with this decision.

Conclusion

For the foregoing reasons, in case no. CC-21-868, we affirm

McMillian's conviction and sentence.

In case no. CC-21-1894, we reverse and remand as to McMillian's

illegal sentence.

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CR-2023-0898

AFFIRMED AS TO THE CONVICTION AND SENTENCE IN

CASE NO. CC-21-868; REVERSED AND REMANDED AS TO THE

SENTENCE IN CASE NO. CC-21-1894.

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

in the result.

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