Opposition Brief — Maddox v. Alabama

Vine wiper

Supreme Court, U.S,

FILED

NO. 86-1592 APR 24 1987

IN THE SUPREME COURT OF —'

UNITED STATES

OCTOBER TERM, 1986

RICHARD M. MADDOX,

PETITIONER,

Vv.

STATE OF ALABAMA,

RESPONDENT.

GN PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA AND

THE COURT OF CRIMINAL APPEALS

OF ALABAMA

BRIEF AND ARGUMENT IN OPPOSITION

TO THE PETITION

OF -

DON SIEGELMAN

ATTORNEY GENERAL,

JAMES B. PRUDE

ASSISTANT ATTORNEY GENERAL

AND

JOSEPH G. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL

Alabama State House

11 South Union Street

Montgomery, Alabama 36130

(205) 261-7300

NO. 86-1592

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1986

RICHARD M. MADDOX,

PETITIONER,

Ve

STATE OF ALABAMA,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA AND

THE COURT OF CRIMINAL APPEALS

OF ALABAMA

BRIEF AND ARGUMENT IN OPPOSITION

TO THE PETITION

OF

DON SIEGELMAN

ATTORNEY GENERAL,

JAMES B. PRUDE

ASSISTANT ATTORNEY GENERAL

AND

JOSEPH G. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL

Alabama State House

11 South Union Street

Montgomery, Alabama 36130

(205) 261-7300

QUESTIONS PRESENTED

1. Does a state convict have a right

under the United States Constitution to

comparative proportionality review of a

non-capital sentence?

2. Does a person, who is convicted of

trafficking in controlled substances and who

is sentenced in accordance with the statute

to fifteen (15) years imprisonment, the same

being subject to "good time" allowances of

two and a half (2.5) times credit for time

actually served and also subject to parole

after three (3) years service (1.2 years

with full good time credit), have any basis

for claiming that his sentence is constitu-

tionally disproportionate in light of the

sentences subsequently received by his

co-defendants pursuant to plea bargains?

THE PARTIES

In the Circuit Court of Coosa County,

Alabama, the Court of Criminal Appeals of

Alabama, the Supreme Court of Alabama and a

former proceeding in this Honorable Court,

involving an unrelated issue, the parties

were Richard M. Maddox, Vickie Ellen

Callahan and Gary Dean Gillum, as

Defendants, Appellants and Petitioners,

respectively, the said Richard M. Maddox

being Petitioner herein, and the State of

Alabama, as Plaintiff, Appellee and

Respondent, respectively, said State being

Respondent herein.

Il

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED... ceeeeccccvceseee ante,lI

THE PARTIES. cccccccvcceccccccsecsesee ante,II

TABLE OF CONSTITUTIONAL PROVISIONS... ii

TABLE OF CASES. ccccccccccccccccccccce ii

TABLE OF BERSUEEc cee eeoceceeeseeseesee iv

eG PTT TTT TT eT Tere Tee 1

FURBGRICTION ds ccc nccscctercessesesoses 3

CONSTITUTIONAL PROVISIONS INVOLVED... 3

STATUTORY PROVISIONS INVOLVED........ 3

STATEMENT OF THE CASE... .cccccccccccce 4

STATEMENT OF THE FACTS eeeeeeseeeeeeeeee l 2

ARGUMENT. eeeeoeeoeoeevp eee eeeeeeeeeeeeeeees 1 2

CONCLUS ION. eeeeoeeevoeeevpeevpeeeeeeeeeeeeneene 21

CERTIFICATE OF SERVICE... cccscccccces 23

TABLE OF CONSTITUTIONAL PROVISIONS

PAGE

Constitution of the United States,

ei | Aeeeereeyeerrerererrerrerrrirrirriy. ante I;

post,

10,21

Eighth Amendment. ccccccceesesesese 3

TABLE OF CASES

PAGE

Baldwin v. Alabama,

oBe ° L.Ed.2d 300

105 §.Ct. 2727 (1985S) cocccccccces 16

Baldwin v. State,

O. (Ala.Crim.

APP, 1983) a cece eeeeeeeeeeeeeeeevees 16

Ex parte Baldwin,

So. (Ala, L9B4Sdeccccccce 16

Ex parte Maddox,

$0.20. (Ala, Jan. 30, 1987)... 2,11

Ex parte Maddox, et al,

— So.2d.__ (Ala,April 25, 1986)... 2,4,8-9

Hitchcock v. Waimeregnte

. t ir, 1985)... 18-20

Holley v. Smith,

U.S. BeGee NO. BE—-G40B. ccccccaceces 12-13

ii

TABLE OF CASES

PAGE

Hutto v. Davis,

. . ’ 70 L.Ed. 2d 556,

102 S.Ct. 703 (C19SZdccccccecccece 10,13

Maddox v. Alabama,

9 _ bebGe2d_

To7_ Ss. tt. 704 Di ciskheeeees 2,4,11

Maddox v. State,

__ 50.20. a.Crim.App,

Sept. ee 2,9-11

Maddox, et al., v. State,

So. 20 (Ala.Crim.App.,

June 1I, L9OS) cc ccccccccccccccccs 2,8,12

Pulley v. Harris,

765 U.S. 37, 79 L.Ed.2d 29,

104 S.Ct. 871 (1984). cc eeeesecess 16

Roberts v. State,

482 So.2d 1293 (Ala.Crim.

App, BOGS ccocccceccceeeceeeeeeee 14

Rummel v. Estelle,

" 3 L.Ed.2d 382,

100 s. Ct. 1133 C29GO) ccccccccccse 10,15

Smith v. Wainwright,

_U.8._, 55 LEA 151,

105 S.Ct. 1883 C19S4) ccccccceces 17

Smith v. een

. th Cir, 1984).. 17-18

iii

TABLE OF CASES

PAGE

Solem v. Helm,

463 U.S. 277, 77 L.Ed.2d 637,

563 S.Ct. 3601 (1963) cccccccceec’O,132,13,38

TABLE OF STATUTES

PAGE

Code of Alabama, 1975,

Title 14, Section 14-9-41......... 14-15

Title 20, Section 20-2-70.....e+++ 5,8

Section 20-2-80...eeee6+ 3,5

Section 20-2-81....6ee+6+ 14

United States Code,

Title 28, Section ++ yy APrrrrrrerrTe 3

iv

a os ent ee me

NO. 86-1592

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1985

RICHARD M. MADDOX,

PETITIONER,

Ve

STATE OF ALABAMA,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF ALABAMA AND THE

COURT OF CRIMINAL APPEALS OF ALABAMA

BRIEF AND ARGUMENT IN OPPOSITION :

TO THE PETITION

OPINIONS BELOW

The decisions and opinions of the

Alabama appellate courts have not as yet

been reported, but will be reported as

follows:

Maddox, et. al. v. State, So.2d_

(Ala.Crim.App, June ll, 1985)

A copy of the same is appended to the

Petition.

Ex parte Maddox, et al.; In Re:

Maddox, et al. v. State, So.2d_

(Ala, April 25, 1986)

A copy of the same is also appended to the

petition.

Maddox v. State, So.2d__

(Ala.Crim.App, Sept. 9,

1986)

A copy of the same is also appended to

the petition.

Ex parte Maddox; In Re: Maddox v.

State, So.2d_ (Ala, Jan. 30,

1987)

A copy of the same is also appended to

the petition.

The denial of review by this Honorable

Court in a former proceeding on an unrelated

issue, is reported as follows:

Maddox, et al v. Alabama, _U.S.__,

__L.Ed.2d__,107 S. Ct. 404 (1986)

JURISDICTION

The petitioner has invoked this

Honorable Court's jurisdiction under 28

U.S.C. 1257(3).

_ CONSTITUTIONAL PROVSISIONS INVOLVED

The Petitioner is raising an alleged

claim under the Eighth Amendment to the

Constitution of the United States.

STATUTORY PROVISIONS INVOLVED

The Petitioner was convicted and

sentenced for trafficking in cannabis under

Title 20, Section 20-2-80(1)(a), Code of

Alabama, 1975, which reads as follows:

§20-2-80. TRAFFICKING IN CANNABIS,

COCAINE, ETC.; MANDATORY MINIMUM

TERMS OF IMPRISONMENT.

"Except as authorized in chapter 2,

Title 20:

"(1) Any person who knowingly

sells, manufactures, delivers or

brings into this state, or who is

knowingly in actual or

structive possession of,

con-

in ex-

cess of one kilo or 2.2. pounds

of cannabis is guilty of a felo-

ny, which felony shall be known

as "trafficking in cannabis." If

the quantity of, cannabis

volved:

in-

"a. Is in excess of one kilo

or 2.2 pounts, but less

than

2,900 pounds, such person shall

be sentenced to a mandatory

minimum term of imprisonment of

three calendar years and to pay a

fine oF $25,060.06..."

STATEMENT OF THE CASE

Although the appeals of Vickie E.

Callahan and Gary Gillum, originally

consolidated with the instant case, were

finally diposed of by the Alabama Supreme

Court in Ex parte Maddox, et al.,

[Ala. April 25, 1986]; cert. den.

__L.Ed.2d__, 107 S. Ct. 404 [1986]), matters

from the records in those cases are relevant

( So.2

m_

to the instant proceedings. Therefore,

-

throughout this brief all record references

will be prefaced by the relevant convict's

\

surname.

Petitioner Maddox and one Gary Gillum were

indicted by the Grand Jury of Coosa County

for trafficking in marijuanal, and one Vickie

Ellen Callahan was indicted for simple

possession of marijuana2 (Maddox, R-503;

Gillum, R-24; Callahan, R-24)

Isection 20-2-80(1)(a), Code of Alabama,

1975; quoted at pages 3-4, above.

2Section 20-2-70(a), Code of Alabama,

1975, which reads in pertinent part, as

£ollows:

§20-2-70. Prohibited acts A.

"“(a) Except as authorized by this chapter,

any person who possesses...controlled

substances enumerated in schedules...I, II,

III, IV and V is guilty of a felony and,

upon conviction, for the first offense may

be imprisoned for not less than two or more

than 15 years and, in addition, may be fined

not more than $25,000.00. ...”

On November 29, 1982, Maddox went to

trial on the indictment and his plea of

not guilty and was convicted of

trafficking in marijuana as charged in

the indictment. (Maddox, R-491). Based

on the facts that (1) it was the second

time Maddox had been caught in such an

Operation and (2) Maddox was spending far

more than his visible income, the pre-

sentence report recommended

",..-{T]hat Maddox receive a more than

average Penitentiary [sic] sentence for

this offense..." (Maddox R.pp.518-519)

At the sentence hearing held in the Circuit

Court on February 18, 1983, Maddox did not

contest the pre-sentence report nor offer

any evidence or argument, except some

letters, which are not part of this record.

He was sentenced to fifteen (15) years

‘imprisonment. (Maddox, R-480-486, R-491 and

Over nine (9) months later, Gillum

entered a written plea bargain with the

State, under which he agreed to plead guilty

to trafficking in marijuana, and the State

agreed to recommend a sentence of four (4)

years imprisonment. On the same date

Callahan entered a similar agreement; she

agreed to plead guilty to possession of

marijuana, and the State agreed to recommend

three (3) years imprisonment. On June 15,

1984, the Court accepted Gillum's and

Callahan's guilty pleas and the State's

sentence recommendations. (Gillum, R-52-53,

55 & 56; Callahan, R-53-56).

All of these parties appealed to the

Court of Criminal Appeals of Alabama claiming

illegal search and seizure. Maddox also

complained that his sentence was dispropor-

tionate in comparison to those of Gillum and

Callahan. On June 11, 1985, the Court of

Appeals affirmed the convictions and sentences.

(Maddox, et al, v. State, _So.2d_ [Ala.Crim.

App, June 1l, 1985} )

On certiorari, the Supreme Court of

Alabama affirmed as to the convictions, but

as to Maddox's sentence, ruled and wrote:

",..Maddox received the maximuml[3]

sentence allowed by law for his

firstl4] felony conviction, while

Gillum and Callahan received a four-

year sentence and a three-year

sentence, respectively. The poten-

tial excessiveness of Maddox's

sentence requires a review pursuant

to the Eighth Amendment. Because

the Court of Criminal Appeals did

not address this issue, we must re-

mand this cause to that Court with

directions to consider this cause in

3The Court apparently thought that Maddox

was convicted of possession of marijuana

(Section 20-2-70[a], note 2, page 5, above).

There is no provision for a maximum sentence

for trafficking in cannabis, under Section

20-2-80(1)(a). (Pages 3-4, above).

4maddox had, however, been convicted in

1975 of possession of marijuana incident to

a scheme similar to this one. (Maddox,

R-519) "... Following an unfavorable

pre-sentence report, Maddox was sentenced to

fifteen years..." (Maddox v. State, _ So.2d__

[Ala.Crim.App, June 11, 1985], Mns. op.p.2,

emphasis supplied).

light of Solem v. Helm, supra. It

is so ordered.

"... REMANDED WITH DIRECTIONS.

Ex parte Haere et al __So.2d.___[Ala,

Apr ’

The State applied for rehearing pointing

out:

1. Sentences of guilty pleading

co-defendants are universally held by the

courts to be irrelevant to the propriety of

the sentence of one who goes to trial.

2. These is no U.S. Constitutional right

to comparative proportionality.

3. In light of applicable "good-time" and

parole provisions any suggestion that Maddox's

sentence is disproportionate is frivolous.

On June 13, 1986, the Supreme Court denied

rehearing without opinion.

On remandment, the State made the same

arguments which it had advanced on rehearing

in the Alabama Supreme Court. On September 9,

1986, the Court of Criminal Appeals of Alabama

affirmed Maddox's sentence. On authority of

\

9

this Honorable Court's opinions in Rummell v.

Estelle (445 U.S. 263, 63 L.Ed.2d 382, 100

S.Ct. 1133 [1980]), Hutto v. Davis (454 U.S.

370, 70 L.Ed.2d 556, 102 S.Ct. 703 [1982]),

and Solem v. Helm, note 16, (463 U.S. 277,

290, 77 L.Ed.2d 637, 649, 103 S.Ct. 3001

[1983] ), the Court of Appeals declined to

engage in an extended proportionality

analysis. Contrary to the Petitioner's

assertions in the instant proceeding, the

Court of Appeals did not suggest that the U.S.

Constitution barred state appellate courts

from engaging in proportionality review in any

case. Rather, the Court held that the Federal

Constitution did not mandate such a review in

the case of a drug trafficker, who is

sentenced to fifteen years imprisonment and

who is eligible for “good time" and parole.

In addition, on authority of various federal

authorities, the Court of Appeals rejected

Maddox comparative proportionality claim based

10

on the sentences subsequently received by his

plea bargaining co-defendants. (Maddox v.

State, _So.2d.__—‘ [Ala.Crim.App, Sept. 9,

1986] )

Subsequently, the Court of Appeals

rejected Maddox's application for rehearing,

and on January 30, 1987, the Alabama Supreme

Court denied Maddox's certiorari petition, but

declined to approve the Court of Appeals'

reasoning. (Ex parte Maddox, _ So.2d

_> [Ala,Jan. 30, 1987] )

While the litigation proceeded on remand-

ment to the Court of Criminal Appeals of

Alabama, Maddox, Callahan and Gillum peti-

tioned this Honorable Court for review of an

unrelated issue. Such review was denied on

November 3, 1986. (Maddox, et al. v. Alabama,

_ OB. 5 28.28 . » 107 S.Ct. 604 1I0EE

11

STATEMENT OF THE FACTS

The undisputed evidence showed that

Maddox was caught “red-handed” operating a

large scale marijuana producing operation.

(Maddox v. State, _So.2d.__[Ala.Crim.App,

June 11, 1985); Mns.Op. pages 1-5).

ARGUMENT

This is yet another case wherein Solem v.

Helm (463 U.S. 277, 77 L.Ed.2d 637, 103 S.Ct.

3001 [1983]) is being cited as authority for a

most bizzare theory of constitutional law.

Compare Holley v. Smith, No. 86-6408, on the

certiorari docket of this Honorable Court. As

in Holley, the Petitioner here readily agrees -

that, objectively speaking, the sentence he

received is proportionate. Yet, where, in

Holley, it is claimed that Holley'’s sentence

is disproportionate under Solem, because the

trial judge had no sentencing discretion, here

it is claimed that the sentence is dispropor-

12

tionate, because the trial judge had

discretion to sentence persons convicted of

trafficking to any term greater than three

years imprisonment and excercised that

discretion to sentence this Petitioner to

fifteen years imprisonment and then, a year

later, to sentence the Petitioner's co-defen-

dants to lesser sentences recommended pursuant

to plea bargains. It is most difficult to see

how Solem stands for either proposition, let

alone both.

Obviously, as the Petitioner concedes, a

fifteen year sentence is proportionate

punishment for operating a large scale

marijuana growing operation. . Compare Hutto v.

Davis, 454 U.S. 370, 70 L.Ed.2d 556, 102 S.Ct.

703 (1982). Such sentence is even more

appropriate in this case, since it was the

Petitioner's second conviction for a serious

violation of the controlled substances laws

and in light of the other undisputed matters

13

set out in the pre-sentence report. Although

the Petitioner is not eligible for parole

until he has served three “calendar years" of

his term,> he is eligible for "good time”.

Roberts v. State, 482 So.2d 1293 (Ala.Crinm.

App, 1985); cert. den. Under Section 14-9-41,

Code of Alabama, 1975, the Petitioner could

receive credit of 75 days for every 30 days he

actually serves.®© With "good time" the

5"(a) Notwithstanding the provisions of

chapter 22, Title 15, [which provide for

probation, parole, etc.] with respect to any

person who is found to have violated this

article, adjudication of guilt or imposition

of sentence shall not be suspended, deferred,

or withheld, nor shall such person be eligible

for parole prior to serving the mandatory

minimum term of imprisonment prescribed by

this article.” (Section 20-2-81, Code of

Alabama, 1975)

6§14-9-41. COMPUTATION OF INCENTIVE TIME

DEDUCTIONS.

"(a) Each prisoner who shall hereafter be

convicted of any offense against the laws of

the State of Alabama and is confined, in

execution of the judgment or sentence upon any

conviction,‘ in the penitentiary or at hard

labor for the county or in any municipal jail

14

Petitioner could be eligible for parole after

serving less than fifteen (15) months and

could serve the entire fifteen year sentence

in six (6) years. In light of these

considerations, any claim that the Petitioner's

sentence is disproportionate would be

frivolous. See Rummell v. Estelle, 445 U.S.

cited and discussed with approval in Solem v.

Helm, 463 U.S. 277, 300-303, 77 L.Ed.2d 637,

655-657, 103 S.Ct. 3001 (1983). Of course, as

aiready noted, the Petitioner makes no such

claim.

6(Continued) for a definite or indetermi-

nate term, other than for life, whose record

of conduct shows that he has faithfully

observed the rules for a period of time to be

specified by this article may be entitled to

earn a deduction from the term of his sentence

as follows:

‘l) Seventy-five days for each 30 days

actually served, while the prisoner is

classified as a Class I prisoner....”"

15

The Petitioner raises, first, the issue of

whether or not a state appellate court may

engage in comparative proportionality reveiw

of sentences. This issue can be desposed of

quickly: Of course, they may! Alabama

appellate courts regularly review death cases

for comparative proportionality.’ The issue

here is whether the state appellate courts

must provide such review, and the answer to

that issue is no! Pulley v. Harris, 465 U.S.

37, 79 L.Ed.2d 29, 104 S.Ct. 871 (1984)

The Petitioner's complaints about his

co-defendants' sentences are irrelevant.

These persons were sentenced pursuant to plea

bargains. Why the District Attorney chose to

enter these bargains does not appear on this

See, for example, Baldwin v. State, 456

So.2d 117, 128 (Ala.Crim.App, 1983); aff'd

sub-nom. Ex parte Baldwin, 456 So.2d 129, 140

(Ala.1984); aff'd sub nom Baldwin v. Alabama,

472 U.S. __, 86 L.Ed.2d 300, 305-306, 105 S.Ct.

2727, 2730 (1985).

16

record.8 The practice of sentencing

defendants who plead guilty to less punishment

than they would otherwise receive is the heart

and soul of the universally accepted practice

of plea bargaining. It is justified by many

considerations, including the savings of

judicial and other resources which results

from a guilty plea and the fact that one who

admits guilt has taken a long step toward

rehabilitation and reform. The courts have

universally approved of the sentencing of

those who plead guilty to less punishment than

those who do not. Two examples are sufficient

to illustrate the point. In Smith v.

Wainwright, (741 F.2d 1248, [llth Cir., 1984);

cert. denied, _U.S._, 85 L.Ed.2d 151, 105

S.Ct. 1883), the Court wrote:

8The record also does not show whether or

not Gillum and Callahan had any prior criminal

history.

17

"VI. DISPARITY IN SENTENCING

"After the penalty hearing, the trial

judge sentenced Smith to death.

Gcatev Skee in accordance with

his plea bargain, received a sen-

tence of only twenty-five years in

rison. Smith contends that this

disproportionate punishment violates

the Constitution given his “lesser

culpability" than Johnson. He re-

quests this court to conduct an

independent review of the record and

grant relief on this issue, citing

as support, Barclay v. Florida, 463

U.S. 939, 103 S.Ct. 3418, 77 L.Ed. 2d

1134 (1983). This contention lacks

merit. See generally Pulley v.

Harris, U.S. , 104 S.Ct. 871, 79

L.Ed.2d 29 (1984); Collins Ve

Francis, 728 F.2d 1322 (llth Cir.

1984); Moore v. Balkcom, 716 F.2d

1511 (llth Cir.1983), cert. denied,

U.S. 104 S.Ct. 1456, 79 L.Ed.2d 773

(1984); Hen Ve Wainwright, 721

F.2d 990 (sth Cir. Unit B 1983),

cert. denied, U.S. , 104 S.Ct.

2374, 80 L.Ed.2d 846 (1984)..." (741

F.2d 1248, 1259; emphasis sup-

plied).

Some of the reasons for this are found in the

discussion of a similar issue in Hitchcock

v. Wainwright, (770 F.2d 1514 [llth

Cir. ,1985]) wherein the Court wrote:

18

".eeA defendant who pleads

guilty...is in a markedly dif-

ferent posture from a defendant

who is convicted at trial. Only

after trial and a sentencing hear-

ing has _the trial court learned

all of the facts which might be

considered for sentencing. On a

plea bargain, the defendant's and

prosecutor's agreement forecloses

the necessity for such a detailed

examination.

"Moreover, by pleading guilty a

defendant confers a substantial

benefit to the objectives of the

criminal justice system:

‘the more promptly imposed

punishment after an-admission of

guilt may more effectively attain

the objectives of punishment; and

with the avoidance of trial, scarce

judicial and prosecutorial re-

sources are conserved for those

cases in which there is a esub-

stantial issue of the defendant's

guilt or in which there is’ sub-

stantial doubt that the State can

sustain its burden of proof.'

Brady v. United States, 397 U.S. at 752,

90 S.Ct. at 1471. The state is entitled

to extend a sentence of less’ than that

which might otherwise be appropriate toa

defendant that comfers such a_ benefit on

it. aoe Gene Ge foe, 90 S.Ct. at 1471.

19

The heart of a plea bargain, from

a defendant's point of view, is

the option of avoiding a possibly

harsher sentence after conviction.

at trial.

Absent a demonstration by the

defendant of judicial vindictive-

ness or punitive action, a de-

fendant may not complain simply

because he received a heavier

sentence after trial.

Blackmon v. Wain-wright, 608

F.20 183 (Sth Cir -lovsy, cert.

denied, 449 U.S. 852, 101 S.Ct.

143, 66 L.Ed.2d 64 (1980)..." (770

F.2d 1514, 1519)

There is, of course, no claim nor basis

for a claim of judicial vindictiveness in this

case. Gillum and Callahan were sentenced more

than a year after the Petitioner, on the basis

of plea bargains entered nine months after the

Petitioner's sentence. Since an effect cannot

precede its cause, Petitioner's sentence

could not be based on vindictiveness. The

sentences of Gillum and Callahan are simply

irrelevant to the Petitioner's sentence.

20

There is no authority for the proposition

that a constitutionally proportionate sentence

is rendered disproportionate by sentences

received by other defendants under other

circumstances.

CONCLUS ION

In conclusion, the Respondent, the State

of Alabama, respectfully submits that the

decision and opinion of the Honorable Court of

Criminal Appeals of Alabama are correct and in

full accord with the authorities of this

Honorable Court and the Constitution of the

United States. Therefore, the said Respondent

21

respectfully submits that the writ ought to

be denied and prays that it be denied.

Respectfully submitted,

DON SIEGELMAN

ATTORNEY GENERAL

BY:

- JOSEPH G. L. MARSTON, L1l

ASSISTANT ATTORNEY GENERAL

JAMES B. PRUDE

ASSISTANT ATTORNEY GENERAL

ATTORNEYS FOR THE RESPONDENT

ADDRESS OF COUNSEL:

OFFICE OF THE ATTORNEY GENERAL

ALABAMA STATE HOUSE

11 SOUTH UNION STREET

MONTGOMERY, ALABAMA 36130

(205) 261-7300

22

CERTIFICATE OF SERVICE

I, Joseph G. L. Marston, III, an Assistant

Attorney General of Alabama and one of the

Attorneys for the Respondent, do hereby certify

that on this ___ day of April, 1987, I did

serve the requisite number of copies of the

foregoing on the attorney for the Petitioner,

Richard M. Maddox, by mailing the same to said

attorney, first-class postage prepaid and

addressed as follows:

_ Honorable David Cromwell Johnson

Attorney at Law

Suite 900

300 North 21st Street

Birmingham, Alabama 35203

JOSEPH G. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

ADDRESS OF COUNSEL:

Office of Attorney General

Alabama State House

11 South Union Street

Montgomery, Alabama 36130

(205) 261-7300

23