Betton v. State

292 So.3d 398

John Fitzgerald BETTON

v.STATE of Alabama

CR–15–1501

Court of Criminal Appeals of Alabama.

April 27, 2018

Alicia A. D’Addario and Rachel Judge, Montgomery; and Angela Cochran Morgan, Fort Payne, for appellant.

Steve Marshall, atty. gen., and John J. Davis, asst. atty. gen., for appellee.

WINDOM, Presiding Judge.

John Fitzgerald Betton appeals his sentence of life in prison without the possibility of parole. Betton was convicted of two counts of first-degree robbery, see § 13A–8–41, Ala. Code 1975; one count of attempted murder, see § 13A–6–2 and § 13A–4–2, Ala. Code 1975; one count of first-degree assault, see § 13A–6–20, Ala. Code 1975; and one count of murder made capital because it was committed during a robbery, see § 13A–5–40(a)(2), Ala. Code 1975. He was sentenced to life in prison for his 2 first-degree-robbery convictions and his attempted-murder conviction, to 20 years in prison for his first-degree-assault conviction, and to life in prison without the possibility of parole for his capital-murder conviction. The circuit court ordered that Betton's sentences run concurrently.

On direct appeal, Betton's appellate counsel filed a "no-merit" brief in substantial compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). This Court followed the procedure established in Anders and ultimately affirmed Betton's convictions and sentences. On April 10, 2001, this Court issue the certificate of judgment.

On February 28, 2005, Betton filed a postconviction petition pursuant to Rule 32, Ala. R. Crim. P., attacking his convictions and sentences. On March 10, 2005, the State filed a response and motion to dismiss Betton's Rule 32 petition. On July 29, 2005, the circuit court granted the State's motion and dismissed Betton's petition.

On appeal, this Court remanded the cause to the circuit court with instructions for it to issue specific findings of fact regarding two of Betton's claims. On return to remand, this Court affirmed the circuit court's decision denying relief.

On June 12, 2012, the Supreme Court of the United States issued its decision in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). In Miller, the Supreme Court held that mandatory sentences of life in prison without the possibility of parole for juveniles who commit capital murder constitutes cruel and unusual punishment under the Eighth Amendment. Specifically, "[t]he Supreme Court [in Miller ] concluded that the mandatory sentencing scheme was flawed because it did not give consideration to the character and record of the individual offender, the circumstances of the offense, or the possibility of compassionate or mitigating factors related to youth." Ex parte Henderson, 144 So.3d 1262, 1278 (Ala. 2013). The Court then held that the Eighth Amendment demands that "a judge or jury ... have the opportunity to consider mitigating circumstances before imposing [life in prison without the possibility of parole] for juveniles" and have the opportunity to impose a sentence that includes the possibility of parole. Miller, 567 U.S. at 489, 132 S.Ct. 2455.

On June 25, 2013, Betton filed a successive Rule 32 petition in which he argued that his mandatory sentence of life in prison without the possibility of parole was unconstitutional under the Supreme Court's decision in Miller because he was 15 years old when he committed his capital offense. The State filed a motion to dismiss. On May 10, 2016, the circuit court held a hearing during which the State withdrew its motion to dismiss. The circuit court granted Betton's Rule 32 petition, vacated his sentence, and scheduled a new sentencing hearing. At the conclusion of Betton's new sentencing hearing, the circuit court again sentenced him to life in prison without the possibility of parole.

The facts of Betton's crime are as follows. Jonathon Phillips's mother was married to, but separated from, Antonio Andrade, Sr. Phillips knew that Andrade did not have a bank account; rather, he sent some of the family's money to relatives in Mexico and kept the remainder in his house. On November 23, 1997, Betton—then 15 years old—Phillips, Tim Dupree, and Reynard Ford, decided to rob someone. To prepare, these four went to Betton's sister's house to get, among other things, items to hide their identities. Dupree had a BB gun and Betton had a pistol.

Phillips suggested to the other three that they rob Andrade. Betton, Dupree, and Ford agreed, and they drove to Andrade's house, where Andrade and his two sons, Antonio and Apolinar, were watching a soccer match. The group agreed that Betton, Dupree, and Ford would break into Andrade's house and rob him while Phillips waited at the car. In accordance with their plan, Phillips drove past the house and parked. Phillips then opened the hood of the car to make it appear as if he were having car trouble, and Betton, Dupree, and Ford left to rob Andrade.

Betton, Dupree, and Ford broke into Andrade's house and demanded money from him and his two sons. After robbing the Andrades, Betton shot Andrade and both of his sons. Andrade and Antonio survived; however, 19–year–old Apolinar died as a result of a gunshot wound to the chest.

Betton was arrested, and he gave a statement in which he admitted to being with Phillips, Dupree, and Ford during the robbery. He, however, claimed that he had stayed at the car with Phillips during the robbery and blamed Dupree and Ford for the murder and the attempted murders.

At Betton's resentencing hearing, Betton presented testimony from Fossie Thomas Brown, a chaplain with the Alabama Department of Corrections. Brown testified that Betton lived in the honor dorm at St. Clair Correctional Facility and that he worked in the chaplain's office. Brown said that Betton was a dorm leader and taught Fatherhood Initiative classes. Brown said that, while working at the chaplain's office, Betton tried to ensure Brown's safety. Brown testified that Betton had obtained his general equivalency diploma ("GED") and learned to be a barber. Brown further testified that he would like for the court to sentence Betton to life in prison with the possibility of parole.

Justin Watts, a correctional officer at St. Clair, testified similarly to Brown. According to Watts, he was familiar with Betton, describing him as a model prisoner. He testified that Betton had received only one disciplinary during Watts's time at St. Clair Correctional Facility. Watts testified that Betton was involved in three prison programs, including Fatherhood Initiative. Watts "sat in the class and watched [Betton] mentor younger inmates—younger less-experienced inmates and try to help them become better fathers and better brothers ... things of that nature." (R. 20.) Watts described instances in which Betton had mediated volatile situations between officers and inmates and had helped officers keep the peace in the prison. Watts testified that he felt like Betton would be a good candidate for parole and would be someone who could live successfully outside the prison system.

Betton testified on his own behalf. According to Betton, he had been in prison for almost 19 years. Betton described his childhood as less than ideal. According to Betton, he saw his father only periodically and spent most of his time with his mother and great-grandmother. Betton testified that he had an older sister, a younger sister, and a younger brother. Betton stated that his great-grandmother passed away when he was 10 years old and that after her death, his "mother lost her way." (R. 38.) At that point, Betton's mother started using drugs and began neglecting her children. Betton's mother remarried, became transient, and at times left her children with their stepfather. Eventually, Betton's mother and stepfather divorced.

When Betton was 11 years old, the family moved to Ohio. There, they did not have a stable place to live and a church "put [the family] up in a hotel." (R. 41.) At times, they also lived with family members. The family lived in Ohio for about a year and then moved to Georgia to live with a second great-grandmother. While in Georgia, they lived in a poor neighborhood where Betton was exposed to crime, violence, drugs, and alcohol. During this time, Betton started using and selling drugs. He explained that his motive for selling drugs was not necessity, but to enable him to purchase luxury items his family could not otherwise afford.

During his time in Georgia, Betton was sentenced to boot camp for being in a stolen car. While he was in boot camp, his family moved back to Alabama. When Betton was released from boot camp, he joined his family in Alabama. During that time, he was disobedient toward his mother and began associating with older people who were involved in criminal activity.

Betton testified to his accomplishments while in prison. According to Betton, he lives in the faith-based honor dorm, where he is a facilitator. Betton told the circuit court that he was involved in the Fatherhood Initiative, Anger Management, Reality Therapy, and Stress Management programs. Betton testified that he had participated in Convicts Against Violence. Betton said he had earned his GED and had been learning trades in heating, ventilating, and air conditioning, as well as electrical. Betton further testified that he is a different person than when he entered prison.

While testifying, Betton described the crimes for which he was incarcerated. Betton stated that Phillips had the idea to commit a robbery. He testified that they needed a gun, so Betton stole one from a friend of his mother's. They then went to the Andrades' house, kicked in the door, and robbed the Andrades. Betton testified that, during the robbery,

"[t]he older gentleman, older man, came at Mr. Ford, who originally had the gun. He ran at him and tried to wrestle the gun away from him. And the gun went off. And the old man grabbed his stomach. And then the two guys that were in the living room went into

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