AlaFile E-Notice

To: BRIAN J RITCHEY

brian@ritcheylaw.com

58-DC-2012-001613.70

Judge: DAN REEVES

NOTICE OF ELECTRONIC FILING

IN THE COURT OF SHELBY COUNTY, ALABAMA

The following matter was FILED on 3/19/2014 5:56:51 PM

STATE OF ALABAMA V. PITT LARRY MATTHEW

58-DC-2012-001613.70

PETITION FOR COLLATERAL REVIEW

Notice Date: 3/19/2014 5:56:51 PM

[Filer: RITCHEY BRIAN JOSEPH]

MARY HARRIS

CIRCUIT COURT CLERK

SHELBY COUNTY, ALABAMA

112 NORTH MAIN STREET

COLUMBIANA, AL 35051

205-669-3760

mary.harris@alacourt.gov

POST OFFICE BOX 1810

D001 PITT LARRY MATTHEW

 

 

IN THE DISTRICT COURT OF SHELBY COUNTY, ALABAMA

PETITION FOR COLLATERAL REVIEW

COMES NOW, the Defendant, Larry Matthew Pitt, by and through his undersigned

counsel of record, and pursuant to Rule 32 of the Alabama Rules of Criminal Procedure,

petitions this Honorable Court to release the Defendant from incarceration, and as cause thereto,

states as follows:

1. This Court has jurisdiction to hear this petition.

2. Rule 32 Petition is the proper action for collateral review of a Probation

Revocation hearing.

3. Newly discovered material facts exist which require that the revocation of

probation be vacated.

4. Facts relied upon were not known by Defendant at the time of the revocation of

probation or in time to file a post-judgment motion pursuant to Rule 24, or in time to be included

in any previous collateral proceeding and could not have been discovered by any of those times

through the exercise of reasonable diligence.

5. The facts are not merely cumulative to other facts that were known.

6. The facts do not merely amount to impeachment evidence.

7. If the facts had been known at the time of the hearing to revoke probation, the

result probably would have been different.

STATE OF ALABAMA, PLAINTIFF, v. LARRY MATTHEW PITT, DEFENDANT

)))))))))

CASE NUMBER:  DC-2012-001613.70

ELECTRONICALLY FILED3/19/2014 5:56 PM

58-DC-2012-001613.70CIRCUIT COURT OF

SHELBY COUNTY, ALABAMAMARY HARRIS, CLERK

 

 

8. The facts establish that the petitioner did not violate the terms of his probation or

should not have received the sentence that the petitioner received.

9. Petitioner claims ineffective assistance of counsel in his hearing on revocation of

probation.

Brief in Support of Motion

Alabama Courts have ruled that “[a]ll post-conviction petitions seeking relief from a

conviction or sentence shall be treated as a proceeding under Rule 32, A.R.Crim.P." Patton v.

State, 623 So. 2d 452, 452 (Ala. Crim. App. 1993). See also, Welborn v. State, 586 So. 2d 256,

257 n. 1 (Ala. Crim. App. 1991). Rule 32 of the Alabama Rules of Criminal Procedure

encompasses collateral review for revocation of probation. Whitaker v. State, 686 So. 2d 1262,

1264 (Ala. Crim. App. 1995).

The proceeding shall be assigned to the sentencing judge where possible. See Rule

32.6(d) Alabama Rules of Criminal Procedure.

The time period for filing this petition is within the limitations period of 12 months. See

Rule 32.6(a) Alabama Rules of Criminal Procedure.

On the 14th day of August, 2013, the Assistant District Attorney for Shelby County filed a

Report on Delinquent Probationer, seeking to revoke probation based on Petitioner “commit[ing]

a new criminal offense in Jefferson County, Alabama.” See Report on Delinquent Probationer,

attached hereto as Exhibit “A” and made a part hereof by reference. No other reason for

revoking Petitioner’s probation was listed. The only criminal offense listed in Jefferson County

while Petitioner was on probation is DC-2013-007924.00, Impersonating a Peace Officer,

violating Ala. Code §13A-010-011. Petitioner was incarcerated without bond during the

pendency of the revocation proceeding. A hearing was held two months later on the 15th day of

October, 2013. The Court heard from several witnesses; however, only one spoke to the

 

 

purposes of the hearing. The additional testimony was not based on any “new criminal offense

in Jefferson County, Alabama” or was based on hearsay. The revocation of Petitioner’s

unsupervised probation was primarily based upon the testimony of Brandon Vessels. He is the

only person that testified for the State who was a witness to the event to which the hearing was

based. His testimony convinced the Court that Petitioner “intended to convey that he was acting

as a law enforcement officer”. See Probation Violation Order, attached hereto and marked

Exhibit “B” and made a part hereof by reference. It is noted that the Court also listed another

claim of impersonating a peace officer while in custody as well as resisting a lawful arrest.

There has been no charges brought by Jefferson County regarding either and thus no defense

could have been made to those without proper discovery. The additional reasons were not listed

in the Report on Delinquency of Probationer. Rule 27(e) of the Alabama Rules of Criminal

Procedure states: “Probation shall not be revoked for violation of a condition or regulation if the

probationer had not received a written copy of the condition or regulation.” No such claim of

resisting arrest or impersonation charge while in custody was mentioned in the Report on

Delinquency of Probationer. See Exhibit “A”.

Further, hearsay cannot serve as the sole basis for revocation of a defendant's probation.

Ex parte Belcher, 556 So. 2d 366 (Ala. 1989); Mitchell v. State, 462 So. 2d 740 (Ala. Crim. App.

1984).

Thus the testimony of Mr. Vessels weighed heavily, if not entirely, on the Court’s

determination of revocation of the Petitioner’s probation.

Mr. Vessels testified in the hearing that he went into the woods outside his house to

check on what appeared to be an abandoned rifle in the woods. He was not the only individual.

Brad Lunsford was the first person to find the alleged rifle and was the person who called on Mr.

Vessels to go with him to investigate. See Affidavit of Brad Lunsford, attached hereto and

 

 

marked “Exhibit “C” and made a part hereof by reference. This testimony is bolstered by

another witness to the event, Bailey Little, the cousin of Petitioner, who both told and showed

Mr. Vessels and Mr. Lunsford that the alleged rifle was merely a BB gun. See Affidavit of

Bailey Little, attached hereto and marked Exhibit “D” and made a part hereof by reference.

Mr. Lunsford’s testimony directly contradicts the State’s main witness. Mr. Vessels

claimed that Mr. Pitt was the aggressor and convinced him that he was a police officer. Mr.

Lunsford testifies that Mr. Pitt never acted in that capacity and he knew that Mr. Pitt was not a

police officer. Mr. Vessels stated he didn’t even know Mr. Pitt before that day but later told Mr.

Lunsford that he had attended a Basement event when it was in Mr. Pitt’s basement and made

derogatory comments towards Mr. Pitt’s ministry. (See Exhibit “C”) Further, Mr. Little’s

testimony is that Mr. Vessels knew who Mr. Pitt was at the time of the incident and recalled that

Mr. Pitt was arrested a year earlier for impersonating a peace officer. (See Exhibit “D”) This

new factual testimony would have provided the court with conflicting facts and may have led to

either refusing to revoke the probation or not reinstating the entire term of the original sentence.

These new facts do more than merely impeach Mr. Vessels; they undermine the entire

argument of the State.

Petitioner did not and could not have known of these facts based on the ineffective

assistance of his counsel representing him at the hearing. Counsel for petitioner brought no

witnesses in defense of petitioner even though they were at the hearing prepared to testify.

Counsel for petitioner also brought up negative insinuations about petitioner in the hearing that

were not brought up by the prosecution. Further, counsel representing petitioner at the hearing

did not visit his client prior to the hearing nor explain the strategy in not calling any witnesses in

his behalf. These actions prejudiced the petitioner and hampered his ability to defend himself in

the hearing.

 

 

WHEREFORE, PREMISES CONSIDERED, the Defendant respectfully requests that

this Honorable Court immediately release the Petitioner from incarceration and/or set a hearing

to review the Revocation of Probation, and any further relief this Honorable Court deems just.

Brian J. Ritchey (RIT018) OF COUNSEL: RITCHEY & RITCHEY, PA P.O. Drawer 590069 Birmingham, AL 35259-0069 Telephone: 205/271-3106 CERTIFICATE OF SERVICE

I, the undersigned, do hereby certify that a copy of the foregoing has been served upon all

parties by e-filing this the 19th day of March, 2014.

Brian J. Ritchey 

IN THE DISTRICT COURT OF SF{ELBY COUNTY. ALABAMA

STATEOFALABAMA, )Plaintiff. )

vs. ) CASENO: DC 12-1613

I-A,RRYMATTFIEWPITT, )Defendant. )

REPORT ON DELINOUENT PROBATIOIVER

1. Defendant pled on Septemb er 26,2072 to Atterrrptrng to Impersonate a Peace Olficerand was sentenced to 12 months which was placed on unsupervised probation for aperiod of 2 years.

2. As a condition of probation Defendant was to obey all laws.

3. Defendant is alleged to have committed a new criminal offense in Jeffenon County,

Alabama.

Based on the foregoing, the Defendant is in direct violation of the conditions of probation.

The State would respectfully request that this Honorable Court order that the Defendant be held in

the Shelby County Jail until this matter is heard at the earliest possible date.

Respectfully,submittedonthi.tr," l4fJ auvor l.,irCTl''tt -zor:

,.- vn,(_\. !.,.1- \l ljjL,L-Asglstant District Attorney

IN THE DISTRICT COTJRT OF STIELBY COIJNTY, ALABAMA

ELECTRONICALLY FILED8/14/2013 5:18 PM

58-DC-2012-001613.00CIRCUIT COURT OF

SHELBY COUNTY, ALABAMAMARY HARRIS, CLERK

EXHBIT "A"

IN TTIE DISTRICT COURTOF S}{ELBY COIJNTY. ALABAMA

STATE OF ALAI]AMA. }

Vs I CASENO: DC 12-1613I,ARRY MA1'-I'HT,W P]T , I

Last known address: 917 Hillcrest Avenue. B'ham. AL 35235WiM DOB: 07;l6i l9E3 SSN4 423-13-1753

MOTION TO Rf,VOKE PNOBATION

Llomcs now the State of Alabama, by and through Rotr€rt E. O*ens, Jr., District

Atlornei'tbr the Eighteenth Judicial Circuit- and would move this Courl to revoke the

probation of the above-mentioned d€fendant pursuanl to rhe following attached reporl

provided by the State of Alabama Office of Probation and Pamle.

/tA

I *J Bondisrecommendedat s - NL-B-*LI ' I Cash Bond of S _to bc applieil ugrn adjudication ro

outstanding costs and fees.

I 1 No Arrest Requested; Summoor to be irrucd for Courl Apperrtnce.

I I The State of Alabama, by and tkough ___, ADA,

hereby ALIBQYEI the Defendanr to be SCREENED for the Shelby County Pre-trial

Release Residenrial Program (PTRRI If Defendant is acceped and agrees to particitrlte

in the PTRR Program, bond rvill be set by further Order of the Coun. Clerk's Office to

copy this Ordcr ro SCCC.

Filed on thrs the l4s day of August.20ti.

'.Q cL{-f-Yr-a_Assidlnt Distnct Anomev

SHELBY COT.NTY CASE IS SET

IN THE CIRCUIT COURT OF SHELBY COUNTY, ALABAMA

State of Alabama, Plaintiff,

v.

DC - 2012 – 1613.70 Larry Matthew Pitt,

Defendant

PROBATION VIOLATION ORDER

This matter came before the Court on October 15, 2013 for hearing on probationer’s reported delinquency. The State presented four witnesses in support of the State’s allegation that Defendant violated the terms and conditions of his probation in that he failed to obey the law. Witnesses called to testify on behalf of the State of Alabama were lay witness Brandon Vessels, Sgt. Chris Sharit, Jefferson County Sheriff’s Department, Officer Joel Smith, Birmingham Police Department, and Deputy Elizabeth Robertson, Jefferson County Sheriff’s Department – Corrections Division. The Defense presented no witnesses, only argument on behalf of the Defendant, Larry Matthew Pitt. Having heard the testimony of State’s witnesses, cross examination of said witnesses and closing argument on behalf of each party, this Court finds that Defendant violated the terms and conditions of his probation in that Defendant: (1) Impersonated a peace officer in the presence of Brandon Vessels on the night of July 15, 2013, in that Defendant showed a badge, identified himself as a law enforcement officer and then confiscated a weapon; (2) On the evening of August 20, 2013, failed to obey the command of a law enforcement officer – Birmingham P.D. -- and did resist a lawful arrest; and (3) Impersonated a peace officer by identifying himself as a law enforcement officer to Jefferson County Corrections Officers upon being booked into the Jefferson County Jail on the evening of August 20, 2013, by telling corrections officers on three occasions that he worked for Mike Hale and referencing the honorary badge issued by Sheriff Hale.

ELECTRONICALLY FILED11/5/2013 11:50 AM

58-DC-2012-001613.70CIRCUIT COURT OF

SHELBY COUNTY, ALABAMAMARY HARRIS, CLERK

EXHIBIT "B"

The Court took judicial notice of prior Orders and proceedings in this case. Testimony presented by the State and relied upon by this Court was as follows: The Court found from the testimony of Vessles and Sharit that Pitt made use of an Honorary Sherriff’s Badge along with accompanying language and gestures to convey to another person, Vessles, that Pitt was a “Peace Officer” within the meaning of 13A-10-11, in violation of his probation. The Court found from the testimony of Officer Joel Smith that on the evening of July 20, 2013, Pitt resisted lawful arrest of himself in violation of his probation. The Court found from the testimony of Deputy Elizabeth Robertson that Pitt on the evening of July 20, 2013, once again impersonated a police officer, by claiming to be employed by Sherriff Mike Hale while nodding toward the previously mentioned badge. Pitt had been previously charged with a similar offense and in pleading guilty to a lesser charge was admonished by this Court and by others in the presence of the Court of the impropriety of leading other persons to believe that he was a law enforcement officer by means of displaying an honorary badge. It is difficult to suggest with any form of sincerity that he did not intend to convey that he was acting as a law enforcement officer on the two occasions noted herein. If any such claim could be made it fails to address any justification for his resisting arrest. Based on the forgoing, the Court reasonably finds, from the evidence presented, that the probationer, Larry Matthew Pitt violated the terms of his probation by committing the above offenses and the Court does hereby REVOKE the probation of Larry Matthew Pitt and reinstates the remainder of his original sentence. The defendant was advised of his right to appeal and his right to counsel and his right to have the same provided to him if indigent. DONE and ORDERED this the 16th day of October, 2013. s/ Dan Reeves CIRCUIT JUDGE

EXHIBIT"C"

EXHIBIT "D"