[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 767

This case was originally assigned to a judge on this court on October 22, 1998, but the submission was set aside pending resolution of postconviction proceedings. It was resubmitted on November 30, 1999.

Following a jury trial, Theresa Wilson was convicted of distribution of a controlled substance and of trafficking in morphine after she sold Valium, Fiorinal, and liquid morphine to an undercover police officer. See §§ 13A-12-211 and 13A-12-231(3)(d), Ala. Code 1975. In the distribution case, Wilson was sentenced to two years' imprisonment; that sentence was suspended. Two five-year enhancements were added to that sentence, because the sale occurred within three miles of a school campus and a public housing project. §§ 13A-12-250 and -270, Ala. Code 1975. In the trafficking case, Wilson was sentenced to a mandatory term of life imprisonment without parole. § 13A-12-231(3)(d), Ala. Code 1975.¹ The sentences were to run concurrently. *Page 768

This is a case of first impression. Never before in this State has a first-time drug offender been sentenced to life in prison without the possibility of parole pursuant to § 13A-12-231(3)(d), Ala. Code 1975. Wilson's guilt is not at issue; her sentence is. The basic constitutional guarantee against cruel and unusual punishment is at issue.

Both the State and Wilson rely on the same United States Supreme Court case, Harmelin v. Michigan, 501 U.S. 957 (1991), as being dispositive of this important question. We conduct our review of this case with a full awareness that, "Few problems affecting the health and welfare of our population, particularly our young, cause greater concern than the escalating use of controlled substances." United States v. Mendenhall,446 U.S. 544, 561 (1980) (Powell, J., concurring in part and concurring in the judgment), quoted in Harmelin, 501 U.S. at 1003 (Kennedy, J., concurring in part and concurring in the judgment).

The underlying facts in the case are not in dispute. Theresa Wilson sold Valium and Fiorinal tablets to an undercover police officer for $90. The officer asked Wilson whether she could obtain any other substances, and she asked the officer if he would be interested in liquid morphine. She told the officer that the morphine belonged to a neighbor, but that she was going to try to sell it for her. Wilson asked the officer how much the morphine might be worth on the street. They discussed price, and Wilson retrieved the bottle of liquid from her neighbor.² When the officer asked Wilson how she knew what was in the bottle, she told him that the prescription label was still on the bottle, and that the label read "Morphine-Eli."

The officer asked Wilson how much money she wanted for the morphine. Wilson said she would give $70 to the neighbor, and she wanted to make $80 on the sale, so she would sell it for $150. The officer gave Wilson $110, which was all he had in his possession, and he told her he would return to pay the remainder. Tests revealed that the tablets Wilson sold to the officer were diazepam and butalbital, which are controlled substances. The bottle was found to contain 97.8 grams of a liquid mixture containing morphine. Wilson testified at trial that she had been addicted to drugs since 1991, and she admitted selling the controlled substances to the undercover officer. She said that she first sold him medication that had been prescribed for her, and then she obtained the morphine from her neighbor and sold it to the officer.

While this appeal was pending, the appellate proceedings were stayed, and Wilson filed a Rule 32, Ala.R.Crim.P., petition challenging the mandatory sentence. Evidence presented at the hearing on the petition established that Wilson was the only inmate in Alabama's prison population serving a sentence of life imprisonment without parole for her first drug offense. *Page 769 (Supp.R.I-T. 24-25; Supp.R.II. 38, 77-83.)³ Testimony also established that data from the Sentencing Institute⁴ indicated that only three other people had been convicted of the same offense and, whether as the result of a plea bargain or some other arrangement, their sentences had been less than life imprisonment without parole. (Supp.R.I-T. 34-36)

From its review of the evidence presented at trial and at the Rule 32 proceedings, the circuit court found that Wilson was 28 years old at the time of the offense, that she testified that she had been addicted to drugs since 1991, and that she was married and had two young children. (Supp.R.I-C. 22-23.)⁵ The court further found that Wilson was the only person without a prior felony conviction who was serving a sentence of life imprisonment without parole in the Alabama prison system for a noncapital offense. Finally, the court found that only three other people were serving sentences for convictions violating § 13A-12-23(3)(d), Ala. Code 1975, and that each one had received a sentence of less than 25 years. The court stated that it was "sympathetic" to Wilson's argument, that her sentence of life imprisonment without parole for this first offense would have, under Solem v. Helm, 463 U.S. 277 (1983), constituted cruel and unusual punishment.⁶ The court determined, however, that it had no jurisdiction to review a sentence when the punishment imposed was within the limits set by the Legislature, as was the case here. It also stated that Solem had been overruled by Harmelin v. Michigan, 501 U.S. 957 (1991). (Supp.R.I-C. 24-26.) The circuit court denied the petition, and the case was resubmitted for appellate review. In this Court, Wilson continues to challenge the imposition of the mandatory sentence of life imprisonment without parole, imposed pursuant to § 13A-12-231(3)(d), Ala. Code 1975. She argues that the statute, as applied to her, violates Art. I, § 15, of the Alabama Constitution of 1901, and the Eighth Amendment to the United States Constitution.

I.The State of Alabama argues that the issue was not preserved for review and that it is, therefore, not now properly before this Court. We disagree.

Although this case is not before us in the typical procedural posture, it is before us in a procedural sequence that this Court has sanctioned. Wilson originally appealed from the mandatory sentence of life imprisonment without parole. While her appeal was pending, Wilson filed a Rule 32, Ala.R.Crim.P., petition in the circuit court challenging the mandatory sentence. She then filed in this Court a "motion to remand," requesting this Court to stay the pending appeal and transfer *Page 770 jurisdiction to the circuit court, pursuant to Barnes v. State,621 So.2d 329 (Ala.Crim.App. 1992), to enable the lower court to dispose of the Rule 32 petition. In Barnes, this Court established the procedure to be followed when a defendant files a Rule 32 petition while a direct appeal is pending in this Court. This Court determined that, in such circumstances, it could notify the circuit court to hold the Rule 32 petition in abeyance pending the outcome of the appeal.

"Or the appellate court may remand, thus staying the appeal of the petitioner's conviction and transferring jurisdiction to the circuit court to adjudicate the Rule 32 petition. After adjudication, a return to remand would be submitted to this court, and the parties would be allowed to submit issues for review of the circuit court's action on the Rule 32 petition."

621 So.2d at 333.

Under the authority of Barnes, this Court granted Wilson's motion, stayed the appeal, and transferred jurisdiction of the cause to the circuit court for adjudication of the Rule 32 petition. This Court ordered the circuit court to dispose of the petition, and ordered the court reporter to supplement the record on appeal with a transcript of the Rule 32 proceedings. Following a hearing,⁷ the circuit court denied the petition, finding that it had no jurisdiction to review the sentence because the sentence was within the limits established by the statute.

After the record of the Rule 32 proceedings was filed, this Court, citing Barnes v. State, supra, entered an order granting Wilson seven days to advise this Court whether she intended to raise any Rule 32 petition issues in this appeal.⁸ Wilson notified this Court that she intended to raise Rule 32 issues in this appeal, and she requested that this Court set a briefing schedule, which it did. Wilson and the State filed supplemental briefs addressing the evidence and the claims raised in the Rule 32 proceeding.

Based on the foregoing, we find no support for the State's assertion that the issue raised on appeal was not properly preserved. Although the case did not follow the traditional course of an appeal following a conviction, the course it did follow was approved and sanctioned by this Court in Barnes⁹ and in this case. The parties were permitted to address fully in this Court all of the claims raised in the court below.¹⁰ Therefore, the issue regarding *Page 771 the propriety of Wilson's sentence was clearly preserved for this Court's review.

II.Wilson was convicted of violating § 13A-12-231(3)(d), Ala. Code 1975, which provides, in pertinent part:

"Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, four grams or more of any morphine . . ., or four grams or more of any mixture containing any such substance, is guilty of a felony, which felony shall be known as `trafficking in illegal drugs.' If the quantity involved:

". . . .

"d. Is 56 grams or more, the person shall be sentenced to a mandatory term of imprisonment of life without parole."

Wilson argues that this statute, as applied to her case, violated Article I, § 15, of the Alabama Constitution, and the Eighth Amendment to the United States Constitution. Article I, § 15, of the Alabama Constitution provides "[t]hat excessive fines shall not be imposed, nor cruel or unusual punishment inflicted." The Eighth Amendment to the United States Constitution provides, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

At the outset, we acknowledge that determinations regarding the punishments to be imposed for different crimes are purely legislative.E.g., Rummel v. Estelle, 445 U.S. 263, 275-76, 282-84 (1980); Rocker v.State, 443 So.2d 1316, 1322 (Ala.Crim.App. 1983). We also acknowledge and affirm the oft-stated rule that we generally will not review sentences imposed within statutorily prescribed limits. E.g., Evans v. State,794 So.2d 415439 (Ala.Crim.App. 2000). In Eldridge v. State, 418 So.2d 203,207 (Ala.Crim.App. 1982), we stated:

"While this court may rule a fine or sentence excessive, the separation of powers doctrine forces this court not to substitute its own judgment for that of the legislature unless those constitutional guarantees of the Eighth Amendment to the U.S. Constitution or of Article I, § 15, 1901, Alabama Constitution are clearly violated. Cabble v. State, 347 So.2d 546 (Ala.Cr.App.), cert. denied, 347 So.2d 551 (Ala. 1977)."

Review of the foregoing constitutional provisions and of state and federal caselaw interpreting and applying those provisions is necessary to resolve the issue Wilson presents. Based on the legal principles discussed below, and on the specific facts of this case, we find this to be one of the rare occasions when constitutional principles have been violated and appellate review of a sentence that is within statutory limits is not only warranted, but is required.

A. United States Supreme Court and Proportionality ReviewAn understanding of the United States Supreme Court's less-than-consistent interpretation and application of Eighth Amendment proportionality principles is instructive, relevant, and necessary to the proper resolution of this case.

In Weems v. United States, 217 U.S. 349 (1910), the Supreme Court discussed Eighth Amendment proportionality in sentencing as it related to Weems's conviction for falsifying a public document, and the mandatory sentence to cadena temporal.¹¹ After an exhaustive *Page 772 review of existing precedent, the Court concluded that punishment bycadena temporal was inconsistent with constitutional protections afforded by the Bill of Rights. Id. at 382. The Court noted that the prohibition of cruel and unusual punishment was directed against torturous punishments and "against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged." Id. at 371 (quoting O'Neil v. Vermont, 144 U.S. 323, 339-40 (1892) (Field, J., dissenting)).

In Rummel v. Estelle, 445 U.S. 263 (1980), the Court observed that, in noncapital cases, successful challenges to the proportionality of sentences were "exceedingly rare," and went on to uphold a Texas recidivist statute that mandated a sentence of life imprisonment without parole. The dissenting Justices stated that certain objective factors should be used to determine the proportionality of a sentence to a crime, including: "(i) the nature of the offense . . .; (ii) the sentence imposed for commission of the same crime in other jurisdictions . . .; (iii) the sentence imposed upon other criminals in the same jurisdiction. . . ." Id. at 295 (Powell, J., dissenting). The majority, however, rejected this proposition. Id. at 281-82 n. 27.

In Hutto v. Davis, 454 U.S. 370 (1982), the Court rejected an Eighth Amendment challenge to a sentence of 40 years' imprisonment and a $20,000 fine for convictions for the possession and distribution of marijuana. The Court disapproved of the proportionality analysis applied by the lower court, and noted that the lower court had been erroneously guided by the factors and analysis discussed by the dissenters in Rummel v.Estelle, supra. In its summary reversal of the grant of habeas corpus relief in Davis, the Court then stated:

"In short, Rummel stands for the proposition that federal courts should be `reluctan[t] to review legislatively mandated terms of imprisonment,' [445 U.S.] at 274, 100 S.Ct., at 1139, and that `successful challenges to the proportionality of particular sentences' should be `exceedingly rare,' id. at 272, 100 S.Ct., at 1138. By affirming the District Court decision after our decision in Rummel, the Court of Appeals sanctioned an intrusion into the basic line-drawing process that is `properly within the province of legislatures, not courts.' Id., at 275-276, 100 S.Ct., at 1139-1140."

454 U.S. at 373-74 (footnote omitted).

Solem v. Helm, 463 U.S. 277 (1983), represented a significant departure from Rummel and Davis. Helm was convicted in a South Dakota state court for issuing a "no account" check, and was sentenced as a recidivist to life imprisonment without parole. The federal district court found the sentence to be harsh, but, relying on Rummel, it denied habeas relief. The United States Court of Appeals for the Eighth Circuit reversed, distinguishing Helm's sentence from Rummel's sentence because Rummel's sentence included the possibility of parole. Helm v. Solem, 684 F.2d 582 (8th Cir. 1982). The Court of Appeals considered Helm's offenses, his sentence, and the sentence imposed for the same crime in other jurisdictions, and concluded that Helm's sentence was "grossly *Page 773 disproportionate" to the crime, and that it violated the Eighth Amendment. Id. at 587.

The United States Supreme Court affirmed the Eighth Circuit's ruling.463 U.S. 277 (1983). Justice Powell, writing for the majority, stated, "The constitutional principle of proportionality has been recognized explicitly in this Court for almost a century." 463 U.S. at 286 (footnote omitted). The Court discussed its prior decisions on proportionality, including Rummel, and noted, "When prison sentences became the normal criminal sanctions, the common law recognized that these, too, must be proportional. See, e.g., Hodges v. Humkin, 2 Bulst. 139, 140, 80 Eng.Rep. 1015, 1016 (K.B. 1615) (Croke, J.) (`[i]mprisonment ought always to be according to the quality of the offence')." Id. at 285.

The Court in Solem v. Helm further stated:

"In sum, we hold as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted. Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals. But no penalty is per se constitutional. As the Court noted in Robinson v. California, 370 U.S. [660], at 667, 82 S.Ct. [1417], at 1420 [(1962)], a single day in prison may be unconstitutional in some circumstances."

463 U.S. at 290 (footnote omitted). The Court further noted that, because legislatures and sentencing courts are accorded substantial deference in establishing sentences and imposing sentences, respectively, reviewing courts would rarely conduct an "extended analysis to determine that a sentence is not constitutionally disproportionate." 463 U.S. at 290 n. 16.

The Court then explained that, when considering disproportionality claims, reviewing courts should be guided by objective criteria "that our cases have recognized." 463 U.S. at 290. Those factors should include: "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." 463 U.S. at 292. The Court analyzed Helm's sentence using the foregoing factors and concluded:

"Applying objective criteria, we find that Helm has received the penultimate sentence for relatively minor criminal conduct. He has been treated more harshly than other criminals in the State who have committed more serious crimes. He has been treated more harshly than he would have been in any other jurisdiction, with the possible exception of a single State. We conclude that his sentence is significantly disproportionate to his crime, and is therefore prohibited by the Eighth Amendment."

463 U.S. at 303 (footnote omitted).

The United States Supreme Court's most recent decision on Eighth Amendment proportionality review is Harmelin v. Michigan, 501 U.S. 957 (1991), and it reflects the Court's inability to reach a clear consensus on the issue. Harmelin, who had no prior criminal convictions on his record, was convicted of possessing 672 grams of cocaine; he was sentenced to a mandatory term of life imprisonment without parole. The United States Supreme Court upheld the sentence against an Eighth *Page 774 Amendment proportionality challenge, but the opinions issued by the Justices of the Court evidenced their stark disagreement regarding the existence of a guaranty under the Eighth Amendment that a sentence will be proportional. In brief and in oral argument in this case, both the State, whose position was ultimately accepted by the circuit court, Supp.R.I-C. 8-10, and Wilson relied upon Harmelin as being dispositive of this important constitutional issue. A very careful reading and analysis of Harmelin is essential to the determination whether Wilson must spend the balance of her life in prison.

Only two of the Justices in Harmelin refused to recognize a general proportionality guarantee in the Eighth Amendment. 501 U.S. at 965, 994 (Parts I and III of the opinion by Justice Scalia; as to those parts, only Chief Justice Rehnquist concurred). Justice Scalia determined that Eighth Amendment proportionality review had been "an aspect of our death penalty jurisprudence, rather than a generalizable aspect of Eighth Amendment law. We think that is an accurate explanation, and we reassert it." Id. at 994. Even Justice Scalia and Chief Justice Rehnquist acknowledged, however, "This is not to say that there are no absolutes; one can imagine extreme examples that no rational person, in no time or place, could accept." 501 U.S. at 985 (Part II of opinion by Justice Scalia; as to that part, only Chief Justice Rehnquist concurred). Justices Kennedy, O'Connor, and Souter recognized proportionality as a component of the Eighth Amendment, but did not conclude that Harmelin's sentence was disproportionate to his crime. 501 U.S. at 996-97 (Kennedy, J., concurring in part and concurring in the judgment). The four dissenting Justices opined that a proportionality review was required, and that Harmelin's sentence was unconstitutionally disproportionate to his crime. 501 U.S. at 1013, 1027 (White, J., dissenting);501 U.S. at 1027 (Marshall, J., dissenting). Consequently, a reasonable interpretation of the precedential value of the Harmelin decision is vital to this case.

Five Justices agreed that mandatory penalties might be cruel and severe but they are not "unusual," as that term is used in the legal sense, and they rejected Harmelin's challenge to his sentence. 501 U.S. 994-95.¹² Justice Kennedy wrote a separate concurrence setting forth his Eighth Amendment proportionality analysis, noting that it differed from Justice Scalia's analysis. Justice Kennedy acknowledged that the Court's decisions on proportionality had not been completely clear or consistent, but he said that they could be reconciled. He also stated, "Regardless of whether Justice Scalia or Justice White has the best of the historical argument, . . . stare decisis counsels our adherence to the narrow proportionality principle that has existed in our Eighth Amendment jurisprudence for 80 years." Id. at 996 (Kennedy, J., concurring in part and concurring in result). Justice Kennedy discussed the common principles that define the scope of proportionality review, then stated:

"All of these principles — the primacy of the legislature, the variety of legitimate

*Page 775

penological schemes, the nature of our federal system, and the requirement that proportionality review be guided by objective factors — inform the final one: The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are `grossly disproportionate' to the crime. Solem, [463 U.S. 277, 288, 303 (1983)]."

Id. at 1001.

Justice Kennedy concluded that the three-part test employed in Solemv. Helm, 463 U.S. 277 (1983), need not be applied in every case challenging the proportionality of a sentence on Eighth Amendment grounds. He determined, rather, that the Court's prior decisions established "that intrajurisdictional and interjurisdictional analyses are appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." Id. at 1005. Justice Kennedy further explained, "The proper role for comparative analysis of sentences, then, is to validate an initial judgment that a sentence is grossly disproportionate to a crime." Id.

Justice Kennedy determined that a comparison of Harmelin's crime to his sentence did not indicate a gross disproportionality, and that, therefore, no intra- or interjurisdictional analysis was required. Id. Justice Kennedy noted that although Harmelin had no prior felony convictions, he was found in possession of over 1.5 pounds of cocaine, which could produce up to 65,000 individual doses. Id. at 1002. He further noted that Harmelin possessed not only a large amount of undiluted cocaine, but also "several other trappings of a drug trafficker, including marijuana cigarettes, four brass cocaine straws, a cocaine spoon, 12 Percodan tablets, 25 tablets of Phendimetrazine Tartrate, a Motorola beeper, plastic bags containing cocaine, a coded address book, and $3,500 in cash." Id. at 1008. He concluded that the mandatory sentence of life imprisonment without parole did not violate the Eighth Amendment. Id. at 1009.

Justice White, in his dissent, asserted, "Not only is it undeniable that our cases have construed the Eighth Amendment to embody a proportionality component, but it is also evident that none of the Court's cases suggest that such a construction is impermissible."501 U.S. at 1013 (White, J., dissenting). Justice White found that the three-part proportionality analysis set forth in Solem v. Helm, 463 U.S. 277 (1983), "has worked well in practice." 501 U.S. at 1015. He stated further that, contrary to Justice Scalia's suggestion, "the fact that a punishment has been legislatively mandated does not automatically render it `legal' or `usual' in the constitutional sense. Indeed, as noted above, if this were the case, then the prohibition against cruel and unusual punishments would be devoid of any meaning." Id. at 1017.

Justice White observed that, without proportionality review, defendants receiving extreme sentences would have no recourse. Of Justice Scalia's analysis, he stated:

"[H]e provides no mechanism for addressing a situation such as that proposed in Rummel [v. Estelle, 445 U.S. 263 (1980)], in which a legislature makes overtime parking a felony punishable by life imprisonment. He concedes that `one can imagine extreme examples' — perhaps such as the one described in Rummel — `that no rational person, in no

*Page 776

time or place, could accept,' but attempts to offer reassurance by claiming that `for the same reason these examples are easy to decide, they are certain never to occur.' Ante, at 985-986. This is cold comfort indeed, for absent a proportionality guarantee, there would be no basis for deciding such cases should they arise."

Id. at 1018 (emphasis added).

The dissenting Justices found no reason to overrule or limit Solem and, upon application of the Solem factors, determined that Harmelin's sentence "fails muster under Solem and, consequently, under the Eighth Amendment to the Constitution." Id. at 1021.

Given the fact that Justice Kennedy and those joining the plurality opinion noted that Harmelin had the trappings of a drug baron and enough pure cocaine to yield up to 65,000 individual doses, it is logical to conclude that these Justices, and the four dissenting Justices who found the sentence to violate the Eighth Amendment, would find Wilson's case to fall within the very limited group of cases in which the sentence truly is grossly disproportionate to the crime. It is further reasonable to conclude that, upon review of Wilson's sentence, those Justices would reach a different result than did the plurality in Harmelin. Wilson was a first-time drug offender who shares none of the characteristics of experienced, "successful" drug traffickers. There was no evidence that the amount of morphine she sold would yield thousands of individual doses, nor that she possessed drug paraphernalia, a beeper, coded address book, or a large amount of cash. To the contrary, Wilson was not initially in possession of the morphine, and she obtained it from a neighbor only after the undercover officer asked her if she had any additional drugs to sell. She sold it for her neighbor and shared the money with her. Wilson had no idea of the street value of the drug, and she sold the drug, in part, on credit. While the principles in Harmelin govern our determination of this case, they do not command the same result.

B. Federal Circuit Courts and Proportionality ReviewAppellate courts reviewing claims regarding unconstitutionally excessive sentences have not uniformly interpreted Harmelin, or determined how that decision affects the continuing applicability of the three-factor test announced in Solem. Many federal courts of appeal have determined that Justice Kennedy's concurring opinion is controlling, and have held, therefore, that the Eighth Amendment guarantees some degree of sentencing proportionality. These courts generally have interpretedHarmelin to narrow the proportionality analysis adopted in Solem, and they have held that intra- and interjurisdictional analyses are warranted only if the court first determines that the sentence imposed is grossly disproportionate to the offense committed. E.g., United States v.Reynolds, 215 F.3d 1210, 1214 (11th Cir. 2000); United States v. Marks,209 F.3d 577, 583 (6th Cir. 2000) ("The Sixth Circuit has adopted the `narrow proportionality principle' of Harmelin. See United States v.Hopper, 941 F.2d 419, 422 (6th Cir. 1991). Consequently, only an extreme disparity between crime and sentence offends the Eighth Amendment.");Hawkins v. Hargett, 200 F.3d 1279, 1282 (10th Cir. 1999); United Statesv. Cardoza, 129 F.3d 6, 18 (1st Cir. 1997); United States v. Frieberger,28 F.3d 916, 920 (8th Cir. 1994).

Some federal courts of appeal, however, continue to follow the three-part test announced in Solem, as if Harmelin did not limit the holding of that case or support a *Page 777 narrower approach to sentencing proportionality. The United States Court of Appeals for the Fourth Circuit, in United States v. Kratsas, 45 F.3d 63,67 (4th Cir. 1995), noted that it was somewhat unclear, in light ofHarmelin, whether the three-part test of Solem applied in noncapital cases; that court stated, "[T]he continuing applicability of the Solem test is indicated by the fact that a majority of the Harmelin Court either declined expressly to overrule Solem or explicitly approved ofSolem. Indeed, the Fourth Circuit has continued to use the Solem test in conducting proportionality reviews under the Eighth Amendment for cases involving life sentences or the death penalty." 45 F.3d at 67. See alsoHenry v. Page, 223 F.3d 477, 481-82 (7th Cir. 2000) ("Since the divided decision in Harmelin, several courts have questioned whether Solem survives. See, e.g., United States v. Kratsas, 45 F.3d 63, 67 (4th Cir. 1995). . . . Our court has adhered to Solem and we continue to recognize some degree of sentencing proportionality in the Eighth Amendment. . . . We therefore accept Solem as clearly established federal law as required by 28 U.S.C. § 2254(d)(1).").

C. Alabama and Proportionality Review1. AlabamaAlabama courts have recognized the importance of proportionality in sentencing. "Proportionality of sentence is certainly a vital constitutional guarantee." Anderson v. State, 455 So.2d 957, 958 (Ala.Crim.App. 1984) (citing Solem v. Helm). In Ex parte Maddox,502 So.2d 786 (Ala. 1986), the Alabama Supreme Court noted that the state's appellate courts are generally prohibited from reviewing sentences that are within the limits prescribed by statute. The Court further stated:

"However, the appellate courts may review a sentence, which, although within the prescribed limitations, is so disproportionate to the offense charged that it constitutes a violation of a defendant's Eighth Amendment rights.

"The United States Supreme Court in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), recognized that reviewing courts should grant substantial deference to the authority of the legislatures in determining the kinds and limits of punishment for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals. Yet, the sentence should be proportionate to the crime."

Id. at 789-90 (citation omitted). The Court remanded the cause for consideration of Maddox's sentence, in light of Solem. Id. at 790.

On remand, this Court declined to apply the three factors set forth inSolem, and adopted, instead, the reasoning of United States v. Rhodes,779 F.2d 1019, 1027-1028 (4th Cir. 1985), interpreting Solem to require an "extensive proportionality analysis" only when a defendant was sentenced to life imprisonment without parole. Maddox v. State, 502 So.2d at 792-93. This Court found Maddox's 15-year sentence for trafficking in marijuana to be constitutional and not disproportionate, and declined to engage in the more extensive analysis advocated by Solem. Id. at 793.

We note that, although this Court has recognized the importance of proportionality review, it has not consistently interpreted and appliedHarmelin. In Carroll v. State, 599 So.2d 1243, 1243 (Ala.Crim.App. 1992), Judge Taylor, writing for the court, stated that Solem had been overruled by Harmelin. In Dumas v. State, 611 So.2d 426, 428 (Ala.Crim.App. 1992), Judge Bowen noted in dicta that the United States Supreme Court in Harmelin could not agree on a proportionality test, *Page 778 but that Justice Kennedy's concurrence, which he said was dispositive, recognized that a narrow proportionality principle remained even afterHarmelin.

2. Other StatesA review of the decisions of appellate courts of other states indicates that many have adopted and applied the narrow proportionality analysis set forth by Justice Kennedy in his concurring opinion in Harmelin.E.g., State v. Milk, 607 N.W.2d 14, 18-19 (S.D. 2000); State v. Jenkins,133 Idaho 747, 992 P.2d 196, 198-99 (Idaho Ct. App. 2000); Hicks v.State, 15 S.W.3d 626, 632 (Tex.Crim.App. 2000); State v. Herrera,993 P.2d 854, 866-67 (Utah 1999).

3. ConclusionBased on our review of the foregoing state and federal cases, we now hold, as Judge Bowen recognized in Dumas v. State, 611 So.2d 426 (Ala.Crim.App. 1992), that Justice Kennedy's plurality opinion inHarmelin requires that we apply a narrow proportionality review; this proportionality analysis governs our review of Wilson's sentence in this case.

D. Application of Proportionality PrinciplesApplication of Harmelin mandates that we make a threshold determination in this case by considering whether the mandatory sentence of life imprisonment without parole imposed in Wilson's case is grossly disproportionate to her crime. To perform this analysis, we must consider the gravity of the offense and the harshness of the punishment. Solem, 463 U.S. at 290-91. The United States Supreme Court noted in Solem that no single factor determines when a sentence is grossly disproportionate, and it offered a nonexhaustive list of factors to be considered when a court is assessing the severity of a crime. These factors include consideration of the circumstances of the crime, the harm caused to the victim or to society, the culpability of the offender, and the offender's motive in committing the crime. Id. at 290-94.

At the time of the offense, Theresa Wilson was 28 years old; this was her first offense. She obtained from her neighbor a liquid substance containing morphine and sold it to an undercover police officer for $150, in part on credit. Wilson was sentenced to life imprisonment without parole solely because she had sold more than 56 grams of the mixture, the limit set by the Legislature in its attempt to punish most severely the "drug barons" who engage in large-scale distribution of illegal drugs.

Act No. 86-534, codified at § 13A-12-231, Ala. Code 1975, under which Wilson was charged, is titled the "Drug Baron's Enforcement Act of 1986." All of the provisions of the act relate to large quantities of drugs, and the title indicates the Legislature's intent to punish severely the "drug barons," i.e., those who habitually trade in and profit from dealing in large quantities of drugs. Wilson does not fit into that category. We note that, if the trafficking statute included elements that tended to connect a defendant with the activities and characteristics of the drug barons the statute intended to punish, an individual in Wilson's circumstances, who bore none of those characteristics except for selling the arbitrary amount, would not have been subject to prosecution for trafficking.

Wilson testified that she became addicted to drugs in 1991, when a doctor prescribed narcotics for her after she was diagnosed with fibromyalgia syndrome. She acknowledged that she sold some of her own medication to the undercover officer so she could pay her utility bill, and because her neighbor's children needed food. Wilson said that, when the officer *Page 779 asked her whether she could obtain anything else, she told him that she might be able to sell him some morphine her neighbor had. Wilson was not in possession of, and initially had no intent to obtain possession of and to sell, the morphine. She did so only after the officer asked her if she could acquire something else to sell him. The evidence further established that Wilson had no knowledge of the street value of the substance. She was to pay her neighbor $70 and retain $80 for making the sale.¹³ Wilson sold the morphine on credit — the officer left with the morphine without paying the full price agreed upon. In sum, there is no evidence that Wilson was engaged in any kind of continuing enterprise involving the distribution of large quantities of morphine or other illegal drugs.¹⁴

The penalty imposed on Wilson was a mandatory sentence of life imprisonment without parole. This sentence, the second most severe sentence available in this State (the most severe being the death penalty) precluded the trial court's consideration of the circumstances of the crime and the characteristics of the offender. We recognize that mandatory sentencing schemes are constitutional. Jemison v. State,439 So.2d 786, 787-88 (Ala.Crim.App. 1983). We further acknowledge that under the separation-of-powers doctrine our Legislature is responsible for fashioning a system of punishment for crimes committed in this State. Id. We recognize, further, as have many courts before us, that the drug problem in the United States has horrific, far-reaching effects on individuals and on society as a whole. E.g., Harmelin,501 U.S. at 1002-1003 (Kennedy, J., concurring in part and concurring in the judgment). "However, the great potential harm to society can justify such harsh treatment in all cases of distribution only `if individual traffickers may constitutionally be punished for the social harm caused by the drug traffic as a whole.' . . . Acceptance of this argument would necessarily eliminate the proportionality principle as applied to individual cases." Terrebone v. Blackburn, 624 F.2d 1363, 1370 (5th Cir. 1980), reh'g granted, 646 F.2d 997 (5th Cir. 1981) (en banc).¹⁵ Wilson does not challenge the punishment scheme enacted by the Legislature, and we do not address that scheme, as a whole, today. We find, however, based on our analysis of the crime Wilson *Page 780 committed and the punishment imposed upon her, that the punishment, inthis case, was grossly disproportionate to the crime.¹⁶ Because we find that the first factor of the Solem proportionality test has been met in this case, we must go further and conduct a full-scale proportionality review, examining the second and third Solem factors. Harmelin,111 S.Ct. at 2707.

The second Solem factor examines the punishment imposed on other offenders in the same jurisdiction. Solem, 463 U.S. at 291. Based on the testimony of a representative of the Sentencing Institute at Wilson's Rule 32 hearing, the trial court found that only three other offenders in Alabama were serving sentences for violating § 13A-12-231(3)(d), Ala. Code 1975, and none of the three was serving a sentence of life imprisonment without parole. The evidence further established, and the trial court found, that Wilson was the only noncapital offender with no prior felony convictions in the Alabama prison system who was serving a sentence of life imprisonment without parole. (Supp.R.II-C. 25.) Further, we note that a mandatory sentence of life imprisonment without parole is available for a first offender only for other trafficking offenses, and as an alternative to the death penalty in capital murder cases. §§ 13A-12-231, 13A-5-45(a), Ala. Code 1975. It is clear that Wilson's sentence is more extreme than that imposed on many other offenders in this jurisdiction.

The third Solem factor, the punishment that the offender would have received had she committed this crime in another jurisdiction, was also addressed at the Rule 32 proceeding. Wilson states that she found no reported cases from other jurisdictions involving offenders convicted of trafficking in morphine. Our research likewise revealed few reported cases from other states involving trafficking in morphine, and only one of those was affirmed on appeal. In Sussman v. Kentucky, 610 S.W.2d 608 (Ky.Ct.App. 1981), the defendant was convicted of trafficking in morphine, cocaine, and other drugs. He was given the maximum sentence of 10 years' imprisonment on the morphine conviction.

Although the parties did not analyze the laws of other states regarding the penalties for trafficking in morphine, our own research has revealed that Wilson would have received a much more lenient sentence in many other jurisdictions. For example, in Delaware, punishment of those trafficking in 50 grams or more of morphine is a mandatory minimum of 25 years' imprisonment and the imposition of a fine. Del. Code Ann. tit. 16, § 4753A(a)(3)(c) (1974). Florida authorizes a fine and a mandatory term of imprisonment of 25 years for trafficking in more than 28 grams, but less than 30 kilograms of morphine. Fl. Stat. ch. 893.135(c)(1)(c) (2000). In Georgia, trafficking in 28 or more grams of morphine leads to a mandatory minimum sentence of 25 years' imprisonment plus a fine. Ga. Code Ann. § 16-13-31(b)(3) (1999). Trafficking in 15 to 99 grams of morphine in Illinois leads to a term of imprisonment of not less than 6 *Page 781 years or more than 30 years. 720 Ill. Comp. Stat. 570/401(a)(3)(A) (1998). The first offense of trafficking in a controlled substance in Kentucky is a Class C felony, which is punishable by imprisonment for not less than 5 years nor more than 10 years. Ky. Rev. Stat. Ann. §§218A.990 (1988). The first morphine trafficking offense in New Mexico is classified as a second-degree felony, for which the "basis sentence" is 9 years' imprisonment. N.M. Stat. Ann. §§ 30-31-20, 31-18-15 (A)(3) (1978). In South Carolina, trafficking in 28 grams or more of morphine leads to a mandatory term of imprisonment of not less than 25 years nor more than 40 years and the imposition of a fine. S.C. Code Ann. § 44-53-370(e)(3)(c) (1985). Finally, the manufacture, distribution, or delivery of morphine in Wisconsin results in a term of imprisonment of not more than 22 years and 6 months, or the imposition of a fine, or both. Wis. Stat. § 961.41(1)(a) (1999-2000). Alabama's penalty of life imprisonment without parole for the first offense of morphine trafficking is far more severe than the penalty imposed by many other jurisdictions.

E. ConclusionCareful analysis of the foregoing factors leads us to a conclusion rarely reached by appellate courts: the statute mandating imposition of a life without parole sentence is unconstitutional, as it is applied tothis defendant for the commission of this crime. We have not reached this conclusion lightly, but only after a thorough consideration of the specific facts of this case, an analysis of decades of United States Supreme Court decisions regarding proportionality review, a review of decisions of federal appellate courts, a review of decisions of the appellate courts of this state and other states, and a review of the punishments imposed in this and other jurisdictions for similar offenses. The decision we reach today is the only one that comports with constitutional principles. While illegal drugs pose severe problems for our State, and the Legislature is the proper branch of the government to set the punishment for trafficking offenses, we are compelled to hold that, based on the circumstances of this crime and the characteristics of this offender, the statutory mandatory minimum sentence of life imprisonment without parole is unconstitutional as applied.

The United States Court of Appeals for the Eighth Circuit recently released Henderson v. Norris, 258 F.3d 706 (8th Cir. 2001), which presents facts remarkably similar to those presented here. Henderson, who had no prior convictions, was sentenced to life imprisonment for delivering a small amount of crack cocaine for $20. The court analyzed that case as we have done here, in light of the principles set forth in the plurality opinion in Harmelin, and held that the sentence violated the Eighth Amendment. Noting that Henderson did not initiate the contact with the informant (neither did Wilson in this case), the court also noted that the amount of drugs sold was very small, and that there was no evidence of the "trappings" of the drug trade (as in Wilson's case). The court stated:

"Based on our initial examination of the severity of the crime that Mr. Henderson committed and the harshness of the penalty that he received, we reached the preliminary conclusion that the penalty imposed in this particular case is grossly disproportionate to the crime. Our comparison of the sentence imposed in this case with other sentences imposed in Arkansas and with sentences imposed for the same or similar crime in other jurisdictions has done nothing to undermine our original conclusion: In fact we believe that the comparison provides strong support for the

*Page 782

inference that we originally drew. We therefore conclude that Mr. Henderson's sentence violates the eighth amendment."

258 F.3d at 713. The Henderson case provides additional support for the result we were compelled to reach here.

We agree with the following statement in Justice Stevens's dissent inHarmelin:

"[A] mandatory sentence of life imprisonment without the possibility of parole does share one important characteristic of a death sentence: The offender will never regain his freedom. Because such a sentence does not even purport to serve a rehabilitative function, the sentence must rest on a rational determination that the punished `criminal conduct is so atrocious that society's interest in deterrence and retribution wholly outweighs any considerations of reform or rehabilitation of the perpetrator.' [Furman v. Georgia, 408 U.S. 238, 306 (1972) (Stewart, J., concurring.)] Serious as this defendant's crime was, I believe it is irrational to conclude that every similar offender is wholly incorrigible."

501 U.S. at 1028 (Stevens, J., dissenting).

In light of the foregoing, we hereby reverse the trial court's denial of Wilson's Rule 32 petition, and we reverse the sentence of the life imprisonment without parole. We remand this cause to the trial court for a new sentencing hearing. Because we have struck down the statutorily mandated sentence in this case, the trial court is free to consider the totality of the circumstances, which will ensure an individualized sentence appropriate to the crime committed, and it may do so within the framework of § 13A-5-6(1), Ala. Code 1975.

REVERSED AND REMANDED.

McMillan, P.J., concurs; Wise, J., concurs specially, with opinion; Baschab and Shaw, JJ., dissent, with opinions.

I reluctantly concur with the main opinion, which reverses the trial court's denial of Wilson's Rule 32, Ala.R.Crim.P., petition and the trial court's imposition of a sentence of life imprisonment without parole as mandated by § 13A-12-231(3)d., Ala. Code 1975. This was not a decision I entered into lightly. Indeed, I, like each member of this Court, struggled over this case for some time. I am deeply troubled by the procedure used to create the record before us on appeal. This Court, in effect, has used a petition for postconviction relief, filed pursuant to Rule 32, Ala.R.Crim.P., to preserve for appellate review an issue that was not raised on the record during Wilson's trial. However illogical such a procedure may seem, it has its genesis in Barnes v. State,621 So.2d 329 (Ala.Crim.App. 1992). I was not a member of this Court whenBarnes was decided, nor was I a member of this Court when, on the authority of Barnes, it stayed Wilson's direct appeal, transferred jurisdiction of the cause to the circuit court for adjudication of the Rule 32 petition, and ordered that the record on appeal be supplemented with a transcript of the Rule 32 proceedings.

While I have grave concerns about the propriety of this Court's decision in Barnes, the fact remains that Barnes was decided before Wilson's case was before us. Therefore, the procedure set out in Barnes was available to Wilson. I cannot fault Wilson or her attorneys for using every available opportunity to present her appeal in the most favorable light, including taking advantage of the procedural *Page 783 quagmire this Court created with the Barnes opinion. For this reason, I would welcome the opportunity to revisit Barnes. However, for purposes of this appeal, we are bound by the record this Court allowed to be created when it stayed Wilson's direct appeal. Moreover, by staying the direct appeal, this Court led Wilson to believe that we would consider the merits of her claim. Thus, I believe that this Court cannot now decide that the issue was not preserved because it did not appear on the record during Wilson's trial.

I disagree with Judge Shaw's conclusion in his dissent that this Court's decision is based on the fact that Wilson is a mother of two young children. My decision would have been the same, regardless of the defendant's personal circumstances. Indeed, in deciding that Wilson's sentence violated the prohibition against cruel and unusual punishment contained in the Eighth Amendment of the United States Constitution and Art. I, § 15, of the Alabama Constitution of 1901, I was influenced by the analysis set out by Justice Kennedy in his special concurrence inHarmelin v. Michigan, 501 U.S. 957 (1991). Citing Solem v. Helm,463 U.S. 277 (1983), and other decisions, Justice Kennedy noted that a defendant's sentence must be proportionate to the crime,501 U.S. at 997-1000; he then applied this principle to his review of the severe length and mandatory nature of the defendant's sentence. Ultimately, Justice Kennedy concluded that the sentence imposed in Harmelin did not violate the prohibition against cruel and unusual punishment. He noted:

"The Michigan scheme does possess mechanisms for consideration of individual circumstances. Prosecutorial discretion before sentence and executive or legislative clemency afterwards provide means for the State to avert or correct unjust sentences. Here the prosecutor may have chosen to seek the maximum penalty because petitioner possessed 672.5 grams of undiluted cocaine¹⁷ and several other trappings of a drug trafficker, including marijuana cigarettes, four brass cocaine straws, a cocaine spoon, 12 Percodan tablets, 25 tablets of Phendimetrazine Tartrate, a Motorola beeper, plastic bags containing cocaine, a coded address book, and $3,500 in cash."

501 U.S. at 1008 (emphasis supplied).

Here, just as in Harmelin, Wilson faces a mandatory sentence of life imprisonment without the possibility of parole — the second most severe sentence permitted by law. Unlike the statute in Harmelin, §13A-12-231(3)d., does not provide "mechanisms for consideration of individual circumstances." 501 U.S. at 1008. Thus, the statute allows neither the prosecutor nor the court any discretion in the sentence to be imposed on conviction. Moreover, there is no evidence that Wilson possessed any of the trappings of a drug trafficker. Indeed, she appeared to be unaware of the value of the morphine; she sold it to an undercover officer for his suggested price of $150, receiving only part of the agreed-upon price at the time of the transaction and the officer's promise to pay her the remainder at a later date. This cannot be said to be the conduct of a veteran drug trafficker. Thus, I am compelled to conclude that the *Page 784 mandatory sentence of life imprisonment without possibility of parole as imposed against Wilson violates the prohibition against cruel and unusual punishment.

I dissent from the majority's ludicrous and outrageous opinion because, for several reasons and contrary to its assertion, that opinion does not "comport with constitutional principles." 830 So.2d at 721.

First, the State correctly argues that the record does not indicate that the appellant filed a notice of appeal from the denial of her Rule 32 petition. Rule 4(b)(1), Ala.R.App.P., requires that a notice of appeal in a criminal case be filed within 42 days after pronouncement of sentence. "In the context of post-conviction relief, the 42-day appeal period runs from the date of the trial court's denial of the Rule 32 petition." Ex parte Jones, 773 So.2d 989, 989 (Ala. 1998). "An appealshall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court." Rule 2(a)(1), Ala.R.App.P. (emphasis added). In this case, because the appellant did not file a notice of appeal from the denial of her Rule 32 petition, the record from that proceeding and issues related to that proceeding are not properly before this court.

Second, the appellant did not properly preserve for appellate reviewduring the trial proceedings her argument that her mandatory sentence of imprisonment for life without the possibility of parole constitutes cruel and unusual punishment. The record of the trial proceedings does not indicate that the appellant ever raised the argument that her sentence constitutes cruel and unusual punishment. Because she did not first present this argument to the trial court at sentencing or in an appropriate post-judgment motion, she did not preserve it for appellate review. See Perry v. State, 741 So.2d 467 (Ala.Crim.App. 1999);Worthington v. State, 652 So.2d 790 (Ala.Crim.App. 1994).

The majority erroneously states that the appellant's argument is properly before this court because it "is before us, not in the typical procedural posture, but in a procedural sequence which has been sanctioned by this Court." 830 So.2d at 769. That statement is misleading for two reasons. First, one judge, rather than a majority of the court, unilaterally made the decision to stay the appeal and remand the case to allow the circuit court to dispose of the appellant's Rule 32 petition. Second, even if a majority of this court had agreed to stay the direct appeal proceedings and remand this case, presenting evidence during the Rule 32 proceedings to establish that the appellant preserved the issue for review on direct appeal and to support her proportionality argument was not appropriate. "The purpose of a post-conviction petition is not to retry a case. Neither is a post-conviction petition a substitute for an appeal, `nor does it afford one an additional, de facto, appeal.' Ex parteWilliams, 651 So.2d 569, 572 (Ala.), on remand, 651 So.2d 573 (Ala.Cr.App.), after remand, 659 So.2d 972 (Ala.Cr.App. 1994)." Ex parteLand, 775 So.2d 840 (Ala.Crim.App. 1998). Nevertheless, the majority finds that this issue is properly before this court and bases its entire proportionality review upon evidence presented during the Rule 32 proceedings. Rule 32 counsel, one of whom is a former appellate court judge, and the retired circuit judge, who submitted an affidavit regarding preservation of the issue, certainly knew that this was not an appropriate method for preserving an issue for review on direct appeal.

Furthermore, even if the procedure was appropriate, I still question whether the evidence established that the appellant preserved this argument for *Page 785 appellate review. In his affidavit, J. Richmond Pearson, the circuit judge who tried the appellant's case, stated that, before the sentencinghearing, the appellant challenged the constitutionality of §13A-12-231(3)d., Ala. Code 1975, and argued that a sentence of imprisonment for life without the possibility of parole violated the Eighth Amendment prohibition against cruel and unusual punishment. However, he does not indicate that the appellant objected after heimposed her sentence. Therefore, I question whether the appellant's alleged objections would have been sufficient, if they had been included in the direct appeal record, to preserve this argument for appellate review. What kind of precedent are we setting in this case? Will convicted defendants now be able to file Rule 32 petitions and use Rule 32 proceedings to preserve issues they neglected to preserve during their trials? This is a dangerous position for this court to take, and, likeBarnes, infra, will no doubt lead to confusion, abuse, and inconsistencies.

Third, even if the appellant had preserved her argument for appellate review, it is without merit. This court has repeatedly stated that "[we] will not disturb a sentence on appeal where the trial court imposes a sentence within the statutory range. Brown v. State, 611 So.2d 1194, 1198 (Ala.Cr.App. 1992)." Sinkfield v. State, 669 So.2d 1026, 1028 (Ala.Crim.App. 1995). The appellant's sentence complies with the sentencing provisions of § 13A-12-231(3)d., Ala. Code 1975, which were established by the Legislature. Although the sentence may not seem fair,

"it is not the province of this Court to make policy. Our function is to interpret the law. Art. III, § 43, Alabama Constitution of 1901, states:

"`In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.'

"`Courts, above all others, are charged with a very sacred duty not to encroach upon the domain of other departments of government under our constitutional system of government.' Hendrix v. Creel, 292 Ala. 541, 545, 297 So.2d 364 (1974). As the Alabama Supreme Court stated in Piggly Wiggly No. 208, Inc. v. Dutton, 601 So.2d 907, 911 (Ala. 1992):

"`"No branch of the government is so responsible for the autonomy of the several governmental units and branches as the judiciary. Accordingly, we have held that courts cannot and will not interfere with the discretion vested in other units or branches of government."'

"Quoting Finch v. State, 271 Ala. 499, 503, 124 So.2d 825 (1960)."

Little v. State, 739 So.2d 539, 545 (Ala.Crim.App. 1998) (Brown, J., dissenting). See also Wimberly v. State, 759 So.2d 574, 576-77 (Ala. 2000) (Brown, J., dissenting); Young v. State, 730 So.2d 1251, 1259 (Ala.Crim.App. 1998) (Brown, J., dissenting). Accordingly, even if the appellant had preserved this argument for our review, we should not second-guess the Legislature and disturb her sentence.

Finally, this court should take this opportunity to overrule Barnes v.State, 621 So.2d 329 (Ala.Crim.App. 1992), to the extent it holds that an appellate court may stay proceedings on direct appeal if a Rule *Page 786 32 petition is filed while the direct appeal is pending. Barnes distorted and misinterpreted the plain language of Rule 32.6(c), Ala.R.Crim.P., and this case clearly demonstrates the confusion, abuse, and inconsistencies that frequently occur when a direct appeal is stayed pending the outcome of a Rule 32 proceeding in the circuit court. See also J.W. v. State,814 So.2d 997 (Ala.Crim.App. 2001).

This is a case in which a decision was reached, and a way to justify that decision was contrived afterward. When this case was originally submitted to this court on October 30, 1998, the only issue the appellant argued was that her sentence constituted cruel and unusual punishment. In response, the State argued that the appellant had not preserved the issue for appellate review because she had not first presented it to the trial court. Rather than holding that the appellant had not preserved the issue for appellate review, the direct appeal was stayed, jurisdiction was transferred to the circuit court, and the appellant was, following the majority's logic, given a second chance to preserve the issue for appellate review through the Rule 32 proceedings. However, in the order transferring jurisdiction to the circuit court, procedural rules were again ignored. In their "Motion to Remand," the attorneys for the appellant alleged that "the Jefferson County Circuit Clerk's office stamped Appellant's petition as having been filed on September 16, 1998, but refused to accept a copy of the petition and failed to send a copy of the petition to this Court." In an order authorized by one judge on this court and dated November 17, 1998, the circuit clerk was instructed to "docket the [petition] as having been filed on September 16, 1998, unless the circuit clerk files an affidavit with this Court refuting the appellant's allegations regarding her initial attempt to file her petition." In a case action summary sheet entry dated November 23, 1998, the acting duty judge noted that the appellant had presented his petition on September 16, 1998. However, the judge further noted that "noaffidavit of indigency or filing fee accompanied said petition asrequired by said Rule and said petition was never docketed but was returned to [the appellant's attorney]." (S.C.R.1 33) (emphasis added). Nevertheless, the circuit judge reviewed its file, declared the appellant indigent for purposes of filing the petition, and accepted the petition. As Justice Houston cautioned in his dissent in Butler v. Alabama JudicialInquiry Commission, 802 So.2d 207, 226 (Ala. 2001), "To begin with the end in mind . . . is something a judge should not do in the process of judging, except in the most extraordinary cases." This is not one of those most extraordinary cases because the appellant's sole argument was clearly not properly before this court when she filed her direct appeal.

The majority has bent over backward to reverse the appellant's sentence because it does not seem to be fair. Although I am sympathetic to the appellant's plight, her remedy is not with this court.¹⁸ We are a court of law rather than a court of equity, and we cannot ignore the law and make our decisions based on emotion. When I became a judge, I took an oath to uphold the law, and I have made a practice of deciding cases based on the law rather than emotion. Because the majority opinion in this case does not follow the law, I am compelled to dissent.

*Page 787

I can find no support in either Rule 32, Ala.R.Crim.P., or Barnes v.State, 621 So.2d 329 (Ala.Crim.App. 1992), for the proposition that this Court has the authority, over an objection by the State, to allow the record on a pending direct appeal to effectively be supplemented in a Rule 32 proceeding to preserve an issue for appellate review that was not raised on the record during the initial trial and, therefore, could not have been properly raised and reviewed on the direct appeal. I must therefore respectfully dissent.

I was not a member of this Court when Barnes was decided, and I hesitate to assail or to defend its underlying rationale. However, I cannot help but question the propriety of the remand procedure that was apparently approved in Barnes and that the majority relies on in this case. Under that procedure, this Court may suspend the Alabama Rules of Appellate Procedure and eliminate altogether the jurisdictional requirement of filing a notice of appeal from the denial of a Rule 32 petition. I would suggest that this Court should revisit Barnes at some point, at least with respect to that particular issue. But even assuming that there is authority to support that aspect of the procedure adopted in Barnes, there are more fundamental problems with the majority's approach in the present case.

The record of the Rule 32 proceedings that was certified to this Court clearly indicates that the sole purpose of Wilson's Rule 32 petition was (1) to challenge her life-without-parole sentence, based on the Eighth Amendment to the United States Constitution and on Article I, § 15, of the Alabama Constitution of 1901, and (2) to introduce the affidavit of the circuit judge who presided over her trial as evidence that Wilson's Eighth Amendment issue was properly preserved at trial. The affidavit, which was admitted into evidence in support of Wilson's Rule 32 petition over the State's objection, provided, in pertinent part:

"Secondly, counsel argued whether the penalty of life imprisonment without parole violated the Eighth Amendment to the Constitution of the United States which prohibits the invocation of cruel and unusual punishment. [This issue was] raised on several occasions, in and out of chambers, but [does] not appear on the record."

(C.Supp. 57.)

The circuit court denied Wilson's Rule 32 petition on the merits, concluding that it had no "jurisdiction to review a sentence when the punishment is imposed within the limits defined by the punishing statute." The majority, relying on Barnes, holds that the federal constitutional issue that Wilson raised on direct appeal was properly preserved at her trial. The majority_bases that holding on the record created in theRule 32 proceedings. I find the majority's approach to be unprecedented and more than a little troubling.

Barnes, on its face, was an attempt by this Court to craft a workable procedure that, among other things, allows a Rule 32 petition filed during the pendency of a direct appeal to be adjudicated in the circuit court and then allows the circuit court's ruling on that Rule 32 petition to be reviewed simultaneously with this Court's review of the pending appeal. The underlying rationale of Barnes was ultimately grounded in this Court's desire for judicial economy. However, I can find nothing inBarnes that dissolved or otherwise diminished the basic, historic distinction this Court has maintained between direct review and collateral review of convictions and sentences. Nor can I find anything in Barnes that abrogated the well-established rule that appellate courts *Page 788 are not permitted to consider matters outside the record in the particular proceedings under review.

Rule 32, by its express terms, precludes collateral review of any nonjurisdictional ground raised or addressed at trial and on appeal, see Rule 32.2(a)(2) and (4), or that could have been, but was not, raised or addressed at trial or on direct appeal, see Rule 32.2(a)(3) and (5). Therefore, the federal constitutional issue, whether or not actually raised off the record by Wilson during her trial, was clearly not reviewable under Rule 32. The trial court reached the merits of Wilson's petition; it could have, and perhaps should have, denied the petition based on the grounds of preclusion in Rule 32.

The majority completely blurs the distinction between the Rule 32 proceedings and the direct appeal, reverses the trial court's ruling on Wilson's Rule 32 petition, and then addresses the federal constitutional issue raised on direct appeal based upon its finding from the record ofthe Rule 32 proceedings that that issue was properly preserved at trial. It is well settled that matters outside the record cannot be considered on appeal. In Etherton v. City of Homewood, 700 So.2d 1374 (Ala. 1997), the Alabama Supreme Court stated:

"As a corollary, we are not permitted to consider matters `dehors the record.' Cooper v. Adams, 295 Ala. 58, 61, 322 So.2d 706, 708 (1975). This rule may be restated as follows: `(1) Argument in brief reciting matters not disclosed by the record cannot be considered on appeal. (2) The record cannot be impeached on appeal by statements in brief, by affidavits, or by other evidence not appearing in the record.' Id."

700 So.2d at 1378. See also McCain v. State, 611 So.2d 1123, 1126 (Ala.Crim.App. 1992) ("[t]his court is bound by the record, and the record may not be impeached by matters outside of the record"); andBamberg v. State, 611 So.2d 450, 452 (Ala.Crim.App. 1992) ("if in fact the off-the-record discussion did concern the issue the appellant now raises, it was the appellant's duty to make a complete record on appeal"). In United States Fidelity Guaranty Co. v. InternationalBrotherhood of Teamsters, 40 Ala. App. 452, 115 So.2d 42 (1959), the Court of Appeals noted:

"On appeal we must look to the record for the evidence on the trial, and cannot consider evidence aliunde or matters dehors the record. Lindsey v. Barton, 260 Ala. 419, 70 So.2d 633; Byrd v. Aetna Life Ins. Co., 27 Ala. App. 1, 165 So. 109.

"The general rule is that: `The record on appeal cannot be varied, added to, or explained by, a statement or certificate of the judge before whom the case was tried, the stenographer who took the evidence on the trial, or the clerk who made the record.' 4A C.J.S. Appeal and Error § 779, p. 648. The holding[s] of our courts on this question seem to be in accordance with the general rule that `. . . the appellate court will not ordinarily consider matters contained in such a statement or certificate which is not a part of the record.' 4A C.J.S. Appeal and Error § 1213, p. 1347. Montgomery Bank Trust Company v. State, 201 Ala. 447, 78 So. 825; Wright v. McCullough, 16 Ala. App. 575, 80 So. 149."

40 Ala. App. at 454-55, 115 So.2d at 44-45. In addition, in Jefferson v.State, 449 So.2d 1280, 1282 (Ala.Crim.App. 1984), this Court stated:

"If counsel makes objections and secures rulings `off the record,' this court cannot consider those rulings. If the trial court hears objections and makes rulings in side-bar conferences only, then the court reporter must be a party

*Page 789

to the side-bar conference if the actions of counsel are to be recorded. Our review is limited to matters of record."

An appellant can file a motion to supplement or to correct a record on appeal, see Rule 10(g), Ala.R.App.P. See, e.g., Fuller v. State,472 So.2d 452 (Ala.Crim.App. 1985), and Welch v. State, 455 So.2d 299 (Ala.Crim.App. 1984), both of which held that the failure to follow the procedure established in Rule 10 precludes appellate review of matters not appearing in the record. Wilson did not seek to supplement her record on direct appeal, as provided in Rule 10(g). Therefore, Wilson's claim on direct appeal that her life-without-parole sentence violates the Eighth Amendment to the United States Constitution is not properly before this Court.

To my knowledge, until the majority's holding in the present case, no rule of procedure or caselaw authorized, over an objection by the State, the use of a Rule 32 proceeding to establish a record, so that an issue, unpreserved at trial and unreviewable in the Rule 32 proceeding, could be addressed on direct appeal for the purpose of declaring duly enacted legislation unconstitutional.

Although I would not reach the federal constitutional issue,¹⁹ I must comment on the majority's holding with respect to the Eighth Amendment. In Harmelin v. Michigan, 501 U.S. 957 (1991), the petitioner, who, like Wilson, had no prior criminal convictions, was convicted of possessing 672 grams of cocaine and was sentenced to a mandatory term of life imprisonment without parole. The petitioner argued that his sentence was unconstitutionally "cruel and unusual" for two reasons: first, because it was "significantly disproportionate" to the crime he committed; and second, because the sentencing judge was statutorily required to impose it, without taking into account the particularized circumstances of the crime and of the criminal. A majority of the United States Supreme Court rejected both of those arguments and affirmed the petitioner's sentence. Although a proportionality principle of an undetermined scope survived Harmelin, it is not at all clear to me, based upon my reading of the different viewpoints expressed by the Justices in that case, that a majority of that Court, as presently constituted, would declare unconstitutional the legislation at issue here. In other words, I have a doubt, which I perceive to be reasonable, that the statute at issue in the present case is unconstitutional as applied to the facts presented. Although I deem the question to be a close one, the factual distinctions the majority makes between Wilson in this case and the petitioner in Harmelin are just not sufficient, at least in my mind, to eliminate that doubt.

A statute is presumed to be constitutional, and I must be convinced beyond a reasonable doubt that an act of the Alabama Legislature violates either the federal constitution or the state constitution before I will vote to hold it unconstitutional. See, e.g., Donley v. City of MountainBrook, 429 So.2d 603, 607 (Ala.Crim.App. 1982) ("This Court will not hold [statutes] unconstitutional unless convinced beyond a reasonable doubt of their unconstitutionality.") "`[O]ur solemn duty [is] to uphold a law, which has received the sanction of the Legislature, unless we are convinced beyond a reasonable doubt of its unconstitutionality.'" Exparte Melof, 735 So.2d 1172, 1179 (Ala. 1999), quoting Yeilding v. Stateex rel. Wilkinson, 232 Ala. 292, 298, *Page 790 167 So. 580, 585 (1936). My views in this respect were best expressed by Chief Justice Gardner, writing for the Alabama Supreme Court many years ago in Alabama State Federation of Labor v. McAdory, 246 Ala. 1,18 So.2d 810 (1944):

"At the outset reference may be made, as is often done, to the principles by which courts are guided when it is sought to strike down as violative of the constitution a legislative act. Uniformly, the courts recognize that this power is a delicate one, and to be used with great caution. It should be borne in mind, also, that legislative power is not derived either from the state or federal constitutions. These instruments are only limitations upon the power. Apart from limitations imposed by these fundamental charters of government, the power of the legislature has no bounds and is as plenary as that of the British Parliament. It follows that, in passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government. All these principles are embraced in the simple statement that it is the recognized duty of the court to sustain the act unless it is clear beyond a reasonable doubt that it is violative of the fundamental law. State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 186 So. 487, 121 A.L.R. 283.

"Another principle which is recognized with practical unanimity, and leading to the same end, is that the courts do not hold statutes invalid because they think there are elements therein which are violative of natural justice or in conflict with the court's notion of natural, social, or political rights of the citizen, not guaranteed by the constitution itself. Nor even if the courts think the act is harsh or in some degree unfair, and presents chances for abuse, or is of doubtful propriety. All of these questions of propriety, wisdom, necessity, utility, and expediency are held exclusively for the legislative bodies, and are matters with which the courts have no concern. This principle is embraced within the simple statement that the only question for the court to decide is one of power, not of expediency or wisdom. 11 Am.Jur pp. 799-812; A. F. of L. v. Reilly District Court of Colorado, 7 Labor Cases No. 61,761."

246 Ala. at 9-10, 18 So.2d at 814-15.

From a personal standpoint, I share the majority's concern for the plight in which Wilson, a young mother of two children, finds herself. However, as an appellate judge, in the absence of a clear showing that a statute is unconstitutional, I do not have the luxury or the constitutional authority to question the propriety, wisdom, necessity, utility, or expediency of a duly enacted statute. To me, the majority's decision is impermissibly based on a concept of natural justice and on the perception that the statute conflicts with general notions of natural or social rights of the citizen — rights not afforded specific constitutional protection. The majority believes that it has found a clear constitutional path to lead it to the correct result. I assume that a higher court will ultimately determine whether it has. I am concerned, however, that the path the majority has taken in this case will inevitably lead this Court into making subjective personal value determinations in other cases — determinations it should not make. Will the statute be held unconstitutional as applied to all first-time traffickers, male or female, married or single, with or without children, young or old, wealthy or poor, or will it, as the majority suggests, be held unconstitutional only as applied to facts such as those *Page 791 presented here — to young mothers of children? What will the majority do in the next case, which will surely come, where relief from a sentence of life imprisonment without parole is sought by a person who has violated § 13A-12-231, but whose overall situation in life does not pull quite so strongly on a sensible person's heartstrings? What are the implications of this decision in other contexts where sentences are challenged as being excessive under the Eighth Amendment? These are, of course, rhetorical questions, at least for now; however, they are difficult questions that, as a result of the majority's decision today, will someday have to be answered.

Finally, I note, as does Judge Cobb in footnote 1 of the majority opinion, that Apprendi v. New Jersey, 530 U.S. 466 (2000), may be implicated here. However, without the benefit of any argument by the parties, because of the majority's holding with respect to the Eighth Amendment issue in this case, and given the majority's holding in Poolev. State, [Ms. CR-99-1200, August 31, 2001] ___ So.2d ___ (Ala.Crim.App. 2001), I decline to address the legality of Wilson's sentence in light ofApprendi.