Alderman v. State

• Decision Date: 06 May 1994
• Citation: 647 So.2d 28
• Parties: Joe ALDERMAN v. STATE. CR 93-97.
• Court: Alabama Court of Criminal Appeals

Page 28

647 So.2d 28

Joe ALDERMAN v. STATE.

CR 93-97.

Court of Criminal Appeals of Alabama.

May 6, 1994.

Rehearing Denied July 8, 1994.

Certiorari Denied Aug. 19, 1994

Alabama Supreme Court 1931445.

Ron Storey, Dothan, for appellant.

James H. Evans, Atty. Gen., and Stephen Dodd, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

This is an appeal from the summary dismissal of a Rule 32, A.R.Crim.P., petition filed by the appellant, Joe Alderman, attacking the validity of his 1991 conviction for theft of property in the second degree.

On September 9, 1991, the appellant, represented by retained counsel W. Terry Bullard, appeared for trial. After the jury was selected and several preliminary motions were argued, the appellant withdrew his plea of not guilty and pleaded guilty to second degree theft. On October 11, he was sentenced to six years' imprisonment.

On October 22, the appellant retained new counsel, Dennis N. Balske. On November 8, Balske filed a motion to withdraw the plea and a motion for a new trial. Those motions attacked the validity of the plea on a number of grounds, but they did not allege that the appellant had been denied the effective assistance of trial counsel.

At the time the post-plea motions were filed, the court reporters' transcripts ¹ of the plea and sentencing proceedings had been filed, certified, and sent to Balske. P.R. 47-50; S.R. 35-37; Supp.R. 4. It is clear that Balske had access to the transcripts at the time he filed the post-plea motions because the motions specifically referred to portions of the transcript. Supp.R. 9.

After a hearing on November 25, the circuit court denied the motion to withdraw the plea and the motion for a new trial. On direct appeal to this court, the appellant's conviction and sentence were affirmed on March 27, 1992. Alderman v. State, 615 So.2d 640 (Ala.Cr.App.1992).

On August 27, 1993, the appellant, assisted by a new attorney, Ron Storey, filed a Rule 32 petition. The petition alleged that the appellant's guilty plea conviction was due to be vacated because the appellant had been denied the effective assistance of both trial counsel and of appellate counsel.

In his petition, the appellant outlined seven particular acts or omissions that allegedly demonstrate the inadequacy of trial counsel Bullard. Then, in a final "catch-all" allegation, the appellant concluded that appellate counsel Balske provided inadequate assistance because Balske "failed to raise on appeal the issue of denial of effective assistance of [trial] counsel" Bullard. C.R. 10.

On August 30, 1993, the State filed a motion for summary disposition, alleging that the issues raised in the petition either were, or could have been, raised at trial or on appeal. In its August 31 order granting the State's motion for summary disposition, the circuit court stated:

"I have considered the motion for Rule 32 relief and the responsive motion for summary disposition. I find that the defendant has had more than ample opportunity to present his claims through his new trial motion and through the appellate process. He had counsel other than his retained trial counsel in both proceedings. I find his claim is procedurally barred and have granted the summary disposition motion." C.R. 12.

All seven of the appellant's claims regarding the ineffectiveness of trial counsel Bullard are barred from Rule 32 review because the appellant did not present those claims to the circuit court in his motion to withdraw the guilty plea or motion for a new trial. See Ex parte Jackson, 598 So.2d 895, 897 (Ala.1992). The ineffectiveness claims concerning Bullard are precluded by Rules 32.2(a)(3) and (5), because they could have been, but were not, raised at trial or on appeal. "Failure to include a reasonably ascertainable issue in a motion for a new trial will result in a bar to further argument of the issue on appeal and in post-conviction proceedings." Ex parte Jackson, 598 So.2d at 897 (emphasis added).

The issue of Balske's ineffectiveness, however, is not precluded because the Rule 32 petition represents the appellant's first opportunity to present that claim to the circuit court. In order to determine whether the appellant was entitled to a hearing on the ineffectiveness claim concerning Balske, we must determine whether that claim is "meritorious on its face." Ex parte Boatwright, 471 So.2d 1257, 1258 (Ala.1985). The merit of the Balske claim depends, in part, on the merits of the Bullard claims because if trial counsel Bullard was not ineffective, then appellate counsel Balske could not have been ineffective for failing to question on appeal Bullard's performance. See Tarver v. State, 629 So.2d 14, 18-19 (Ala.Cr.App.1993).

Therefore, despite the fact that the issue of whether Bullard's performance was ineffective is precluded, we must nevertheless examine Bullard's conduct to some extent in order to determine whether Balske was ineffective in failing to raise the issue of Bullard's alleged inadequate performance.

A.

The theft conviction that is being collaterally attacked in this case arose out of a construction contract the appellant entered into with a Dr. and Mrs. Bellone. The appellant claims that Bullard failed to advise him properly concerning the threat of future prosecution for a separate, unrelated offense arising out of the appellant's financial dealing with a Ms. Wanda Irby.

This issue has been raised, in different guise, twice before: by Bullard's motion to withdraw the plea at sentencing and by Balske's motion for a new trial and motion to withdraw the plea.

Balske's written motion to withdraw the plea was accompanied by affidavits from Bullard, the appellant, and Ms. Irby. Bullard's affidavit averred that the assistant district attorney had informed him that Ms. Irby intended to have the appellant prosecuted for theft, but that the prosecutor would forego seeking an indictment against the appellant for that offense if the appellant would plead guilty to theft of property belonging to the Bellones.

Ms. Irby's affidavit stated that she did not wish to prosecute the appellant for theft; instead, she was pursuing civil remedies against the appellant. The appellant's affidavit claimed that he pleaded guilty only because he thought Ms. Irby wanted to have him prosecuted for theft and, had he known that Ms. Irby did not intend to prosecute him, he would never have accepted the State's plea bargain offer.

The State's response to the motion was accompanied by an affidavit of the assistant district attorney. That affidavit stated that the prosecutor never told defense counsel Bullard that Ms. Irby personally wished to have the appellant prosecuted for theft of property. Instead, the prosecutor stated that he informed defense counsel that he had spoken with an investigator at the Alabama Securities Commission about the possibility of prosecuting the appellant for securities fraud regarding his dealings with Ms. Irby, and that he (the prosecutor) would agree to forego that prosecution if the appellant pleaded guilty to theft of the Bellone's property.

On direct appeal of the appellant's theft conviction, this court affirmed the circuit court's denial of the motion to withdraw the plea and the motion for a new trial. Observing that the trial court "made an express find[ing] that there [was] no appropriate basis on which to allow the guilty plea to be withdrawn," Alderman v. State, 615 So.2d at 644, this court held that the record did not substantiate "[t]he appellant's claim that his plea was induced by misrepresentation, or even misconveyed information." Id. at 645 (emphasis added).

We based our holding that the appellant's plea was not induced by false or incorrect information primarily on the fact that the appellant and his counsel stood mute and failed to correct the following statement, made during the guilty plea colloquy, by the assistant district attorney:

"I have spoken to Ms. Irby ... and she stated to me that she has not pursued any criminal action regarding [the] financial dealings she had with the defendant, nor does she intend to." P.R. 45 (emphasis added).

This court's holding on direct appeal that the record did not support "[t]he appellant's claim that his plea was induced by misrepresentation, or even misconveyed information," is dispositive of the issue now raised on collateral attack. If the appellant's plea was not induced by misconveyed information, then Balske did not render ineffective assistance of counsel by failing to allege that Bullard wrongly advised the appellant about the threat of future prosecution for an offense against Ms. Irby.

B.

The appellant claims that Bullard guaranteed him that he could withdraw his plea within 42 days of entering it, and that he relied on that guarantee when he decided to plead guilty.

This allegation states a claim of ineffective assistance of counsel that, if true, is "meritorious on its face." Cf. Minor v. State, 627 So.2d 1071, 1072 (Ala.Cr.App.1992) (promise that defendant would receive probation); Arnold v. State, 562 So.2d 296, 297 (Ala.Cr.App.1990) (same).

Balske's failure to raise the issue might constitute ineffective assistance of counsel only if Balske, having been made aware of facts supporting the claim, did not bring the claim to the circuit court's attention.

Balske could have been made aware of facts supporting the claim (1) by examining the transcript of the plea and sentencing proceedings, or (2) by hearing from the appellant about Bullard's guarantee. We have reviewed the transcript of the guilty plea and sentencing proceedings and it does not reveal any basis for the appellant's complaint that Bullard misadvised him.

It was not sufficient, therefore, for the appellant simply to plead, in his Rule 32 petition, that Balske was ineffective for failing to raise the foregoing claim in a motion to withdraw the plea or a motion for a new trial. Since the transcript would not have alerted Balske...