Alderman v. State

• Decision Date: 27 March 1992
• Citation: 615 So.2d 640
• Parties: Joe ALDERMAN v. STATE. CR 91-82.
• Court: Alabama Court of Criminal Appeals

Page 640

615 So.2d 640

Joe ALDERMAN v. STATE.

CR 91-82.

Court of Criminal Appeals of Alabama.

March 27, 1992.

Rehearing Denied May 1, 1992.

Certiorari Quashed March 26, 1993

Alabama Supreme Court 1911313.

Dennis N. Balske of Balske and Van Almen, Montgomery, for appellant.

James H. Evans, Atty. Gen., and Andy S. Poole, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

Joe Alderman, the appellant, pleaded guilty to and was convicted of the offense of theft in the second degree. Three issues are raised in this appeal.

The appellant was originally indicted for the offense of theft in the first degree. On September 9, 1991, the case was called for trial and a jury was struck. After the jury was empaneled, but before opening statements and the presentation of any evidence, trial was recessed for lunch. When trial resumed, defense counsel notified the trial court, out of the presence of the jury, that the appellant wished to enter a guilty plea. The prosecutor then stated that he "intend[ed] to file an amended count two stating theft of property in the second degree." PR. 31. ¹

In response to specific questioning by the trial judge, the appellant stated that he was 26 years of age and that he had attended college for a year and a half. He further stated that he was not "under psychiatric treatment," was not "experiencing mental or emotional problems," or was not "under the influence of any medication, drugs, or alcohol." PR. 33-34. The trial judge advised the appellant that theft in the second degree is a Class C felony and explained to him the elements of and the correct range of punishment for that offense. PR. 34-36. The trial judge also gave the appellant a detailed explanation of the rights he would waive by pleading guilty. PR. 37-39.

The appellant responded negatively to the trial judge's questions of whether anyone had threatened him or offered him a reward to plead guilty, or promised him that he would be placed on probation or given a suspended sentence. PR. 39-40. After hearing what the prosecutor expected the evidence to show, PR. 40-42, the trial judge accepted the appellant's guilty plea and adjudged the appellant guilty, PR. 43.

During the sentencing hearing held October 11, 1991, the appellant sought to withdraw his plea, alleging that the plea had been induced by misrepresentation. This request was denied by the trial court, and the appellant was sentenced to six years' imprisonment, was fined $6,002, and was ordered to pay restitution in the amount of $3,001. In response to the appellant's application for probation, the trial court stated: "He will be on probation for five years after two years of incarceration." SR. 32. ²

On November 8, 1991, appellate counsel ³ filed a written motion to withdraw the plea. The grounds for this motion were: (1) that the guilty plea was induced by misrepresentation; (2) that there was no factual basis for the plea; and (3) that the appellant's "due process and Sixth Amendment rights were violated at the sentencing hearing," Supp.R. 9, when the trial court permitted the prosecutor to introduce hearsay evidence and then imposed an excessive sentence. The State filed a written response opposing this motion. The trial court denied the motion to withdraw in a written order stating that it had considered both the appellant's motion and the State's response thereto.

I

The appellant contends that his guilty plea was induced by a misrepresentation on the part of the prosecutor and therefore was not voluntarily and intelligently made.

The appellant was charged with theft by deception in connection with a construction consulting contract that he had with the victims. See Part II below. At the sentencing proceeding, the prosecutor stated that the presentence report ⁴ was "very much incomplete," SR. 4, and that he had "quite a bit of information" to relate that was "important to the Court," SR. 5. During the discussion on whether the prosecutor would be permitted to provide this information to the court, defense counsel sought a continuance, or, in the alternative, permission for the appellant to withdraw his plea. As grounds for the motion to withdraw the plea, defense counsel stated that he "was given information that proved not to be true," SR. 9, and that this erroneous information caused him to wrongly advise the appellant to plead guilty. The trial court then stated:

"Taking your requests in [the] order in which you have presented them, I deny the request for a continuance. And, before I can rule on your request to set the guilty plea aside, I need to know what information you have received from which sources and in relationship to which prosecutions." SR 10.

The gist of defense counsel's response was that, during the plea negotiations, the prosecutor stated that if the appellant pleaded guilty to the instant offense, he would not be prosecuted for his activities in connection with an investment agreement he had entered into with Ms. Wanda Irby. According to defense counsel:

"[The prosecutor] also indicated he [ (the appellant) ] would be prosecuted by Wanda Irby. She tells me that she has never talked to the District Attorney about prosecution of my client. I think probably Mr. Binford [the prosecutor] was quoting some attorney. I don't know. I am telling you what he said. As a result of that, I counselled my client that it would probably have been in his best interest to enter a guilty plea. After discovering that Mrs. Irby had never intended to prosecute my client, I don't think that would be successful.... I would not have advised my client to plea guilty." SR. 11.

In an affidavit filed in support of the appellant's written motion to withdraw his guilty plea, defense counsel averred that, "[a]s a part of [the] plea bargain offer, Mr. Binford stated that he would not pursue indictments arising out of actions involving Wanda Irby if [the appellant] entered a guilty plea. Mr. Binford specifically stated that Wanda Irby wanted to and intended to pursue criminal prosecution against [the appellant]." Supp.R. 11. In his affidavit filed in support of the motion to withdraw the plea, the appellant averred that defense counsel

"told me the district attorney had advised him that Ms. Irby wanted me prosecuted, and he was taking the matter involving Ms. Irby to a grand jury the following Monday, at which time he would obtain four indictments against me. He further stated that he would seek the maximum sentence of twenty years in each of the four indictments.

"....

"Based on what my lawyer told me, I believed that Ms. Irby had told the district attorney that she was going to pursue felony charges against me, and that she would do so the following Monday by appearing before the grand jury and asking the grand jury to indict me. Had I known that Ms. Irby did not believe that I had committed a criminal act or acts against her and that she did not wish to pursue criminal charges against me, I would not have accepted the plea bargain offer made by the State of Alabama." Supp.R. 15-16.

At the sentencing hearing, the prosecutor stated that, in the discussion of the plea bargain, he had informed defense counsel that he (the prosecutor) had discussed with an investigator for the Alabama Securities Commission the possibility of investigating the appellant for securities fraud in connection with the investment agreement the appellant had with Ms. Irby. ⁵ SR. 14. He further stated:

"We were prone to do that, whether Wanda Irby wanted to prosecute or not. And, we agreed, as part of the plea of guilty, that if he plead guilty to this felony, knowing we opposed probation, we w[ould] agree not to proceed with that case to the Alabama Securities Commission." SR. 14-15.

In his affidavit filed in support of the State's response to the motion to withdraw the plea, the prosecutor averred that he did not, at any time, tell defense counsel "that Wanda Irby was independently pursuing or wished to independently pursue or initiate criminal prosecution of the defendant arising from the defendant's involvement in the ... investment agreement." Supp.R. 20.

It is clear that, to be valid, a guilty plea must be both voluntarily and intelligently made. E.g., Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985); Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969). It is equally clear that "[a] guilty plea is not voluntary if induced by misrepresentation.... Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463[, 1472,] 25 L.Ed.2d 747 (1970)." Lepera v. United States, 587 F.2d 433, 436 n. 4 (9th Cir.1978). In the present case, there was conflicting evidence as to whether any misrepresentation was actually made by the prosecutor. However, we think the dispositive question in this situation is not whether a misrepresentation was in fact made, but whether, as the appellant claims, his plea was actually induced by information or misinformation relayed to him. Cf. United States v. Marzgliano, 588 F.2d 395, 399 (3d Cir.1978) (the fact that no plea agreement existed was not dispositive of whether the defendant's plea was induced by false promises); United States v. Rhodes, 913 F.2d 839, 843 (10th Cir.1990) ("[a] plea may be involuntary when an attorney 'materially misinforms the defendant of the consequences of the plea' "), cert. denied, 498 U.S. 1122, 111 S.Ct. 1079, 112 L.Ed.2d 1184 (1991).

The trial court, of course, was in the best position to determine whether the plea was induced in any way. Cf. Ex parte Swain, 527 So.2d 1279, 1280 (Ala.1988) (where defendant alleged that prosecution was barred by plea agreement in an earlier case and existence of agreement was contested, the "trial judge was in the best position to determine whether a plea agreement had been reached"). In denying the appellant's oral motion to withdraw his plea made at the sentencing hearing, the trial court made an express "find[ing] that there is no appropriate basis...