Andrews v. State

• Decision Date: 16 January 2009
• Docket Number: CR-07-1402.
• Citation: 12 So.3d 728
• Parties: Lovorice Quindale ANDREWS v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

12 So.3d 728

Lovorice Quindale ANDREWS v. STATE of Alabama.

CR-07-1402.

Court of Criminal Appeals of Alabama.

January 16, 2009.

William J. Moore, Sr., Enterprise, for appellant.

Troy King, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.

WELCH, Judge.

Lovorice Quindale Andrews was indicted on two counts of robbery in the first degree violations of § 13A-8-41, Ala.Code 1975. After initially entering not-guilty pleas to both charges, Andrews entered into an agreement with the Coffee County District Attorney's Office as to one of the robbery counts, pursuant to which he would plead guilty to one count of first-degree assault, a violation of § 13A-6-20, Ala.Code 1975. The plea agreement stated that, in the assault case, the prosecutor would recommend that Andrews receive a sentence of five years in prison, the sentence would be split, and Andrews would serve two years. The balance of the sentence was to be suspended for four years. (C. 127.) The record does not indicate that any plea agreement was made as to the other robbery count, or that the district attorney's office agreed to make a sentence recommendation as to that count.

On February 5, 2008, the trial court entered an administrative order regarding plea day for the April 2, 2008, criminal jury term of court. The order was applicable to all criminal defendants who expected to enter a plea before that term of court. In the order, the trial court stated in no uncertain terms that it would "not accept Settlement Agreements." (C. 170.) The order continued, "[t]he court will consider signed Settlement Agreements only as recommendations. The State and Defendant may negotiate the charge(s)." (C. 170, emphasis in original.)

On March 6, 2008, the trial court conducted a plea hearing in accordance with the requirements of Rule 14.4, Ala. R.Crim. P., including informing Andrews of the sentencing range for both robbery and assault. During the hearing, the trial court had the following exchange with Andrews:

"THE COURT: Has anybody made you any promises other than that recommended settlement agreement in the one case that the charge is reduced?

"THE DEFENDANT: No, sir.

"THE COURT: Now, do you understand that I have the final say so of your sentence regardless of these settlement agreements and that I'm not bound to follow these recommended settlement agreements? And so, therefore, I'm at this point in time letting you know that you can withdraw your guilty pleas. Do you wish to withdraw your guilty pleas with me telling you that I'm not bound to follow these settlement agreements?

"THE DEFENDANT: No, sir."

(R. 11.)

After the plea hearing, the trial court determined that Andrews was voluntarily, knowingly, and intelligently entering guilty pleas to both the robbery and assault charges and accepted those pleas.

On March 24, 2008, a sentencing hearing was held. The victim in the assault case testified as to the extent of his injuries and asked that Andrews receive a "substantial sentence." (R. 18.) After hearing the testimony and arguments of the attorneys for both parties, the trial court sentenced Andrews to 15 years' imprisonment in the assault case and to 50 years' imprisonment in the robbery case.

After sentencing, Andrews moved to withdraw his guilty pleas. The trial court denied the motion. Andrews appealed.

I.

Andrews contends that the trial court abused its discretion in denying his motion to withdraw his guilty pleas because, Andrews says, the court indicated in its own administrative order that it would consider applicable sentencing guidelines. He argues that the court's failure to impose the sentencing guidelines amounts to a "broken promise." (Andrews's brief at p. 12.)

Andrews acknowledges that the Alabama Sentencing Reform Act of 2003 § 12-25-30 et seq., Ala.Code 1975, specifically provides that "[f]ailure to follow any or all of the provisions of this section [use of voluntary sentencing standards], or failure to follow any or all of the provisions of this section in the prescribed manner, shall not be reviewable on appeal or the basis of any other post-conviction relief." § 12-25-35(f), Ala.Code 1975.

In Ducker v. State, 986 So.2d 1224, 1226 (Ala.Crim.App.2007), this court held that, although it appeared from the record that the trial court "failed to consider the voluntary sentencing standards, [that] failure did not provide a legal basis for setting aside Ducker's conviction or resentencing him."

Nonetheless, Andrews asserts that the basis for his appeal is not that the trial court failed to apply the guidelines, but that it broke the promise made in the administrative order that it would consider the guidelines. Andrews's argument is not supported by the record.

In its order dated 16 April, 2008, the trial court clarified its initial sentencing order to reflect that it had in fact considered the sentencing guidelines but had chosen not to follow them in this case. (C. 167.) The trial court adhered to its administrative order; thus, to the extent any "promise" was made in the order, such promise was not breached. This issue is without merit.

II.

Andrews also contends that the trial court abused its discretion in not allowing him to withdraw the guilty plea entered in the assault case after it refused to follow the agreement reached between Andrews and the State.

Rule 14.4(e), Ala. R.Crim. P., provides that "[t]he court shall allow withdrawal of a plea of guilty when necessary to correct a manifest injustice." "`[W]hether to allow a defendant to withdraw his guilty plea rests within the sound discretion of the trial court, and this Court will not overrule that decision on appeal absent an abuse of discretion.' Thacker v. State, 703 So.2d 1023, 1026 (Ala.Crim.App. 1997)." White v. State, 4 So.3d 1208, 1213 (Ala.Crim.App.2008).

"`"[T]he trial court is not bound to accept an agreement between the defense and prosecution." Ex parte Yarber, 437 So.2d 1330, 1336 (Ala. 1983). However, "`[w]hen the trial judge decides not to carry out an agreement reached between the prosecutor and defense counsel, the accused must be afforded the opportunity to withdraw his or her guilty plea on motion promptly made.'" Bland v. State, 565 So.2d 1240, 1243 (Ala. Crim.App.1990), quoting Ex parte Otinger, 493 So.2d 1362, 1364 (Ala. 1986).'

"Bagley v. State, 681 So.2d 262, 265 (Ala.Crim.App.1995)."

Johnson v. State, 886 So.2d 900, 902 (Ala. Crim.App.2003).

However, the appellate courts have also recognized that under certain circumstances, the trial court's refusal to sentence a defendant in accordance with the terms of a plea agreement requires that the defendant be offered the opportunity to withdraw his plea.

In Ex parte Otinger, 493 So.2d 1362, 1363-64 (Ala.1986), the Supreme Court explained as follows:

"`"Our holding today is not to be considered as binding the trial court to the agreement struck between the prosecutor and defense counsel. What we do hold is that if the trial court decides not to carry out the agreement reached between the prosecutor and counsel for the accused the accused must be afforded the opportunity to withdraw this guilty plea on motion promptly made, as was done in this case."'

"See Shepard v. State, 347 So.2d 1017 (Ala.Crim.App.1977) (recognizing rule); Waldrop v. State, 54 Ala.App. 163, 306 So.2d 29, cert. denied, 293 Ala. 777, 306 So.2d 33 (¶ 1974); Blow v. State, 49 Ala. App. 623, 274 So.2d 652 (1973). See also Gill v. State, 380 So.2d 1008 (Ala.Crim. App.1980)."

In Calloway v. State, 860 So.2d 900 (Ala. Crim.App.2003) (opinion on return to remand and on second application for rehearing), this Court held as follows:

"`Rule 14.3(c)(2)(iv), Ala. R.Crim. P., provides that if a trial court rejects a plea agreement, it must "[a]fford the defendant the opportunity to withdraw the defendant's offer to plead guilty.' `The law is clear: if a trial court refuses to abide by the terms of a plea agreement, it must grant the defendant's timely motion to withdraw the plea.' Taylor v. State, 677 So.2d 1284, 1285 (Ala.Crim.App.1996). See also Ex parte Otinger, 493 So.2d 1362 (Ala.1986); Nelson v. State, 866 So.2d 594 (Ala.Crim. App.2002); Moore v. State, 719 So.2d 269 (Ala.Crim.App.1998); Clark v. State, 655 So.2d 50 (Ala.Crim.App.1995); and Brown v. State, 495 So.2d 729 (Ala.Crim. App.1986). The reasoning behind this is that `when a plea rests in any significant degree on a promise or agreement of the prosecutor ... so that it can be said to be part of the inducement or consideration, such promise or agreement must be fulfilled.' Ex parte Otinger, 493 So.2d at 1364, citing Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (emphasis omitted [in Calloway])."

Andrews relies upon Waters v. State, 963 So.2d 693, 696-97 (Ala.Crim.App.2006), in support of his contention that his motion to withdraw his guilty plea in the assault case was due to be granted.

In Waters, this court held that the trial court abused its discretion when it refused to grant Waters's request to withdraw his guilty plea when the trial court did not sentence Waters pursuant to the terms of a plea agreement reached between the State and Waters.

In reversing the judgment of the trial court in Waters, this court explained:

"`"[I]f there is a plea agreement between a defendant and the State and a breach thereof which is made known to the trial court, and if the trial court does not sentence the defendant pursuant to the terms of the plea agreement (or as alleged in the instant case, that the State makes a sentence recommendation contrary to the plea agreement), then the defendant must be given an opportunity, upon proper, timely, and specific motion, to withdraw his guilty plea. At that point, the trial court must review the circumstances surrounding the making of the plea agreement and determine whether ... a breach occurred. Further, it must decide if the guilty plea rested in any significant degree upon the...