Boglin v. State

• Decision Date: 26 April 2002
• Parties: Vincent Earl BOGLIN v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

840 So.2d 926

Vincent Earl BOGLIN v. STATE of Alabama.

CR-00-1102.

Court of Criminal Appeals of Alabama.

April 26, 2002.

Rehearing Denied June 21, 2002.

Vincent Earl Boglin, pro se.

Bill Pryor, atty. gen., and Jean A. Therkelsen, asst. atty. gen., for appellee.

SHAW, Judge.

Vincent Earl Boglin appeals the circuit court's summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief.

On August 20, 1999, pursuant to a negotiated plea agreement, Boglin pleaded guilty to theft of property in the second degree. In accordance with the plea agreement, he was sentenced as a habitual offender to 15 years' imprisonment. As part of the plea agreement, Boglin waived his right to appeal and his right to collaterally attack his conviction; he signed a detailed written waiver entitled "Notice and Waiver of Right to Appeal and Right to Seek Post-Conviction Relief," which is included in the record before this Court.¹ (C. 49.) Boglin did not appeal. However, on November 15, 1999, Boglin filed the present Rule 32 petition attacking his conviction.

In his petition, Boglin presented a laundry list of claims, including claims that his guilty plea was involuntary, that his waiver of his right to appeal and his right to collaterally attack his conviction was involuntary, and that his trial counsel was ineffective.² After receiving a response from the State, the circuit court summarily denied Boglin's petition. In its order, the circuit court found that the majority of Boglin's claims—including his claims that his guilty plea and waiver were involuntary and that his trial counsel was ineffective— had been waived by Boglin's plea agreement.³

It is well settled that a defendant may, as part of a negotiated plea agreement, agree to waive his right to appeal "so long as he is fully advised of its implications and he voluntarily agrees to enter into the agreement." Watkins v. State, 659 So.2d 688, 689 (Ala.Crim.App.1994). See also Dunn v. State, 514 So.2d 1300 (Ala.1987); Watson v. State, 808 So.2d 77 (Ala.Crim.App.2001); Jones v. State, 675 So.2d 69 (Ala.Crim.App.1995); and Gwin v. State, 456 So.2d 845 (Ala.Crim.App. 1984). "[A] colloquy with the defendant that reflects that he or she was informed of the right to appeal and that he or she chose to waive this right is sufficient to show a valid and enforceable waiver." Watson, 808 So.2d at 80. In addition, just like a challenge to the voluntariness of a guilty plea, the issue of the voluntariness of a waiver of the right to appeal will be reviewed on direct appeal if it is first presented to the trial court.

The reasoning behind permitting a defendant to challenge on direct appeal the voluntariness of a waiver of the right to appeal if that issue is properly preserved in the trial court is clear: an agreement that purports to waive a right may be enforced only if that waiver is voluntarily and knowingly entered. Because a waiver must be voluntary, due process requires that a defendant have the opportunity to challenge the voluntariness of that waiver. Due process does not override the basic law of preservation, however, and the issue must first be presented to the trial court before it will be reviewed on direct appeal. Moreover, because a waiver of the right to appeal is part and parcel of the guilty plea itself, an involuntary guilty plea will render the waiver involuntary as well. Therefore, an accused may likewise challenge the voluntariness of the guilty plea on direct appeal if that issue is properly preserved, despite the presence of a waiver.

The question in this case is whether the voluntariness of a guilty plea and the voluntariness of a waiver of the right to appeal and to collaterally attack a conviction may be raised for the first time in a Rule 32 petition, despite the presence of the waiver purporting to bar collateral review. We believe the same reasoning this Court has used in deciding to review voluntariness issues on direct appeal should likewise be applied to voluntariness issues raised for the first time in Rule 32 petitions.

The Alabama Supreme Court has held that the voluntariness of a guilty plea may be raised for the first time in a Rule 32 petition. See Cantu v. State, 660 So.2d 1026 (Ala.1994). The presence of a waiver of the right to collateral review should not bar review of the voluntariness of a guilty plea because, as noted above, an involuntary guilty plea will necessarily render the waiver involuntary and a waiver cannot be enforced if it is not voluntary. For this same reason, the voluntariness of the waiver itself may also be reviewed in a Rule 32 petition. In addition, because ineffective assistance of counsel may, in some circumstances, render a guilty plea involuntary, see Ex parte Blackmon, 734 So.2d 995 (Ala.1999), we believe that claims of ineffective assistance of trial counsel may also be raised in a Rule 32 petition, despite a waiver of collateral review.

Our conclusion in this respect is similar to the conclusion reached in other jurisdictions. In DeRoo v. United States, 223 F.3d 919 (8th Cir.2000), the United States Court of Appeals for the Eighth Circuit stated:

"There is no question in this circuit that a knowing and voluntary waiver of direct-appeal rights is generally enforceable. See United States v. Goings, 200 F.3d 539, 543 (8th Cir.2000)

. We also have enforced a defendant's plea agreement promise to `waive his right to appeal, or challenge via post-conviction writs of habeas corpus or coram nobis, the district court's entry of judgment and imposition of sentence.' [United States v.] His Law, 85 F.3d [379,] 379 [(8th Cir.1996)]. This Court has not had prior occasion to address whether a defendant may waive [28 U.S.C. § ] 2255 collateral-attack rights in a plea agreement. See Latorre [v. United States], 193 F.3d [1035,] 1037 n. 1 [(8th Cir. 1999) ].

"As a general rule, we see no reason to distinguish the enforceability of a waiver of direct-appeal rights from a waiver of collateral-attack rights in the plea agreement context. See id. (citing Jones v. United States, 167 F.3d 1142, 1145 (7th Cir.1999)). The `chief virtues' of a plea agreement are speed, economy, and finality. See United States v. Rutan, 956 F.2d 827, 829 (8th Cir.1992)

. Those virtues are promoted by waivers of collateral appeal rights as much as by waivers of direct appeal rights. Waivers preserve the finality of judgments and sentences, and are of value to the accused to gain concessions from the government. See id.

"However, such waivers are not absolute. For example, defendants cannot waive their right to appeal an illegal sentence or a sentence imposed in violation of the terms of an agreement. See United States v. Michelsen, 141 F.3d 867, 872 (8th Cir.),

cert. denied, 525 U.S. 942, 119 S.Ct. 363, 142 L.Ed.2d 299 (1998). In addition, the decision to be bound by the provisions of the plea agreement, including the waiver provisions must be knowing and voluntary. See United States v. Morrison, 171 F.3d 567, 568 (8th Cir.1999). ...

"A decision to enter into a plea agreement cannot be knowing and voluntary when the plea agreement itself is the result of advice outside `the range of competence demanded of attorneys in criminal cases.' Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)); Tollett v. Henderson, 411 U.S. 258, 266-67, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). Therefore, `[j]ustice dictates that a claim of ineffective assistance of counsel in connection with the negotiation of a cooperation agreement cannot be barred by the agreement itself—the very product of the alleged ineffectiveness.' Jones, 167 F.3d at 1145 (defendant convicted and entered into cooperation agreement before sentencing). We find the reasoning of Jones not only compelling, but logically required. A defendant's plea agreement waiver of the right to seek section 2255 post-conviction relief does not waive defendant's right to argue, pursuant to that section, that the decision to enter into the plea was not knowing and voluntary because it was the result of ineffective assistance of counsel. Other courts agree that a waiver of section 2255 rights does not automatically preclude a defendant from raising ineffective assistance of counsel claims in a post-conviction motion. See United States v. Henderson, 72 F.3d 463, 465 (5th Cir.1995)

(`dismissal of an appeal based on a waiver in the plea agreement is inappropriate where the defendant's motion to withdraw the plea incorporates a claim that the plea agreement generally and the defendant's waiver of appeal specifically, were tainted by ineffective assistance of counsel'); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.),

cert. denied, 508 U.S. 979, 113 S.Ct. 2980, 125 L.Ed.2d 677 (1993) (stating waiver does not `categorically' foreclose defendant's right to bring motion under section 2255 for ineffective assistance of counsel); see also United States v. Craig, 985 F.2d 175, 178 (4th Cir.1993) (per curiam) (holding waiver did not preclude Rule 32(d) motion challenging validity of waiver due to ineffective assistance of counsel)."

223 F.3d at 923-24. See also United States v. Cockerham, 237 F.3d 1179 (10th Cir.2001), cert. denied, 534 U.S. 1085, 122 S.Ct. 821, 151 L.Ed.2d 703 (2002); Jones v. United States, 167 F.3d 1142, 1145 (7th Cir.1999); Watson v. United States, 165 F.3d 486 (6th Cir.1999); United States v. Wilkes, 20 F.3d 651 (5th Cir.1994); United States v. Abarca, 985 F.2d 1012 (9th Cir.), cert. denied, 508 U.S. 979, 113 S.Ct. 2980, 125 L.Ed.2d 677 (1993); and Allen v. Thomas, 265 Ga. 518, 458 S.E.2d 107 (1995).

We hold that although a waiver of the right to seek postconviction relief given as part of a plea agreement is generally enforceable, it cannot operate to preclude a defendant from filing a Rule 32 petition challenging the voluntariness of the guilty plea, the voluntariness of the...