Cooper v. State, 4 Div. 74

• Decision Date: 18 May 1971
• Docket Number: 4 Div. 74
• Citation: 252 So.2d 104,47 Ala.App. 178
• Parties: O. L. COOPER, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 104

252 So.2d 104

47 Ala.App. 178

O. L. COOPER, alias v. STATE.

4 Div. 74.

Court of Criminal Appeals of Alabama.

May 18, 1971.

Rehearing Denied June 29, 1971.

John B. Crawley, John W. Gibson, Troy, for appellant.

MacDonald Gallion, Atty. Gen., and Lloyd G. Hart, Asst. Atty. Gen., for the State.

PER CURIAM.

The indictment in this case contained two counts. Count one charged burglary. Count two charged grand larceny.

The case was previously tried and the defendant was convicted of grand larceny. The case was reversed on appeal. Cooper v. State, 45 Ala.App. 119, 226 So.2d 388. This is an appeal from a second conviction on said charge.

On November 14, 1969, the defendant entered a plea of not guilty. On November 21, 1969, defendant, in open court, attended by his court appointed attorneys, withdrew his plea of not guilty and entered a plea of guilty to said charge of grand larceny. The record discloses that on that date the following took place:

'MR. FOLMAR: The only thing, Judge, is that I believe we want to interpose a plea.

'THE COURT: Are you saying, Mr. Folmar, for Mr. Cooper that he now desires to withdraw his plea of not guilty and plead guilty to the indictment.

'MR. FOLMAR: That is correct.

'THE COURT: Under Count Two of this indictment wherein he is charged with grand larceny, feloniously taking and carrying away certain electric typewriters, manual typewriters and Olivetti calculating maching (sic) of the aggragate value of $4,600.00 the personal property of the County Board of Education of Pike County? Mr. Cooper, you understand what these lawyers are saying?

'THE DEFENDANT: Yes, sir.

'THE COURT: I want to show that you are saying that in your own voice. Last week you said you did represent yourself in the Court of Appeals at which time the case was reversed on a pro se manner. Eventhough you have got competent lawyers sitting with you, this is what you want to do?

'THE DEFENDANT: Yes, sir.

'THE COURT: Is anybody making you do it?

'THE DEFENDANT: No, sir.

'THE COURT: Is anybody forcing you to plead guilty?

'THE DEFENDANT: No, sir.

'THE COURT: You have decided in a week's time after the lawyers working with you and for you that you have reached the decision to plead guilty?

'THE DEFENDANT: Yes, sir.

'THE COURT: I make known if there is a recommended sentence that I don't have to follow it, you understand that?

'THE DEFENDANT: Yes, sir.

'THE COURT: That is entirely discretionary with a judge of a court such as the Circuit Court of Pike County to honor it or not to honor it if he doesn't see fit to do so and may sentence you to any term from one year which is the minimum and we have a divergent opinion of a maximum in this particular case under Mr. Faulk and Mr. Folmar theory under that Rice case that you couldn't get any more than six years. So we will talk about your pleading guilty because you are guilty of this offense of grand larceny?

'THE DEFENDANT: That's right, sir.

'THE COURT: And I accept your plea of guilty. Is there any insistence that I read the indictment since I have already read it to you a week ago when Mr. Orme was you attorney and you plead not guilty.

'THE DEFENDANT: No, sir.

'THE COURT: You have got a copy of it in your file down there in your quarters and I am sure you have read it many times and you know exactly what you are charged with.

'On your plea of guilty the Court believes it to be voluntarily admitted here this morning without any coercion or threats or promises. Now do you have anything to say before sentence is passed?

'THE DEFENDANT: No.

'MR. STEPHENS: In light of the fact that Mr. Cooper has already served some time, also in light of the fact that I think Mr. Cooper has a real fine chance, and I believe that, O.L. If I didn't I wouldn't even say this. We recommend two years may it please the Court.

'THE COURT: I will go along with that. That is all the recommendation is, just two years? Does that meet with your approval?

'THE DEFENDANT: Yes, sir.

'THE COURT: You don't have any disapproval of a recommendation of a two year sentence? You might like for it to be less, but that is alright, you don't mind the District Attorney saying he recommends two years?

'THE DEFENDANT: No, sir.

'MR. FOLMAR: Your Honor, as one of the counsel representing or appointed to represent I would like to request that the Court if it can see fit put or cause this sentence to begin running immediately.

'THE COURT: I don't know that I can do anything other that (sic) sentence him. I don't know when it runs. I don't fully grasp what you are talking about, but I am going to sentence him to the penitentiary of Alabama to a term of two years. It is running now if the law says it starts running now. I haven't got anything to do with when it starts other than I sentence him. I don't know anything I can say other than I have sentence(d) him to the penitentiary for two years.

'MR. FOLMAR: I withdraw my request.

'THE COURT: I sentence you to the penitentiary of Alabama on the recommendation of the District Attorney to a term of two years. If it beging to run now it is because the law says it begins. It starts at 12:01 tonight, or some other time that is when the law says it starts. I sentence you at this moment to two years in the penitentiary. If the law says that it starts after the sentence you are presently under, and I know that a Barbour County sentence is presently in effect, or whatever is going, if it don't start, I ain't got nothing to do with that you know.

'THE DEFENDANT: Yes, sir.

'THE COURT: I can't tell you when it starts running, other than I sentence you to 'X' number of years. Is there any question now, Mr. Cooper?

'THE DEFENDANT: No, sir.'

The defendant was adjudged guilty and sentenced to two years in the penitentiary. There is no order in the judgment specifying that the sentence be served concurrently with another sentence, therefore, the sentence is to be served consecutively. Title 45, Section 32, Code of Alabama 1940.

The defendant filed motion entitled a motion for a new trial in which he alleged that he had been illegally convicted and prayed that the judgment of conviction be vacated, the guilty plea be withdrawn and a trial granted. The motion was overruled.

Two attorneys were appointed to represent defendant in the trial court. Two different attorneys were appointed to represent him at the hearing on the motion for a new trial and on appeal.

The testimony taken at the hearing on the motion disclosed the possibility that certain statements may have been made to the defendant during the negotiations for the guilty plea that led him to believe the sentence would be served concurrently with a sentence he was presently serving.

The question presented on this appeal is whether the record shows a valid waiver of constitutional rights by defendant before he was permitted to withdraw his plea of not guilty and enter a plea of guilty.

In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, decided June 2, 1969, and which was applicable to defendant's plea of guilty entered November 21, 1969, the court said:

'A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment. See Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009, (1012). Admissibility of a confession must be...