Dingler v. State, 7 Div. 777

• Decision Date: 28 October 1980
• Docket Number: 7 Div. 777
• Citation: Dingler v. State, 408 So.2d 527 (Ala. Crim. App. 1980)
• Parties: Teddy Ray DINGLER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 527

408 So.2d 527

Teddy Ray DINGLER v. STATE.

7 Div. 777.

Court of Criminal Appeals of Alabama.

Oct. 28, 1980.

Rehearing Denied Nov. 25, 1980.

John Baker, Fort Payne, for appellant.

Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for appellee.

CLARK, Retired Circuit Judge.

This is a consolidated appeal from a conviction and sentence on a plea of guilty in each of four cases against this appellant (defendant), designated in the trial court as 79-314, 79-315, 79-316 and 79-317. In the first case, defendant was charged in an indictment with the possession of marijuana; in the other three cases he was charged with the sale of marijuana.

At arraignment on January 2, 1980, defendant appeared with his retained attorney and entered a plea of not guilty in each case. When the cases were set for trial on March 5, 1980, he appeared with the same retained attorney and was allowed to withdraw his plea of not guilty and enter a guilty plea in each case. The cases were then passed for sentencing to April 1, 1980, at which time the same retained attorney appeared with and for him, and he was sentenced to imprisonment for two years in the case for possession of marijuana and three years in each of the three cases for a sale of marijuana, the sentences to run concurrently and consecutively in such a manner that the total time to be served was six years. Defendant's application for probation was denied. Within a few days thereafter, a motion for a new trial was filed by a retained attorney who had not theretofore appeared for him in the case, which motion was heard and denied on April 29, 1980. The attorney then appearing for defendant gave notice of an appeal, was appointed by the court as his attorney on appeal, and continues to appear for him on appeal.

The gist of the motion for a new trial and the testimony of the defendant on the hearing of the motion were to the effect that he had been caused to believe that the court would grant him probation if he would plead guilty. Although he related the cause of his belief to some extent to conversations with his previous attorney, he testified that his previous attorney did not say that he "would definitely get probation."

The grounds asserted in the motion for a new trial and the evidence offered in support of the motion, which was adequately raised to include a request for setting aside the judgment of conviction and sentence in each case, were not sufficient to justify a favorable ruling on the motion. The apparent disappointment of defendant in the punishment imposed and the denial of probation is not challenged, but no one, including particularly the prosecution, the court, and defendant's attorney, can be blamed for such disappointment. The transcript of proceedings discloses that on the sentencing hearing defendant's attorney made a fervent appeal for leniency and probation and that the trial judge acted with commendable fairness, patience, and due regard for both the interest of the public and justice to defendant in his imposition of sentence in each case and his denial of the application for probation. The motion for a new trial was correctly overruled.

The main contention for a reversal is unrelated to grounds asserted in the motion for a new trial. It is directed to the action of the court on March 5, 1980, in permitting a withdrawal by defendant of his plea of not guilty, entering his plea of guilty and rendering judgment accordingly in each case. The issue turns on whether the judgment was preceded or accompanied by sufficient oral or written communications between the trial judge and the defendant to meet the constitutional requirements of a judgment of conviction on the basis of a guilty plea, set forth in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and subsequent authoritative cases on the subject. We think it unnecessary to attempt a review of the endless train of cases led by Boykin, and we limit our consideration to those which aid in a determination of the precise issue presented in the instant case.

The parties seem to agree that the major issue between them is controlled by the following:

"In a plea of guilty proceeding the judge should undertake a factual inquiry to determine if the plea is voluntarily made with an understanding of the nature of the charge and the consequences of the plea, and the judge should be satisfied that there is a factual basis for the plea.... (Emphasis supplied)." Davis v. State, Ala.Cr.App., 348 So.2d 844, 846, cert. denied, 348 So.2d 847 (1977)

Appellant says that the record in the case sub judice does not show compliance with the underscored requirement set forth in Davis. Appellee argues to the contrary.

It is made clear in Davis, supra, that prior to Twyman v. State, 293 Ala. 75, 300 So.2d 124 (1974), we held the record must affirmatively show a colloquy between the court and the defendant, but that in Twyman and thereafter it is held that the showing of a colloquy is not necessary where the required contents of a colloquy are otherwise shown as a matter of record, and that they can be so shown by execution and acknowledgment of the execution of the "Ireland" form (Ireland v. State, 47 Ala.App. 65, 250 So.2d 602) or by a recitation in the judgment of the contents of such a colloquy. See also Bland v. State, 56 Ala.App. 547, 328 So.2d 730 (1975).

In Davis, supra, and in Bland, supra, there was no colloquy, but there was an executed and acknowledged "Ireland form." In the instant case, there is no "Ireland form" or the like. The only colloquy between the court and defendant, as shown by the record or transcript of the proceedings before the court permitting a withdrawal of the pleas of not guilty and accepting the pleas of guilty, was as follows:

"MR. BECK (Defendant's attorney): You know what these indictments said, don't you?

"THE DEFENDANT: Yes, sir.

"MR. BECK: You don't have to have them read to you?

"THE DEFENDANT: No.

"COURT: Has he been arraigned?

"MR. BECK: H...