English v. State, 1 Div. 585

• Decision Date: 01 October 1975
• Docket Number: 1 Div. 585
• Citation: 325 So.2d 211,56 Ala.App. 704
• Parties: William O. ENGLISH v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 211

325 So.2d 211

56 Ala.App. 704

William O. ENGLISH v. STATE.

1 Div. 585.

Court of Criminal Appeals of Alabama.

Oct. 1, 1975.

Rehearing Denied Oct. 28, 1975.

Ian F. Gaston, Mobile, for appellant.

William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Affellant was indicted for the offense of grand larceny. At arraignment, represented by retained counsel, a plea of not guilty was entered. Following this, appellant's counsel entered into 'plea bargaining' with the District Attorney's staff. As a result of these negotiations the Assistant District Attorney, Mr. William G. Hughes, told appellant's attorney that in exchange for a guilty plea, he would recommend to the court that appellant be sentenced to one year and a day in the penitentiary. Counsel for appellant communicated this proposition to him and he agreed to plead guilty.

On the day the case was set for trial appellant appeared in open court with retained counsel and withdrew his prior not guilty plea and entered a plea of guilty to grand larceny. In a face-to-face confrontation between the court and appellant the court fully explained his Boykin rights to him. The court determined that the guilty plea was intelligently and voluntarily made and he accepted the plea of guilty. Appellant's counsel requested a pre-sentence report and the request was granted. The prosecutor for the state remained silent and did not apprise the trial court that he had entered into an agreement with appellant's counsel that he would recommend a sentence of one year and a day in the penitentiary if appellant pleaded guilty to the offense. After reviewing the pre-sentence report which showed that appellant had previously been convicted of relonies in both federal and state courts, the court asked if there were any recommendations from the state and Mr. Hughes replied, 'No, sir.' Appellant's counsel then and there made known to the court that he and Mr. Hughes had entered into negotiations concerning a guilty plea and that Mr. Hughes told him he was going to recommend to the court that appellant receive a sentence of one year and a day in the penitentiary. Following this there were a number of statements made to the court by Mr. Hughes. We think it well to quote from the record to get a better understanding as to whether appellant's guilty plea was induced by representatives from the District Attorney's office.

'MR. HUGHES: Your Honor, in fairness to Mr. Friedlander, I did--at the last time that was going to be my recommendation, a year and a day, I believe it was, but I was under the impression that the Court was going to rule solely on the basis of this. I didn't mean to mislead you that we had never talked about anything. It was my . ..

'THE COURT: You were under the impression of what?

'MR. HUGHES: I was going to recommend that but I was under the impression that the Court was going to base its decision strictly on the pre-sentence report.

'MR. HUGHES: Yes; I understand. I just didn't want it to look like I was trying to put Mr. Friedlander in bad light.'

Thereupon the court sentenced the appellant to a term of seven years in the penitentiary. Counsel for appellant immediately said:

'Judge, based upon--before Your Honor finishes, based upon the plea bargaining I had with Mr. Hughes, I would ask the court to allow me to withdraw my plea of guilty and ask for the matter to be set down for trial.'

'THE COURT: I deny your motion.

'MR. FRIEDLANDER: I would like to give notice of appeal.

'THE COURT: All right; note the notice of appeal.'

Quoting further from the record:

'MR. FRIEDLANDER: Based upon the fact that the plea was entered, based upon my negotiations with Mr. Hughes and the fact that he was going to recommend a year and a day, and I thought the Court would to along with that.

'THE COURT: Well, as I have said, as I have tried to make it plain to Mr. Hughes, if he did not know it, the Court does not have to accept the recommendation by the--I do not know if Mr. Hughes knew the past record of the Defendant whenever he made that recommendation.

'MR. FRIEDLANDER: He did, Your Honor.

'MR. HUGHES: Your Honor, I think it was gone into, the man knew that he was not bound by anything I said, and I told Mr. Friedlander back when it was . . .

'THE COURT: Well, Gentlemen, I do not want to go further on it. I am going to set a bond of $10,000.00 on the appeal. Take the prisoner with you.'

On March 7, 1975, a hearing was held on a motion to reconsider the sentence or, in the alternative, to allow appellant to withdraw his plea of guilty. At this hearing many statements were made to the court by Mr. Hughes and counsel relative to the plea bargaining. Mr. Hughes told the court that he and the appellant's counsel had talked in terms of a year and a day and that was going to be his recommendation at that time.

The court asked Mr. Hughes if he made a recommendation to the court on the day sentence was imposed and he replied, 'I think I just expressed to the court that we had discussed that and I had told Mr. Friedlander at one time that would be my recommendation. It was prior to the presentence, though.' The court pressed Mr. Hughes for a direct answer and he stated, 'I don't believe I did judge. That is the only thing I can tell you.'

We quote further from the record:

'MR. HUGHES: Your Honor, my recollection of this is that originally Donnie and I talked about the matter. I told him that I thought the man should get a year and a day. I knew the man had a record. I didn't know anything else about what other pre-sentence he might or might not have had.

'THE COURT: You knew he had a record or did you know this record?

'MR. HUGHES: I knew--I knew--Judge, I think I knew his record.

'MR. FRIEDLANDER: He knew he had a bad record.

'MR. HUGHES: I knew he had a record. I told Donnie at that time that I thought he should get at least that.

'THE COURT: You knew all of the details of his record?

'MR. HUGHES: No., sir; I just--I knew he had some convictions, that is all, Judge.

'THE COURT: All right.

'MR. HUGHES: At that time, I told Donnie that, you know, I thought the man should get at least a year and a day, and that the probably would by my--I guess maybe I told him at that time that that would be my recommendation. However, we came in that day, the man entered a plea, Donnie asked for a presentence. Now, I don't know what the thing--the pre-sentence said. We came back before the Court for sentencing and I assume Your Honor saw the report. I don't know what is in the report.

'THE COURT: You still have not seen the report?

'MR. HUGHES: No, sir. I still haven't--you 'THE COURT: You don't know the record of this Defendant?

'MR. HUGHES: I know--I have his rap sheet, Judge, but I don't know what else, if anything else, is in the report, is what I am saying. You have that knowledge that I do not.

'MR. FRIEDLANDER: Well, does the rap sheet show that he had served three or four times before?

'MR. HUGHES: It--I . . .

'MR. FRIEDLANDER: It shows numerous convictions and we talked about it back then, myself and Mr. Hughes.

'MR. HUGHES: I just don't want to mislead the Court . . .

'THE COURT: You are saying he did know the details of his record; is that right?

'MR. FRIEDLANDER: Yes, sir; he knew the details.

'MR. HUGHES: I have his rap sheet, Judge. I don't know anything else about the man . . .

'THE COURT: Well, I mean the rap sheet is his record; is it not?

'MR. HUGHES: Yes, sir; but I mean I don't know what all the Probation Officer goes into in a pre-sentence, if they go into the neighborhood or talk to people or whatever, I don't know anything else about it.

'THE COURT: Well, what I asked you, did you know his record at the time you were recommending or talking about a year and a day?

'MR. HUGHES: Yes, sir; I knew what his actual rap sheet contained.'

Appellant testified at this hearing and so did Georgia Mae Fowler who was implicated in the same crime with appellant. Appellant testified that his attorney told him that he had discussed his case with Mr. Hughes and that Mr. Hughes told him he was going to recommend that he receive a sentence of one year and a day.

Georgia Mae Fowler testified that Mr. friedlander...