Ex parte Lawley

• Decision Date: 07 August 1987
• Citation: 512 So.2d 1370
• Parties: Ex parte Gerald Wayne LAWLEY. (Re: Gerald Wayne Lawley v. State of Alabama). 86-264.
• Court: Alabama Supreme Court

Page 1370

512 So.2d 1370

Ex parte Gerald Wayne LAWLEY (Re: Gerald Wayne Lawley v. State of Alabama).

86-264.

Supreme Court of Alabama.

Aug. 7, 1987.

J. Frank Head of Wallace, Ellis, Head & Fowler, Columbiana, for petitioner.

Don Siegelman, Atty. Gen., and J. Elizabeth Kellum, Asst. Atty. Gen., for respondent.

MADDOX, Justice.

This Court granted this petition for certiorari to review petitioner's claim that when he entered a plea of guilty to a charge of murder his counsel told him he would be eligible for parole within 54 months, and that in fact he was not eligible for parole within that time, and that he would not have entered a plea of guilty had he known the facts, and that his counsel was ineffective in advising him about his rights.

Petitioner, Gerald Wayne Lawley, pleaded guilty to a charge of murder on April 9, 1984, and was sentenced by the Circuit Court of Shelby County to 25 years in the penitentiary. He subsequently filed a petition for writ of habeas corpus on September 30, 1985, and a petition for writ of error coram nobis on October 24, 1985, in which he claimed that his trial counsel was ineffective. The State filed an answer on December 6, 1985, and the trial court held a hearing on February 6, 1986, and rendered a judgment in favor of the State on both petitions.

Petitioner appealed to the Court of Criminal Appeals; that court affirmed and then denied petitioner's application for rehearing and his motion to add facts pursuant to Rule 39(k), Ala.R.App.P. 502 So.2d 402 (Ala.Cr.App.1986).

After reviewing the record and the respective briefs of the parties, we affirm.

At the hearing, petitioner testified that his attorney informed him that he would be eligible for parole in just 54 months and that at that time a hearing would be conducted on the question of parole. He stated that he would not have pleaded guilty if he had known he would not be eligible for parole after 54 months.

Petitioner's father, who was present at the meeting between petitioner and his attorney, testified that he believed his son would be eligible for parole in 54 months, but that the attorney made no guarantees that petitioner would actually be paroled in 54 months.

Other witnesses testified that petitioner told them that he would plead guilty, would serve around four years in prison, and then would be paroled.

Petitioner's trial counsel, however, testified that (at his client's request) he investigated the possibility of parole and found out that petitioner would become eligible for parole at some point from 54 to 100 months after his sentence began, but that nothing was guaranteed. He said that he then relayed this information to petitioner, but that at no time did he tell petitioner that he would be considered for parole in 54 months. He did testify that he advised petitioner to accept the State's offer of a 25-year sentence for the murder charge in exchange for the State's dropping a theft charge, because it was his opinion that based on the circumstances involved, petitioner would receive the maximum sentence possible if he went to trial and was found guilty of murder.

Based on these facts, the trial court could have found that petitioner was not denied his constitutional right to effective assistance of counsel.

Under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by this Court in Ex parte Baldwin, 456 So.2d 129 (Ala.1984), a two-pronged test must be met before a claim of ineffective assistance of counsel is proven. A convicted defendant, in order to secure a reversal of his conviction, must show: (1) that counsel's performance was deficient, which requires a showing that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment; and (2) that the deficient performance prejudiced defendant, which requires a showing that a different outcome of the trial probably would have resulted but for counsel's allegedly ineffective performance. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064.

To meet the first prong of the test, the petitioner must show that his counsel's representation fell below an objective standard of reasonableness. The performance inquiry must be whether counsel's assistance was reasonable, considering all the circumstances. Strickland, supra, 466 U.S. at 688, 104 S.Ct. at 2065.

In adjudging the effectiveness of a counselor's assistance, a "court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066. Moreover, that petitioner was convicted does not prove that counsel lacked zeal or competence. Summers v. State, 366 So.2d 336 (Ala.Cr.App.), writ denied, 366 So.2d 346 (Ala.1978). "It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission was unreasonable." Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065.

Even assuming, arguendo, that defendant's counsel erred and that this error was professionally unreasonable, that would not in and of itself warrant setting aside the judgment of a criminal proceeding if the error did not affect the judgment. Strickland, supra, 466 U.S. at 691, 104 S.Ct. at 2066. The defendant must affirmatively prove prejudice; that is, he "must show that there is a reasonable probability, that but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068. "[A] court must indulge a strong presumption that counsel's conduct falls within the wide...