Gordon v. Nagle

• Court: Alabama Supreme Court
• Writing for the Court: SHORES; HORNSBY
• Citation: Gordon v. Nagle, 647 So.2d 91 (Ala. 1994)
• Decision Date: 30 September 1994
• Parties: Sammie Lee GORDON v. John E. NAGLE, Warden; and James H. Evans, Attorney General of the State of Alabama. 1921941.

Page 91

647 So.2d 91

Sammie Lee GORDON v. John E. NAGLE, Warden; and James H. Evans, Attorney General of the State of Alabama.

1921941.

Supreme Court of Alabama.

Sept. 30, 1994.

Douglas H. Scofield of Scofield, West & French, Birmingham, for appellant.

James H. Evans, Atty. Gen., and Cecil G. Brendle, Jr., Deputy Atty. Gen., for appellees.

ON REHEARING EX MERO MOTU

SHORES, Justice.

The Court's opinion of March 25, 1994, is withdrawn and the following is substituted therefor:

The United States Court of Appeals for the Eleventh Circuit has certified this question to us:

"Does the failure to inform an age-qualified defendant of his right to apply for youthful offender status deprive the trial court of jurisdiction to entertain a guilty plea, such that a subsequent challenge to that conviction cannot be barred by the limitations period of Ala.R.Crim.P. 32.2(c)?"

The question certified arose out of a habeas corpus petition brought by an Alabama prisoner, Sammie Lee Gordon. In his petition, Gordon attacks the validity of sentences imposed on him in 1986 under the Habitual Felony Offender Act, Ala.Code 1975, § 13A-5-9 et seq., and the validity of an underlying 1973 conviction utilized for enhancement in the 1986 cases, on the grounds that in the 1973 proceedings the court did not advise Gordon of his right to apply for youthful offender treatment.

The United States district court held that because Gordon had not presented his claim in state court, he is now barred from presenting it in the federal court by the limitations provision in Rule 32, A.R.Crim.P. Rule 32.1(a) imposes a two-year limitations period on claims for post-conviction relief based upon federal or state constitutional grounds. However, collateral relief is available under subsections (b) and (c) if the court was without jurisdiction to render the judgment or to impose the sentence, or if the sentence imposed exceeds the maximum authorized by law or is otherwise not authorized by law. Claims alleging jurisdictional defects and excessive sentences under Rule 32.1(b) and (c) are not subject to the two-year time bar. Ladd v. State, 577 So.2d 926, 926-27 (Ala.Crim.App.1990), cert. denied, 577 So.2d 927 (Ala.1991).

In certifying the question before us, the Eleventh Circuit Court of Appeals explained:

"In straightforward failure-to-advise cases not involving youth offender status, the Alabama cases have held that failure to advise is a jurisdictional matter that can be raised for the first time on appeal. In Ex parte Rivers, 597 So.2d 1308 (Ala.1991), the court held that a guilty plea entered by a defendant who had not been advised of his possible minimum and maximum sentences is not knowingly, voluntarily, and intelligently given, so that the judgment of conviction must be reversed and the case remanded. Id. at 1310. The Alabama Supreme Court in Rivers did not use the term 'jurisdiction.' But subsequently the Alabama Court of Criminal Appeals has followed Rivers and interpreted it to mean that failure to advise the defendant as required by Rivers is 'an absolute constitutional requirement' and is a jurisdictional matter that can be raised for the first time on appeal. Sampson v. State, 605 So.2d 846, 847 (Ala.Crim.App.1992). Three months later, without reference to Sampson, the Court of Criminal Appeals reiterated that failure to advise of possible minimum and maximum sentences is jurisdictional and can be raised at any time regardless of whether objection was made before the trial judge. Brown v. State, 611 So.2d 1194, 1197-98 (Ala.Crim.App.1992).

"Thus, in straightforward failure-to-advise cases not involving youth offender status, the Court of Criminal Appeals appears to have continued to follow the Rivers principle with the gloss of its own interpretation that Rivers means that failure to advise is jurisdictional. But that court has done so with great reluctance. In Parish v. State, [Ms. CR-90-1285, April 23, 1993] 1993 WL 124790 (Ala.Crim.App.1993), the court expressed at length its view that failure to advise is not a jurisdictional matter but rather should be examined within the context of voluntariness of the plea, but that--as it was required to do--it accepted that it was bound by Rivers to review defendant's conviction. Three months later in August 1993, the Court of Criminal Appeals again reluctantly followed Rivers and reversed the defendant's conviction. Bennett v. State, 649 So.2d 213 (Ala.Crim.App.1993).

"In the context of failure to advise of youthful offender rights the Court of Criminal Appeals had held, prior to Rivers, that the failure to advise was not a jurisdictional matter. Hobbie v. State, 564 So.2d 97, 99 (Ala.Crim.App.1990), overruled as to a different holding, 596 So.2d 613 (Ala.Crim.App.1991). Without citing Rivers or any of its progeny, the Court of Criminal Appeals adhered to this view in Mosley v. State, 616 So.2d 362, 364 (Ala.Crim.App.1993).

"This brings us to the question of the application of Rivers (as interpreted by the Court of Criminal Appeals to establish a jurisdictional principle) to the case before us where the failure to advise is not directly of minimum and maximum sentences but of possible treatment as a youth offender which, as we have pointed out, subsumes different maximum[s] and minimums. As we have discussed above, on this issue, Alabama law is not clearly settled. Compare Sampson, 605 So.2d at 847 (stating that failure to advise of minimum and maximum sentence is jurisdictional) with Mosley, 616 So.2d at 364 (stating that failure to advise of youthful offender rights is not jurisdictional)."

Gordon v. Nagle, 2 F.3d 385, 388-89 (11th Cir.1993).

The confusion in Alabama law is the result of contradictory holdings by the Court of Criminal Appeals in Sampson and Mosley and that court's interpretation of our decision in Ex parte Rivers. The Court of Criminal Appeals has read Ex parte Rivers as holding that any defect in the entry of a plea of guilty is always a matter of jurisdiction. Ex parte Rivers held that the failure to inform a defendant of the minimum and maximum sentences constituted a defect in an entry of a plea of guilty that went to the voluntariness of that plea and, therefore, was subject to collateral challenge under Boykin v. Alabama, infra. The collateral challenge in Ex parte Rivers to the plea of guilty was made within the two-year period of limitations.

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), established the procedural due process requirements that must be met before a guilty plea can be considered to have been voluntarily and intelligently entered. In Boykin, the defendant had been convicted on five separate charges of common law robbery and had been sentenced to die by electrocution. This Court affirmed his convictions. The United States Supreme Court reversed the convictions, citing with approval the conclusion of the three dissenting Justices of this Court who would have reversed the judgment on the grounds that the record did not disclose that the defendant had voluntarily and understandingly entered his plea of guilty. Id., 395 U.S. at 242, 89 S.Ct. at 1713, 23 L.Ed.2d at 278.

In Boykin, the United States Supreme Court drew an analogy between the cases in which a guilty plea is taken, waiving the right to trial, and those cases in which the right to counsel is waived:

"In Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 [ (1962),] we dealt with a problem of waiver of the right to counsel, a Sixth Amendment right. We held: 'Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.'

"We think that the same standard must be applied to determining whether a guilty plea is voluntarily made. For, as we have said, a plea of guilty is more than an admission of conduct; it is a conviction....

"Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 [ (1964) ]. Second, is the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 [ (1968) ]. Third, is the right to confront one's accusers. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 [ (1965) ]. We cannot presume a waiver of these three important federal rights from a silent record.

"What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence...."

395 U.S. at 243-44, 89 S.Ct. at 1712, 23 L.Ed.2d at 279-80.

The procedural requirements of Boykin have been incorporated into the Alabama Rules of Criminal Procedure at Rule 14.4.

Subsequent to Boykin, the Alabama appellate courts held that in order to enter a knowing and valid guilty plea, the defendant must be informed on the record of the maximum and minimum possible sentences. In Jones v. State, 48 Ala.App. 32, 261 So.2d 451 (1972), the Court of Criminal Appeals cited Boykin v. Alabama as authority to remand the case to the trial court for a further hearing "as to whether or not the appellant, before pleading guilty, had been informed as to the minimum and maximum punishment for grand larceny." In 1973, this Court followed Jones v. State:

"The 'utmost solicitude' required by Boykin, supra, requires a showing not only that the defendant believed he knew the range of punishment, but that his belief was accurate. The better practice is to elicit the maximum and minimum sentences from the...