Henson v. State, CR–10–0649.
| Decision Date | 04 November 2011 |
| Docket Number | CR–10–0649. |
| Parties | Kinard Julius HENSON v. STATE of Alabama. |
| Court | Alabama Court of Criminal Appeals |
OPINION TEXT STARTS HERE
Glenn L. Davidson, Mobile, for appellant.
Luther Strange, atty. gen., and William D. Dill, asst. atty. gen., for appellee.
Kinard Julius Henson appeals his guilty-plea convictions and subsequent sentences for attempted murder, a violation of § 13A–4–2, Ala.Code 1975, and bribing a witness, a violation of § 13A–10–121, Ala.Code 1975.1 Henson was sentenced to 15 years' imprisonment on each charge, the sentences to run concurrently with the other, as well as with any other sentence. Henson now appeals, arguing that his pleas were not voluntary and, further, that both of his sentences fall outside the statutorily prescribed sentencing range. For the reasons explained below, we affirm in part, reverse in part, and remand with instructions.
On August 23, 2010, pursuant to a plea agreement, Henson entered guilty pleas to the charges of attempted murder and bribing a witness.2 (C. 28.) During his plea colloquy, the Court advised Henson that attempted murder, a Class A felony, “carries a penalty of between ten years and ninety-nine years or life.” The court also advised Henson that his second charge, bribing a witness, a Class C felony, “carries a penalty between ... one and ten [years].” Finally, before accepting Henson's guilty pleas, the court inquired whether Henson's pleas were the result of threats or force, and Henson indicated that they were not. (R. 4–5.)
Following Henson's admission of guilt, the State proffered an account of the evidence against Henson. According to the State, Henson used his cousin Roderick Sykes to shoot and attempt to kill Larry Barker, a straw buyer in a mortgage scheme in which Henson was involved and for which Henson was then being investigated by federal authorities.3 (R. 5–7.) Although the trial court accepted Henson's guilty pleas, adjudication was withheld so that Henson could first address federal charges in New Jersey on “money laundering, mail fraud[,] and intimidating a witness by attempted murder.” (R. 7–8.)
On October 26, 2010, two days before Henson's sentencing date, Henson filed a “Motion to Set Aside Guilty Plea.” (C. 54–55.) In his motion, Henson argued that his “plea was a product of coercion and threat to [Henson] and [his] family.” Specifically, Henson alleged that “his father and mother's life, as well as his wife's life, [were] threatened[ ] if [Henson] did not accept the responsibility for the attempted murder.” (C. 54.) In a hearing on his motion, Henson testified that he “plead[ed] guilty because [his] family was threatened and [he] had to [plead guilty] to save [his] family.” (R. 17.) According to Henson, his family was threatened by Darrell Henry, the “originator” of the mortgage scheme in New Jersey and the individual who had put Henson in contact with Barker, the victim. Henson, however, testified only briefly before ending his testimony on the advice of his counsel.4 (R. 21–24.)
Henson's father, John Henson (hereinafter “John”), was the only other witness to testify at the hearing. He testified that he learned, through a series of telephone conversations with his son, that Henry was threatening Henson, John, and other members of Henson's family; John's testimony, however, largely consisted of his recollections of telephone conversations with Henson in which Henson relayed threats allegedly made by Henry. John also testified that he and his wife relocated to Alabama from New Jersey as a result of the threat posed by Henry. On cross-examination, however, John acknowledged that he had no firsthand knowledge of any threat posed by Henry. Specifically, John testified that his understanding of the threat posed by Henry was based solely on his conversations with Henson and, further, that Henry had never personally threatened John. (R. 39, 42.) John also testified that he was first apprised of the alleged threats in July 2008 (R. 48) but that he did not relocate to Alabama until June 2010. (R. 46.) Finally, John acknowledged that he had had a recent encounter with Henry at a bank in New Jersey that was neither frightening nor threatening. (R. 41–42.)
At the close of the hearing on Henson's motion to set aside his guilty pleas, the State urged the court to deny Henson's motion, arguing that the timing of the motion was suspect; specifically, the State noted that the cases against Henson's two codefendants had been resolved and, thus, that the State could expect no further cooperation from either codefendant. (R. 62.) Henson argued, however, that there was no evidence indicating that Henson was aware of the status of the cases against his codefendants before he filed his motion. (R. 62.) At the conclusion of the hearing, the circuit court denied Henson's motion, finding that Henson's pleas had been “made freely, understandingly, knowingly, and voluntarily.” (R. 64.) The circuit court proceeded to sentence Henson, stating as follows:
(R. 66.)
Henson subsequently filed a “Renewed Motion to Set Aside Guilty Plea and For New Trial.” (C. 56.) In addition to “re-alleg[ing] and re-assert[ing] each and every allegation set forth in his original [m]otion,” Henson argued only that his “plea was involuntary” and that his “plea was made by coercion.” (C. 56.) The circuit court denied the motion. On appeal, Henson argues that his guilty pleas were not voluntary and, further, that both his sentencesfall outside the permissible statutory range. We address each issue in turn.
Rule 14.4(e), Ala. R.Crim. P., states that “[t]he court shall allow withdrawal of a plea of guilty when necessary to correct a manifest injustice.” “ ‘Whether a defendant should be allowed to withdraw a guilty plea is a matter within the discretion of the trial court, whose decision will not be disturbed on appeal absent a showing of abuse of that discretion.’ ” Johnson v. State, 886 So.2d 900, 902 (Ala.Crim.App.2003) (quoting Ex parte Blackmon, 734 So.2d 995, 997 (Ala.1999)). “ ” Cobb v. State, 895 So.2d 1044, 1048 (Ala.Crim.App.2004) (quoting Duncan v. State, 838 So.2d 1064, 1065 (Ala.Crim.App.2000)).
The voluntariness of a guilty plea will not be addressed by an appellate court absent a showing that the trial court was first given the opportunity to address the specific issue. See Ex parte Parks, 892 So.2d 372, 374 (Ala.2004) “ ” ; see also Ginn v. State, 894 So.2d 793, 795 (Ala.Crim.App.2004) (). “It has been a rare occasion where this Court has seen fit to reverse the trial court's refusal to set aside a guilty plea.” Cobb, 895 So.2d at 1048.
Henson first argues that his plea was not voluntary because, according to Henson, it was made only after he and members of his family were threatened by Henry; this argument was the basis of Henson's motions before the trial court. Although Henson testified briefly at the hearing, the bulk of the evidence before the circuit court was the testimony of John Henson, Henson's father. First, John's testimony largely consisted of what Henson had told John about the alleged threat posed by Henry; as John acknowledged, however, John was never directly threatened by Henry. Second, although John testified that he and his wife had relocated to Alabama because of the alleged threat, it appears that the couple relocated to Alabama nearly two years after John claims he was first made aware of Henry's threats; likewise, John testified to a recent encounter with Henry that was neither threatening nor frightening. Third, and finally, the timing of Henson's motion raises concerns. Although Henson alleges that Henry posed a threat as early as July 2008, Henson did not raise the issue of coercion until two days before he was scheduled to be sentenced and, further, until after the cases against his codefendants had been resolved. After a review of the record, we cannot say that the circuit court abused its discretion when it denied Henson's motions. Johnson, 886 So.2d at 902.
Henson's second argument is that his plea was not voluntary because, according to Henson, the circuit court failed to apprise him of the correct range of sentencingbefore accepting his guilty plea. As noted by the State, however, this argument was not presented to the trial court in either of Henson's motions and, thus, is not preserved for appellate review. Ginn, 894 So.2d at 795. Therefore, we do not address it.5
Henson also argues that the trial court sentenced him outside the statutorily prescribed sentencing range on both charges. (Henson's brief, p. 16; Henson's reply brief, p. 1.) We agree.
Section 13A–5–6, Ala.Code 1975, the relevant portions of which are quoted below, prescribes the limitations on terms of imprisonment for felony sentences:
“(a) Sentences for felonies shall be for a definite term of imprisonment, which imprisonment includes hard labor, within the following...
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