Herring v. State, CR–13–1052.

• Decision Date: 03 October 2014
• Docket Number: CR–13–1052.
• Citation: Herring v. State, 185 So.3d 492 (Ala. Crim. App. 2014)
• Parties: Charles Ted HERRING v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

185 So.3d 492

Charles Ted HERRING

v.STATE of Alabama.

CR–13–1052.

Court of Criminal Appeals of Alabama.

Oct. 3, 2014.

Rehearing Denied Dec. 12, 2014.

Nereida Bundy, Dothan, for appellant.

Luther Strange, atty. gen., and P. David Bjurberg, asst. atty. gen., for appellee.

JOINER, Judge.

Charles Ted Herring was convicted of second-degree theft of services, see § 13A–8–10.2, Ala.Code 1975, and was sentenced to 20 years' imprisonment. Herring was ordered to pay a $2,000 fine, a $1,000 crime-victims-compensation assessment, a $150 bail-bond fee, a $2,000 attorney fee, restitution, and court costs. Herring appeals.

At a plea hearing held on January 30, 2014, Herring entered a formal plea of guilty. (P.H.R. 3.¹ ) The trial court engaged Herring in the following colloquy to determine whether his plea was made knowingly and voluntarily:

"THE COURT: State your name.

"A. Charles Ted Herring.

"THE COURT: And how old are you?

"A. Forty-two.

"THE COURT: What is your level of education?

"A. High school.

"THE COURT: And are you under the influence of any mood-altering substances today?

"A. No, sir.

"THE COURT: Have you read this explanation of rights and plea of guilty that [defense counsel] has given me?

"A. Yes, sir.

"THE COURT: Do you understand it?

"A. Yes, sir.

"THE COURT: Do you have any questions about it?

"A. No, sir.

"THE COURT: I want to confirm that this is your signature. [Defense counsel]?

"[DEFENSE COUNSEL]: Yes, sir.

"THE COURT: You signed that form, Mr. Herring?

"A. Yes, sir.

"THE COURT: And that is your signature there?

"A. Yes, sir.

"THE COURT: Do you understand that this is a formal plea of guilty, and you enter that plea of guilty?

"A. Yes, sir.

"THE COURT: And you voluntarily waive your right to a trial by jury? Do you understand you lose your right to appeal?

"A. Yes, sir.

"THE COURT: And do you have any one who has threatened you or harassed you or intimidated you or told you that you had to enter a plea of guilty?

"A. No, sir.

"THE COURT: Has anyone promised you anything of value to enter this plea?

"A. No, sir.

"THE COURT: And you obtained utility services by deception from the City of Dothan; is that correct?

"A. Yes, sir.

"THE COURT: And that is a violation of 13A–8–[10.2]. What did you obtain from the city of Dothan?

"[DEFENSE COUNSEL]: Electric bill. He wrote a check on a closed account for the electric bill.

"THE COURT: Now, further, do you understand, Mr. Herring, that you made an application for probation and I don't have to give you probation?

"A. Yes, sir.

"THE COURT: And do you also understand that this will conclude all matters in your case and it will be final?

"A. Yes, sir.

"THE COURT: Based on what you have told me, I find this is a knowing and willing plea."

(P.H.R. 3–5.)

At Herring's sentencing hearing held on March 31, 2014, the trial court determined that second-degree theft of services was not an offense included in the presumptive sentencing guidelines established by the Alabama Sentencing Commission. (S.H.R. 4, 6–7.) The trial court also determined that Herring's sentence was subject to the Habitual Felony Offender Act, § 13A–5–9, Ala.Code 1975 ("the HFOA"). (S.H.R. 6– 7.) The trial court sentenced Herring to 20 years' imprisonment. (S.H.R. 9.)

Herring subsequently filed a timely motion to withdraw his guilty plea on the basis that his plea was not knowingly and voluntarily made. (R. 23–24.) Herring's motion, however, did not state any specific grounds with respect to why his plea was not knowing or voluntary. (R. 23.) The trial court denied Herring's motion. (R. 25.)

On appeal, Herring argues that his "plea was not knowingly and voluntarily made, and his Motion to Withdraw Guilty Plea should have been granted as [he] was not advised of his constitutional rights." (Herring's brief, p. 9.) Herring also contends that because he was sentenced pursuant to the HFOA, he "received a disproportionate sentence." (Herring's brief, p. 20.)

I.

Herring first contends that he did not knowingly or voluntarily enter a plea of guilty. (Herring's brief, p. 9.) Specifically, Herring claims that he was not advised of: (1) the "minimum and maximum sentences" (Herring's brief, p. 9); (2) "the differences in consecutive and concurrent and their application to his case" (Herring's brief, p. 9); (3) "the pleas available to him" (Herring's brief, p. 16); (4) "his right to remain silent or to testify [on] his own behalf" (Herring's brief, p. 16); and, (5) his waiver of both " ‘the privilege against compulsory self-incrimination’ " and " ‘the right to confront one's accusers' " (Herring's brief, p. 17 (quoting Gordon v. Nagle, 647 So.2d 91, 93–94 (Ala.1994) )). Herring further claims that he "was not questioned regarding his satisfaction with [defense counsel] during his plea." (Herring's brief, p. 19.)

This Court has previously held that

" ‘ "[a]n issue raised for the first time on appeal is not subject to appellate review because it has not been properly preserved and presented." Pate v. State, 601 So.2d 210, 213 (Ala.Crim.App.1992). " ‘[T]o preserve an issue for appellate review, it must be presented to the trial court by a timely and specific motion setting out the specific grounds in support thereof. ’ " McKinney v. State, 654 So.2d 95, 99 (Ala.Crim.App.1995) (citation omitted).' "

Kidd v. State, 105 So.3d 1261, 1263–64 (Ala.Crim.App.2012) (quoting Ex parte Coulliette, 857 So.2d 793, 794–95 (Ala.2003) (emphasis added)).

In addition, Rule 14.4, Ala R.Crim. P. provides, in pertinent part:

"(a) Colloquy With Defendant. In all minor misdemeanor cases, the execution of a form similar to Form C–44B will be sufficient and no colloquy shall be required. In all other cases, except where the defendant is a corporation or an association, the court shall not accept a plea of guilty without first addressing the defendant personally in the presence of counsel in open court for the purposes of:

"(1) Ascertaining that the defendant has a full understanding of what a plea of guilty means and its consequences, by informing the defendant of and determining that the defendant understands:

"....

"(ii) The mandatory minimum penalty, if any, and the maximum possible penalty provided by law, including any enhanced sentencing provisions;

"(iii) If applicable, the fact that the sentence may run consecutively to or concurrently with another sentence or sentences;

"(iv) The fact that the defendant has the right to plead not guilty, not guilty by reason of mental disease or defect, or both not guilty and not guilty by reason of mental disease or defect, and to persist in such a plea if it has already been made, or to plead guilty;

"(v) The fact that the defendant has the right to remain silent and may not be compelled to testify or give evidence against himself or herself, but has the right, if the defendant wishes to do so, to testify on his or her own behalf;

"(vi) The fact that, by entering a plea of guilty, the defendant waives the right to trial by jury, the right to confront witnesses against him or her, the right to cross-examine witnesses or have them cross-examined in the defendant's presence, the right to testify and present evidence and witnesses on the defendant's own behalf, and the right to have the aid of compulsory process in securing the attendance of witnesses;

"....

"(3) Giving the defendant an opportunity to state any objections he or she may have to defense counsel or to the manner in which defense counsel has conducted or is conducting the defense.

"....

"(d) Use of Form. The court may comply with the requirements of Rule 14.4(a) by determining from a personal colloquy with the defendant that the defendant has read, or has had read to the defendant, and understands each item contained in Form C–44B, CR–51, CR–52, or Form C–44A, as the case may be."

The committee comments to Rule 14.4 provide, in relevant part:

"Section (d) is included to accommodate the current Alabama practice of informing the defendant of his rights through a form similar to that approved in Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971), and subsequent cases.... [T]he Court of Appeals [has] held that while a full colloquy is not required where the form is used, the record must show that the trial judge made inquiry as to the defendant's understanding of the rights set out in the form."

Additionally, in Brown v. State, 695 So.2d 153, 154 (Ala.Crim.App.1996), this Court stated with respect to the requirements of Rule 14.4(a), Ala. R.Crim. P.:

" ‘In Twyman v. State, 293 Ala. 75, 81–82, 300 So.2d 124, 130 (1974), our Supreme Court held that an Ireland [v. State, 47 Ala.App. 65, 250 So.2d 602 (1971) ] form executed by the defendant and acknowledged by defense counsel and the trial judge may establish that a guilty plea was voluntarily and intelligently made, "provided there is other evidence in the record supporting that fact." Davis v. State, 348 So.2d 844, 846 (Ala.Crim.App.), cert. denied, 348 So.2d 847 (Ala.1977) (emphasis in Twyman ).’ Trice v. State, 601 So.2d 180, 184 (Ala.Crim.App.1992) (footnote omitted)."

This Court has also held that

"[a] guilty ‘plea is only properly accepted ... upon satisfaction of the requisites of Boykin [v. Alabama , 395 U.S. 238 (1969) ] including the trial judge's determination that the guilty plea was knowingly and voluntarily entered by the accused. The record must reflect sufficient facts from which such determination could properly be made.’ Dingler v. State, 408 So.2d 530, 532 (Ala.1981)."

Brewster v. State, 624 So.2d 217 (Ala.Crim.App.1993). In Twyman v. State, 293 Ala. 75, 300 So.2d 124 (1974), the Alabama Supreme Court held that the "Boykin requirement that a record affirmatively reflect that the trial court determined that the defendant entered his plea of guilty voluntarily can by satisfied by ... a transcript of the colloquy ... indicating that the trial court personally addressed the defendant and determined that the guilty plea was entered voluntarily." Fleming v. State, 972 So.2d 835, 836–37 (Ala.2007).

Although Herring filed a timely motion to withdraw his...