Hobson v. State, 2 Div. 319

• Decision Date: 27 July 1982
• Docket Number: 2 Div. 319
• Citation: 425 So.2d 511
• Parties: William Barry HOBSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 511

425 So.2d 511

William Barry HOBSON v. STATE.

2 Div. 319.

Court of Criminal Appeals of Alabama.

July 27, 1982.

Rehearing Denied Oct. 12, 1982.

Certiorari Denied Jan. 28, 1983

Alabama Supreme Court 82-42.

Edwin L. Yates, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen. and William D. Little, Asst. Atty. Gen., for the State.

HARRIS, Presiding Judge.

This is a consolidated appeal by an indigent from the denial of his petitions for writ of habeas corpus and writ of error coram nobis to review eleven previous felony convictions.

In 1978, appellant entered guilty pleas to nine indictments in Perry County for the offenses of robbery, burglary and escape. At the time, he retained Mr. O.S. Burke of Marion, Alabama to represent him. That same year, appellant also pleaded guilty to two Dallas County indictments for robbery. Mr. Burke was not his attorney of record for the Dallas County cases, but he helped to negotiate an agreement between the district attorneys of both counties for concurrent sentences totalling forty years in all cases. Appellant was subsequently sentenced to forty years and sent to Draper Correctional Center in Elmore County. He did not appeal any of the convictions.

On September 4, 1981, appellant filed pro se habeas corpus and coram nobis petitions in Perry Circuit Court attacking all eleven convictions. The petitions, including those arising out of the Dallas County convictions, were consolidated for a hearing on October 2, 1981, in Perry Circuit Court, by agreement of the parties.

The court appointed counsel to represent appellant at the hearing, but the attorney withdrew shortly before the date set and the court named another lawyer, Mr. Larry Leonard of Linden, Alabama, some three hours prior to the hearing.

Appellant's petitions claimed, in essence, that he was "intimidated and coerced" by his first lawyer into pleading guilty by being told that unless he agreed to the proposed Appellant's petitions also maintained that his attorney was incompetent because he neglected to investigate the cases, failed to discover flaws in the indictments or arrest warrants, and did not inform him of possible defenses to the charges.

forty-year concurrent sentences, he would undoubtedly be tried separately, convicted and sentenced consecutively for all eleven offenses.

At the hearing, the State introduced a letter from the appellant to his attorney stating, in substance, that appellant agreed to the negotiated pleas and forty-year sentence and was satisfied with the representation provided by his lawyer. ¹ Mr. Burke testified that he composed and typed the letter and then discussed it with the appellant. Appellant read and signed it in the presence of his father, who also signed as a witness.

Appellant acknowledged at the hearing that he had read and signed the letter, but he stated that when he did so he did not know the meaning of the word "coerced" in the sentence "The decision to plead guilty was my decision and I was not coersed [sic] or pressured to enter this plea by anyone, including you and my father."

The trial judge denied all the petitions and the appellant appealed, now claiming that he was not afforded the effective assistance of counsel by his second attorney, the one who represented him at the hearing on his petitions.

Appellant's petitions for writ of habeas corpus were correctly denied, first, because they were not filed in the proper circuit, and second, because they established no basis for relief under the writ. A petition for writ of habeas corpus by a state penitentiary inmate should be addressed to the nearest circuit judge, Ex Parte Goodwin, 283 Ala. 61, 214 So.2d 415 (1968); Ala.Code § 15-21-6 (1975), rather than to the court where the original conviction occurred. In addition, neither the alleged ineffectiveness of counsel nor the claimed involuntariness of a guilty plea entitles a petitioner to habeas corpus relief. See Argo v. State, 41 Ala.App. 347, 133 So.2d 201, cert. denied, 272 Ala. 699, 133 So.2d 203 (1961); Ala.Code § 15-21-24 (1975).

In our judgment, appellant's coram nobis petitions were also properly denied. Appellant offered no evidence to substantiate his allegation that he was intimidated into pleading guilty. Aside from his unfamiliarity with the single word "coerced," his testimony indicates that he was aware of the import of the remainder of the letter he signed.

Furthermore, appellant's attorney testified that before appellant's pleas were received by the court, he (Mr. Burke) fully explained the contents of an Ireland form, See Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971), to appellant and the judge conducted a full colloquy with appellant concerning the voluntariness of the pleas. Although the record before us contains neither the Ireland form nor the transcript of the colloquy on the guilty pleas, appellant offered no proof to dispute the existence or sufficiency of either.

Appellant also failed to carry the burden of proving that his first counsel was ineffective. In addition to the fact that appellant's signature on the letter acknowledged his satisfaction with the job his attorney had performed, the testimony of appellant's own witnesses undermined his assertion that counsel had neglected to investigate the cases or find defects in the indictments. In short, appellant established absolutely no proof that counsel had not ably represented him. See Clark v. State, 396 So.2d 1083 (Ala.Crim.App.1981).

Moreover, we do not believe that appellant was denied the effective assistance of counsel at his coram nobis hearing.

Initially we note that, even though a coram nobis petition seeks relief from a criminal judgment, it is a civil proceeding, Ex Parte Wilson, 275 Ala. 439, 155 So.2d 611 (1963), and an indigent petitioner is not entitled to appointed counsel as a Generally, the decision whether to appoint counsel in a collateral procedure, such as a coram nobis petition, is discretionary, see Ex Parte Lott, 42 Ala.App. 484, 168 So.2d 265 (1964), and derives from the Due Process Clause rather than the Sixth Amendment. See United States v. Barnes, 662 F.2d 777, 780 (D.C.Cir.1980); Vandenades v. United States, 523 F.2d 1220 (5th Cir.1975); Cates v. Ciccone, 422 F.2d 926 (8th Cir.1970).

matter of right. See Ala.Code § 15-12-23(a) (1975). The Sixth Amendment right to counsel does not guarantee the representation by an attorney to a criminal defendant beyond the first level of appellate review, Martin v. State, 277 Ala. 153, 167 So.2d 912 (1964); Juelich v. United States, 342 F.2d 29 (5th Cir.1965).

Appellant contends that because his counsel was named to represent him only three hours prior to the coram nobis hearing, and admitted to the trial judge that he was not fully versed in the facts of the case, appellant was denied the effective assistance of counsel. He also claims that counsel called witnesses whose testimony proved adverse to him, and...