LEIGH M. CLARK, Retired Circuit Judge.
This is an appeal from a denial after an evidentiary hearing of appellant's petition for writ of error coram nobis filed November 3, 1982, seeking relief from the effect of a judgment of conviction and sentence for murder on November 9, 1966. The petitioner alleges, inter alia, that said "conviction was used to make a subsequent act a capital offense" and that she thereby "is currently on death row awaiting execution in Case No. CC-81-865, having been convicted of Murder by a Convicted Murderer." See --- So.2d ----. It is understood by the writer of this opinion that an appeal in Case No. CC-81-865 is now pending in this Court, but he does not plan to examine the record, transcript or briefs in that case, believing it appropriate for him not to inject himself into the other case.
The gravamen of the coram nobis petition is that upon her conviction and sentence in 1966, she "was not advised of her right to appeal, nor her right to appellate counsel, by her appointed attorney or by the Court" and that she was "entitled to an out of time appeal or, if that is not possible, a new trial, because of the failure of her appointed counsel, and of the court to advise her of her appellate rights."
At the hearing of the petition, the petitioner and her appointed attorney in the case in which she was convicted of murder in 1966 were the only witnesses. In denying the petition, the trial judge delivered his written "FINDINGS OF FACT & MEMORANDUM OF LAW," by which we are convinced that the trial court was not in error in denying the petition. We quote therefrom as follows:
"UNCONTESTED AND/OR STIPULATED FACTS
"On the stipulation, testimony and exhibits admitted, there are several uncontested or stipulated facts which may be recited:
"1. Judge, W.C. Warren, [the judge presiding in the 1966 case] died on February 2, 1973.
"2. Mr. J.P. Carr, the official court reporter to Judge W.C. Warren, died on May 19, 1971.
"3. The State has been unable to find any shorthand notes, or transcript of such notes, or any record of any notes being transcribed. All known files and records were searched.
"4. Hon. Louis Lackey, now a retired circuit judge, would have testified if called that he was the district attorney who prosecuted the defendant in 1966, and that he has no present recollection of whether or not the defendant was advised of the right to appeal, or of a right to a transcript, or of a right to appellate counsel.
"THE DISPUTED FACTS & THE COURT'S FINDINGS
"The factual dispute essentially surrounds the events of November 9, 1966. The Petitioner's position is that she was tried by a jury on a charge of Murder in the First Degree, was found guilty of Murder in the Second Degree, and was sentenced to twelve (12) years. The State's position is that the proceedings of November 9, 1966, did not constitute a trial, but a settlement.
"In 1966, Murder in the First Degree was a capital charge. Punishment was either death or life imprisonment at the discretion of the jury. Title 14, Section 319, Ala.Code (1958 Recomp.). Every charge of Murder in the First Degree included Murder in the Second Degree, and even upon a confession of guilt, the court had to proceed to establish the degree of the crime by a jury verdict after an examination of the evidence. The jury determined the sentence as well as the degree. Title 14, Section 317, Ala.Code (1958 Recomp.). It was not until 1969 that Alabama judges were permitted to accept pleas of guilty, determine the degree of the offense, and fix punishment in such cases without intervention of a jury. See Title 15, Section 277, Ala.Code (Sup.1973, as amended 1969). Even under the 1969 amendment, the court could not
bind a jury already empanelled in a murder case. See, e.g., Waldrop v. State, 54 Ala.App. 163, 306 So.2d 29 (Ala.Cr.App.1974), cert. denied, 293 Ala. 777, 306 So.2d 33 (Ala.1975).
"The bench notes of the trial judge summarily state:
" 'Nov. 9 '66 Jury and verdict guilty of Murder in 2nd degree as charged and the defendant's punishment is fixed by the jury at impronment [sic] in state [prison] for twelve years--Defendant then by the Court adjudged guilty accordingly of Murder in the 2nd degree as charged in the indictment and the defendants [sic] punishment is fixed at imprisonment in the State penitentiary for a term of twelve years--Defendant then being in open Court and being asked by the Court if she had anything to say whether the sentence of law should not now be pronounced upon her and Defendant says nothing. Defendant is sentenced to imprisonment in the penitentiary of Alabama for twelve years as punishment for this offense in manner and form provided by law./s/ W.C. Warren, Judge Presiding.'
"Although the judgment entry seemingly indicates a trial, it also supports a conviction based upon the 'mini-trial' required at the time. The credible evidence eliminates the ambiguity. On November 9, 1966, the case against Patricia Ann Thomas was settled, with the defendant receiving a twelve year sentence for Murder in the Second Degree. A review of the evidence before the Court establishes this fact.
"Mr. Ward, the appointed counsel, testified that he reached an agreement with the State, and communicated the proposed sentence of twelve years to the defendant. He further testified that she agreed to accept the sentence, and that he would not have taken the settlement without her consent. [R.27, 33] He also stated that he explained to her on the day she came to court that a settlement would be entered. [R.39] He recommended the settlement to her, stating that he thought it was a good settlement. He further testified that the proceedings were upon an agreement between the District Attorney, the defense counsel, and the Judge. The petitioner testified that Mr. Ward had previously communicated an offer of life to her, and that she told him she did not want to spend the rest of her life in prison. Later, he informed her that he could settle the case for twelve years. She testified, 'I told him, you know, ' "You're my lawyer." ' If that's what he thought, it was you know ..." [R.10, 18] She then described the events of November 9, 1966, as follows:
" 'All of us came in and they told us to stand up and we took--we raised up our right hand and took our little pledge, and they called a witness to the stand. She testified. Then they passed a yellow legal tablet to some people sitting up there. They read it. They passed it back to the Judge. They told me and my attorney to stand up and come forward. We came up to a little table and he asked the Judge to sentence me to twelve years in the women's penitentiary and he asked each one of them, one by one, sitting over on that side would they go along with it, and they said yes. [R.11]'
"Several notations also support the settlement finding. Mr. Ward testified that at the time he made a notation on the back of his file: 'Agreed settlement, twelve years.' [R.44] The official Consolidated Docket reflects the following fee entries by the Circuit Clerk: 'Felony--P.G. (15.00) 12.00 12.00'. Thus, the clerk taxed the cost based on a plea of guilty.
"Therefore, based upon the evidence before the Court, and the fact that this Court finds the Petitioner's testimony is not believable on some points, this court finds that the Petitioner and her attorney settled her case and that the proceeding on November 9, 1966, was simply the required 'mini-trial' to effectuate the agreement. See, e.g., Howard v. State, 280 Ala. 430, 194 So.2d 834 (1967), for a case with a similar judgment entry, and a like result.
"The settlement of November 9, 1966, was pre-Boykin, and therefore does not meet the procedures and record requirements of
that case. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The Petitioner has made no claim that her settlement of November 9, 1966, constituted an illegal pre-Boykin plea. She takes the position that she did not settle the case. Again, the credible evidence is that she knowingly and voluntarily entered into a settlement 'mini-trial' knowing that she would receive twelve years upon a conviction for the lesser-included offense of Murder in the Second Degree. Mr. Ward testified that Judge Warren:
" '[G]enerally went through the formality of informing the Defendant what they ... of pleading guilty and so forth and so on and he had a regular procedure that he went through where he instructed the jury and ... [interrupted by defense counsel] [R.41]'
"The focus of the hearing before this Court was on the issues previously mentioned. There was no direct attempt to invalidate the settlement on the grounds of an unknowing or involuntary settlement. Because this settlement was pre-Boykin the burden is on the Petitioner to show an invalid settlement, and she did not do so. See Bryant v. Elliott, 472 F.2d 572, 573 (5th Cir.1973). See also Hudson v. State, 45 Ala.App. 449, 231 So.2d 772 (Ala.Cr.App.1969), cert. denied, 285 Ala. 754, 231 So.2d 773 (1970) [Boykin not retroactive].
"The Petitioner says that neither the Court nor her appointed counsel advised her of her right to an in forma pauperis appeal. The Court finds that the Petitioner is not a credible witness on this point. Her demeanor and appearance on the stand, and her testimony as a whole, compels this Court to reject some of her testimony. Her testimony is in direct conflict with that of her attorney on several critical points. Mr. Ward's testimony is credible; hers is not. In some instances, her answers are to specific questions which are themselves open to...
