Lewis v. State

• Decision Date: 20 August 1985
• Docket Number: 1 Div. 6
• Citation: 479 So.2d 1356
• Parties: Georgina LEWIS, a/k/a Georgina Wilson v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1356

479 So.2d 1356

Georgina LEWIS, a/k/a Georgina Wilson v. STATE.

1 Div. 6.

Court of Criminal Appeals of Alabama.

Aug. 20, 1985.

Rehearing Denied Oct. 8, 1985.

Certiorari Denied Nov. 27, 1985

Alabama Supreme Court 85-102.

James H. Lackey, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

Georgina Lewis, also known as Georgina Wilson, was charged with the sale of drugs, namely Methamphetamine hydrochloride, a controlled substance, in violation of the provisions of the Alabama Uniformed Controlled Substances Act, § 20-2-70, Code of Alabama 1975. She entered a plea of not guilty and her attorney proceeded to file motions. On Monday, February 11, 1985, she waived a trial by jury, withdrew her plea of not guilty, and pleaded guilty. Adjudged guilty, she was sentenced to 3 years' imprisonment in the penitentiary on a negotiated plea. No fine was assessed. On February 28, she filed a motion to withdraw her guilty plea, alleging first that she had not been advised of the ramifications of the Habitual Felony Offender Act and, second, that her guilty plea was entered because of the insistence of friends who were with her in the courtroom and not because she was guilty. The motion to withdraw her guilty plea was denied, and an attorney for appeal was appointed.

On appeal, she contends that although she was advised of the minimum and maximum sentences to the penitentiary which she might receive, she was not advised at all of the possibility of being fined up to $25,000 for a violation of § 20-2-70, Code of Alabama 1975, and cites Abbott v. State, 459 So.2d 995 (Ala.Cr.App.1984). The "Motion To Enter Guilty Plea" employed in the 13th Circuit states in paragraph 5 thereof:

"5. I understand that the law applicable to such a charge provides that the punishment for that offense is imprisonment in the State penitentiary for not less than 2 years nor more than 15 years . I wish to enter a Plea of Guilty to the offense of Sale of Methamphetamine ."

The guilty plea form does not provide any space for advising the defendant what fine, if any, may be imposed by law. The form further states in paragraph 12:

"12. I further understand that any agreement or recommendations that have been or may be made by the State of Alabama through the District Attorney do not bind the Court and may not be followed in imposing sentence or granting probation."

The state on the other hand contends that "the line must be drawn as to what possible consequences must be explained to the defendant, and the state contends that the possibility of a monetary fine is not so momentous as to require [that] the trial court expressly inform a defendant, who is also represented by counsel, thereof."

We find as a fact that the court in its colloquy did not advise this accused of a possible fine of up to $25,000. We further find as a fact that the guilty plea form employed in this case, referred to by this court as an "Ireland Form" (Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971)) did not advise the accused of the possible fine. The thrust of appellant's contention is that the guilty plea was involuntary because it was not an "intelligent and informed" plea. If the accused did not know what she faced as a direct consequence of the plea, then the plea itself could not have been intelligently made.

Section 13A-5-11, Code of Alabama 1975, "Fines for felonies," states:

"(a) A sentence to pay a fine for a felony shall be for a definite amount, fixed by the court, within the following limitations:

(1) For a Class A felony, not more than $20,000.00;

(2) For a Class B felony, not more than $10,000.00;

(3) For a Class C felony, not more than $5,000.00; or

(4) Any amount not exceeding double the pecuniary gain to the defendant or loss to the victim caused by the commission of the offense.

(b) As used in this section, 'gain' means the amount of money or the value of property returned to the victim of the crime or seized or surrendered to lawful authority prior to the time sentence is imposed. 'Value' shall be determined by the standards established in subdivision 14 of section 13A-8-1.

(c) The court may conduct a hearing upon the issue of defendant's gain or the victim's loss from the crime according to procedures established by rule of court."

Section 13A-5-12, Code of Alabama 1975, states:

"(a) A sentence to pay a fine for a misdemeanor shall be for a definite amount fixed by the court, within the following limitations:

"(1) For a Class A misdemeanor, not more than $2,000.00;

"(2) For a Class B misdemeanor, not more than $1,000.00;

"(3) For a Class C misdemeanor, not more than $500.00; or

"(4) Any amount not exceeding double the pecuniary gain to the defendant or loss to the victim caused by the commission of the offense.

"(b) A sentence to pay a fine for a violation shall be for a definite amount, fixed by the court, not to exceed $200.00, or any amount not exceeding double the pecuniary gain to the defendant or loss to the victim caused by the commission of the offense.

"(c) As used in this section, 'gain' means the amount of money or the value of property derived from the commission of the crime, less the amount of money or the value of property returned to the victim of the crime or seized or surrendered to lawful authority prior to the time sentence is imposed. 'Value' shall be determined by the standards established in subdivision 14 of section 13A-8-1.

"(d) The court may conduct a hearing upon the issue of defendant's gain or the victim's loss from the crime according to procedures established by rule of court."

Payment of court costs may be required of an accused person pleading guilty, under the provisions of § 15-22-52, Code of Alabama 1975, and imposed as a condition of probation. Under the provisions of Article 4(a) of Title 15 of the Alabama Code, all perpetrators of criminal activity or conduct are required to fully compensate all victims of such conduct or activities for any pecuniary loss, damage, or injury as a direct or indirect result thereof. This article requires a restitution hearing after conviction and provides that "the court shall order that defendant make restitution or otherwise compensate such victims for any pecuniary damages."

Even these sections do not end the possible pecuniary exposure of a defendant. Section 15-22-52, provides that the court may impose as a condition of probation "reparation or restitution to the aggrieved party for the damage or loss caused by his offense in an amount to be determined by the court...." Rule 10, Temp. Alabama Rules of Criminal Procedure, addresses the subject of fine or restitution, and in subparagraph (f) gives the court the authority to incarcerate a defendant for nonpayment of a fine or restitution, within limits.

It is apparent, therefore, that any accused person who enters a guilty plea, even to the merest "violation," not amounting to a misdemeanor, all the way upscale to a capital offense, faces the possibility of the imposition of a fine and of a requirement of restitution or reparation.

We held in Knight v. State, 55 Ala.App. 55, 317 So.2d 532 (1975), that if a defendant was improperly advised in pleading guilty as to his range of punishment, then the defendant's guilty plea was involuntary. It was held in Tucker v. United States, 409 F.2d 1291, appeal after remand, United States v. Woodall, 438 F.2d 1317, cert. denied, 403 U.S. 933, 91 S.Ct. 2262, 29 L.Ed.2d 712 (1971), that a guilty plea is invalid if the defendant did not know the maximum possible penalty for the offense. It has been held in Davis v. State, 348 So.2d 844 (Ala.Cr.App.), cert. denied, 348 So.2d 847 (Ala.1977), that in a guilty plea proceeding, the judge should undertake a factual inquiry to determine if the plea is voluntarily made with understandings of the nature of the charge and of the consequences of the plea.

A discussion of the voluntariness of a plea must necessarily begin with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), which held that three different constitutional rights were involved in the waiver that took place when a plea of guilty was entered in a state criminal trial: the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one's accusers. The Supreme Court stated:

"What is at stake for an accused facing death or imprisonment demands the uttermost 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. When the judge discharges that function, he leaves a record adequate for any review that may be later sought [citing cases], and forestalls the spin-off of collateral proceedings that seek to probe murky memories." 395 U.S. at 243-44, 89 S.Ct. at 1712-13.

By footnote to this quoted paragraph, the Court quotes with approval the following language from a Pennsylvania case:

" 'A majority of criminal convictions are obtained after a plea of guilty. If these convictions are to be insulated from attack, the trial court is best advised to conduct an on the record examination of the defendant which should include, inter alia, an attempt to satisfy itself that the defendant understands the nature of the charges, his right to a jury trial, the acts sufficient to constitute the offenses for which he is charged and the permissible range of sentences.' " 395 U.S. at 244, 89 S.Ct. at 1713, quoting Commonwealth ex. rel. West v. Rundle, 428 Pa. 102, 105-06, 237 A.2d 196, 197-98 (1968).

Although Boykin was denounced in dissent by Justices Harlan and Black as "today's constitutional edict," 395 U.S. at 247, 89 S.Ct. at 1714, it is now, 16 years later, unquestionably the law of the land.

Because entering a plea of guilty constitutes a relinquishment of substantial constitutional rights, it is governed by...