Lochli v. State, 8 Div. 364

• Decision Date: 29 June 1990
• Docket Number: 8 Div. 364
• Parties: John Albert LOCHLI v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 294

565 So.2d 294

John Albert LOCHLI v. STATE.

8 Div. 364.

Court of Criminal Appeals of Alabama.

June 29, 1990.

Richard A. Kempaner, Huntsville, for appellant.

Don Siegelman, Atty. Gen., and Venessa Campbell, Asst. Atty. Gen., for appellee.

ON APPLICATION FOR REHEARING

BOWEN, Judge.

Our opinion of March 30, 1990, is withdrawn, and the following becomes the opinion of this Court.

This Court set aside the original submission of this cause and remanded it to the circuit court because appellant's counsel had not filed a brief. On remand, the circuit court found

"that the reason for failure to file a brief was that no rulings had been made on any of the post-trial motions and that agreements and consents by the State and defendant's counsel to continue those post-trial motions were made within the time allowed by law and they were continued from time to time in order to allow this court to obtain from its former court reporter a transcript of earlier proceedings in other cases involving the same defendant in order that it could make an informed decision with respect to the questions raised in the post-trial motions."

In a written order the circuit court stated:

"The court determined that the reason that a brief had not been filed on behalf of the defendant, was that the post-trial Motions for New Trial, In Arrest of Judgment, and to Amend the defendant's sentence were timely filed and continued from time to time pursuant to the time allowed by law under Rule 13 of the Alabama Rules of Criminal Procedure, and that they had not been ruled on in any manner, up until October 13, 1989. This court is of the opinion that pursuant to Rule 13, ... the time had not yet begun to run for the defendant's counsel to file a brief in this manner."

Based on these findings, we conclude that appointed counsel was not negligent or ineffective in failing to file a brief on original submission of this cause. Appellate counsel having filed a brief on resubmission, we turn now to a consideration of the issue presented therein.

On May 4, 1989, Lochli pleaded guilty to, and was convicted of, two charges of first degree robbery. That same day, he was sentenced as a habitual offender to two concurrent terms of life imprisonment. At the sentencing hearing, Lochli admitted that he had two prior felony convictions, a 1986 conviction for fraudulent use of a credit card (CC-86-541FW) and a 1987 conviction for third degree burglary (CC-87-0891FW). At that time, he did not contest the validity of either of the prior convictions, both of which had been entered upon guilty pleas.

On June 1, 1989, Lochli filed a motion for new trial or in arrest of judgment. On June 2, 1989, he filed a motion to amend the sentence. In these motions he asserted that his prior felony convictions should not have been considered for enhancement purposes because he had not been advised of his right to apply for youthful offender treatment prior to entering his guilty pleas. An evidentiary hearing was held on Lochli's motions on October 12, 1989. At this hearing, defense counsel withdrew his objection to the use of the prior conviction for fraudulent use of a credit card (CC-86-541FW), admitting that the record in that case showed not only that Lochli had been properly informed of his right to apply for youthful offender treatment, but also that he had been denied such treatment after application and investigation therefor.

We note at the outset that Lochli's post-trial motions filed in the instant robbery cases were not the proper method of attacking the validity of the prior convictions used for enhancement purposes. The proper way to attack the validity of a prior conviction is to file a petition for post-conviction relief from that conviction. See e.g. Ex parte Scott, 460 So.2d 1371, 1374 (Ala.1984); Johnson v. State, 541 So.2d 1112, 1115 (Ala.Cr.App.1989); Jones v. State, 431 So.2d 1367, 1372 (Ala.Cr.App.1983).

Goodwin v. State, 516 So.2d 818 (Ala.Cr.App.1986), writ quashed, 516 So.2d 821 (Ala.1987), involved a challenge to an enhanced sentence similar to the one advanced by Lochli. Goodwin was convicted of first degree robbery and was sentenced as a habitual offender to life imprisonment without the possibility of parole. He asserted that one of his prior convictions should not have been considered for enhancement purposes "because the certified copy of that conviction did not show that the defendant had waived youthful offender status." 516 So.2d at 820. In affirming Goodwin's enhanced sentence, we stated:

"While a prior adjudication as a youthful offender cannot be used to enhance punishment under Alabama's Habitual Felony Offender Act, Ex parte Thomas, 435 So.2d 1324, 1326 (Ala.1982), the properly authenticated evidence of a prior felony conviction need not indicate that the accused waived youthful offender treatment or was denied treatment as a youthful offender.

"Youthful offender rights under a prior conviction cannot be raised at the sentencing hearing of an habitual felony offender but may be challenged by a petition for writ of error coram nobis. Jones v. State, 431 So.2d 1367, 1372 (Ala.Cr.App.1983), followed in Ex parte Scott, 460 So.2d 1371, 1374 (Ala.1984)."

516 So.2d at 821 (emphasis added). Cf. Johnson v. State, 541 So.2d at 1115 (sentencing hearing for subsequent conviction is not the proper forum for defendant's attack on prior convictions based on claim that juvenile transfer proceedings were not shown in documentation of the prior convictions; "the proper forum for attacking the validity of a prior conviction would be by a petition for writ of error coram nobis").

Although Lochli attacked the validity of his prior conviction in post-trial motions rather than at the sentencing hearing for the instant offenses, the fact remains that he has chosen the wrong forum in which to raise this issue. ¹ Moreover, even if this were the proper forum for such an attack, it would not be necessary to set aside his prior burglary conviction (CC-87-0891FW).

In order to make a knowing and valid guilty plea, a defendant must have been informed of certain facts, including the maximum and minimum sentence that may be imposed by law for the crime with which he is charged. Boykin v. Alabama, 395 U.S. 238, 244 n. 7, 89 S.Ct. 1709, 1713 n. 7, 23 L.Ed.2d 274 (1969); Carter v. State, 291 Ala. 83, 85, 277 So.2d 896, 897 (1973). Under Coleman v. Alabama, 827 F.2d 1469 (11th Cir.1987), the right to apply for youthful offender treatment ² is the equivalent of a sentencing option and an age-eligible defendant must be apprised of this right prior to the acceptance of his guilty plea. However, the failure of a trial court to advise a defendant of his right to apply for youthful offender treatment prior to the acceptance of the guilty plea does not automatically require that the plea be set aside. See Pardue v. State, 566 So.2d 502, 504 (Ala.Cr.App.1990). As in any situation where the defendant is given sentencing misinformation, the mere fact that he was given such misinformation

" 'does not end the matter. "The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162, 168 (1970). The dispositive issue ... is whether [the defendant] would have or would not have pleaded guilty had he been given the correct [information]. See Pitts v. United States, 763 F.2d 197, 201 (6th Cir.1985); Williams v. Smith, 591 F.2d 169 (1979).' "

Jackson v. State, 565 So.2d 669, 671 (Ala.Cr.App.1990) (quoting Holman v. Jones, No. CV-87-A-2163-S (N.D.Ala., Nov. 16, 1988)) (emphasis added). See also Williams v. Smith, 591 F.2d 169, 172 (2d Cir.), cert. denied, 442 U.S. 920, 99 S.Ct. 2845, 61 L.Ed.2d 289 (1979) ("the test ... for determining the constitutional validity of a state court guilty plea where the defendant has been given sentencing misinformation is whether the defendant was aware of actual sentencing possibilities, and, if not, whether accurate information would have made any difference in his decision to enter a plea").

In this case, Lochli has neither alleged nor proven that had he been informed of his right to apply for youthful offender treatment it would have altered his decision to plead guilty to the burglary charge (CC-87-0891FW). Moreover, the trial judge in the instant cases effectively permitted Lochli to retroactively apply for youthful offender treatment in the 1987 burglary case and denied that application after a consideration of Lochli's situation as it existed in 1987.

At the hearing on Lochli's post-trial motions, the trial judge informed the parties that she was "trying to take a remedial action here ... [t]o see whether he should have been considered [in the 1987 burglary case (CC-87-0891FW) ] as a youthful offender." The judge indicated that if Lochli would have "qualified" for youthful offender treatment at the time he entered his guilty plea, she "would allow him to withdraw his adult guilty plea and then proceed as a youthful offender, either by pleading not guilty or guilty, one or the other." Lochli made no objection to this proposal and defense counsel responded, "Yes, Ma'am. All right, we agree and we agree to correcting the record." (Emphasis added.) The trial judge then obtained the consent of both Lochli and defense counsel to a youthful offender investigation which she had already requested and which had been completed. After informing Lochli that she was considering his arrest record, his personal and social history, and the details of the alleged offense, "without considering any subsequent charges, arrests, or convictions," the trial judge denied Lochli's application for youthful offender status in the 1987 burglary case (CC-87-0891FW) and allowed the sentences for the instant offenses to stand as originally imposed. Authority for the trial judge's retroactive...