Nunnery v. State, 1 Div. 272

• Decision Date: 29 December 1981
• Docket Number: 1 Div. 272
• Citation: 410 So.2d 444
• Parties: Gerald Wayne NUNNERY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 444

410 So.2d 444

Gerald Wayne NUNNERY v. STATE.

1 Div. 272.

Court of Criminal Appeals of Alabama.

Dec. 29, 1981.

Rehearing Denied Jan. 26, 1982.

Certiorari Denied, March 19, 1982

Alabama Supreme Court 81-412.

John Bertolotti, Jr., Mobile, for appellant.

Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

This is a consolidated appeal from a judgment of conviction and sentence in each of six cases, State of Alabama v. Gerald Wayne Nunnery, that appellant in his brief subcaptions immediately under the caption "STATEMENT OF THE CASE " as follows:

"CHARGES: Burglary Third Degree. CC 80-947

                Burglary Third Degree.  CC 80-948
                Burglary Third Degree.  CC 80-949
                Burglary Third Degree.  CC 80-2317
                Burglary Third Degree.  CC 80-2318
                Possession of a Pistol.  CC 80-2319 after a conviction of a crime of violence
                

"Plea: Guilty as charged in all cases.

"SENTENCE: Life Imprisonment in all cases, sentences to run concurrently."

The first issue presented by appellant is, "Whether the court erred in failing to inquire further into the defendant's competence to stand trial." The reference is to the first part of the transcript of the proceedings as follows:

"THE COURT: All right, the defendant will step before the Court. This is State vs. Gerald Wayne Nunnery, Case No. CC 80-947, CC 80-948, CC 80-949.

"MR. BRUTKIEWICZ: Judge, before we start, I would like to make a motion for the record. We have already discussed this; I want to make sure it is down on the record in this case. The fact that Mr. Nunnery has indicated that he has been ordered to Searcy Hospital for evaluation, and we would renew our motion that the case be continued until Mr. Nunnery has a chance to go to Searcy Hospital for that evaluation.

"Now, your Honor has denied my motion, and has told me that the case is going to be tried today, and being left with those options ...

"THE COURT: I don't think the Court said that, Mr. Brutkiewicz. I said the case was regularly set for trial, and has been regularly set for trial. And I said the record reflected that there was no motion granted in behalf of this defendant by any Judge in this Court, or any other Court, as his record would reflect, as to any request for any examination. And the record would have to reflect that. Now, your statement to the Court is on record that the defendant himself has advised you that he's made some request for psychological evaluation is on the record, this record, but as to the official court record, the docket sheet, there is no reflection whatsoever by you, or any other attorney or by the defendant on his own behalf.

"MR. BRUTKIEWICZ: Yes, sir, so you are denying my motion for a continuance?

"THE COURT: I already denied it once, I'll deny it again.

"MR. BRUTKIEWICZ: Fine.

"THE COURT: Now, at this time if you wish to state to the Court that you believe that there is evidence in your opinion as to why you think this defendant is incompetent, it is your duty as his attorney to state that to the Court.

"MR. BRUTKIEWICZ: Judge, that's all we have to say.

"THE COURT: Now, I have before the Court, now a motion filed by you, Mr. Brutkiewicz, in behalf of your client, is that right?

"MR. BRUTKIEWICZ: Yes, sir.

"THE COURT: Do you wish at this time to enter with this Court, a plea of guilty to all three charges pending?

"MR. BRUTKIEWICZ: Yes, sir.

"THE COURT: The charges of Burglary in the Third Degree, all three charges of Burglary in the Third Degree, is that correct?

"MR. BRUTKIEWICZ: That's my understanding, Judge.

"THE COURT: In previous hearings before the Court, you have entered pleas of not guilty, and you wish to change those from not guilty to guilty, is that your position?

"MR. BRUTKIEWICZ: Yes, sir.

"THE COURT: For the record, the Court is going to inquire of this defendant certain aspects of this 'motion to enter a guilty plea.' I hold before me now, this motion that your attorney has filed, and you are Gerald Wayne Nunnery, are you not?

"THE DEFENDANT: Yes, sir.

"THE COURT: Did you sign your name on the back of it?

"THE DEFENDANT: Yes, sir.

"...."

Thereafter, for twenty transcript pages, there was a colloquy among the court, the attorneys and the defendant, by which it was made clear that the defendant voluntarily, intelligently and understandingly waived his right to a trial by jury and all the privileges thereof, that he fully understood the maximum and minimum punishment provided for the crime charged in each of the three cases (80-947, 80-948 and 80-949) then under consideration, and that the defendant made known to the court in open court that he was guilty as a matter of fact to the charge in each of the three cases. The transcript shows clearly also that it was made known to the defendant and the defendant understood that the State was proceeding at the time under the Habitual Felony Offenders Act. All of this can also be said as to the other three cases (80-2317, 80-2318 and 80-2319) when pleas of guilty were thereafter entered in them. No contention was then made and no contention is now made that any requirement of Boykin v. State, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, was not met in any of the six cases.

The record indicates that the trial judge was mistaken in any implication of what he said to the effect that there was no record of any order of any court in Mobile County ordering the removal of defendant from the Mobile County Jail to the Alabama State Hospital, Searcy Hospital, located in Mt. Vernon, Alabama, to remain there until he was declared to be mentally competent. Nevertheless, any such mistake is readily understandable by reason of the fact that at the time the trial judge and defendant's counsel were engaged in the colloquy as to defendant's motion for a continuance, the trial judge had only the first three cases, 80-947, 80-948 and 80-949 before him. As to the records in such cases, there was no reference whatever to any mental evaluation of defendant or to Searcy Hospital. It was not until after defendant's attorney had presented a motion in each of the first three cases for the defendant to be allowed to plead guilty therein and the court had engaged in a colloquy with the defendant, as shown by three pages of the transcript, that any reference was made to the other three cases, 80-2317, 80-2318 and 80-2319. During the latter part of such colloquy, the following occurred:

"THE COURT: The last category I want to be sure that you understand, that you do not have to plead guilty to any of these three charges.

"THE DEFENDANT: Yes, sir, I understand that.

"THE COURT: But you have a right as any other defendant to submit all of these charges separately at separate trials before a jury, and have a jury determine your guilt or innocence?

"THE DEFENDANT: Yes, sir.

"If it is at all possible, I would like to get the cases that I have on Judge Zoghby's docket on your docket. He agreed when I was before him last week, if I wanted to, I told him I wanted to get it before one Judge, and just consolidate and plead guilty to all of them. I would like to have those three cases on his docket moved on your docket where I can ..."

Thereafter, the trial judge made it known that defendant's attorney would be required to prepare motions in the other three cases, 80-2317, 80-2318 and 80-2319, for the defendant to be allowed, if he so desired, to change his plea of not guilty to a plea of guilty, and the judge would proceed to handle the other three cases, which were not then set for trial, at a later date, when the sentence hearing was to be conducted as to the first three cases. On the date of the sentence hearing, defendant and his counsel appeared with a motion in each of the second three cases. There was a comprehensive hearing thereon, and there was an adjudication of defendant's guilt in the last three cases, as well as in the first three cases. There was also conducted a full hearing under the Habitual Felony Offenders Act. At no time after the adjournment of the hearing on the first three cases as to the pleas of guilty until completion of the hearing of pleas of guilty in the second three cases, when judgments of conviction and sentence in all six cases were rendered, was any reference made by defendant or his attorney to the order ordering the defendant's removal to Searcy Hospital, which at the time was contained in the records of the second three cases.

As the numbers of the cases indicate, the first three cases were docketed long before the second three cases. The record shows that the indictments in the first three cases were returned June 6, 1980, and the indictments in the second three cases were returned on December 22, 1980. The order, signed by Judge Hodnette, for the mental evaluation of defendant and his removal therefor to Searcy State Hospital was rendered on August 22, 1980. At that time, each of the last three cases was pending in the Mobile County District Court.

We find no fault with the action of the trial court, or with the action of any judge of the Circuit Court or of the District Court. That there was some confusion is apparent. However, it is clear that at the time defendant requested a continuance of the trial of the first three case...