Pardue v. State

• Decision Date: 27 April 1990
• Docket Number: 1 Div. 31
• Parties: Michael Rene PARDUE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 502

566 So.2d 502

Michael Rene PARDUE v. STATE.

1 Div. 31.

Court of Criminal Appeals of Alabama.

April 27, 1990.

Rehearing Denied June 29, 1990.

Sandra K. Meadows, Mobile, for appellant.

Don Siegelman, Atty. Gen., and Mary Elizabeth Culberson, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

This is an appeal from the denial of a petition for post-conviction relief. The pertinent facts are set out in chronological order:

January 11, 1973: The then 16-year-old petitioner pleaded guilty and was convicted as a youthful offender of automobile burglary (28044) and grand larceny (27729) in Mobile County. He was given a three-year suspended sentence concurrent in each case. He was represented by Attorney David Barnett. Documentation of these youthful offender convictions appears as "Court's Exhibit A" in the appellate record of Pardue v. State, 1 Div. 491 (1st degree murder, 29622).

August 14, 1973: The petitioner was convicted in Baldwin County for first degree murder and sentenced to life imprisonment. The petitioner was represented by Attorney Chandler Stanard. This conviction has not been challenged in any of these proceedings.

October 24, 1973: The then 17-year-old petitioner pleaded guilty to the first degree murder of Will Henry Hodges (29621) and to the first degree murder of Theodore Roosevelt White (29622) in Mobile County. He was sentenced to life imprisonment in each case.

On that same date, the petitioner also pleaded guilty to three charges of grand larceny (29623, 29634, 29635) and was sentenced to 10 years' imprisonment in each case to run concurrent with the life sentence for the murder conviction in case 29621. The petitioner was represented in all five cases by Attorney Stanard.

March 5, 1974: The petitioner filed a pro se notice of appeal from the two Mobile County murder convictions. He requested that inmate Robert A. Langston be appointed his "legal assistant," requested a transcript, and requested leave to proceed in forma pauperis.

March 22, 1974: The motion to appoint Langston was denied, but the circuit court granted the request for a transcript and ordered it prepared and filed at state expense.

July 29, 1974: The petitioner's appeals from the two murder convictions were submitted to this Court on the brief of the appellee.

August 13, 1974: This Court affirmed the murder convictions, without opinion, despite the fact that there was no timely notice of appeal and no order granting an "out-of-time" appeal.

February 12, 1988: The petitioner filed a petition for post-conviction relief attacking his 1973 murder convictions in Mobile County.

October 11, 1989: After two evidentiary hearings, the circuit court issued a written order denying the petition.

In denying the petition, the circuit court entered the following order:

"This matter coming before the Court on the Motion of the Defendant on Petition For Post-Conviction Relief, the Court finds as a matter of fact:

"The Petition filed by Petitioner, Michael Rene Pardue, was for relief from conviction or sentence under Rule 20 of the Alabama Rules of Criminal Procedure. In his Petition, Mr. Pardue claims that he was denied effective assistance of counsel prior to and during the entering of his guilty pleas in these causes before this court; that he was never fully advised of his rights and the consequences of his guilty pleas by the Court before he entered them; and that he was never advised of the provisions of the Youthful Offender Act and of his right to apply for and be considered for Youthful Offender treatment prior to the entering of his guilty pleas in these causes.

"The Court held two full hearings in this cause, during which the defendant had an opportunity to present any and all evidence he had relative to these issues. In fact, the defendant himself took the stand and testified in his own behalf, and Mr. Chandler Stanard, the attorney who represented Mr. Pardue in these causes, was called as a witness for the State, and gave testimony relative to the issues before the Court in this cause.

"After having heard and considered all of the testimony, exhibits and other evidence adduced at these hearings by and on behalf of both sides, including briefs of counsel, this Court makes the following specific findings of fact:

"(1) That the representation of Petitioner by Mr. Chandler Stanard, his attorney in these causes, both prior to, and at the time Petitioner entered his pleas of guilty in these causes, was in all respects adequate;

"(2) That, as evidenced by the guilty plea forms which were signed by the Petitioner in these causes in the presence of his attorney, and as further evidenced by the testimony of the Petitioner's Attorney to the effect that he went over these forms with the Petitioner prior to the Petitioner's entering of his guilty pleas before this Court, and as further evidenced by the colloquy of Judge Bolling with the defendant at the time he entered his guilty pleas, the Petitioner, at the time he entered his guilty pleas in these causes, had been fully informed by the Court, and by the defense counsel as well, as to all of his rights under Boykin v. Alabama, [395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) ] and as to the consequences of his pleas of guilty, and, thus, entered his guilty pleas in these causes voluntarily, knowingly, and intelligently, with full knowledge of the contents thereof;

"(3) That the evidence before the Court is inadequate to show whether or not the Petitioner was advised of his right to apply for and be considered for treatment as a Youthful Offender by the Court prior to his entering of pleas of guilty in these causes;

"(4) That, notwithstanding the Court's finding in (3) above, the Court specifically finds, as a matter of fact, that, at the time the defendant came before this Court in these cases for his arraignment, he was already charged with First Degree Murder in Baldwin County, Alabama, and that, at the time he entered his pleas of guilty in these cases, he had already been convicted of Murder in the Baldwin County case; the Court further specifically finds that Judge Bolling, with knowledge of the fact that the defendant had a murder charge pending against him in Baldwin County, Alabama, at the time of defendant's arraignment in these cases, the Court would not have granted the Petitioner Youthful Offender status.

"This Court, having made the aforementioned findings of fact, is thus of the opinion that the grounds advanced by Petitioner for relief from conviction or sentence in his Petition under Rule 20 of the Alabama Rules of Criminal Procedure, have no merit. Accordingly, it is the Order of this Court that said Petition is due to be, and the same is hereby, DENIED."

I

Pardue argues that his petition should have been granted and his prior convictions set aside because he was not informed of his right to request youthful offender treatment prior to pleading guilty.

In Ex parte Petty, 548 So.2d 636, 638 (Ala.1989), the Alabama Supreme Court stated:

"[I]n a case in which the youthful defendant enters a plea of 'guilty,' without notice of the [Youthful Offender] Act, any subsequent notice by the court would be ineffective. Thus, the defendant, in such a case, would be entitled to withdraw his former 'guilty' plea and proceed with his application for youthful offender treatment.

"We hold, then, that while a trial court should inform a youthful defendant of the provisions of the Youthful Offender Act prior to the plea stage, its failure to do so will not constitute reversible error if the court gives adequate notice prior to conviction, unless, of course, the defendant entered a plea of 'guilty' to the charges against him, without notice of the Act, or he can otherwise show that he has been prejudiced by the court's delay."

(Footnotes omitted.) See also Coleman v. Alabama, 827 F.2d 1469 (11th Cir.1987).

In this case, the circuit court should have advised the petitioner of his youthful offender rights before accepting the guilty pleas as to the two murder charges. However, we agree with the findings of the post-conviction court that, under the circumstances, the circuit court would not have granted youthful offender treatment. As this Court noted in Byrd v. State, 497 So.2d 235, 236 (Ala.Cr.App.1986):

"[W]e find that to require the trial court to call appellant back before it for the purpose of advising him again of his right to request youthful offender status, knowing that the request would be denied, would amount to ordering the court to perform a useless act, which we are not disposed to do. It is clear that the failure of the trial court in the instant case to expressly advise appellant of the provisions of the Youthful Offender Act, in view of the proceedings in the previous case [in which youthful offender treatment was denied], and the statement of the trial court that had the request been renewed in the present case, it would have been denied, did not result in prejudice to appellant, and if indeed it constituted error, it was error without injury."

In this case, the following assumptions are reasonable and the record supports a finding that the circuit judge who accepted the petitioner's 1973 guilty pleas as to murder knew that the petitioner had been granted youthful offender treatment for burglary and grand larceny in 1973; seven months later, while on probation for those offenses, the petitioner had been convicted of first degree murder and had been sentenced to life imprisonment; and while on that same probation, the petitioner had been indicted for two additional murders and three cases of grand larceny. We fully agree with the statement of the circuit judge that, under these circumstances, "I don't see how it is conceivable that Judge Bolling would even entertain youthful offender status for the defendant."

"The Youthful Offender Act is intended to extricate persons below twenty-one years of age from the harshness of criminal prosecution and...