Pierce v. State

• Decision Date: 20 August 1985
• Docket Number: 5 Div. 997
• Citation: 484 So.2d 506
• Parties: Jerry C. PIERCE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 506

484 So.2d 506

Jerry C. PIERCE v. STATE.

5 Div. 997.

Court of Criminal Appeals of Alabama.

Aug. 20, 1985.

Rehearing Denied Oct. 8, 1985.

Certiorari Denied Feb. 28, 1986

Alabama Supreme Court 85-85.

Joel S. Rogers III, Clanton, for appellant.

Charles A. Graddick, Atty. Gen., and J. Elizabeth Kellum, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

The appellant, Pierce, was indicted by a two-count indictment for the first-degree sexual abuse of Penny Pierce, as proscribed by § 13A-6-66(a)(1), Code of Alabama 1975 (Count I) and for the first-degree sexual abuse of Sherry Pierce, as proscribed by § 13A-6-66(a)(3) (Count II). ¹

After disposal of various pre-trial motions, Pierce informed the trial court of his desire to plead guilty and filed a "MOTION TO ALLOW PLEA OF GUILTY PURSUANT TO AGREEMENT." The trial court then informed Pierce of the range of possible sentence and, also, his rights enunciated in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Pierce acknowledged that he understood the sentence range and his rights. In addition, he assured the court that no one had promised him any reward to plead guilty. Then, the following occurred:

"THE COURT: Tell the Court how you plead.

"THE DEFENDANT: Guilty.

"THE COURT: Now, tell me what you did.

"THE DEFENDANT: I hugged my daughter. I might have touched her where I shouldn't have not knowing it.

"THE COURT: You touched her private parts.

"THE DEFENDANT: I might have touched her top without realizing that I done it. Breast or whatever you want to call it.

"THE COURT: Is that all that occurred?

"THE DEFENDANT: Yes, sir.

"THE COURT: I'm not going to take your plea. Let's get the jury in here.

"MR. CURLEE [District Attorney]: Wait just a minute.

"THE DEFENDANT: I didn't understand it.

"THE COURT: What did you do?

"THE DEFENDANT: I hugged her, and I touched her private parts without meaning sexual--I just touched her private parts.

"THE COURT: All right. You fondled her.

"THE DEFENDANT: I guess. I don't know what that means.

"THE COURT: And you played with her private parts, did you not?

"THE DEFENDANT: I didn't play with her. I might have touched them without, you know, with no sexual intent.

"THE COURT: Let's have a trial, ladies and gentlemen.

"THE DEFENDANT: I didn't--I didn't do it.

"THE COURT: Let's get the jury in and strike a jury.

"(Recess.)

"(Prospective jurors not present.)

"THE COURT: Mr. Pierce, when you were before me just a few minutes ago, you said that you touched this young girl's private parts.

"THE DEFENDANT: Yes, sir.

"THE COURT: And I asked you did you fondle. And that means play with it. Did you play with it?

"THE DEFENDANT: Yes, sir.

"...

"THE COURT: I am going to--have you been over all the facts in the case?

"MR. BOWERS [defense counsel]: Yes, Your Honor.

"THE COURT: Do you recommend that the Court accept his plea of guilty?

"MR. BOWERS: Yes, Your Honor."

Thereupon, the court accepted Pierce's plea of guilty. On the same date, November 27, 1984, Pierce executed an "Ireland " form (Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971)).

On December 13, Pierce filed a pro se motion to change his plea, alleging that he was coerced by his attorney and requesting change of counsel. This motion was denied on December 14, but the court granted Pierce's counsel's motion to withdraw. On January 3, 1985, Pierce, through newly-appointed counsel, filed another motion to withdraw his guilty plea, wherein he alleged that he was not guilty of the offense for which he pleaded guilty and that his plea was not voluntarily and intelligently entered. On January 11, this motion was also denied. On March 8, 1985, Pierce was sentenced to imprisonment for a term of four years.

In attacking the voluntariness of his plea, Pierce contends that (1) his plea was not knowingly, intelligently, and voluntarily entered because he was not informed of the nature of the offense charged, and (2) that the trial court accepted his plea without a showing of a factual basis for the plea.

In determining if Pierce's plea was properly accepted by the trial court, we look to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), wherein the Court determined that a defendant may enter a valid plea of guilty while avowing innocence or refusing or unable to admit commission of the criminal act if the plea is voluntary and intelligently entered and there is a strong showing of actual guilt. Id. at 37-38, 91 S.Ct. at 167-168. In Alford, the defendant testified that he had not committed the murder, but that he was pleading guilty because, if not, he would be subjected to threat of the death penalty. Id. at 28, 91 S.Ct. at 162. We think that, because of the equivocal nature of Pierce's plea and his assertion of innocence, his plea is akin to an Alford plea, and, thus the requirements of Alford should have been met. See, e.g., Godwin v. United States, 687 F.2d 585 (2d Cir.1982) ² (wherein the court, reviewing the acceptance of a guilty plea pursuant to Fed.R.Crim.P. 11, determined that Alford applies when the defendant's version of the events constitute a denial of criminal intent); United States ex rel. Dunn v. Casseles, 494 F.2d 397 (2d Cir.1974) (wherein the court concluded that Alford applies where "defendant's affirmative general statements that he did commit the crime were also offset by negative statements that he did not").

In regard to Alford's first requirement that the plea be voluntarily and intelligently entered, "[i]t is well established that a plea of guilty cannot be voluntary in the sense that it constitutes an intelligent admission that the accused committed the offense unless the accused has received 'real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.' " Marshall v. Lonberger, 459 U.S. 422, 436, 103 S.Ct. 843, 852, 74 L.Ed.2d 646 (1983) (quoting Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 574, 85 L.Ed.2d 859 (1941)). "In a plea of guilty proceeding the judge should undertake a factual inquiry to determine if the plea is voluntarily made with an understanding of the nature of the charge...." Davis v. State, 348 So.2d 844, 846 (Ala.Cr.App.), cert. denied, 348 So.2d 847 (Ala.1977). See also McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1170-71, 22 L.Ed.2d 418 (1969) ("[B]ecause a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts".)

The ruling espoused in Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), governs our disposal of this issue. ³ There, Morgan was indicted for a violation of the New York statute proscribing first-degree murder, but he entered a plea of guilty to second-degree murder pursuant to a plea-bargaining agreement. Thereafter, Morgan sought release by writ of habeas corpus in federal court, contending that his plea had been involuntary because he had been unaware that intent to cause death was an element of murder in the second degree. In affirming the granting of the writ, the Court observed that "[w]ithout adequate notice of the nature of the charge against him, or proof that he in fact understood the charge, the plea cannot be voluntary [as an intelligent admission of guilt]." Id. at 645 n. 13, 96 S.Ct. at 2257 n. 13. In holding that a plea of guilty to a charge of second-degree murder will not support a judgment of guilt if the defendant is not informed that intent to cause death is an element of the offense, the Court noted the following:

"There is no need in this case to decide whether notice of the true nature, or substance, of a charge always requires a description of every element ⁴ of the offense we assume it does not. Nevertheless, intent is such a critical element of the offense of second-degree murder that notice of that element is required."

Id. at 647 n. 18, 96 S.Ct. at 2258 n. 18.

Admittedly, the circumstances of Henderson are unique. Waldon v. State, 394 So.2d 100, 103 (Ala.Cr.App.1981). In acknowledging that the totality of the circumstances should be considered in determining whether the substance of the charge, as opposed to its technical elements, was conveyed to the defendant, 426 U.S. at 644, 96 S.Ct. at 2258, the Henderson Court observed the following: Morgan was "then 19 years old and substantially below average intelligence," id. at 642, 96 S.Ct. at 2256; he was not advised by counsel of the required element of intent, id.; the indictment, in which he was charged with "willfully" stabbing the victim, was read in open court, id.; he pleaded guilty to second-degree murder, not charged in the indictment, id.; in the direct colloquy with the trial judge, "[t]here was no discussion of the elements of the offense of second-degree murder, no indication that the nature of the offense had ever been discussed with [him], and no reference of any kind to the requirement of intent to cause the death of the victim," id. at 642-43, 96 S.Ct. at 2256-57; and the element of intent elevated the offense from manslaughter to second-degree murder, id. at 645, 96 S.Ct. at 2257-58.

In the instant case, during the direct colloquy, the trial court did not explain or inform Pierce of the elements of sexual abuse in the first degree. Furthermore, there was no testimony that Pierce's attorney had explained the elements and the "Ireland " form signed by Pierce contained no admission to the effect that his attorney had explained to him the elements of the crime and that he understood them. See, e.g., Russell v. State, 428 So.2d 131, 135 (Ala.1982). Moreover, Pierce expressed no understanding of the charge. Finally, although, in a simple charge, a reading of the indictment will put the defendant on notice of the nature of the charge, ⁵ Paulson v. Black, 728 F.2d 1164, 1166 (8th Cir.), cert. denied, 469 U.S. 931, 105 S.Ct. 325, 83...