Sheehan v. State

• Decision Date: 29 December 1981
• Docket Number: 3 Div. 406
• Citation: 411 So.2d 824
• Parties: Donald J. SHEEHAN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 824

411 So.2d 824

Donald J. SHEEHAN v. STATE.

3 Div. 406.

Court of Criminal Appeals of Alabama.

Dec. 29, 1981.

Rehearing Denied Jan. 26, 1982.

Certiorari Denied, April 2, 1982 Alabama Supreme Court 81-393.

George E. Schaaf of Coleman, Ross, Carey, Goetz & Schaaf, Inc., Clayton, Mo., and Ira DeMent, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

This is an appeal from the denial of the defendant's petition for writ of error coram nobis. Two major issues are presented on appeal.

On October 31, 1977, the defendant pled guilty to the offenses of robbery, kidnapping, rape, assault with intent to rob, and assault with intent to ravish. Although not a part of the record on this appeal, the record indicates that the defendant executed separate "Ireland" forms for each offense. Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971). A factual basis for accepting each plea was established through the admissions of the defendant. The trial judge fully informed the defendant of the constitutional rights that would be waived by the guilty plea, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and the minimum and maximum sentences of each crime. The record indicates that the guilty plea was knowingly and intelligently entered. The defendant was sentenced to consecutive terms of life imprisonment for the rape and robbery, to a term of ten years' imprisonment to run concurrently with either life imprisonment term for the kidnapping, and to consecutive terms of twenty years' imprisonment for the two assault offenses. The guilty plea was entered without any plea bargaining agreement between the State and the defendant. The State made no recommendations of sentences to the trial court. No original appeal was taken from the conviction.

I

The defendant now contends that his guilty pleas are invalid because he was not informed by the trial judge that the sentences imposed could run either concurrently or consecutively. Further, the defendant contends that he was denied effective assistance of counsel because his retained trial counsel did not inform him of the possibility of the imposition of consecutive sentences.

At the hearing on the petition for writ of error coram nobis, the defendant's retained trial counsel, Frank W. Riggs, testified that he usually informed his clients of the possibility of consecutive or concurrent sentences although he did not remember specifically so informing the defendant.

"I'm telling you that I have no present recollection of a particular discussion of the matter. I'm telling you it would be my usual practice and I feel very certain that I followed my usual practice in this case of informing them that there was a-that the sentences could be consecutive or they could be concurrent."

Mr. Riggs testified that he never told the defendant or any member of his family that the sentences would run concurrently even though the defendant's mother had expressed her hope that they would. ¹

The defendant's sentencing hearing was held on the seventeenth of November 1977, 17 days after he pled guilty. After the judge had sentenced the defendant for each separate offense, the Assistant District Attorney asked the judge whether the sentences were consecutive or concurrent. After the judge explained his reasons for imposing the lengthy sentences, the following occurred:

"A MALE (never identified): Is there a difference in the life sentences that you imposed; consecutive or concurrent?

"THE COURT: The only difference that (it) will make is that it will tell them (the Board of Pardon and Parole) that I certainly think he (does not) needs to get out anywhere in the near future. That is my opinion."

Neither upon his pleas of guilty nor at his sentencing hearing did the defendant ever indicate that he would not have pled guilty if he had known his sentences could be made to run consecutively.

The function of a writ of error coram nobis is to bring to the attention of the trial court an error of fact, unknown to it or the affected party at the time of trial which would have prevented the judgment challenged had it been known. In effect, the writ serves as a motion for a new trial on the ground of newly discovered evidence. Vaughn v. State, 395 So.2d 95 (Ala.1979); Seibert v. State, 343 So.2d 788 (Ala.1977); Lewis v. State, 367 So.2d 542 (Ala.Cr.App.1978), cert. denied, 367 So.2d 547 (Ala.1979); Summers v. State, 366 So.2d 336 (Ala.Cr.App.1978), cert. denied, 366 So.2d 346 (Ala.1979).

In a coram nobis proceeding, the petitioner bears the burden of submitting clear, full, and satisfactory proof of facts which, had they been timely submitted at trial, would have prevented judgment. The degree of proof is highly exacting as to facts and must convince the trial judge of the truth of the allegations in the petition. Summers, 366 So.2d at 343.

The writ of error coram nobis does not serve the purpose of an appeal. It is not intended to provide appellate review where the complaining party has not sought such and the time for taking such has long since expired. Thomas v. State, 280 Ala. 109, 190 So.2d 542 (1966); Mayola v. State, 344 So.2d 818 (Ala.Cr.App.), cert. denied, 344 So.2d 822 (Ala.1977).

A.

The defendant relies heavily upon the following language of Cooper v. State, 47 Ala.App. 178, 252 So.2d 104, cert. denied, 287 Ala. 728, 252 So.2d 108 (1971).

"This appellant was not informed and it is not shown that he understood the three constitutional rights waived by his plea of guilty, and that he understood he waived those rights by such a plea. Such waiver is part of the consequences of a plea of guilty along with whatever punishment may be imposed. In other words, the punishment imposed within the limits allowed by law is not the only consequence of such a plea. A further consequence of the plea, under the proceedings in the instant case, was whether the sentence was to run consecutively or concurrently with another sentence."

Cooper, 47 Ala.App. at 182, 252 So.2d 104.

Undeniably whether sentences are to run concurrently or consecutively is a consequence of pleading guilty. The question in this case is whether the accused must be informed that the sentences could be made to run concurrently or consecutively in accepting guilty pleas for multiple offenses in order for the pleas to be entered voluntarily and intelligently in a manner to fully satisfy the constitutional requirements of due process.

Boykin v. Alabama, supra, established that a guilty plea must be intelligently and voluntarily entered and that the record must affirmatively disclose that the accused entered his plea understandingly and voluntarily. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Boykin requires that in order for a guilty plea to be made intelligently and voluntarily, the record must affirmatively reveal that the accused voluntarily waived his privilege against compulsory self-incrimination, the right to trial by jury and the right to confront one's accusers. Boykin, 395 U.S. at 243, 89 S.Ct. at 1712.

However, Boykin did not adopt a constitutional requirement that an accused be informed of all the consequences of his guilty plea before the plea will be considered intelligently entered. For example, see United States v. Degand, 614 F.2d 176 (8th Cir. 1980), holding that the failure of the trial court to inform the defendant that any federal sentence imposed might not run concurrently with the state sentence the defendant was already serving at the time did not vitiate the guilty plea.

The defendant contends that the failure to advise an accused of the possibility of consecutive sentences does violence to the United States Supreme Court's holding in Boykin, supra. The Supreme Court of Arizona has refuted this allegation. In State v. Young, 106 Ariz. 589, 480 P.2d 345 (1971), that court expressly held that the failure to advise of the possibility of consecutive sentences does not violate the principles enunciated in Boykin, supra.

"Although the trial judge has the discretion to order concurrent sentences for two offenses both of which are independent of each other in time and space, a defendant has no right to receive concurrent sentences. Further, we are unpersuaded by claims of ignorance with respect to matters clearly obvious to the everyday layman. Both offenses for which appellant stood charged occurred on separate occasions. The most basic logic and reflection make it apparent that separate offenses merit separate punishments. Only one experienced in the law of sentencing would be aware that the trial judge has the discretion to order concurrent sentences for separate crimes and such person, of course, would have no argument if he received consecutive sentences.

"It is clear that Boykin requires that the record indicate that defendants understand the consequences of their guilty pleas. However, this court is of the opinion that the real thrust of Boykin is that a defendant may not be permitted to give up constitutional rights unless he is aware of them and voluntarily waives them. A defendant has no constitutional right to receive concurrent sentences for two separate offenses whether the sentence is imposed pursuant to a plea of guilty or after a verdict of guilt is rendered by a jury. Even if Boykin requires that a defendant be aware of certain consequences of a guilty plea other than the giving up of constitutional rights, we are of the opinion that such a requirement would not apply to a consequence so obvious as separate punishments for separate crimes; a consequence of which the defendant must be presumed to be aware."

Young, 480 P.2d at 346-7.

Followed in State v. Gordon, 610 P.2d 59 (Ariz.1980). Alabama Code 1975, Section 14-3-38 requires all sentences to run consecutively unless specifically stated by the trial court to run concurrently.

Following the decision announced in Young, supr...