Shoulders v. State
| Decision Date | 23 May 1997 |
| Docket Number | CR-96-263 |
| Citation | 703 So.2d 1015 |
| Parties | Marvin Lee SHOULDERS v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Jonanna L. Owings, Athens, for appellant.
Bill Pryor, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
The appellant, Marvin Lee Shoulders, appeals from the trial court's denial of his petition for post-conviction relief filed pursuant to Rule 32, Ala.R.Crim.P., in which he attacked his March 1994 guilty plea conviction for escape in the first degree and the resulting sentence of 10 years' imprisonment. The appellant did not file a direct appeal from the escape conviction.
The record reflects that the appellant was originally convicted of criminal possession of a forged instrument in 1991 and was sentenced to 10 years' imprisonment. The appellant was apparently ordered to serve a portion of that 10-year sentence in the county jail, on a work release program. On November 25, 1993, while in county custody, the appellant was given a 10-hour pass. The appellant did not return to the jail on time. The next morning the appellant contacted the sheriff's department and told them where he was. The appellant was returned to the jail, and subsequently charged with the offense of escape in the first degree, to which he pleaded guilty.
The thrust of the appellant's allegations, both in his Rule 32 petition and on appeal from the denial of that petition, is that he was improperly indicted for, and convicted of, escape in the first degree. He maintains that he was guilty only of the misdemeanor offense of willful failure to return to his place of confinement within the time prescribed, see §§ 14-8-42 and 43, Code of Alabama 1975, rather than the felony offense of first-degree escape.
Section 13A-10-31, Code of Alabama 1975, which defines the offense of first degree escape, reads:
(Emphasis added.)
Section 14-8-42, Code of Alabama 1975, provides:
"The willful failure of an inmate to remain within the extended limits of his confinement or to return to the place of confinement within the time prescribed shall be deemed an escape from a state penal institution in the case of a state inmate and an escape from the custody of the sheriff in the case of a county inmate and shall be punishable accordingly."
(Emphasis added.) Section 14-8-43, Code of Alabama 1975, provides: "Anyone violating any of the provisions of this article shall be guilty of a misdemeanor." (Emphasis added.)
Cork v. State, 603 So.2d 1127, 1128 (Ala.Crim.App.1992). (Some emphasis added; some emphasis in original.)
The record reflects that the appellant filed his Rule 32 petition in the Limestone Circuit Court on October 25, 1995. In the petition, the appellant argued that he was guilty only of the misdemeanor offense of escape as a state inmate in county custody who failed to return from work release, rather than first-degree felony escape. Thus, he maintained that his guilty plea to escape in the first degree was not voluntary because it was not entered with a full understanding of the nature of the charge. 1
On November 13, 1995, the state moved to dismiss the Rule 32 petition. The state argued that the appellant was precluded from challenging the voluntariness of his guilty plea because any issue concerning the voluntariness of the plea should have been raised on direct appeal from the guilty plea. Rule 32.2(a)(5), Ala.R.Crim.P. In addition, the state argued that the appellant's allegation had no merit because the appellant executed an explanation of rights and plea of guilty form that, the state argued, thoroughly apprised the appellant of his rights. Last, the state maintained that the appellant failed to allege sufficient facts to support his contention that his plea was involuntary.
On November 15, 1995, the trial court appointed counsel to represent the appellant in the Rule 32 proceedings.
On December 19, 1995, the appellant filed a pro se response to the state's motion to dismiss. In his response, the appellant argued that the trial court did not have jurisdiction to render a judgment or to impose sentence because, he argued, he should have been charged with, and convicted of, a misdemeanor instead of a felony. The appellant also argued that his trial counsel was ineffective because, he said, counsel did not move to dismiss the indictment charging him with felony escape. The appellant maintained that he was ignorant of the law when he entered his guilty plea to escape in the first degree. In addition, the appellant argued that he had failed to appeal his escape conviction through no fault of his own.
On September 27, 1996, the trial court held an evidentiary hearing on the appellant's Rule 32 petition. The appellant was represented by appointed counsel at the hearing. The appellant testified that he had originally been convicted of possession of a forged instrument in 1991, and that at the time of his escape, he was serving a portion of his sentence for that conviction in the county jail. He also testified that he had been in a work release program while at the county jail. The appellant's counsel reasserted the appellant's contention that the trial court lacked jurisdiction to render a judgment or to impose the sentence because, counsel argued, the appellant should have been indicted and convicted for a misdemeanor, rather than a felony.
The state maintained that the appellant was, in essence, challenging the voluntariness of his guilty plea, and that his challenge was precluded from review. The state also argued that the appellant was a state inmate, in state custody, notwithstanding the fact that he was being housed in a county facility; therefore, the state argued the appellant was properly charged and convicted of first-degree escape.
Toward the end of the hearing, the appellant told the court:
(R. 11-12)
On October 18, 1996, the trial court denied the appellant's Rule 32 petition in the following written order:
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