State v. Cortner

• Decision Date: 25 June 2004
• Citation: 893 So.2d 1264
• Parties: STATE of Alabama v. Derris Lamon CORTNER.
• Court: Alabama Court of Criminal Appeals

893 So.2d 1264

STATE of Alabama v. Derris Lamon CORTNER.

CR-02-1909.

Court of Criminal Appeals of Alabama.

June 25, 2004.

William H. Pryor, Jr., atty. gen., and John M. Porter, asst. atty. gen., for appellant.

Tim Case, Florence, for appellee.

PER CURIAM.

On August 16, 2001, Derris Lamon Cortner and two others, Shakie Dilworth and Jason Terry, were pulled over and arrested for illegal drugs found in a drink container in the vehicle. Cortner was arrested for the unlawful possession of controlled substances (crack cocaine and marijuana). Law enforcement then searched the purported residence of Cortner, with the permission of George Fletcher, the purported lessee, and confiscated $10,000 in cash. No drugs were recovered from the apartment.

On September 26, 2001, the State filed a civil condemnation action regarding the $10,000, naming Cortner and Fletcher as the defendants. Cortner and Fletcher¹ filed an answer to the complaint; they alleged that the $10,000 had not been raised from or used in conjunction with any illegal drug activities and that, therefore, it was not subject to condemnation proceedings.

On May 30, 2002, Cortner and Fletcher signed a written agreement with the State regarding the $10,000. In the agreement, Fletcher claimed ownership of the $10,000, and agreed that $5,000 was to be disbursed to the Drug Task Force and $5,000 was to be disbursed to the attorney representing Fletcher and Cortner on their behalf.

On March 10, 2003, Cortner was indicted for one count of unlawful possession of a controlled substance (cocaine) and one count of unlawful possession of marijuana for personal use, violations of §§ 13A-12-212(a)(1) and 13A-12-214, Ala.Code 1975. On April 3, 2003, Cortner pleaded not guilty to the two charges.

On June 17, 2003, Cortner filed a motion to dismiss based on speedy trial/lack of prosecution grounds. On June 20, 2003, the trial court conducted a hearing on the motion. The trial court conducted another hearing on July 15, 2003. The trial court denied the motion to dismiss on July 16, 2003.

On July 17, 2003, Cortner filed a "Motion to Enforce Settlement Agreement," claiming that the agreement to give part of the $10,000 to the Drug Task Force was based on the State's promise never to charge Cortner with the possession of any drugs arising from the events of August 16, 2001. On July 18, 2003, after further consideration of the evidence submitted by Cortner and the arguments and testimony during the hearing, the trial court ordered the case against Cortner dismissed. In dismissing the indictment against Cortner, the trial court found that an agreement did exist between Cortner and the State and that the agreement was due to be enforced. The State appeals that dismissal.²

The State argues on appeal that the trial court erred by finding that the State agreed to dismiss criminal charges against Cortner as part of an attempt to settle the civil condemnation case. The State also argues that, in the alternative, if there was in fact an agreement to dismiss the charges against Cortner, that agreement was never approved by the trial court. Initially, we note that none of the State's arguments regarding approval of the agreement were presented to the trial court during the litigation of this case. The State did not, at any point, object to the enforcement of the agreement on the ground that it had not been approved by the trial court; thus, it follows that the State also received no adverse ruling on its assertion that the agreement was void because it had never been approved. Therefore, without an objection, including a stated ground, and an adverse ruling this argument is not properly before this Court. See Phillips v. State, 527 So.2d 154, 156 (Ala.1988)

("To be reviewable, error must be preserved by properly invoking adverse rulings by the trial court."); and Love v. State, 677 So.2d 1272, 1275 (Ala.Crim.App.1996) ("`[S]pecific objections are necessary to preserve error.' Reeves v. State, 456 So.2d 1156, 1160 (Ala.Cr.App.1984). `An adverse ruling by the trial judge is prerequisite for preserving an alleged error in a criminal trial for appellate review. Harrell v. State, 555 So.2d 257 (Ala.Cr.App.), aff'd, 555 So.2d 263 (Ala.1989).'").

In determining whether the trial court erred in enforcing what it found to be a plea agreement, we take note of the following relevant propositions of law:

"`As this court, per presiding Judge Bowen, noted in Kresler v. State, 462 So.2d 785, 789 (Ala.Crim.App.1984):

"`"The [trial] court is in the best position to ascertain the facts, assess the intent of the parties under the plea agreement and, if it was breached, to exercise its discretion and fashion an appropriate remedy. Quoting, United States v. Swinehart, 614 F.2d 853, 859 (3rd Cir.), cert. denied, 449 U.S. 827, 101 S.Ct. 90, 66 L.Ed.2d 30 (1980)."

"`Certainly, the trial court, in this case, was in a much better position to ascertain the facts and determine the intent of the parties. We find nothing in the record on appeal which discredits the trial court's decision that no plea bargain agreement existed.'

"Fuller [v. State, 481 So.2d 1178, 1181 (Ala.Crim.App.1985)]."

Ex parte Swain, 527 So.2d 1279, 1280 (Ala.1988).

"[W]e agree with the proposition that contract law cannot be rigidly applied in deciding whether to enforce a broken plea agreement. `Principles of contract law provide a useful analytical framework, but surely they cannot be blindly incorporated into the criminal law in the area of plea bargaining.' United States v. Ocanas, 628 F.2d [353, 358 (5th Cir.1980)]. Courts enforcing a plea agreement, where defendant has shown no detrimental reliance, have also recognized the limited application contract law has to this problem. Cooper v. United States, 594 F.2d 12 (4th Cir.197[9]); Kisamore v. State, 286 Md. 654, 409 A.2d 719 (1980). Other compelling principles must be given due consideration.

"Chief Justice Burger, speaking for the majority in Santobello v. New York, [404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971),] observed the importance of negotiated pleas:

"`The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called "plea bargaining," is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.

"`Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pre-trial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. See Brady v. United States, 397 U.S. 742, 751-752, 90 S.Ct. 1463, 1470-1471, 25 L.Ed.2d 747 (1970).

"Santobello v. New York, 404 U.S. at 260-1, 92 S.Ct. at 498, 30 L.Ed.2d at 432.

"....

"Negotiated pleas, thus, serve a valuable role in the criminal justice system. If the integrity of that role is to be maintained, certainty must prevail. The state need not enter into a plea agreement. It may choose not to do so, and proceed to trial on any case. The United States Supreme Court states there is no constitutional right to a negotiated plea. Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). However, once the state chooses to make an agreement, it should not be allowed to repudiate that agreement with impunity. State v. Brockman, 277 Md. 687, 357 A.2d 376 (1976)

(cited with approval in Kisamore v. State, supra). A contrary result would not encourage a defendant to come to grips with the moral and strategic considerations necessary to accepting a negotiated plea, and pleading guilty, if he knows the very agreement he must consider is subject to unilateral speculation by the state. If we allow the state to dishonor at will the agreements it enters into, the result could only serve to weaken the plea negotiating system. Such a result also is inconsistent with the `honesty and integrity' encouraged by Canon 1, Alabama Code of Professional Responsibility.

"....

"... We are unaware of any requirement that the agreement be reduced to writing. Regarding negotiated pleas, two commentators have remarked, `[A] plea bargain is a matter of honor between opposing counsel. It is not reduced to writing.' Bailey and Rothblatt, Handling Misdemeanor Cases, § 39 (1976). The same is true in our jurisdiction. Although a plea agreement may be reduced to writing, the prevalent custom in Alabama is that such agreements are verbal understandings between the attorneys involved. We point out this to dispel any suggestion that a plea agreement is unenforceable merely because it is unwritten."

Ex parte Yarber, 437 So.2d 1330, 1334-36 (Ala.1983) (emphasis added; footnotes omitted).

The evidence at trial was somewhat disputed. "`We note that the trial judge, as the finder of fact, determined the credibility of the witnesses. The trial court's determination regarding credibility of witnesses is entitled to great weight on appeal. Calhoun v. State, 460 So.2d 268 (Ala.Crim.App.198 [4]).'" Morrison v. State, 601 So.2d 165, 174 (Ala.Crim.App.1992) (quoting Dixon v. State, 588 So.2d 903, 907 (Ala.1991)). A trial court's ruling on conflicting evidence will not be disturbed unless it is palpably contrary to the weight of the evidence. See, e.g., Russell v. State, 739 So.2d 58 (Ala.Crim.App.1999)

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Trial counsel for Cortner, Tim Case, submitted the following memorandums from his file as...