Tillery v. State, CR-93-795
Decision Date | 29 July 1994 |
Docket Number | CR-93-795 |
Parties | Henry Daniel TILLERY, Jr. v. STATE. |
Court | Alabama Court of Criminal Appeals |
F. Patrick Loftin, Phenix City, for appellant.
James H. Evans, Atty. Gen., and Beth Poe, Asst. Atty. Gen., for appellee.
The appellant, Henry Daniel Tillery, Jr., pleaded guilty to the unlawful distribution of marijuana, a violation of § 13A-12-211, Code of Alabama 1975. He was sentenced to five years' imprisonment. The court split the sentence, requiring the appellant to serve 18 months in prison and the remainder of the sentence on supervised probation.
The appellant contends that the court erred in accepting his guilty plea because, he contends, a factual basis for the plea was not established on the record of the plea proceeding.
The state first argues that the appellant failed to preserve this issue for appellate review because the appellant did not first present this argument to the trial court. The state recognizes that the Alabama Supreme Court's holdings in Bennett v. State, 649 So.2d 214 (Ala.1994); Ex parte Parish, [Ms. 1921181, April 15, 1994], 1994 WL 128995 (Ala.1994); Cantu v. State, [Ms. 1920426, April 15, 1994], 1994 WL 129749 (Ala.1994); and Gordon v. Nagle, 647 So.2d 91 (Ala.1994), have eliminated the preservation requirement as to certain guilty plea issues. The state urges us to interpret those cases to apply only to those situations where a defendant was not informed of the correct maximum and minimum sentence before entering a plea of guilty.
In Gordon v. Nagle, the Alabama Supreme Court stated: "The question of the voluntariness of a guilty plea in a failure-to-advise case may be raised upon direct appeal or it may be raised collaterally under Rule 32 [A.R.Crim.P.]...." 647 So.2d at 96. (Emphasis added.)
"[T]he failure to inform a criminal defendant of the minimum and maximum sentencing possibilities constitutes a defect in the guilty plea that goes to the voluntariness of the plea and subjects it to a collateral challenge under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)."
Bennett, 649 So.2d at 215, citing Gordon v. Nagle. (Emphasis added.) The Bennett Court further noted, however, that not all defects in the entry of a guilty plea went to the jurisdiction of the court in accepting the plea.
In Cantu, the Court proceeded to clarify its holding concerning the preservation of guilty plea issues previously addressed in Ex parte Rivers, 597 So.2d 1308 (Ala.1991), stating:
Cantu, 1994 WL 129749, * 4 (Emphasis added.)
At issue here is whether the establishment of a factual basis for a guilty plea goes to the voluntariness of the plea so as to subject it to attack. Rule 14.4, A.R.Crim.P., sets out the requirements for the acceptance of guilty pleas and states in pertinent part:
Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969), requires that before accepting a plea of guilty, the court must "make sure [the defendant] has a full understanding of what the plea connotes and of its consequence." The Boykin Court further added in a footnote:
" '[T]he trial court is best advised to conduct an on the record examination of the defendant which should include, inter alia, an attempt to satisfy itself that the defendant understands the nature of the charges, his right to a jury trial, the acts sufficient to constitute the offenses for which he is charged and the permissible range of sentences.' "
395 U.S. at 244, 89 S.Ct. at 1713, 23 L.Ed.2d at 280, n. 7, quoting Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 105-06, 237 A.2d 196, 197-98 (1968).
These Boykin requirements are covered in Rule 14.4(a)(1), quoted above. The adherence to these requirements helps ensure that a defendant's plea of guilty is knowingly...
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