Trice v. State

• Decision Date: 27 March 1992
• Citation: 601 So.2d 180
• Parties: David TRICE v. STATE of Alabama CR 90-1412, CR 90-1428.
• Court: Alabama Court of Criminal Appeals

Page 180

601 So.2d 180

David TRICE v. STATE of Alabama

CR 90-1412, CR 90-1428.

Court of Criminal Appeals of Alabama.

March 27, 1992.

Rehearing Denied May 1, 1992.

Certiorari Denied July 24, 1992

Alabama Supreme Court 1911293.

Malcolm R. Newman, Paul F. Meyers II, Dothan, for appellant.

James H. Evans, Atty. Gen., and Stephen N. Dodd, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The appellant, David Trice, was charged in Houston County with first degree assault (CC-90-643). He was also charged by separate indictments in Henry County with discharging a firearm into an occupied dwelling (CC-90-090) and with first degree assault (CC-90-091). In a single proceeding held April 2, 1991, the appellant, who was represented by court-appointed counsel, pleaded guilty to all three charges. ¹

Before accepting the pleas, the trial court engaged in a colloquy with the appellant. At the beginning of this colloquy, the court stated the charge in each case, although not the elements thereof, then stated: "Your attorney tells me at this time that you wish to enter a plea of guilty to this charge. Is that what you want to do?" PR. 3-4. Upon receiving an affirmative response from the appellant in each instance and after ascertaining that the Habitual Felony Offender Act was not applicable, the trial court informed the appellant that discharging a firearm into an occupied dwelling is a Class C felony and that the appellant "could receive a sentence to the penitentiary for not less than one year nor more than ten years." PR. 5. That information was incorrect. Discharging a firearm into an occupied dwelling is a Class B, felony, Ala.Code § 13A-11-61(b) (Supp.1991), with a punishment range of "not more than 20 years or less than 2 years." § 13A-5-6(a)(2). On the basis of defense counsel's assertion that assault in the first degree is a Class A felony, PR. 6, the trial judge then informed the appellant that the two assault charges could subject him to "a sentence in the penitentiary of not less than ten years nor more than life or ninety-nine years." Id. That information was also incorrect. Assault in the first degree is also a Class B offense, § 13A-6-20(b), with a punishment range, as noted above, of 2 to 20 years, § 13A-5-6(a)(2).

The trial court advised the appellant of the rights that he would be waiving by pleading guilty. After the prosecutor briefly stated the facts underlying each charge, the trial court read each indictment to the appellant, and the appellant pleaded guilty to each charge. Upon the recommendation of the prosecutor, the appellant was sentenced to 18 years' imprisonment on each of the assault convictions and to 5 years' imprisonment on the conviction for discharging a firearm into an occupied dwelling, with all three sentences to run concurrently. In addition, for each conviction the appellant was fined $500 and was ordered to pay $50 to the Crime Victims' Compensation Fund and to pay court costs. He was also ordered to pay restitution in the amounts of $57,000 and $2,500 on the assault convictions.

On April 30, 1991, the appellant filed in Henry County a handwritten pro se motion to withdraw his guilty pleas. CR. 24-25 (CR-90-1428). This motion, which appears to be an attempt to follow a form motion, alleged several grounds for withdrawal, including the assertion that the appellant "did not fully appreciate the effect of a guilt[y] plea or the existence of meritorious defenses." Id. at 25. This motion did not contain a reference to any specific case number.

On May 2, 1991, the court-appointed attorney who represented the appellant at the plea proceedings filed in Houston County a motion seeking to withdraw the appellant's "plea of guilty to the charges he pled to on April 2, 1991 before the Houston County Circuit Court, case numbers CC-90-643, et al." CR. 61 (CR-90-1412) (emphasis added). This motion alleged no specific grounds for the withdrawal of the pleas, but did request a hearing on the motion.

This Court interprets these two motions as a challenge to all three of the appellant's guilty pleas. This also appears to have been the interpretation accorded the motions by the trial court, who held a hearing thereon on June 10, 1991. The appellant, who was apparently by that time incarcerated within the state penal system, was not present at this hearing. Instead, the same appointed counsel who had represented the appellant at the plea proceedings appeared on his behalf and essentially waived the presence of the appellant. MR. 9.

Although we read the appellant's pro se motion as a contention that his guilty pleas were not voluntarily and intelligently made, the only argument advanced by counsel at the hearing was that the appellant wished to withdraw his guilty pleas because he had entered those pleas under the misapprehension that he could apply for and be granted probation. ² MR. 4-5. The hearing was very brief and, at its conclusion, the trial court denied the motions.

The court-appointed attorney who represented the appellant at the plea proceedings and at the motion hearing filed the original brief in these appeals. In that brief, he provided a short statement of the case and facts, then asserted: "After a good faith review of the Record and Trial Transcript and a thorough review of the Law in Alabama regarding withdrawal of Guilty Pleas, Counsel cannot find any basis for Appeal or any Appealable error below." Appellant's brief (filed August 8, 1991) at 4. He further stated that he "d[id] not find any basis for any meritorious argument" and "ask[ed] to be allowed to withdraw." Id. at 5.

This brief was not sufficient to comply with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). ³ On February 5, 1992, the trial court appointed current appellate counsel to represent the appellant in this appeal. ⁴ On February 24, 1992, appellate counsel filed a brief raising two issues: (1) that the guilty plea was not properly accepted and (2) that the appellant was not afforded the effective assistance of counsel.

I.

In support of his argument that the trial court improperly accepted his guilty plea, the appellant alleges that there were a number of deficiencies in the plea proceedings. While several of these alleged deficiencies raise serious questions as to the validity of the pleas, we will discuss only two: the allegation that the trial court failed to make any inquiry as to whether the appellant was entering the pleas voluntarily and the allegation that the trial court failed to accurately inform the appellant of the maximum and minimum possible sentences.

A.

In order to be valid, a guilty plea must be voluntarily and intelligently made. Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985); Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969). Before accepting a guilty plea, a trial judge "should undertake a factual inquiry to determine if the plea is voluntarily made with an understanding of the nature of the charge and the consequences of the plea." Cashin v. State, 428 So.2d 179, 182 (Ala.Cr.App.1982). The record of the plea proceedings must affirmatively "reflect sufficient facts from which such a determination could properly be made." Dingler v. State, 408 So.2d 530, 532 (Ala.1981). While a trial court's inquiry on these matters need not follow "any particular ritual," the inquiry must be "sufficient to determine that the defendant understands the charges against him and the consequences of his plea, and that the defendant's plea is truly voluntary." United States v. O'Donnell, 539 F.2d 1233, 1235 (9th Cir.), cert. denied, 429 U.S. 960, 97 S.Ct. 386, 50 L.Ed.2d 328 (1976) (emphasis added).

A plea must be voluntary both in that it "constitute[s] an intelligent admission that [the defendant] committed the offense," Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 2257, 49 L.Ed.2d 108 (1976), and in that it is "free of coercion," United States v. Araiza, 693 F.2d 382, 384 (5th Cir.1982). To establish the latter aspect, the "court will inquire whether the tendered plea was the result of any threats or promises." 2 W. LaFave & J. Israel, Criminal Procedure § 20.4(b) (1984).

During the plea colloquy, as noted above, the trial court stated, "Your attorney tells me at this time that you wish to enter a plea of guilty to this charge," then asked the appellant, "Is that what you want to do?" PR. 3-4. Aside from this question, which was asked with regard to each of the three charges and which the defendant answered affirmatively, there is nothing in the colloquy that can be deemed to have any relation to the "free of coercion" aspect of the voluntariness of the plea. The court clearly did not ask the appellant if he had been threatened or promised a reward to plead guilty. In addition, the trial court made no inquiry as to the appellant's age, educational level, or mental capacity. In view of these circumstances and the context in which the question was asked, the bare question "Is that what you want to do?" and the appellant's affirmative answer thereto are simply not sufficient to establish that the plea was "truly voluntary." It is clear that, in this case, the trial court was merely verifying what the appellant had been told by counsel, and was not ascertaining whether the plea was "free of coercion." Compare Alderman v. State, [Ms. CR 91-82, March 27, 1992], 1992 WL 92512, * 4 (Ala.Cr.App.1992) (during plea colloquy, trial court specifically asked the appellant the following questions: (1) "Has anybody threatened you, harassed you, or tried in any way to make you plead guilty?" and (2) "Have they offered you any reward or inducement to get you to plead guilty?") (emphasis deleted); Jones v. State, 492 So.2d 642, 644 (Ala.Cr.App.1986) (during plea colloquy, trial court specifically asked "Do you do that [plead guilty] of your own free will and accord?" and "Has anyone promised to reward you or any member of...