Waters v. State

• Decision Date: 20 December 2013
• Docket Number: CR-12-0971.
• Citation: 155 So.3d 311
• Parties: Clarence WATERS v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

155 So.3d 311

Clarence WATERS

v.STATE of Alabama.

CR-12-0971.

Court of Criminal Appeals of Alabama.

Dec. 20, 2013.

Rehearing Denied Jan. 31, 2014.

Certiorari Denied April 11, 2014

George Nicholas Wallace, Montgomery, for appellant.

Luther Strange, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.

Opinion

JOINER, Judge.

Clarence Waters appeals the Montgomery Circuit Court's denial of his motion to withdraw his guilty plea. We affirm.

Facts and Procedural History

On May 12, 2005, Waters pleaded guilty to first-degree stalking, see § 13A–6–90, Ala.Code 1975, and was sentenced, as a habitual felony offender, to 30 years' imprisonment. On June 1, 2005, Waters filed a written pro se motion to withdraw his guilty plea. On July 14, 2005, the circuit court conducted a hearing on Waters's pro se motion. (Record on Waters's Third Rule 32, Ala. R.Crim. P., Petition, C. 22–37.)¹ At the conclusion of the hearing, the circuit court denied Waters's pro se motion to withdraw his guilty plea. Waters, thereafter, filed a direct appeal to this Court, which was dismissed on his own motion. See Waters v. State (No. CR–04–2213), 945 So.2d 1110 (Ala.Crim.App.2005) (table).

On December 20, 2011, Waters filed his third Rule 32 petition, alleging that he was denied the right to counsel at the July 14, 2005, hearing on his pro se motion to withdraw his guilty plea.² The State responded to Waters's third Rule 32 petition and conceded that Waters should be granted the relief he requested in his third Rule 32 petition—i.e., to be represented by counsel at a hearing on the motion to withdraw his guilty plea. (Record on Waters's Third Rule 32 Petition, C. 49–50.) The circuit court, however, issued a one-sentence order summarily dismissing Waters's petition. (Record on Waters's Third Rule 32 Petition, C. 65.) Waters appealed the circuit court's summary dismissal of his third Rule 32 petition. In that appeal, Waters again asserted that he was not represented by counsel at the July 14, 2005, hearing on his pro se motion to withdraw his guilty plea.

On September 12, 2012, this Court issued an order holding that Waters had raised a meritorious, jurisdictional claim, see Ex parte Pritchett, 117 So.3d 356, 358 (Ala.2012) (“ ‘If the accused ... is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment [to the United States Constitution] stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or liberty.’ ” (quoting Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) )), and concluding that the circuit court had erred when it summarily dismissed Waters's third Rule 32 petition without first conducting an evidentiary hearing. Thus, this Court remanded the action to the circuit court for that court to conduct an evidentiary hearing pursuant to Rule 32.9, Ala. R.Crim. P., on Waters's third Rule 32 petition, and we further instructed the circuit court “to take any necessary action as a consequence of the evidentiary hearing.” (Record on Return to Remand on Waters's Third Rule 32 Petition, C. 5.)

On November 19, 2012, the circuit court complied with this Court's remand order and conducted an evidentiary hearing, at which Waters was represented by counsel. At the evidentiary hearing, Waters's trial counsel testified that he did not represent Waters at the July 14, 2005, hearing on Waters's pro se motion to withdraw his guilty plea, and the circuit court granted Waters's third Rule 32 petition, stating: “[I]t's pretty clear that [Waters] did not have an attorney at that time.” (Record on Return to Remand on Waters's Third Rule 32 Petition, R. 7.)

After the circuit court granted Waters relief on the claim raised in his third Rule 32 petition, the following exchange occurred:

“The Court: So what's our next issue?

“[Waters's Rule 32 counsel]: Judge, we'd still like to withdraw our guilty plea.

“The Court: Under what grounds?

“[Waters's Rule 32 counsel]: That Mr. Waters was misled under [his trial counsel's] representation of him, that he had some semblance of a plea agreement with the State and that he ended up pleading guilty because he thought he had a probationary sentence coming. Obviously, that didn't end up happening.”

(R. 7.) Thereafter, the circuit court allowed Waters to present evidence to support his motion to withdraw his guilty plea. On December 31, 2012, the circuit court issued a written order denying Waters's motion to withdraw his guilty plea, and return was made to this Court.

On return to remand, this Court, in an unpublished memorandum, dismissed Waters's appeal, holding that Waters had been afforded the relief he sought in his third Rule 32 petition—i.e., to be represented by counsel at a hearing on the motion to withdraw his guilty plea—and concluding that Waters's claim on appeal had been rendered moot. See Waters v. State (No. CR–11–1278, Feb. 1, 2013), ––– So.3d –––– (table).

On December 26, 2012, Waters filed a notice of appeal from the circuit court's denial of his motion to withdraw his guilty plea.

Discussion

On appeal, Waters contends that the circuit court abused its discretion when it denied his motion to withdraw his guilty plea because, he says, his trial counsel made a “material misrepresentation ... about what punishment [Waters] would receive if he agreed to plead guilty.” (Waters's brief, p. 13.)

I.

Although neither Waters nor the State discusses in the briefs on appeal this Court's jurisdiction to decide Waters's appeal, this Court, as a threshold issue, must determine whether we may exercise jurisdiction over Waters's appeal. Specifically, this Court must determine whether a petitioner, who obtains Rule 32 relief and is permitted to present evidence supporting his previously filed motion to withdraw his guilty plea, is permitted to separately appeal the circuit court's subsequent denial of that motion to withdraw his guilty plea.³

Historically, defendants had no right to appeal from a guilty plea or from the denial of a motion to withdraw a guilty plea. See § 15–15–26, Ala.Code 1975 (“After the court has heard and considered a plea of guilty by a defendant and has permitted the filing of such plea and sentenced the defendant, such defendant shall not have the right of appeal from the action of the court.”). Thus, there are numerous cases involving the dismissal of attempts to appeal from guilty pleas or the denial of motions to withdraw guilty pleas. See, e.g., Gwin v. State, 425 So.2d 500, 504 (Ala.Crim.App.1982) (citing Dawson v. State, 37 Ala.App. 16, 66 So.2d 567 (1952), for the proposition that no appeal lies from an order denying a motion to withdraw a guilty plea); Turner v. State, 365 So.2d 335 (Ala.Crim.App.1978) (motion to withdraw a guilty plea); Powell v. State, 41 Ala.App. 569, 141 So.2d 209 (1962) (guilty plea); and Dawson v. State, 37 Ala.App. 16, 66 So.2d 567 (1952) (motion to withdraw a guilty plea).

When it became effective in 1991, Rule 2.2(e)(5), Ala. R.Crim. P., superseded § 15–15–26, Ala.Code 1975, and granted defendants the right to appeal from guilty-plea convictions; that rule stated: “Upon acceptance of defendant's plea of guilty and pronouncement and entry of judgment and sentencing, the defendant shall have a right of appeal from the action of the court.” The Committee Comment to section (e) expressly stated that subsection (e)(5) superseded § 15–15–26. See Committee Comment, Rule 2.2(e), Ala. R.Crim. P. (“[Section] 15–15–26, which denied the defendant a right of appeal, is superseded by 2.2(e)(5), which grants the defendant a right of appeal.”).

In 1996, the Legislature enacted § 15–15–20.1, Ala.Code 1975. Among other things, § 15–15–20.1 expressly superseded Rule 2.2(e), Ala. R.Crim. P. See § 15–15–20.1(h), Ala.Code 1975 (“This section supersedes Rule 2.2(e) of the Alabama Rules of Criminal Procedure.”). Although worded differently, § 15–15–20.1(e) is in essence no different from former Rule 2.2(e)(5). Section 15–15–20.1(e) provides: “Upon acceptance from the defendant plea of guilty and pronouncement and entry of judgment and sentencing, the defendant shall have a right of appeal from the action of the court.”

In its 2002 amendments to the Rules of Criminal Procedure, the Alabama Supreme Court imposed some limitations on the ability of a defendant to appeal from a guilty-plea conviction. Notably, Rule 26.9(b)(4), Ala. R.Crim. P., which became effective August 1, 2002, requires the trial court in pronouncing sentence to inform the defendant who has entered a plea of guilty that he has the right to appeal

“only in those cases in which the defendant (i) has entered a plea of guilty, but before entering the plea of guilty has expressly reserved his or her right to appeal with respect to a particular issue or issues, or (ii) has timely filed a motion to withdraw the plea of guilty and the motion has been denied, either by order of the court or by operation of law.”

Regarding Rule 26.9(b)(4), Justice Maddox offers the following explanation in his treatise:

“The Supreme Court's amendment to Rule 26.9 changed the procedure that had been in place for a number of years, which allowed a defendant, even though pleading guilty, to take an appeal. If the defendant desires to enter a plea of guilty, there are several forms provided to be used in entering a plea of guilty.... [Several of these forms] were revised to eliminate provisions in the earlier forms that stated that a defendant had a right to appeal, to add a proviso that a defendant, by entering a plea[ ] of guilty, would waive the right to appeal, unless the defendant had, before entering the plea of guilty, expressly reserved the right to appeal with respect to a particular issue or issues, in which event appellate review would be limited to a determination of the issue or issues reserved, or (2) unless the defendant had timely filed a motion to withdraw the plea of guilty after pronouncement of sentence on the ground that the

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