Opinion
No. CR-01-1784.
Decided September 27, 2002. Opinion on Return to Remand January 31, 2003.
Appeal from Barbour Circuit Court (CC-00-22.60).
Christopher A. King, pro se.
William H. Pryor, Jr., atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
On February 3, 2000, the appellant, Christopher A. King, pled guilty to first-degree robbery, and the trial court sentenced him to serve a term of twenty years in prison. He did not appeal his conviction. On February 19, 2002, the appellant filed a Rule 32 petition, challenging his conviction. After the State responded, the circuit court summarily denied his petition. This appeal followed.
The appellant argues that he did not appeal his conviction through no fault of his own and that he did not knowingly and voluntarily enter his guilty plea because the trial court did not correctly advise him of the minimum sentence he could receive pursuant to § 13A-5-6(a)(4), Ala. Code 1975. The State did not specifically refute those claims. Additionally, in its order denying the petition, the circuit court did not specifically address those claims. Because the appellant's claims that he did not appeal through no fault of his own and that he did not knowingly and voluntarily enter his guilty plea could be meritorious, the circuit court erred in not addressing them. Therefore, we remand this case to the circuit court for that court to make specific, written findings of fact concerning those claims. On remand, the circuit court may require the State to respond specifically to the appellant's contentions and/or may conduct an evidentiary hearing. On remand, the circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 56 days after the release of this opinion. The return to remand shall include the circuit court's written findings of fact and, if applicable, the State's response and/or a transcript of the evidentiary hearing.
He also raises other arguments in his brief to this court. However, we pretermit discussion of those arguments at this time.
REMANDED WITH INSTRUCTIONS.
McMillan, P.J., and Cobb, Shaw, and Wise, JJ., concur.
On Return to Remand.
AFFIRMED BY MEMORANDUM.
McMillan, P.J., concurs; Shaw, J., concurs in the result; Wise, J., dissents, with opinion, joined by Cobb, J.
I respectfully dissent from the majority's decision in its unpublished memorandum affirming on return to remand the circuit court's denial of Christopher A. King's Rule 32, Ala.R.Crim.P., petition for postconviction relief. Based on the record before us, I believe King is entitled to relief.
King alleged in his petition that his guilty plea to the offense of first-degree robbery was not voluntarily and knowingly entered because, he said, the circuit court did not correctly inform him of the minimum and maximum sentence he could have received on that charge. Indeed, this Court remanded this case to the circuit court for that court to make specific findings concerning King's claim. King v. State, 853 So.2d 1048 (Ala.Crim.App. 2002). In its "Order of Findings on Remand," the circuit court found that it had, in fact, incorrectly advised King of the minimum sentence. Moreover, the court found that the correct minimum sentence had not been entered on Form CR-51. Nevertheless, the circuit court found the error to be harmless because, it concluded, King understood his sentence to be 20 years and he voluntarily pleaded guilty with that understanding.
King was charged with first-degree robbery, a Class A felony. See § 13A-8-41, Ala. Code 1975. However, because he committed the robbery using a firearm, the minimum sentence he could receive was 20 years' imprisonment. See § 13A-5-6(a)(4), Ala. Code 1975.
Rule 14.4(a), Ala.R.Crim.P., provides, in pertinent part:
"[T]he court shall not accept a plea of guilty without first addressing the defendant personally in the presence of counsel in open court for the purposes of:
"(1) Ascertaining that the defendant has a full understanding of what a plea of guilty means and its consequences, by informing the defendant of and determining that the defendant understands:
". . . .
"(ii) The mandatory minimum penalty, if any, and the maximum possible penalty provided by law, including any enhanced sentencing provisions. . . ."
I believe that the cases relied upon by the majority in its memorandum are distinguishable because those cases were decided before the adoption of Rule 14.4, Ala.R.Crim.P. Since the January 1, 1991, effective date of Rule 14.4, Alabama law has consistently held that when an accused pleads guilty on the basis of misinformation as to the range of punishment, the guilty plea is involuntary. See, e.g., Cantu v. State, 660 So.2d 1026 (Ala. 1994); Burns v. State, 778 So.2d 246 (Ala.Crim.App. 2000); Handley v. State, 686 So.2d 540 (Ala.Crim.App. 1996).
Given the circumstances of this case, I would reverse the circuit court's denial of King's petition and remand this case for the circuit court to allow King to withdraw his guilty plea, if he so desires, or to enter a new plea after being correctly informed of the minimum and maximum sentence for first-degree robbery. Therefore, I must dissent.