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09/30/94 GEORGE BURNETT v. STATE

September 30, 1994

GEORGE BURNETT
v.
STATE



Appeal from Madison Circuit Court. CC-92-154.60. William Page, TRIAL JUDGE.

Released for Publication February 10, 1995.

Bowen.

The opinion of the court was delivered by: Bowen

BOWEN, PRESIDING JUDGE

This is an appeal from the denial of a petition for post-conviction relief. The appellant, George Burnett, challenges his two 1992 guilty plea convictions for rape in the first degree. Those offenses involved female children under the age of twelve. On direct appeal, this Court affirmed those convictions. Burnett v. State, 624 So.2d 1113 (Ala.Cr.App. 1993). This Court held:

"On this direct appeal from those convictions, the appellant contends that he should be permitted to withdraw his guilty plea because the terms of the plea bargain agreement, as he allegedly understood them, were not enforced. He also contends that his retained trial counsel was ineffective.

"The appellant pleaded guilty and was sentenced on November 16, 1992. He filed notice of appeal on December 10, 1992, and appellate counsel was appointed that same date. On February 25, 1993 -- 77 days after he had been appointed and 101 days after sentencing -- appellate counsel filed a motion to withdraw the guilty plea and a motion to supplement the record on appeal. A motion to withdraw a guilty plea must be filed no later than 30 days after the sentence is imposed. Rose v. State, 598 So.2d 1040, 1044 & n. 2 (Ala.Cr.App. 1992); Ward v. State, 527 So.2d 780, 782 (Ala.Cr.App. 1988). The motion to withdraw the plea was untimely.

"Appellate counsel did not attempt to follow the procedure set out in Ex parte Jackson, 598 So.2d 895 (Ala. 1992). There was no attempt to file a petition for post-conviction relief. See Rule 32.6(c), A.R.Crim.P. Barnes v. State, 621 So.2d 329 (Ala.Cr.App. 1992). Consequently, this issue has not been preserved for appellate review.

"Furthermore, the written plea agreement is contained in the record. CR. 41-42. That agreement was accepted by the trial court, and from all appearances, the appellant got exactly what he bargained for."

624 So.2d at 1113-14.

In his petition for post-conviction relief, the appellant claims that his pleas were "unlawfully induced and not made voluntarily" based on the advice he received from trial counsel and that both trial and appellate counsel were ineffective.

The circuit court conducted an evidentiary hearing at which the appellant, the appellant's mother, and the appellant's trial counsel testified. After that hearing, the circuit court issued the following order:

"Petitioner's arguments that his trial counsel was ineffective are procedurally barred under Rule 32.2(a)(4) of the Alabama Rules of Criminal Procedure because this issue was raised on direct appeal and because Petitioner failed to preserve this issue with a timely objection at the time of his guilty plea. See Pryor v. State, 599 So.2d 83 (Ala.Cr.App. 1992). The record of Petitioner's guilty plea demonstrates that Petitioner never objected at that time; moreover the record of Petitioner's guilty plea and the evidence presented at the evidentiary hearing in this case demonstrate that, at the time of the Petitioner's guilty plea, Petitioner was satisfied with his counsel's performance and that he was properly advised of his range of punishment and that his plea of guilty was fully voluntary.

"Petitioner also asserted in his Rule 32 petition that his appellate counsel, the Honorable Reid Webster, was ineffective. This court notes that Reid Webster was present during the entire period of Petitioner's Rule 32 hearing and that Petitioner never called Mr. Webster at this hearing. The ...


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