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12/29/94 JACK DZURIAN DUBOSE v. STATE ALABAMA

December 29, 1994

JACK DZURIAN DUBOSE, ALIAS
v.
STATE OF ALABAMA



Appeal from Tuscaloosa Circuit Court. CC-94-199; CC-94-200; CC-94-337, -338 -339, -340, -341, and -342. Thomas Wilson, TRIAL JUDGE.

Released for Publication April 1, 1995.

Bowen, Presiding Judge. All Judges concur.

The opinion of the court was delivered by: Bowen

BOWEN, PRESIDING JUDGE

The appellant, Jack Dzurian Dubose, was charged in eight separate indictments with eight counts of forgery in the second degree and eight counts of possession of a forged instrument in the second degree. (Each two-count indictment contained one forgery count and one possession of a forged instrument count.) Pursuant to a plea bargain agreement, the appellant pleaded guilty to the eight forgery charges, and the eight possession of a forged instrument charges were dismissed. The guilty pleas were entered in a single proceeding held June 23, 1994. The appellant admitted having "at least three prior felony convictions," R. 16, and was sentenced on the recommendation of the State to 15 years' imprisonment on each of the eight convictions, with each sentence to be served concurrently with the other sentences and with the sentence for a previous conviction that he was then serving. The appellant raises two issues in this pro se appeal from his convictions.

I

The appellant argues that his guilty plea convictions are due to be reversed because the trial court made an erroneous statement during the plea colloquy regarding the rights the appellant was waiving.

The State maintains that this issue was not properly preserved for appellate review because the appellant did not object on this ground at the plea proceedings and did not file a motion to withdraw his pleas or a motion for a new trial. However, as this Court observed in Tillery v. State, 647 So. 2d 87 (Ala.Cr.App. 1994): "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 Ala. LEXIS 237, ___ So. 2d ___ (Ala. 1994); Cantu v. State, [Ms. 1920426, April 15, 1994] 1994 Ala. LEXIS 233, ___ So. 2d ___ (Ala. 1994); and Gordon v. Nagle, *fn1 647 So. 2d 91 (Ala. 1994), have eliminated the preservation requirement as to certain guilty plea issues." As we understand those four cases, an alleged error in the plea colloquy required by Rule 14.4, A.R.Crim.P., and Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), "goes to the voluntariness of the plea and that [alleged] defect may be raised on direct appeal or in a collateral petition for post-conviction relief even though there was no contemporaneous objection [or timely post-plea motion raising the issue] in the trial court." Parish v. State, [Ms. CR 93-590, June 17, 1994] 1994 Ala. Crim. App. LEXIS 226, ___ So. 2d ___ (Ala.Cr.App. 1994). Consequently, we must address the merits of the appellant's claim.

The record on appeal contains a transcript of the plea proceedings. This transcript shows that the trial court "addressed the [appellant] personally in the presence of counsel in open court" concerning the matters set forth in Rule 14.4(a), A.R.Crim.P. In explaining the appellant's right to a trial, the trial court stated:

"Now, you have a right to be represented by an attorney at all stages of all of these cases. At the trial of your case, you would have the right to have your attorney subpoena witnesses to come to court and testify on your behalf and to cross-examine the state's witnesses. Your attorney would be bound to do all that she could honorably and reasonably do to ensure that you received a fair trial and effective legal representation."

R. 18. The trial court further explained that the state would have the burden of proof at trial; that the appellant would be presumed innocent; and that the appellant would have the right to testify in his own behalf, but that he could not be forced to testify against himself. See Rule 14.4(a)(1)(v) and (vi). The trial court then stated: "If you plead guilty, you waive or give up these other rights that I have just explained to you, there would be no trial, and, further, you would be incriminating yourself by telling the court that you are guilty of the charges in these cases." R. 20.

The appellant's interpretation of the above statements is that the trial court informed him that by pleading guilty he waived his right to be represented by competent counsel. We do not agree with this interpretation. While the trial court's statements are not perfectly clear on this matter, we think that a fair reading of its statements is that by pleading guilty, the appellant waived his right to a trial at which he would have certain other rights, including the right to be represented by competent counsel.

However, even if we agreed with the appellant's interpretation of the trial court's statements, we would not be required to reverse the appellant's convictions. A defendant has the right to be represented by counsel when entering a guilty plea. Cuevas v. Wilson, 264 F. Supp. 65, 70 (N.D. Cal. 1966) ("the entering of a plea of guilty is a critical stage in a criminal proceeding, and the right to counsel announced in Gideon [v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963),] must be granted at this stage of the proceeding"). Where the right to counsel exists, that right is, of course, to effective counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763 (1970).

Clearly, if we accepted the appellant's interpretation of the trial court's statements, those statements would be incorrect. The error would, however, be harmless. The record affirmatively shows that the appellant was, in fact, represented by counsel at the plea proceedings. There is nothing in the record to indicate that counsel was ineffective. Further, the appellant has made no explicit claim that counsel's performance was deficient. See Rule 45, A.R.App.P. Cf. Tanner v. State, 624 So. 2d 703, 706 (Ala.Cr.App. 1993) (trial court's error in failing to advise defendant who had entered a guilty plea ...


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