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01/13/95 SHELLY EUGENE BROWN v. STATE

January 13, 1995

SHELLY EUGENE BROWN
v.
STATE



Appeal from Etowah Circuit Court. (CC-91-1199).

Montiel, Judge. All the Judges concur.

The opinion of the court was delivered by: Montiel

MONTIEL, JUDGE

The appellant, Shelly Eugene Brown, was indicted for the unlawful possession of a controlled substance in violation of § 13A-12-212(a)(1), Code of Alabama 1975. Brown pleaded guilty pursuant to a plea agreement, and the trial court sentenced him to 10 years in prison, that sentence to run concurrently with an existing sentence.

On appeal, Brown argues that the trial court erred in accepting his guilty plea because, he says, the trial court failed to properly advise him of the minimum and maximum sentence he could receive and properly ascertain that the plea was voluntarily made. The State argues that Brown's first contention is without merit because, it argues, he was fully informed of the punishment he would receive under the plea agreement. After careful consideration, we conclude that the State's argument must fail.

"The failure to inform a criminal defendant of the minimum and maximum sentencing possibilities constitutes a defect in the guilty plea that goes to the voluntariness of the plea and subjects it to a collateral challenge under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed. 2d 274 (1969). " Bennett v. State, [Ms. 1930083, July 15, 1994] ___ So. 2d ___ (Ala. 1994). " defendant is constitutionally entitled to have information concerning the range of punishment prescribed by the act to which he may be sentenced and the consequences of the conviction at the time he enters his plea." Coleman v. Alabama, 827 F.2d 1469, 1473 (11th Cir. 1987). "Since Carter v. State, [291 Ala. 83, 277 So. 2d 896 (1973)], this court and the Court of Criminal Appeals have consistently held that a defendant must be informed of the maximum and minimum possible sentences as an absolute prerequisite to the acceptance of a guilty plea." Ex parte Rivers, 597 So. 2d 1308, 1309 (Ala. 1991). Furthermore, that information must be given to the defendant on the record. Carter v. State, 291 Ala. 83, 277 So. 2d at 898 (1973); Elrod v. State, 629 So. 2d 58, 59 (Ala. Crim. App. 1993).

We hold that when a defendant enters a guilty plea pursuant to a plea agreement, he cannot be informed only of the sentence he will receive pursuant to that plea agreement, he also must be informed of the minimum and maximum sentence possible for his offense. If a defendant is not so informed, there is no assurance that the defendant weighed his options and knowingly, intelligently, and voluntarily entered a guilty plea.

In this case, the record shows that Brown was told he would receive a 10-year sentence if he pleaded guilty to possession of a controlled substance, the offense for which he was indicted. Nothing in the record indicates that Brown was informed of the minimum and maximum penalties possible for his offense. Unlawful possession of a controlled substance is a Class C felony. § 13A-12-212(b), Code of Alabama 1975. Class C felonies are punishable by not more than 10 years or less than one year and one day. § 13A-5-6(a)(3), Code of Alabama 1975. There is nothing in the record indicating that the State intended to invoke the Habitual Felony Offender Act or any other enhancement statute; therefore, when Brown entered his guilty plea, he agreed to forgo his right to a trial by jury and to serve the maximum possible sentence for his offense.

Because Brown was not informed of the minimum and maximum possible sentences on the record, we cannot say his guilty plea was voluntarily entered. Therefore, this cause is remanded to the circuit court for a hearing at which the court should inform Brown on the record of the maximum and minimum possible sentences and allow Brown the opportunity to withdraw his guilty plea to the charge of unlawful possession of a controlled substance. If he withdraws his guilty plea, the charges against him shall automatically be reinstated, pursuant to Rule 14.4(e), A.R.Crim.P. A return to remand shall be filed with this court within 60 days.

REMANDED WITH DIRECTIONS.

All the Judges concur.

19950113

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