PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS. (Morgan Circuit Court, CC-89-93; Court of Criminal Appeals, CR-91-726).
This Opinion Substituted on Rehearing for Withdrawn Opinion of October 15, 1993, Previously .
Hornsby, C.j., and Shores, Houston, Kennedy, Ingram, Cook, and Butts, JJ., concur. Maddox, J., concurs in part and Dissents in part.
On Second Application for Rehearing
THE "ON APPLICATION FOR REHEARING" OPINION OF APRIL 15, 1994, IS MODIFIED BY THE SUBSTITUTION OF PAGES 1, 5, 6, 7, 8, AND 9, AND THE DELETION OF PAGE 10. APPLICATION OVERRULED.
Hornsby, C.J., and Shores, Houston, Kennedy, Ingram, Cook, and Butts, JJ., concur.
Maddox, J., concurs in part and Dissents in part.
On Second Application for Rehearing
The opinion of October 15, 1993, is withdrawn and the following opinion is substituted therefor.
This Court granted the State's petition for a writ of certiorari, to review the question whether a criminal defendant is precluded from raising, in a post-conviction proceeding, a defect in the Boykin colloquy, *fn1 specifically, the failure of the trial Judge to properly advise the defendant of the maximum sentence he could receive if he entered a plea of guilty. See, Rule 14.4(a)(1), Ala. R. Crim. P. Stated differently, the question is: If the trial Judge fails to strictly comply with the procedural requirements for the entry of a guilty plea, must the defendant seek to withdraw the plea of guilty and give the trial Judge an opportunity to pass on any claimed error in the process and thereby establish in the record the error in question in the event of an appeal, or can the defendant raise the question in a timely filed post-conviction proceeding?
The facts necessary to a resolution of this question are sufficiently set out in Judge Patterson's opinion for the Court of Criminal Appeals, Cantu v. State, 660 So. 2d 1024 (Ala. Crim. App. 1992), but we set forth some of the basic facts here also. Ignacio Cantu pleaded guilty to trafficking in cocaine, a violation of § 13A-12-231(2)(c), Ala. Code 1975, and was sentenced to 25 years' imprisonment and fined $250,000. Cantu did not appeal, but he later filed a petition seeking post-conviction relief pursuant to Rule 32, Ala. R. Crim. P. In his petition, Cantu alleged that his guilty plea had not been made voluntarily with an understanding of the consequences of his plea; that the circuit court had been without jurisdiction to render a judgment against him or to impose a sentence; and that he had been denied effective assistance of counsel.
Cantu alleged that he had pleaded guilty only after he had been advised by his counsel that the maximum sentence that could be imposed against him was life imprisonment without parole; however, the actual maximum sentence that the trial court could have imposed was 99 years or life imprisonment. The State moved to dismiss, arguing that Cantu was precluded from pursuing his claims because, it argued, they should have been raised on direct appeal. The circuit court apparently agreed; it dismissed Cantu's Rule 32 petition. Cantu appealed.
On appeal, the Court of Criminal Appeals, by opinion, remanded the cause and allowed Cantu to amend his petition, pursuant to Rule 32.6(a), Ala. R. Crim. P., and ordered an adjudication on the merits on Cantu's claim of ineffective assistance of counsel. Cantu v. State, 587 So. 2d 1287 (Ala. Crim. App. 1991). Cantu then amended his Rule 32 petition and, after a hearing thereon, the circuit court denied the petition. Cantu again appealed; the Court of Criminal Appeals reversed, stating, "Because Cantu was misinformed of the applicable maximum sentence, this cause must be remanded to the circuit court with the order that Cantu's conviction be 'reversed,' in accordance with Ex parte Rivers, 597 So. 2d 1308 (Ala. 1991)." Cantu v. State, [Ms. CR-91-726, September 30, 1992] So. 2d , (Ala. Crim. App. 1992). The State's application for rehearing was overruled, and the State petitioned for certiorari review.
In Parish v. State, 660 So. 2d 227 (Ala. Crim. App. 1993), the Court of Criminal Appeals referred frequently to Ex parte Rivers, 597 So. 2d 1308 (Ala. 1991), and stated that this Court in Rivers had established what appeared to be a new rule that was "a departure from case law." So. 2d at . Judge Patterson observed specifically in Parish :
"However, the Alabama Supreme Court in Ex parte Rivers, 597 So. 2d 1308 (Ala. 1991), in effect, announced a different rule regarding preservation of the issue of whether the appellant had been properly advised of the applicable sentence range before pleading guilty. In that case, the appellant, contesting the validity of his guilty pleas in an A.R.Cr.P.Temp. 20 petition, alleged, in part, that 'he [had not been] properly informed of the maximum and minimum sentences so as to allow his plea to be knowingly and voluntarily given,' id. at 1309. In an unpublished memorandum, we had held that our review of this issue was procedurally barred. 586 So. 2d 307. After reiterating that 'a defendant must be informed of the maximum and minimum possible sentences as an absolute constitutional prerequisite to the acceptance of a guilty plea,' 597 So. 2d at 1309, the Rivers court characterized the remaining issue as follows: 'The State contends, and the Court of Criminal Appeals agreed, that Rivers failed to preserve the issue of ... the illegality of his sentencing for appeal by failing to raise it at trial,' id. at 1310 [emphasis added in Parish ]. The court, in disagreeing with our holding, relied on the following language in Ex parte Brannon, 547 So. 2d 68, 68 (Ala. 1989):
"'When a sentence is clearly illegal or is clearly not authorized by statute, the defendant does not need to object at the trial level in order to preserve that issue for appellate review. See Bartone v. United States, 375 U.S. 52, 11 L. Ed. 2d 11, 84 S. Ct. 21 (1963). Indeed, the illegality of a defendant's sentence is a ground specified in Rule 20, Ala. R. Crim. P.
[Temp.], for a collateral post-conviction remedy.'
"Finding that the issue was not precluded, the court remanded the case with the instruction that Rivers's convictions be reversed, holding that 'because Rivers was not informed of the minimum possible sentence in his cases, prior to his plea of guilty, his guilty plea was not knowingly, voluntarily, and intelligently given,' 597 So. 2d at 1310.
"Apparently, the Rivers court considered that the trial court's failure to correctly advise Rivers of the minimum possible sentences resulted in the trial court's lack of jurisdiction. This appears to be a departure from case law. As far as we are aware, a lack of information or misinformation about the sentencing consequences of pleading guilty has always been treated in the context of the voluntariness of the plea -- not in the context of jurisdiction. See, e.g., Carter v. State, 291 Ala. 83, 84, 277 So. 2d 896, 897 (1973) (court stated that 'our inquiry focuses upon whether the appellant's guilty plea was "intelligent and voluntary," as required by Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969) [, where the] appellant argues that he was not advised on the record what the minimum and maximum punishments for his offense would be')."
So. 2d at (emphasis added in Parish).
In its opinion in this case, the Court of Criminal Appeals analyzed some of the case law relating to the preservation of claimed error in matters relating to pleas of guilty and, citing its later-withdrawn opinion of September 30, 1992, in Parish v. State, stated that it is "uncertain as to how and to what circumstances the Rivers rule should be applied," So. 2d at , but concluded that "because Cantu was not correctly informed of the maximum sentence, his sentence is void, and, in accordance with Rivers, 597 So. 2d at 1310, his conviction must be reversed and the cause remanded for further proceedings." *fn2 So. 2d at .
We agree with the State's argument that the case law is conflicting as to when and under what circumstances a defendant is precluded from raising, on appeal, or in a post-conviction proceeding when there was no appeal, as here, a failure of the trial Judge to follow the procedural requirements for the entry of a plea of guilty. *fn3
The confusion over the proper interpretation of the Rivers holding is addressed in Gordon v. Nagle, 647 So. 2d 91 (Ala. 1994), wherein this Court, in answering a certified question from the United States Court of Appeals for the Eleventh Circuit, stated that the confusion relating to when and under what circumstances a defendant could be precluded from raising a question about the voluntariness of a guilty plea was caused by a misinterpretation of ...