Opinion is subject to formal revision before publication in
the advanced sheet of the Southern Reporter.
(Jefferson Circuit Court, Bessemer Division, CC-05-51 and
CC-05-51.62; Court of Criminal Appeals, CR-12-1807).
Justice. Stuart, Bolin, Parker, Murdock, Shaw, Main, and
Wise, JJ., concur. Moore, C.J., dissents.
PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
QUASHED. NO OPINION.
Bolin, Parker, Murdock, Shaw, Main, and Wise, JJ., concur.
Chief Justice (dissenting).
I believe the petitioner, Jackie Burton, was entitled to
withdraw his guilty plea, I dissent from quashing the writ of
certiorari previously issued by this Court.
with reckless murder for a fatality resulting from an
automobile accident, Burton, who was driving under the
influence, pleaded guilty to reckless manslaughter, a Class B
felony with a sentencing range of 2 to 20 years. When the
judge sentenced him to 20 years' imprisonment, Burton
wrote the court a letter that stated: " I believe I
wasn't given a fair trial because there was certain
things that wasn't brought up in my behalf I feel I need
to appeal my sente[n]cing and I need another court-appointed
lawyer." Burton did not file a direct appeal but
subsequently filed a Rule 32, Ala. R. Crim. P., petition
challenging his guilty-plea conviction. The trial court
denied Burton's Rule 32 petition, and he appealed that
denial to the Court of Criminal Appeals.
letter Burton wrote the court, as the judge presiding at
Burton's Rule 32 hearing on remand noted, merely
requested counsel to appeal. Having pleaded guilty without
reserving any issues for appeal, however, Burton had
forfeited his right to appeal. See Rule 14.4(a)(1)(viii),
Ala. R. Crim. P. Faced with this conundrum, the original
sentencing judge decided to treat Burton's letter as a
motion to withdraw his guilty plea, thus avoiding having to
tell him he had no right to appeal. That decision,
accompanied by a summary order denying the withdrawal motion,
set in motion the train of events underlying this petition.
2013, six years after the denial of his motion to withdraw
his guilty plea and after the original sentencing judge had
left office, Burton, represented by counsel, filed a Rule 32
petition seeking relief from his conviction and sentence
based on the lack of counsel during the " critical
stage" of the court's consideration of his motion to
withdraw his guilty plea. An accused is entitled to counsel
at " critical stages" of a proceeding, United
States v. Wade, 388 U.S. 218, 227, 87 S.Ct. 1926, 18
L.Ed.2d 1149 (1967), and the withdrawal of a guilty plea is
such a stage. The presence of counsel or a valid waiver of
the right to counsel in proceedings involving a motion to
withdraw a guilty plea is a constitutional requirement.
Berry v. State, 630 So.2d 127 (Ala.Crim.App. 1993).
The absence of either counsel or a waiver of the right to
counsel invalidates the proceedings on the motion to withdraw
and is a jurisdictional error that may be raised at any time.
See Frost v. State, 141 So.3d 1103, 1106
(Ala.Crim.App. 2012); Ex parte Pritchett, 117 So.3d
356 (Ala. 2012).
Burton's appeal from the denial of his Rule 32 petition,
the Court of Criminal Appeals, by order, remanded the case
for a hearing on the absence-of-counsel issue. On remand, the
trial judge vacated the order denying Burton's motion to
withdraw his guilty plea and held a new hearing on the issue
of the withdrawal of his guilty plea; at that hearing Burton
was represented by counsel. The trial court denied
Burton's motion to withdraw his
guilty plea, and the Court of Criminal Appeals, by
unpublished memorandum, affirmed its denial on return to
remand. Burton v. State (CR-12-1807, Sept. 26,
2014), __ So.3d __ (Ala.Crim.App. 2014) (table). This Court
granted Burton's petition for a writ of certiorari to
determine whether the absence of a transcript of the original
guilty-plea hearing requires reversal. Verzone v.
State,841 So.2d 312 (Ala.Crim.App. 2002). The issues
before this Court, therefore, relate to whether error
occurred in the original ...