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Ex parte Burton

Supreme Court of Alabama

June 26, 2015

Ex parte Jackie Burton
v.
State of Alabama In re: Jackie Burton

         Editorial Note:

         This 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).

         BRYAN, Justice. Stuart, Bolin, Parker, Murdock, Shaw, Main, and Wise, JJ., concur. Moore, C.J., dissents.

          OPINION

Page 1008

          PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS

         BRYAN, Justice.

         WRIT QUASHED. NO OPINION.

         Stuart, Bolin, Parker, Murdock, Shaw, Main, and Wise, JJ., concur.

         Moore, C.J., dissents.

          DISSENT

         MOORE, Chief Justice (dissenting).

         Because 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.

         Charged 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.

         The letter Burton wrote the court, as the judge presiding at Burton's Rule 32 hearing on remand noted,[1] 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.[2] That decision, accompanied by a summary order denying the withdrawal motion, set in motion the train of events underlying this petition.

         In 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).

         On 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

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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 ...


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