June 26, 2015
Ex parte Jackie Burton
State of Alabama In re: Jackie Burton
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 guilty-plea hearing that would
require vacating Burton's guilty plea and allowing him to
enter another plea or go to trial.
Hearing on Remand
accepting a guilty plea, the court must engage in a colloquy
to make sure that the defendant understands certain facts.
Rule 14.4(a), Ala. R. Crim. P. At the hearing on remand,
counsel for Burton asked him about the colloquy that occurred
when Burton entered his guilty plea:
" Q. When you pled guilty -- let's go over Rule
14.4, once you pled guilty to manslaughter, did Judge Petelos
[tell] you what you pled guilty -- you were pleading to
" A. Yes, ma'am.
" . . . .
" Q. Did Judge Petelos [tell] you the elements that the
State would have to prove?
" A. Yes, ma'am.
" Q. Did she tell you the minimum and the maximum of the
" A. Yes, ma'am.
" Q. Did she tell you that you had the right to plead
" A. Yes, ma'am.
" Q. Did she tell you that if you plead guilty, there
would be no jury trial?
" A. Yes, ma'am.
" Q. Did she tell you that if you plead guilty, you have
no right to appeal unless you reserve the right -- you
reserve some issue?
" A. No, ma'am, she never did say that.
" . . . .
" Q. When you were sentenced, did Judge Petelos ask you
if you had anything to say on your behalf?
" A. On my behalf, no, ma'am.
" Q. What did she say?
" A. If I had anything to say to the family.
" Q. To the victim?
" A. To the victim's family."
first four questions, to which Burton responded
affirmatively, correspond to Rule 14.4(a)(1)(i), (ii), (iv),
and (vi), Ala. R. Crim. P. The fifth question corresponds to
Rule 14.4(a)(1)(viii). Burton answered that he was not
informed that he would have no right to appeal unless he
reserved a particular issue for appeal. That Burton wrote to
Judge Petelos requesting to appeal his sentence is evidence
indicating that he was not aware of this consequence of his
plea. Finally, Burton indicated that he was not given the
opportunity personally to address the court on his behalf
before sentencing. Rule 26.9(b), Ala. R. Crim. P., states:
" In pronouncing sentence, the court shall: (1) Afford
the defendant an opportunity to make a statement in his or
her own behalf before imposing sentence."
attorney argued to the trial court, in part, as follows:
" Rule 14.4 is very clear. It says that the Court shall
not accept a guilty plea unless certain things are done.
It's not that the court 'should' or
'would.' It's the court 'shall,' and we
itemized certain things, and Judge Petelos should have told
my client that if he pled guilty, then there would be no
right to appeal unless
he reserved some certain issue for appeal. It was never
explained that to him.
" Also, at the sentencing part, which is Rule 26.9, it
says, 'The court shall --' not should or would
'-- also afford the defendant an opportunity to make a
statement in his or her own behalf,' which never did
also. So, Judge, I'm asking that my client be allowed to
withdraw his guilty plea "
denying Burton's motion to withdraw his guilty plea, the
trial court on remand relied on two documents Burton had
signed: A statement of satisfaction with his attorney's
services and an explanation-of-rights form. The court stated:
" I think these documents are conclusive that the plea
agreement reached in this case was voluntarily and knowingly,
so that the motion to withdraw the guilty plea is
Return to Remand
brief to the Court of Criminal Appeals on return to remand,
Burton stated: " The judgment of the Court is due to be
reversed since the Court did not comply with Rule 14.4 and
Rule 26.9." In particular, " [t]he Court did not
comply with Rule 14.4(a)[(1)](viii)" in that the
original sentencing judge did not explain the loss of the
right to appeal or with Rule 26.9 in that Burton was not
afforded an opportunity to make a statement. In its
unpublished memorandum on return to remand, the Court of
Criminal Appeals did not address the Rule 14.4(a)(1) (viii)
issue. Referring to Burton's testimony in the hearing on
remand, the Court of Criminal Appeals incorrectly said:
" He also stated that he was informed by the judge of
all of his rights under Rule 14.4 ...." Neither did the
Court of Criminal Appeals address the Rule 26.9 right of
" Additional Statement of Facts" in his application
for rehearing on return to remand in the Court of Criminal
Appeals included the transcript portions of his testimony
quoted above. Burton specifically quoted the sections that
reflected his testimony about the lack of a colloquy
explaining the loss of his right to appeal and the lack of an
opportunity to address the court on his behalf before
sentencing. In his petition for a writ of certiorari to this
Court, Burton included a verified and verbatim copy of that
" Additional Statement of Facts." Thus,
Burton's trial court testimony on remand on the right to
appeal (Rule 14.4(a)(1)(viii)) and the right to an allocution
(Rule 26.9(b)) was properly before us when we granted
certiorari review on the transcript issue. Rule 39(d) (5),
Ala. R. App. P. In his petition for a writ of certiorari,
Burton argued that a transcript of the original guilty-plea
hearing was especially necessary because the original
sentencing judge " did not comply with Rule 14.4, or
allow [Burton] to speak on his own behalf pursuant to Rule
we issued the writ, Burton waived an opening brief, Rule
39(g) (1), Ala. R. App. P., and then replied to the
State's brief. In its brief, the State argued that
Verzone v. State, supra, should be overruled because it
stated an apparent " bright line rule of automatic
reversal when there is no reporter's transcript."
State's brief, at 27. In his reply brief, Burton argued
that he had not contended at trial or on appeal for automatic
reversal when the transcript of the guilty-plea hearing was
unavailable. Instead, he had argued that
review of his allegations that he was not told about the loss
of his right to appeal and that he was not permitted to make
a statement on his own behalf could not occur without a
transcript of the guilty-plea colloquy. Verzone, he
explained, held that the absence of the transcript required
reversal only when the transcript was necessary for the
appellate court to review the identified error. This reading
of Verzone is correct. In Verzone the Court of Criminal
Appeals reversed the trial court's judgment because it
could not " adequately review the appellant's
arguments without a transcript of the guilty plea
colloquy." 841 So.2d at 314 n.1. The Court of Criminal
Appeals further stated: " Without a transcript of the
guilty plea colloquy, if the trial court conducted one, we
cannot determine whether the appellant preserved any of these
arguments . . . ." Id. at 314 (footnote
State argues that Burton first raised the issue of the
absence of a transcript in his brief on return to remand and
did not cite Verzone until he filed his application for
rehearing on return to remand. Thus, the State says, his
argument on this point was untimely. However, Burton
testified in the hearing on remand that he had not been told
in his guilty-plea hearing that he would forfeit his right to
appeal nor was he allowed a right of allocution. His attorney
argued that these failings entitled him to a reversal of his
conviction and an opportunity to reenter a plea or go to
trial. Although the Court of Criminal Appeals did not address
these issues on return to remand, they were argued and
preserved and are properly before us. Review of these issues
necessarily implicates Verzone if their validity cannot be
determined without the transcript of the original guilty-plea
Burton states in his reply brief: " [T]he State fails to
recognize that Burton raised underlying claims which could
only be reviewed with a transcript." Burton's reply
brief, at 13 (emphasis added). " Thus, in Verzone it was
the errors complained of by the appellant coupled with the
lack of a transcript with which to review said errors that
prompted the appellate court to reverse the conviction."
Id. at 12 (emphasis added). Because the errors at
issue are those relating to the failure of the colloquy, the
need of the transcript is derivative of those errors and not
itself an independent basis for reversal that had to be
raised in the trial court.
actual claims of error have been preserved. A correct reading
of Verzone requires not automatic reversal, but instead a
fact-specific inquiry as to whether the claimed errors can be
reviewed without a transcript. The Court of Criminal Appeals
never addressed the two specific claims of error Burton
raised; it merely affirmed the trial court's judgment
that, even though the harsh sentence was unexpected,
Burton's guilty plea was knowing and voluntary. I would
reverse the judgment of the Court of Criminal Appeals and
remand for that court to determine whether Burton's two
specific preserved claims of error left unaddressed by that
court are reviewable without a transcript. If not, pursuant
to Verzone, Burton should be allowed to withdraw his guilty
I dissent from quashing the writ of certiorari.
The Court of Criminal Appeals remanded the
case by order for the trial court to conduct a hearing to
address Burton's allegation that he was entitled to
counsel on his motion to withdraw his guilty plea, discussed
An appeal does lie from the denial of a
motion to withdraw a guilty plea. Rule 26.9(b)(4), Ala. R.
That the forms manifest assent is not
sufficient. The trial court must conduct " a
personal colloquy" with the defendant to assure that the
defendant understands each item in the form. Rule 14.4(d),
Ala. R. Crim. P.