July 10, 2015
Tommy Lee Pate
State of Alabama
from Butler Circuit Court. (CC-14-187).
Judge. Windom, P.J., and Kellum, Burke, and Joiner, JJ.,
Lee Pate pleaded guilty to an information charging Pate with
second-degree assault, see § 13A-6-21(a)(4), for
intending to cause injury to a police officer in an attempt
to prevent the officer from performing a lawful duty. In
accordance with a plea agreement, the Butler Circuit Court
sentenced Pate, as a habitual felony offender, to 20
years' imprisonment. The sentence was split, and Pate was
ordered to serve five years in prison followed by five
November 6, 2014, the circuit court conducted a guilty-plea
colloquy with Pate. During the colloquy, Pate was informed of
the constitutional rights he was waiving by pleading guilty.
Pate was also informed of the range of punishment for the
offense to which he was pleading guilty. Following the
colloquy, the court accepted Pate's guilty plea.
December 2, 2014, Pate placed a pro se motion to withdraw his
guilty plea in the prison mail. In his motion, Pate claimed
that his counsel had misrepresented to him that he would be
eligible for work release in prison even if he pleaded
guilty. According to Pate, once he was returned to prison
following his guilty plea, he was no longer eligible for work
release. Pate contended that had he known he would not be
eligible for work release he would not have pleaded guilty.
While his motion was pending, Pate filed a notice of appeal.
On January 5, 2015, Pate's pro se motion to withdraw his
guilty plea was denied by operation of law. On January 14,
2015, Pate's trial counsel moved to withdraw as a result
of the allegations in Pate's motion to withdraw his
guilty plea. The trial court granted counsel's motion to
appeal, Pate argues that the trial court erred in denying his
motion to withdraw his guilty plea without holding an
evidentiary hearing. We do not address this specific claim
because we have noticed a dispositive jurisdictional issue.
Pate's Sixth Amendment right to counsel has been
violated. Pate's pro se motion to withdraw his guilty
plea was denied without Pate having been informed of his
right to counsel to assist in the preparation of that motion
and without the court ascertaining if Pate had knowingly and
intelligently waived his right to the assistance of counsel.
Court stated in Humphrey v. State, 110 So.3d 396
" The Sixth Amendment right to counsel 'attaches at
the initiation of adversary judicial proceedings, and extends
to every critical stage of the proceedings A critical stage
is any stage where a substantial right of an accused may be
affected ... and can arise in pre-trial as well as post-trial
proceedings.' Berry v. State, 630 So.2d 127, 129
(Ala.Crim.App. 1993)(internal citations omitted). 'A
motion to withdraw a guilty plea is a critical stage in a
criminal proceeding requiring representation of counsel or a
valid waiver of the right to counsel.' Berry, 630 So.2d
" In Ex parte Pritchett, 117 So.3d 356 (Ala.
2012), the Alabama Supreme Court recently discussed a case
that is factually indistinguishable from Humphrey's. The
facts in Pritchett were as follows:
" '[c]ounsel in [Pritchett's] case was appointed
for [Pritchett], and at no point before the filing and
adjudication of the motion to withdraw the guilty plea did
counsel formally withdraw. Nonetheless, Pritchett filed a
motion to withdraw his guilty plea that, in this case, we
know was handwritten and that explicitly stated that it was
being filed as a " pro se" motion. Furthermore, we
also know that, in this case, the ground for relief asserted
in this motion was that counsel who had represented the
defendant before the filing of the motion allegedly had been
inadequate and ineffective. As in Berry, although Pritchett
nominally had counsel of record at the time he filed his
motion, it was clear that the motion was prepared and relief
was sought by Pritchett without the involvement of that
"  So.3d at . The Supreme Court held that
Pritchett was required to have the assistance of counsel --
or to have validly waived such assistance -- during the
proceedings surrounding the motion to withdraw his guilty
plea because Pritchett's motion to withdraw his guilty
plea was a critical stage in the judicial proceedings.
Id. Therefore, the Supreme Court reversed
Pritchett's conviction and ordered 'a hearing on
Pritchett's motion to withdraw his guilty plea
in which Pritchett is represented by counsel or in which the
trial court determines that Pritchett has knowingly,
intelligently, and voluntarily waived his right to
counsel.' Pritchett, 117 So.3d at 362.'"
110 So.3d at 398.
case, as in Ex parte Pritchett, 117 So.3d 356 (Ala.
2012), Humphrey, and other similar cases, Pate filed a pro se
motion to withdraw his guilty plea. See also Bailey v.
State, [(Ms. CR-13-1840, April 17, 2015] __ So.3d __
(Ala.Crim.App. 2015); Stewart v. State, 110 So.3d
395 (Ala.Crim.App. 2012); and Frost v. State, 141
So.3d 1103 (Ala.Crim.App. 2012). The motion was filed before
Pate's appointed counsel had withdrawn from his
representation of Pate. The record does not show that Pate
expressly waived his right to the assistance of counsel nor
does the record establish that the circuit court inquired
into whether Pate had knowingly, intelligently, and
voluntarily waived his right to counsel. Therefore, the
judgment of the circuit court is reversed and this case is
remanded for the circuit court to conduct a hearing on
Pate's motion to withdraw his guilty plea at which Pate
is represented by counsel or to determine that Pate has
knowingly, intelligently, and voluntarily waived his right to
P.J., and Kellum, Burke, and Joiner, JJ., concur.