Bozeman v. State

686 So. 2d 556, 1996 Ala. Crim. App. LEXIS 272, 1996 WL 583765
CourtCourt of Criminal Appeals of Alabama
DecidedOctober 11, 1996
DocketCR-95-1486
StatusPublished
Cited by7 cases

This text of 686 So. 2d 556 (Bozeman v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bozeman v. State, 686 So. 2d 556, 1996 Ala. Crim. App. LEXIS 272, 1996 WL 583765 (Ala. Ct. App. 1996).

Opinion

COBB, Judge.

The appellant, Patrick Bozeman, entered guilty pleas and was found guilty on two charges of distribution of a controlled substance. For each conviction he was sentenced as a habitual felony offender with two prior felony convictions to. serve 15 years in the penitentiary. The two 15-year sentences were to be served concurrently. Additionally, each sentence was enhanced five years pursuant to the mandatory sentence enhancement provision of § 13A-12-250, Aa. Code 1975 (sale within three miles of a school). The mandatory portions of each sentence were ordered to be served consecutively, as required by law.

The State filed a motion asking the trial court to reconsider and/or amend the appellant’s sentence. The State argued in this motion that the trial court should “sentence the defendant to 10 years (consecutive five-year sentences) pursuant to § 13A-12-250 and suspend the concurrent 15-year sentences.” According to the State, “The state and the defendant felt that this was an appropriate sentence based upon the small amount of drugs involved and the defendant’s cooperation with authorities.” R. 32. After a hearing on the State’s motion, the trial court suspended each 15-year sentence, leaving only the 10-year mandatory portion of the sentence to be served.

The appellant then filed a motion to set aside his guilty plea. At the hearing on the motion the appellant alleged that his trial counsel had told him that the five-year enhancements would run concurrently and that “[his] time would be five years.” R. 7. The motion was denied. From the trial judge’s comments it appears that his denial of the appellant’s motion to withdraw his guilty plea is based on the trial judge’s belief that the appellant knew when he pleaded guilty that he had two five-year enhancements, that the appellant’s sentence is within the guidelines and is mandated by law, and that the appellant moved to withdraw his guilty plea only because he is dissatisfied with his 10-year sentence. The appellant does not dispute the truth of these beliefs on appeal. The appellant contends that his guilty pleas were involuntary because, he says, the trial court did not properly advise him under Rule 14.4, Aa.R.Crim.P.; because, he says, the state did not prove that the sale occurred within three miles of a school; and, because, he says, his counsel rendered ineffective assistance in incorrectly informing him that he would have to serve only five years in prison.

[558]*558Of the arguments related to Rule 14.4,1 the only assertion with merit is the appellant’s assertion that he was not advised, pursuant to Rule 14.4,(a)(l)(iii), Ala.R.Crim. P., that the two mandatory five-year sentence enhancements would be served consecutively, so that his minimum sentence would be 10 years.

The record does not reflect any mention by the trial judge concerning options in sentencing the appellant. Neither does the record dispute that the appellant was not advised that his two five-year sentences must be served consecutively. In light of these omissions we conclude that the appellant did not fully understand the consequences of the plea.

We are aware of the caselaw which states that,

“[T]here is nothing in the federal or state constitution which suggest[s] that a defendant has a right to receive concurrent sentences for multiple offenses ...
“ ... ‘The most basic logic and reflection make it apparent that separate offenses merit separate punishments.’...
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“... The fact that the trial judge failed to inform the appellant of the possibilities of consecutive sentences does not vitiate the voluntariness of his guilty plea.”

Hopper v. State, 420 So.2d 853, 854 (Ala.Cr.App.1982); see also Alston v. State, 455 So.2d 264 (Ala.Cr.App.1984); Sheehan v. State, 411 So.2d 824 (Ala.Cr.App.1981). However, these decisions predate and conflict with Rule 14.4(a)(l)(iii), Ala.R.Crim.P., which was effective January 1, 1991. Rule 14.4(a)(l)(iii), requires that the trial court address a defendant in person to ascertain that the defendant understands the consequences of the plea, including, “[i]f applicable, the fact that the sentence may run consecutively to or concurrently with another sentence or sentences.” The committee comments to Rule 14.4(a)(l)(iii), Ala.R.Crim.P., state:

“Sub-subsection (hi), requiring that the trial judge inform the defendant that the sentence may run concurrently or consecutively with another sentence, is included to insure that the defendant is aware of the additional consequences of his guilty plea. See Cooper v. State, 47 Ala.App. 178, 252 So.2d 104 (1971). Compare ABA Standards for Criminal Justice, Pleas of Guilty 14-1.4 (2d ed. 1986).... The Advisory Committee believes that, in light of the Boykin requirement that the trial judge ‘make sure that [the defendant] has a full understanding of what the plea connotes and of its consequence,’ the better practice is routine disclosure of such information.”

The appellant’s allegations that there was no discussion concerning whether his sentences would be served consecutively or concurrently and that he was misinformed that he would have to serve only five years total on the mandatory sentences is not disputed by the record. The trial judge’s colloquy with the appellant omitted the information whether the sentences could run concurrently or consecutively with another sentence. At the hearing on the motion to withdraw the guilty plea the trial judge stated that he found it hard to believe that the appellant’s trial attorney did not advise the appellant that he would have to serve the two five-year sentences consecu[559]*559tively. However, the trial court never stated that the appellant was in fact informed concerning consecutive and concurrent sentences. The Ireland forms executed by the appellant do not assure that he was informed that multiple sentences may, depending on the circumstances, be carried out concurrently or consecutively. An Ireland form seeks only an acknowledgment from a defendant that the defendant understands the penalty or penalties involved in pleading guilty. It is possible that a defendant who understands the penalties involved may not understand the options available to a trial judge or the restriction placed on a trial judge in implementing multiple sentences.2 Even though Rule 14.4(a)(l)(iii) contradicts easelaw decided prior to its effective date, we feel that the rationale behind this Rule, which is to ensure that “‘[the defendant] has a full understanding of what the plea connotes and of its consequence,’ ” is to ensure that a guilty plea is knowingly and voluntarily entered as mandated by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Committee Comments to Rule 14.4(a)(l)(iii). A defendant sentenced to multiple terms should be advised whether the trial judge has the discretion to order the sentences to be served consecutively or concurrently, or whether the law dictates consecutive sentences. We are not saying that a defendant has to be advised during the guilty plea colloquy how a trial judge will exercise any discretion, only that the defendant should be advised whether the trial court has any discretion in whether the sentences should be served consecutively or concurrently.

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Bluebook (online)
686 So. 2d 556, 1996 Ala. Crim. App. LEXIS 272, 1996 WL 583765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bozeman-v-state-alacrimapp-1996.