Culver v. State

549 So. 2d 568, 1989 Ala. Crim. App. LEXIS 650
CourtCourt of Criminal Appeals of Alabama
DecidedJune 30, 1989
StatusPublished
Cited by15 cases

This text of 549 So. 2d 568 (Culver 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
Culver v. State, 549 So. 2d 568, 1989 Ala. Crim. App. LEXIS 650 (Ala. Ct. App. 1989).

Opinion

549 So.2d 568 (1989)

Jerome CULVER
v.
STATE.

4 Div. 917.

Court of Criminal Appeals of Alabama.

April 14, 1989.
On Return to Remand June 30, 1989.
Rehearing Denied August 25, 1989.

Thomas K. Brantley, Dothan, for appellant.

Don Siegelman, Atty. Gen., and Beth Jackson Hughes, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

Jerome Culver appeals from the denial of his A.R.Crim.P.Temp. 20 petition by the Circuit Court of Houston County, wherein he questions the legality of his prior conviction for violation of the Controlled Substances Act. He was charged with the offense of selling marijuana, and was represented by retained counsel. He entered a guilty plea, pursuant to a plea bargain agreement in which the district attorney agreed to, and did, recommend a ten-year sentence to the trial court. Culver was adjudged guilty and was sentenced to ten years in prison. Thereafter, he learned that his trial counsel had misinformed him about his eligibility for the Supervised Intensive Restitution (hereinafter "SIR") program. "[N]o inmate who has ever been convicted of ... selling or trafficking in controlled substances ... shall be eligible for such inmate community reintegration under the supervised intensive restitution program." Ala.Code (1975), § 15-18-113. Because of his counsel's action in this regard, he filed this Rule 20 petition, alleging ineffective assistance of counsel. After a hearing on the petition, it was denied. Culver *569 appeals. On appeal, he contends that but for the erroneous advice of his counsel, which he says led him to believe that he would be eligible for the SIR program, he would not have pleaded guilty. He requests that he be allowed to withdraw his guilty plea, enter a not guilty plea, and be tried on the merits.

When an evidentiary hearing is held on a Rule 20 petition, "[t]he court shall make specific findings of fact relating to each material issue of fact presented." A.R. Crim.P.Temp. 20.9(d). We have reviewed the record before us and we find that it does not contain findings of fact as required by Rule 20.9(d). Therefore, this cause is due to be, and it is hereby, remanded to the circuit court with instructions to include its findings upon return to remand.

REMANDED WITH INSTRUCTIONS.

All Judges concur.

ON RETURN TO REMAND

We remanded this case to the trial court on April 14, 1989, with instructions to make specific findings of fact, pursuant to A.R. Crim.P.Temp. 20.9(d),[1] and file such findings with this court. The trial court having filed a return to remand, we now address the issue raised by appellant on appeal.

On October 20, 1986, appellant, Jerome Culver, as a result of a plea bargain agreement, pleaded guilty to selling marijuana, a controlled substance, and was sentenced to ten years' imprisonment. He was represented at the time by retained counsel. On March 10, 1987, he filed a pro se petition for writ of error coram nobis, alleging ineffective assistance of counsel and the prosecution's failure to disclose the evidence against him during the guilty plea proceedings. His allegations of ineffective assistance of counsel were conclusory only, containing no factual assertions. Counsel was appointed to represent appellant in the coram nobis proceedings and, after an evidentiary hearing, the petition was denied. Culver appeals, raising one issue.

He contends that he received ineffective assistance of counsel that rendered his guilty plea unknowing and involuntary because his attorney at the time had misinformed him about the eligibility requirements of the Supervised Intensive Restitution (hereinafter "SIR") program. He argues that the record makes it clear that the incorrect information furnished by his attorney regarding his eligibility to participate in the SIR program was the sole factor that induced him to plead guilty. Our review of the record does not lead us to the same conclusion.

The record reveals that appellant's counsel never told him definitely that he would be placed on the SIR program; rather, counsel informed Culver about the program, and stated that he might be eligible for the program. Counsel's advice was erroneous to the extent that he advised appellant that he might be eligible when, in fact, he was ineligible for the program because of the drug conviction. Ala.Code (1975), § 15-18-113. The record in this regard reflects the following:

"Q. [Appellant's counsel]: What conversations, if any, did you have with Gene [defense counsel during the guilty plea proceedings] regarding the SIR program?
"A. [Appellant]: Well, he told me that, you know, he had another defendant had a prior case to mine, you know, and I might stand a chance of getting it if I cop out, you know.
"Q. Okay. What effect did Mr. Spencer telling you about the SIR program have in your decision to accept the ten-year plea arrangement?
"A. Well, he said if I get the SIR program, if I cop out, I could get out within a ninety-day period of time.
"Q. Okay. Did Gene tell you that—did that play a big part or a small part in you deciding to cop the plea?

*570 "A. Well, I was—I was going by what he said. I was hoping that I would get out in ninety days, you know, if I copped out, you know.

"Q. So would it be fair to say that it was a major factor?
"A. Yes, sir.
"Q. If you had not—if you had not been led to believe that you would be eligible for the SIR program, would you have pled guilty?
"A. No, sir.
"Q. Okay. When did you find out that, in fact, that you would not be eligible for the SIR program?
"A. When they sent me to prison, you know....
"....
"Q. [Prosecutor on cross-examination]: Tell us how that SIR program influenced your decision to plead guilty?
"A. [Appellant]: Well, I thought I was going to get out in ninety days if I copped out. That I could get out on ninety days on the SIR program.
"Q. So that's why you pleaded guilty to ten years in the penitentiary?
"A. Not only that because my lawyer, sir, that I—he said that I could get the SIR program if I copped out.
"Q. He didn't say you could get it? He said you might get it? Isn't that what he said?
"A. He said I might—he said I might be qualified to get it. I might stand a chance of getting it, you know.
"Q. He didn't guarantee you, though, did he?
"A. I can't say—can't recall to my knowledge, you know. I remember him saying that, you know, I—if I cop out that I might can get the SIR program. Like the other offender, he said, had the same case that I had.
"....
"Q. [Appellant's counsel]: After you and Jerome had the discussion that it would be in his best interest to plead and you stated before that you talked about many different options, the good things and the bad things that will happen when you go to court or when you don't go to court, did you specifically—what specifically did you tell him about the SIR program?
"A. [Appellant's attorney at the guilty plea proceedings]: I explained how it worked to the best of my knowledge.

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Bluebook (online)
549 So. 2d 568, 1989 Ala. Crim. App. LEXIS 650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/culver-v-state-alacrimapp-1989.