Kinard Julius Henson v. State of Alabama.

100 So. 3d 1129, 2011 WL 5252753, 2011 Ala. Crim. App. LEXIS 97
CourtCourt of Criminal Appeals of Alabama
DecidedNovember 4, 2011
DocketCR-10-0649
StatusPublished

This text of 100 So. 3d 1129 (Kinard Julius Henson v. State of Alabama.) 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
Kinard Julius Henson v. State of Alabama., 100 So. 3d 1129, 2011 WL 5252753, 2011 Ala. Crim. App. LEXIS 97 (Ala. Ct. App. 2011).

Opinion

JOINER, Judge.

Kinard Julius Henson appeals his guilty-plea convictions and subsequent sentences for attempted murder, a violation of § 13A-4-2, Ala.Code 1975, and bribing a witness, a violation of § 13A-10-121, Ala. Code 1975.1 Henson was sentenced to 15 years’ imprisonment on each charge, the sentences to run concurrently with the other, as well as with any other sentence. Henson now appeals, arguing that his pleas were not voluntary and, further, that both of his sentences fall outside the statutorily prescribed sentencing range. For the reasons explained below, we affirm in part, reverse in part, and remand with instructions.

On August 23, 2010, pursuant to a plea agreement, Henson entered guilty pleas to the charges of attempted murder and bribing a witness.2 (C. 28.) During his plea colloquy, the Court advised Henson that attempted murder, a Class A felony, “carries a penalty of between ten years and ninety-nine years or life.” The court also advised Henson that his second charge, bribing a witness, a Class C felony, “carries a penalty between ... one and ten [years].” Finally, before accepting Henson’s guilty pleas, the court inquired whether Henson’s pleas were the result of threats or force, and Henson indicated that they were not. (R. 4-5.)

Following Henson’s admission of guilt, the State proffered an account of the evidence against Henson. According to the State, Henson used his cousin Roderick Sykes to shoot and attempt to kill Larry Barker, a straw buyer in a mortgage scheme in which Henson was involved and for which Henson was then being investigated by federal authorities.3 (R. 5-7.) Although the trial court accepted Henson’s guilty pleas, adjudication was withheld so that Henson could first address federal charges in New Jersey on “money laundering, mail fraud[,] and intimidating a witness by attempted murder.” (R. 7-8.)

On October 26, 2010, two days before Henson’s sentencing date, Henson filed a “Motion to Set Aside Guilty Plea.” (C. 54-55.) In his motion, Henson argued that his “plea was a product of coercion and threat to [Henson] and [his] family.” Specifically, Henson alleged that “his father [1131]*1131and mother’s life, as well as his wife’s life, [were] threatened[] if [Henson] did not accept the responsibility for the attempted murder.” (C. 54.) In a hearing on his motion, Henson testified that he “plead[ed] guilty because [his] family was threatened and [he] had to [plead guilty] to save [his] family.” (R. 17.) According to Henson, his family was threatened by Darrell Henry, the “originator” of the mortgage scheme in New Jersey and the individual who had put Henson in contact with Barker, the victim. Henson, however, testified only briefly before ending his testimony on the advice of his counsel.4 (R. 21-24.)

Henson’s father, John Henson (hereinafter “John”), was the only other witness to testify at the hearing. He testified that he learned, through a series of telephone conversations with his son, that Henry was threatening Henson, John, and other members of Henson’s family; John’s testimony, however, largely consisted of his recollections of telephone conversations with Henson in which Henson relayed threats allegedly made by Henry. John also testified that he and his wife relocated to Alabama from New Jersey as a result of the threat posed by Henry. On cross-examination, however, John acknowledged that he had no firsthand knowledge of any threat posed by Henry. Specifically, John testified that his understanding of the threat posed by Henry was based solely on his conversations with Henson and, further, that Henry had never personally threatened John. (R. 39, 42.) John also testified that he was first apprised of the alleged threats in July 2008 (R. 48) but that he did not relocate to Alabama until June 2010. (R. 46.) Finally, John acknowledged that he had had a recent encounter with Henry at a bank in New Jersey that was neither frightening nor threatening. (R. 41-42.)

At the close of the hearing on Henson’s motion to set aside his guilty pleas, the State urged the court to deny Henson’s motion, arguing that the timing of the motion was suspect; specifically, the State noted that the cases against Henson’s two codefendants had been resolved and, thus, that the State could expect no further cooperation from either codefendant. (R. 62.) Henson argued, however, that there was no evidence indicating that Henson was aware of the status of the cases against his codefendants before he filed his motion. (R. 62.) At the conclusion of the hearing, the circuit court denied Henson’s motion, finding that Henson’s pleas had been “made freely, understandingly, knowingly, and voluntarily.” (R. 64.) The circuit court proceeded to sentence Henson, stating as follows:

“I’m going to sentence you now in accordance with the agreement that your attorney made with the State’s attorney and I’m going to sentence you on the attempted murder to fifteen years in prison. On the bribing a witness, I sentence you to fifteen years for that and I run them concurrent.”

(R. 66.)

Henson subsequently filed a “Renewed Motion to Set Aside Guilty Plea and For New Trial.” (C. 56.) In addition to “re-alleg[ing] and re-assert[ing] each and every allegation set forth in his original [m]otion,” Henson argued only that his “plea was involuntary” and that his “plea was made by coercion.” (C. 56.) The circuit court denied the motion. On appeal, Henson argues that his guilty pleas were not voluntary and, further, that both his sen[1132]*1132tences fall outside the permissible statutory range. We address each issue in turn.

I.

Rule 14.4(e), Ala. R.Crim. P., states that “[t]he court shall allow withdrawal of a plea of guilty when necessary to correct a manifest injustice.” “ ‘Whether a defendant should be allowed to withdraw a guilty plea is a matter within the discretion of the trial court, whose decision will not be disturbed on appeal absent a showing of abuse of that discretion.’ ” Johnson v. State, 886 So.2d 900, 902 (Ala.Crim.App.2008) (quoting Ex parte Blackmon, 734 So.2d 995, 997 (Ala.1999)). “‘Moreover, any conflicting evidence is not subject to review on appeal unless it is shown that the trial court abused its discretion. Ex parte Heaton, 542 So.2d 981 (Ala.1989).’ ” Cobb v. State, 895 So.2d 1044, 1048 (Ala.Crim.App.2004) (quoting Duncan v. State, 838 So.2d 1064, 1065 (Ala.Crim.App.2000)).

The voluntariness of a guilty plea •will not be addressed by an appellate court absent a showing that the trial court was first given the opportunity to address the specific issue. See Ex parte Parks, 892 So.2d 372, 374 (Ala.2004) (explaining that the prerequisites to appeal a claim that a guilty plea was involuntary are that “ ‘the defendant ... either (1) make a motion before the trial court to withdraw the guilty plea or (2) file a Rule 32 petition before the trial court. Through either avenue, the trial court must be given the opportunity to address this issue.’ ” (quoting Stinson v. State, 669 So.2d 1010, 1011 (Ala.1995))); see also Ginn v. State, 894 So.2d 793, 795 (Ala.Crim.App.2004) (noting, with respect to an argument on appeal related to the voluntariness of a guilty plea, “[bjecause this specific claim was not first presented to the trial court, it is not properly before this Court for review”).

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Duncan v. State
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Durr v. State
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Andrews v. State
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Daniels v. State
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Johnson v. State
886 So. 2d 900 (Court of Criminal Appeals of Alabama, 2003)
Ex Parte Blackmon
734 So. 2d 995 (Supreme Court of Alabama, 1999)
Brooks v. State
854 So. 2d 643 (Court of Criminal Appeals of Alabama, 2003)
Ginn v. State
894 So. 2d 793 (Court of Criminal Appeals of Alabama, 2004)
Cantu v. State
660 So. 2d 1026 (Supreme Court of Alabama, 1994)
Parks v. State
892 So. 2d 372 (Supreme Court of Alabama, 2004)
Cobb v. State
895 So. 2d 1044 (Court of Criminal Appeals of Alabama, 2004)

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Bluebook (online)
100 So. 3d 1129, 2011 WL 5252753, 2011 Ala. Crim. App. LEXIS 97, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kinard-julius-henson-v-state-of-alabama-alacrimapp-2011.