Smith v. State

435 So. 2d 185, 1983 Ala. Crim. App. LEXIS 4510
Court of Criminal Appeals of Alabama·Decided May 31, 1983·No. 1 Div. 411·Published·Cited by 1 cases

Opinion

LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction and sentence to imprisonment for five years on a plea of guilty to an indictment that charged in pertinent part that defendant:

“... Did unlawfully possess, Methylene-dioxy Amphetamine, a controlled substance contrary to and in violation of the provisions of the Alabama Uniform Controlled Substances Act, in violation of Title 20-2-70 of the Code of Alabama.”

Neither the transcript of the record proper nor the transcript of the proceedings is lengthy, but, within less than ten days after the rendition of the judgment of conviction and sentence and while the defendant was confined in the Baldwin County Jail, defendant gave notice of appeal and soon thereafter filed pro se in the office of the Clerk of the Circuit Court of Baldwin County some variously captioned motions or requests in pen and ink handwriting of about forty pages, which contained much material that is either superfluous or irrelevant and immaterial to a correct determination of the merits of this appeal. The defamatory nature of some of it makes it inappropriate for us to discuss it other than as we will do in the further course of this opinion.

There was considerable delay in the arrivT al in this Court of the transcript of the proceedings. Upon arrival of what purportedly was the complete record, including the transcript of the proceedings, it was soon discovered that there had been omitted therefrom an executed Ireland form (Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971)) and on motion of appellee, the record of the trial court was corrected so as to include the executed Ireland form.

We are now informed by the documents that have arrived in this court in this case that defendant-appellant has been displeased with each of the attorneys that have represented him, including his trial [186]*186attorney and his attorneys on appeal. His trial attorney withdrew as his counsel, and a different attorney was appointed to represent him on appeal, which attorney withdrew as his counsel, and another attorney was appointed to represent him on appeal. His last attorney filed a brief on behalf of appellant, in which he earnestly urged that the judgment of the trial court should be reversed. Said counsel also requested the privilege of making an oral argument, which request was granted by this court. However, the brief of counsel for appellant was filed before the record in the case had been corrected as above stated. On January 24,1983, appellant filed a pro se request “to remove court appointed attorney from the above-styled case,” and on January 27, 1983, his attorney filed a motion for leave to withdraw as counsel, which motion was promptly granted by this court, and the case was submitted on briefs on January 27, 1983.

During the latter part of 1982 and continuing through January 24, 1983, this court was deluged by correspondence, some in the form of requests and motions, from appellant in pen and ink handwriting and written by him while serving the sentence imposed on him in this case, which correspondence has all been answered by the Clerk of this Court, in accordance with her habitual courtesy, and appellant was advised thereby that his correspondence would be considered by the court as pro se briefs in his behalf, and this court is hereby complying with such assurance.

Included in the copious correspondence from appellant, is lengthy reference made by him to what he refers to as another appeal from the Circuit Court of Baldwin County “in regards to the Circuit Court’s denial to reduce an excessive appeal bond.” This correspondence addressed to the Presiding Judge of the Court of Criminal Appeals was also promptly answered by the Clerk, by which appellant was advised that this court had not received any record whatever from the trial court as to the other case.

Our review of all the documents now before us convinces us that none of the correspondence of appellant justifies a reversal of the judgment of the trial court. Although we take into consideration pro se argument on behalf of appellant, as well as argument of his counsel, it is not proper for us to consider, or to pass upon the merits of, any of his factual aspersions not supported by the record proper or the transcript of the proceedings. We now turn to a consideration of legal questions presented in brief of counsel for appellant and counsel for appel-lee.

There would have been considerable merit in the argument of appellant’s then counsel that, in the absence of the Ireland form at that time from the record on appeal, the record failed to show that the defendant was advised of his constitutional rights essential to the valid acceptance of a defendant’s guilty plea, as set forth in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and other cases, including Dingier v. State, Ala. 408 So.2d 530 (1981), cited in the brief of counsel for appellant, but the merit of such argument was discontinued by the subsequent supplemental record that included the completed “Ireland form,” signed by the trial judge, the defendant’s attorney and the defendant himself. It should be noted that in Dingier, supra, there was no “Ireland form.”

It is also stated in the brief of counsel for appellant that “a guilty plea cannot be voluntary if the Defendant is not informed of the elements of the crime with which he is charged. Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976).” The first sentence in the majority opinion in Henderson v. Morgan is as follows: “The question presented is whether a defendant may enter a plea of guilty to a charge of second-degree murder without being informed that intent to cause the death of the victim was an element of the offense.” There are many crimes as to which the opinion in the cited case would be inap-posite, as it is to the instant case, we think. Furthermore, in the cited case, the extraordinarily low mentality of the defendant was [187]*187emphasized as a material factor, while, in the instant case, there is an entire absence of any indication of any subnormality of mind of defendant. On the contrary, as demonstrated by his extensive correspondence, he is mentally alert and intelligent, even though the exercise of good judgment by him in proceeding at cross-purposes with his legal counsel may be questionable.1

In another contention in the brief of counsel for appellant, he says:

“... The procedure followed by the Court is directly contrary to that suggested in Cooper v. State, 53 Ala.App. 36, 297 So.2d 169 (1973), in which all inquiries are made before the plea is accepted. The record in this case demonstrates a colloquy which falls far short of Cooper’s suggested inquiries and certainly does not lay a foundation to establish that the Defendant had a full understanding of the nature of charges against him, what a plea of guilty connotes and its consequences.”

This contention is not without some basis, which is to be found in the fact that prior to the conclusion of “all inquiries” by the trial court of the defendant, the trial court stated:

“Alright [sic].

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Smith v. State, 435 So. 2d 185, 1983 Ala. Crim. App. LEXIS 4510 (Ala. Ct. App. 1983).

435 So. 2d 185 (Smith v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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