REL: 10/31/2014




Notice: This opinion is subject to formal revision before publication in the advance
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the opinion is printed in Southern Reporter.




          SUPREME COURT OF ALABAMA
                           OCTOBER TERM, 2014-2015
                            ____________________

                                    1131282
                             ____________________

                        Ex parte Stanford Pritchett

                      PETITION FOR WRIT OF CERTIORARI
                     TO THE COURT OF CRIMINAL APPEALS

                         (In re: Stanford Pritchett

                                           v.

                               State of Alabama)

                     (Marengo Circuit Court, CC-7-112;
                  Court of Criminal Appeals, CR-13-0438)



STUART, Justice.
1131282

    WRIT DENIED. NO OPINION.

    Bolin, Parker, Shaw, Wise, and Bryan, JJ., concur.

    Moore, C.J., dissents.

    Main, J., recuses himself.*




     *Justice Main was a member of the Court of Criminal
Appeals when that court considered an earlier appeal in this
case.

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1131282

MOORE, Chief Justice (dissenting).

    The trial court in this case denied Stanford Pritchett's

motion to withdraw his guilty plea. Because, in my view, the

Court of Criminal Appeals' unpublished memorandum affirming

the trial court's judgment, Pritchett v. State (No. CR-13-

0438, June 6, 2014), ___ So. 3d ___ (Ala. Crim. App. 2014)

(table),   conflicts   with   the   Alabama   Rules   of   Criminal

Procedure and with our precedent on the requirements for a

guilty-plea colloquy, I respectfully dissent from the denial

of Pritchett's petition for a writ of certiorari.

                              Facts

    Pritchett was charged with murder made capital because it

was committed by shooting into a vehicle; he pleaded guilty to

a lesser-included charge of murder and agreed to a negotiated

sentence of 23 years. During his plea hearing the trial judge

did not mention or review the explanation-of-rights form with

Pritchett or ask if he understood the rights he was waiving by

pleading guilty (except for the right to appeal). The trial

judge also did not review with Pritchett the maximum sentence

or minimum sentence for the crime to which he was pleading

guilty. The "Request for Guilty Plea" form Pritchett submitted


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1131282

listed the sentencing range for the offense of murder as being

from 10 to 99 years' imprisonment or life imprisonment. In

fact, the range was 20 to 99 years' imprisonment because of an

applicable firearm enhancement. § 13A-5-6(a)(4), Ala. Code

1975.

      Acting pro se, Pritchett moved to withdraw his guilty

plea. The trial court denied his motion. The Court of Criminal

Appeals affirmed its denial by an unpublished memorandum.

Pritchett v. State (No. CR-09-1050, Dec. 3, 2010), 92 So. 3d

816 (Ala. Crim. App. 2010) (table). This Court reversed the

Court    of   Criminal   Appeals'   judgment   on     the   ground   that

Pritchett was not represented by counsel in the proceedings on

his motion for withdrawal of the plea. Ex parte Pritchett, 117

So. 3d 356 (Ala. 2012). On remand, the trial court held a

hearing during which Pritchett's counsel raised the issue of

the     court's   failure    to     discuss    with    Pritchett      the

minimum/maximum sentencing range. The trial court again denied

Pritchett's motion to withdraw his guilty plea. The Court of

Criminal Appeals again affirmed, by unpublished memorandum,

and Pritchett petitioned this Court for certiorari review.

                             Discussion


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1131282

    Explaining its most recent affirmance of the denial of

Pritchett's motion to withdraw his guilty plea, the Court of

Criminal    Appeals     stated    in       its    unpublished      memorandum:

"Pritchett filed in the circuit court a request to enter a

guilty plea, which he and his attorneys signed, that clearly

states the sentencing range for murder. Further, Pritchett

pleaded guilty pursuant to a negotiated agreement and received

the sentence upon which he agreed." Neither of these reasons

is persuasive.

    "What    is   at    stake    for       an    accused    facing      death   or

imprisonment demands the utmost solicitude of which courts are

capable in canvassing the matter with the accused to make sure

he has a full understanding of what the plea connotes and of

its consequence." Boykin v. Alabama, 395 U.S. 238, 243-44

(1969).    Drawing     on Boykin,      this      Court     has   held    that   "a

defendant, prior to pleading guilty, must be advised on the

record of the maximum and minimum potential punishment for his

crime." Carter v. State, 291 Ala. 83, 85, 277 So. 2d 896, 898

(1973) (emphasis added). Although at one time the Court of

Criminal Appeals noted that the submission of "a written

explanation of rights signed by appellant was more than


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1131282

adequate to satisfy the requirements of Boykin," Ireland v.

State, 47 Ala. App. 65, 66, 250 So. 2d 602, 603 (Ala. Crim.

App. 1971), "a signed Ireland form is, alone, insufficient to

establish the voluntariness of a plea." Waddle v. State, 784

So. 2d 367, 370 (Ala. Crim. App. 2000).

    Effective January 1, 1991, the Alabama Supreme Court

adopted the Alabama Rules of Criminal Procedure. Rule 14.4 of

those Rules reads as follows, in pertinent part:

    "In all other cases [i.e., cases other than minor-
    misdemeanor cases], except where the defendant is a
    corporation or an association, the court shall not
    accept a plea of guilty without first addressing the
    defendant personally in the presence of counsel in
    open court for the purposes of:

         "(1) Ascertaining that the defendant has a full
    understanding of what a plea of guilty means and its
    consequences, by informing the defendant of and
    determining that the defendant understands:

               "(i) The nature of the charge and the
          material elements of the offense to which
          the plea is offered;

               "(ii) The mandatory minimum penalty,
          if any, and the maximum possible penalty
          provided by law, including any enhanced
          sentencing provisions ...."

Rule 14.4(a), Ala. R. Crim. P. (emphasis added).

    "The court may comply with the requirements of Rule
    14.4(a) by determining from a personal colloquy with
    the defendant that the defendant has read, or has

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1131282

    had read to the defendant, and understands each item
    contained in Form C-44B, CR-51, CR-52, or Form
    C-44A, as the case may be."

Rule 14.4(d), Ala. R. Crim. P.

    The trial court, though it engaged in a colloquy with

Pritchett, did not discuss with him the maximum and minimum

penalties for the crime of murder, nor did it mention or

discuss the CR-51 (Ireland) form that is used in non-habitual-

offender felony cases.1 The "Request for Guilty Plea" form

introduced at the hearing on Pritchett's motion to withdraw

his guilty plea, and cited by the Court of Criminal Appeals,

is not one of the forms identified in Rule 14.4(d), Ala. R.

Crim. P., as acceptable for use in conjunction with a guilty-

plea colloquy. In any event, that form contained incorrect

information and thus misinformed Pritchett that he faced a

minimum sentence of 10 years if convicted, rather than a

minimum sentence of 20 years.

    For   a   defendant's   decision   to   plead   guilty   to   be

intelligent and voluntary, the defendant must know the correct

    1
     The CR-51 form introduced into evidence at the hearing
on Pritchett's motion to withdraw his guilty plea was a blank
form with no particularized information written on it and no
signatures. According to the Court of Criminal Appeals, the
record of Pritchett's previous appeal contains an Ireland form
indicating that the minimum sentence for murder is 10 years.
                                7
1131282

minimum sentence he or she will face by pleading guilty. "When

an   accused   who   pleads   guilty   does   so   on   the     basis    of

misinformation as to the range of punishment the guilty plea

is involuntary." Handley v. State, 686 So. 2d 540, 541 (Ala.

Crim.   App.   1996).   Furthermore,    the   trial     judge    did    not

personally address Pritchett regarding either the "Request for

Guilty Plea" form or Form CR-51 as Rule 14.4(d) requires. The

Committee Comments to Rule 14.4 state:

          "Section (d) is included to accommodate the
     current Alabama practice of informing the defendant
     of his rights through a form similar to that
     approved in Ireland v. State, 47 Ala. App. 65, 250
     So. 2d 602 (1971), and subsequent cases. The rule,
     however, specifically retains the requirement that
     the trial judge ... specifically question the
     defendant concerning the information contained in
     each item. Thus, in every case, the record should
     affirmatively show a colloquy between the trial
     judge and the defendant concerning all such matters.
     ... This rule requires such a colloquy and requires
     that specific inquiry be made with regard to the
     rights set out in Rule 14.4(a)(1) and (2)."

(Emphasis added.)

     The Court of Criminal Appeals' holding in its unpublished

memorandum in this case that the "Request for Guilty Plea"

form, standing alone, satisfied the requirement that the plea

be voluntary was negated as long ago as 1973 in Carter. Rule

14.4, in effect since 1991, embodies the principle that

                                  8
1131282

without a colloquy to review a true Ireland form stating all

the rights the defendant is forgoing by pleading guilty, a

guilty plea is not voluntary. Furthermore, the unsupported

statement of the Court of Criminal Appeals that the trial

court did not have to inform Pritchett of the minimum and

maximum sentences because he had agreed to a negotiated plea

finds   no   recognition   in   the   Alabama   Rules   of   Criminal

Procedure or in prior cases. Surely the information that the

minimum sentence, if the defendant is found guilty, is 20

years, as opposed to 10 years, is necessary for a defendant to

make a knowing and intelligent decision either to plead guilty

or to go to trial.2

    Recently the Court of Criminal Appeals recognized this

principle in a case Pritchett cites frequently in his petition

for certiorari review. See Williams v. State, [Ms. CR-13-0436,

May 2, 2014] ___ So. 3d ___ (Ala. Crim. App. 2014) (holding


    2
     The Court of Criminal Appeals also argued that Pritchett
did not object to the trial court's failure to inform him of
the firearm enhancement. This objection, however, is included
in Pritchett's objection to the failure to inform him of the
correct sentencing range. See Anderson v. State, 668 So. 2d
159, 159 (Ala. Crim. App. 1995) (equating a failure to inform
a defendant of a sentencing enhancement with a failure to
inform him of "the correct minimum and maximum possible
sentences he could receive").
                                  9
1131282

that a guilty plea was involuntary where the defendant was not

informed that a firearm enhancement would increase the minimum

sentence by 10 years). Because informing Pritchett of the

maximum   and   minimum     possible    sentences   was   "an       absolute

constitutional prerequisite to acceptance of a guilty plea,"

Carter,   291   Ala.   at   85,   277   So.   2d   at   897,    I    believe

Pritchett's petition has merit. "The law in Alabama is clear

that the trial court's failure to correctly advise a defendant

of the minimum and maximum sentences before accepting his

guilty plea renders that guilty plea involuntary." White v.

State, 888 So. 2d 1288, 1290 (Ala. Crim. App. 2004). That the

sentence imposed (23 years) was within the legal range does

not control. "It does not matter that his sentence was legal.

'The accused's right to know the possible sentence he faces is

absolute.'" Bozeman v. State, 686 So. 2d 556, 559 (Ala. Crim.

App. 1996) (quoting Henry v. State, 639 So. 2d 583, 584 (Ala.

Crim. App. 1994)).

                              Conclusion

      I   would   grant     Pritchett's    petition     for    a    writ   of

certiorari (1) to examine the apparent conflict between the

Court of Criminal Appeals' decision in this case and prior


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1131282

decisions and (2) to maintain uniformity in our cases applying

Rule 14.4.




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