E-Filed 03/08/2013 @ 05:06:21 PM Honorable D.

Scott Mitchell Clerk Of The Court

CR-12-0229 In the Court of of Criminal Alabama AMY BISHOP ANDERSON, Appellant, v. STATE OF ALABAMIA, Appellee. On A p p e a l f r o m t h e C i r c u i t Madison County (CC-11-1131) BRIEF OF APPELLEE Court of Appeals

Luther Strange Attorney General M i c h a e l G. Dean Assistant Attorney Counsel o f Record*

General

Office of the Attorney General C r i m i n a l Appeals D i v i s i o n P.O. Box 300152 501 W a s h i n g t o n A v e n u e Montgomery, AL 36130-0152 (334)242-7300; (334)353-0415* F a x : (334)242-2848 docketroom@ago.state.al.us

STATEMENT REGARDING ORAL ARGUMENT The App. State does not request oral argument. See A l a . R.

P. 3 4 ( a ) ( 3 ) .

TABLE OF CONTENTS STATEMENT REGARDING ORAL ARGUMENT TABLE OF CONTENTS TABLE OF AUTHORITIES STATEMENT OF THE CASE STATEMENT OF THE ISSUES STATEMENT OF THE FACTS STANDARDS OF REVIEW SUMMARY OF THE ARGUMENT ARGUMENT I. A n d e r s o n W a i v e d H e r R i g h t To A p p e a l As P a r t Of Her P l e a A g r e e m e n t s W i t h The S t a t e , A n d T h i s C o u r t S h o u l d D i s m i s s Her A p p e a l Anderson Failed A p p e l l a t e Review To Preserve Her Claims For 20 i i i v 1 4 5 12 14 17

17

II.

I I I . A n d e r s o n ' s C h a l l e n g e s To The V o l u n t a r i n e s s Of Her G u i l t y P l e a s A r e M e r i t l e s s A. Anderson's C l a i m That H e r G u i l t y P l e a s Were R e n d e r e d I n v o l u n t a r y B e c a u s e o f t h e T r i a l C o u r t ' s F a i l u r e t o I n f o r m Her o f t h e C o r r e c t Minimum P o t e n t i a l Sentence f o r t h e Attempted Murder Charges During the G u i l t y Plea Colloquy I s M e r i t l e s s 1. The t r i a l c o u r t ' s u s e a n d a c c e p t a n c e of t h e I r e l a n d form s a t i s f i e d t h e r e q u i r e m e n t s o f R u l e 1 4 . 4 ( a ) (1) ( i i ) of t h e Alabama R u l e s of Criminal Procedure

22

25

26

ii

TABLE OF CONTENTS - (continued) 2. Despite the trial court's misstatement during the colloquy, Anderson k n o w i n g l y and v o l u n t a r i l y pleaded g u i l t y

31

B.

A n d e r s o n ' s C l a i m T h a t H e r G u i l t y P l e a Was Rendered Involuntary Because t h e T r i a l C o u r t F a i l e d t o I n f o r m H e r T h a t She Was W a i v i n g t h e R i g h t t o A p p e a l by P l e a d i n g Guilty Is Meritless Anderson's C l a i m That Her G u i l t y Pleas Were R e n d e r e d I n v o l u n t a r y by t h e T r i a l C o u r t ' s A l l e g e d F a i l u r e t o G i v e H e r an O p p o r t u n i t y t o Comment on H e r A t t o r n e y s ' Performance I s M e r i t l e s s Anderson's C l a i m That Her G u i l t y Pleas Were R e n d e r e d I n v o l u n t a r y by t h e T r i a l C o u r t ' s A l l e g e d F a i l u r e t o Determine That She Understood the Nature and t h e M a t e r i a l Elements o f t h e Charges a g a i n s t Her I s M e r i t l e s s Anderson's C l a i m That Her G u i l t y P l e a t o the C a p i t a l M u r d e r C h a r g e Was R e n d e r e d I n v o l u n t a r y B e c a u s e She Was R e q u i r e d t o P r o c e e d t o T r i a l on T h a t C h a r g e D e s p i t e B e i n g T o l d T h a t She Was W a i v i n g H e r R i g h t to a Trial by Pleading Guilty Is Meritless A n d e r s o n ' s C l a i m s That Her G u i l t y P l e a s Were Rendered Involuntary Because t h e T r i a l C o u r t F a i l e d t o I n f o r m H e r T h a t She Had t h e R i g h t t o P e r s o n a l l y C o n f r o n t t h e W i t n e s s e s A g a i n s t H e r a n d T h a t She Had t h e R i g h t t o Have t h e A i d o f C o m p u l s o r y P r o c e s s i n S e c u r i n g t h e A t t e n d a n c e o f Any W i t n e s s e s T h a t She Wanted t o T e s t i f y A r e Meritless

40

C.

42

D.

44

E.

48

F.

49

i ii

TABLE OF CONTENTS - (continued) G. Anderson I s S i m p l y Not E n t i t l e d to a R e v e r s a l B a s e d on H e r C h a l l e n g e s t o t h e V o l u n t a r i n e s s o f Her G u i l t y P l e a s

52

IV.

A n d e r s o n ' s C l a i m T h a t The T r i a l C o u r t E x c e e d e d I t s A u t h o r i t y When I t S e n t e n c e d H e r B e c a u s e I t D i d Not G i v e Her I n f o r m a t i o n About Her R i g h t To A p p e a l I s M e r i t l e s s

54 57 58

CONCLUSION CERTIFICATE OF SERVICE

iv

TABLE OF AUTHORITIES Cases A l d e r m a n v . S t a t e , 615 So. 2 d 640 ( A l a . C r i m . A p p . 1992) Bank of Anniston v. Farmers & M e r c h a n t s S t a t e Bank o f Krum, T e x . , 507 So. 2 d 927 ( A l a . 1987) Brown v . S t a t e , 695 So. 2 d 153 ( A l a . C r i m . A p p . 1996) Brown v . S t a t e ^ 705 So. 2 d 871 C r i m . A p p . 1997) Cashin (Ala. v. S t a t e , 428 So. C r i m . A p p . 1982) (Ala. 21 31

39-40

29-30, 41, 43, 45, 51

2 d 179 31 2 d 331 33

Clemons v . S t a t e , 542 So. ( A l a . C r i m . A p p . 1989)

C o c h r a n v . S t a t e , CR-10-0516, 2012 WL 2481649 ( A l a . C r i m . A p p . June 29, 2012) D a v i s v . S t a t e ^ 348 So. 2 d 844 ( A l a . C r i m . A p p . 1977) D i n g l e r v. S t a t e , ( A l a . 1981) Ex parte C o u l l i e t t e , ( A l a . 2003) Sorsby, 408 So. 2 d 530

46

26

32 857 So. 2 d 793 12, 21

Ex p a r t e 2007) Gordon (Ala.

12 So. 3d 139 ( A l a . 12, 2 d 871 33 18-19

v. S t a t e , 692 So. C r i m . A p p . 1996)

TABLE OF AUTHORITIES - (continued) Cases - (continued) Handley v. S t a t e , 686 So. 2 d 540 ( A l a . C r i m . A p p . 1996) (on r e t u r n t o remand) H i l l v . L o c k h a r t , 474 U.S. S. C t . 366 (1985) 52, 106 12, 31

33

I r e l a n d v . S t a t e , 4 7 A l a . App. 65, 250 So. 2 d 602 (1971) McCary v. S t a t e , 93 So. ( A l a . C r i m . A p p . 2011) 3d 1002

25

33

M c C l a r e n v . S t a t e , 500 So. 2d 1325 ( A l a . C r i m . A p p . 1986) M c D o u g a l v . S t a t e , 526 So. 2 d 897 ( A l a . C r i m . A p p . 1988) N i c k s v . S t a t e , 783 So. 2 d 895 ( A l a . C r i m . A p p . 1999) N o r t h C a r o l i n a v. A l f o r d , 25, 91 S. C t . 160 (1970) 400 U.S.

33

36-37, 39-40, 42, 52

46-47

35 33-35

Peoples v. S t a t e , 651 So. 2 d 1125 ( A l a . C r i m . A p p . 1994) P i t t s v. U n i t e d S t a t e s , ( 6 t h C i r . 1985) 763 F.2d 197

35

P r i t c h e t t v . S t a t e , 686 So. 2d 1300 ( A l a . C r i m . A p p . 1996) R i l e y v . S t a t e , 892 So. 2 d 471 C r i m . A p p . 2004) Sanders v. S t a t e , 414 So. ( A l a . C r i m . A p p . 1982) (Ala.

32, 35-36

30, 33

2 d 482 53

vi

TABLE OF AUTHORITIES - (continued) Cases - (continued) S h o u l d i s v . S t a t e , 953 So. 2d 1275 ( A l a . C r i m . A p p . 2006) T r i c e v . S t a t e , 601 So. 2 d 180 ( A l a . C r i m . A p p . 1992) Twyman (Ala. v. S t a t e ^ 1974) 300 So. 2d 124 26, 30 539 F.2d 32 2d 367 26, 29, 3 1 , 41, 43, 45, 51

21

31-35

U n i t e d S t a t e s v. O'Donnell, 1233 ( 9 t h C i r . 1976) Waddle v . S t a t e , 784 ( A l a . C r i m . A p p . 2000) So.

Watson v . S t a t e , 808 So. 2d 77 ( A l a . C r i m . A p p . 2001) W h i t e v . S t a t e , 4 So. 3d 1208 C r i m . A p p . 2008) White v. S t a t e , 888 So. ( A l a . C r i m . A p p . 2004)
Williams v. Smithy 591 F.2d

19-20

(Ala. 33

2 d 1288 33
169 (2d

Cir.

1979)

34-35

Statutes Code o f A l a b a m a 13A-4-2 13A-4-2 (d) (1) 13A-5-6(a) 13A-5-6 (a) (4) (1975) 1 27 27 27

v ii

TABLE OF AUTHORITIES - (continued) S t a t u t e s - (continued) 13A-5-40(a) (10) 13A-5-42 13A-6-2 1 2, 49 1

Rules Ala. R. A p p . P. i

34(a) (3)

Ala.

R. C r i m . P. 4, 14-15, 17, 22-23, 26, 31, 52-53 44-45 26, 29, 39 49-52 40-41 26 42-43 26, 29, 3 1 , 41, 43, 45, 51 53 15-17, 54-55 13

14.4(a) 1 4 . 4 ( a ) (1) ( i ) 14. 4 (a) (1) ( i i ) 14. 4 (a) (1) ( v i ) 14. 4 (a) (1) ( v i i i ) 14.4 (a) (1-2) 1 4 . 4 ( a ) (3) 14.4(d) 14.4(e) 2 6 . 9 ( b ) (4) 26.9 (b) (4) ( i - i i )

vi i i

STATEMENT OF THE CASE Amy Bishop Anderson appeals of capital from her guilty plea counts life

convictions of attempted

o f one c o u n t murder without

murder and t h r e e sentences of parole

and h e r r e s u l t i n g the p o s s i b i l i t y and l i f e

of

imprisonment capital of

(for the ( f o r each

murder

conviction) murder

imprisonment

her attempted

c o n v i c t i o n s ) . See (C. 11-12, 676, County Circuit guilty

685; Court plea,

R. 162, 167; Supp. R. 1, 8-9) . M a d i s o n Judge trial, D. A l a n Mann p r e s i d e d over

Anderson's

and s e n t e n c i n g p r o c e e d i n g s .

See (C. 1; R. 1;

Supp. R. 1 ) . On indicted the March 11, 2011, t h e Madison f o r one c o u n t murders of County Grand Jury on

Anderson

of capital people

murder based pursuant of

intentional or

of three

t o one 13A-5of

scheme

course

conduct

i n violation

40(a)(10) attempted the Code

o f t h e Code murder

o f Alabama,

and t h r e e

counts

i n violation

o f 13A-4-2 a n d 13A-6-2 o f On S e p t e m b e r pleaded

1

o f Alabama. waived

(C. 2, 15-17) and

22, guilty

2011, by

Anderson

arraignment

not

reason of mental

disease or defect.

(C.

416)

The w a i v e r o f a r r a i g n m e n t f o r m i n d i c a t e s t h a t Anderson o n l y p l e a d e d not g u i l t y by reason o f mental d i s e a s e o r defect. (C. 416) B u t t h e t r i a l court stated during
1

Anderson agreements charge on with

eventually the State,

entered one

into for the

separate capital

plea murder and

and one

f o r the three 11, 2012, she

a t t e m p t e d murder pleaded 676-78; capital charge

2

charges, to R.

September (C. one a

guilty Supp.

a l l four 1, the 8-9) trial by R. 1

charges. Because court

11-12, the

668-69, charges was

of

murder, as

held

jury

trial

on

that

required 685;

13A-5-42 164) . On charge

o f t h e Code

of Alabama.

See

(C. 676,

S e p t e m b e r 24, 2012, t h e t r i a l began. and See (R. 1). Prior prosecutors them to

of the c a p i t a l trial,

murder her

Anderson, into

attorneys, stipulations, of various victim,

the

entered to

numerous

among of

stipulations and the

the

authenticity of death of was

items as

evidence as a

causes that "able

each

well

stipulation

Anderson to

competent the the nature time

t o stand

trial

and h a d b e e n or wrongfulness, (C.

understand

and q u a l i t y , of the

of her a c t i o n s " at R. 5) At the

offenses.

765-69;

Anderson's g u i l t y p l e a c o l l o q u y n o t g u i l t y . (Supp. R. 5)
2

that

she

had

also

pleaded

S e c t i o n 13A-5-42 p r o v i d e s t h a t , while a defendant may plead guilty to a capital offense, the State must n e v e r t h e l e s s prove her g u i l t t o a j u r y beyond a reasonable doubt. 2

conclusion verdict

of

the

one-day t r i a l , Anderson guilty

the of

sworn j u r y capital R. 1, 10,

returned murder 162)

a as

finding

charged i n the i n d i c t m e n t . Immediately Anderson, life after to the the

(C. 676, trial, plea

685; the

trial

court to a

sentenced term for of of her life (C.

pursuant

agreements,

imprisonment without murder

the p o s s i b i l i t y to

of p a r o l e terms

capital

c o n v i c t i o n and attempted

consecutive

imprisonment 11-12, for did filed 668,

f o r her

murder did not see

c o n v i c t i o n s . See reserve (Supp. R. any

676-77) . A n d e r s o n before pleading

issues nor she

appeal she

guilty,

2-10),

file

any of

post-trial appeal now on

motions. 5,

Nevertheless, 2012. (C.

a notice

November

698-99,

704-05) T h i s a p p e a l

follows.

STATEMENT OF THE ISSUES 1. waived she Should her right Anderson's t o appeal appeal as p a r t be d i s m i s s e d , of the plea where s h e agreements

made w i t h t h e S t a t e ? 2. Has A n d e r s o n p r e s e r v e d where she d i d n o t f i r s t h e r arguments f o r a p p e l l a t e present those arguments t o

review

the t r i a l 3. challenges the trial

court? I s Anderson entitled to a reversal of her g u i l t y based pleas, of on h e r where Rule

to the voluntariness court complied with

the requirements Procedure

14.4(a) respects

o f t h e Alabama

Rules

of Criminal the record pleaded

ina l l that

a n d , more i m p o r t a n t l y ,

establishes guilty? based

A n d e r s o n k n o w i n g l y and v o l u n t a r i l y 4. claim without she trial to I s Anderson that the t r i a l entitled court

to a reversal erred when

on h e r

i t sentenced her t o appeal i f where t h e

informing moved

her that

she would

be a b l e

first court

t o withdraw

her g u i l t y t o inform

pleas,

was n o t r e q u i r e d

h e r what s h e n e e d e d s h e h a d no r i g h t to

do t o a p p e a l

a n d , i n any e v e n t ,

appeal?

STATEMENT OF On in the February 12, 2010, Amy at

THE

FACTS a professor in

Bishop Anderson, the University meeting 101,

b i o l o g y department s t o o d up

of Alabama and

Huntsville, of her

during a faculty (R. 69-71,

shot s i x In the

c o l l e a g u e s . See on her

83-84,

105). three Maria

assault Dr. See 13; Gopi (C.

co-workers, Dr. Adriel 778-79, also one

Anderson Johnson, 786-87; R.

killed and Dr.

people: Davis. 112 she

Podila, 16, R.

770-71,

89-95,

104-05,

Supp. to

8-9) . She at 8-9). of fact 76-77, least

wounded t h r e e more. See (C.

o t h e r s , and 16; R.

tried 102;

shoot

89-95,

Supp. R. The

genesis in See the (R.

Anderson's that 82, she 84,

violent had

outburst been

appears denied begun in

rooted tenure.

recently

108-09) . A n d e r s o n had

the process her fifth

of a p p l y i n g f o r tenure year at the

i n 2008, when she was See (R. 72,

university. faculty denied, final

75-76) . that of her the

However,

the

departmental be the

recommended and the

application university, concurred.

f o r tenure who had

provost

decision,

ultimately

(R. 76-77, 108-09) appealed lacked the the denial power of to tenure actually to the faculty the

Anderson senate, which

overrule

denial

of

tenure,

but See

nevertheless (R. 77)

could

recommend

that

t e n u r e be g r a n t e d . the faculty senate the

In Anderson's case, decided not tenure to

however, recommend

ultimately of

overturning (R. 77)

denial

Anderson's

application. request f o r and because that

A c c o r d i n g l y , the d e n i a l became final in the

of Anderson's of 2009,

tenure

Fall

A n d e r s o n had been w o r k i n g point, not her 09) . During repeatedly professor against and help the asked who was course Dr. be the d e n i a l renewed

on y e a r l y meant

c o n t r a c t s up u n t i l that her

of tenure

c o n t r a c t would would 84, be

and t h a t t h e 2009-2010 s c h o o l y e a r See (R. 72, 78, 82,

last

at the u n i v e r s i t y .

108

of

the

appeal Moriarty,

process, another but

Anderson biology had voted

Debra

friendly request, the

with to

Anderson change her

her

tenure have

recommendation application also

her (R.

denial 71-72,

of

her

tenure 97)

reversed. continued their

68-69,

78-79,

Anderson by

"bugging"

other her

faculty quest

members

soliciting (R. 81) She

assistance with

f o r tenure.

e v e n went so f a r as t o t r y t o s p e a k d i r e c t l y and t h e u n i v e r s i t y p r e s i d e n t about her case;

t o the provost however, they

r e f u s e d t o see h e r . (R. 96)

According about" the

to

Dr.

Moriarty, of tenure, denial" (R. she with

Anderson and than

"was she

very was

agitated far more

denial about the

"boisterous who told did are Dr. file

most At one

other point,

professors Anderson and she

denied

tenure. that

79-81) had

Moriarty a

thought about s u i n g , Equal also Employment told Dr.

complaint (R. [was] 79)

the

Opportunity that should

Commission. her just "life kill

Anderson and 79,

Moriarty she

over"

"that 96-97,

she 100)

felt

like

h e r s e l f . " (R. the

Even a f t e r became help in was final,

d e c i s i o n t o deny h e r continued to ask

tenure Dr.

application Moriarty for

Anderson the 2009,

i n having

decision Dr.

reversed. told

(R.

81-82)

Finally, there to

December o f nothing

Moriarty be

Anderson that she

that

else that

could

done and (R. 12th 82)

needed

start

l o o k i n g f o r another job. Then came held the February

faculty the third

meeting. floor (R. of

The the

m e e t i n g was building 91). (R. a

i n a small

room on

t h a t housed the Anderson,

biology there

department. twelve

See people

83-84, present. sat in was

Besides 105)

were

When A n d e r s o n a r r i v e d f o r t h e by Dr. the door. (R. 85-86) The "a

meeting,

she

chair

conference very

room

small;

Moriarty

described

i t as

narrow

room,"

and

she

said

that

"[w]hen

the tables

are there

and t h e

chairs there." in

have p e o p l e

i n them, y o u c a n a l m o s t n o t g e t t h r o u g h added, "with somebody sitting

(R. 86) D r . M o r i a r t y position, (R. 87)

[Anderson's]

i t ' s v e r y h a r d t o g e t i n and out

of that door." During which noticed that talk was

the meeting, unusual

Anderson (R.

d i d n o t speak, 88-89, 94) Dr. and

something Moriarty thinking note t o

f o r her.

Anderson's

uncharacteristic depressed,

silence,

Anderson

seemed

she made

a mental

t o her a f t e r the meeting (R. 88, 94) some p o i n t during

t o a s k how h e r j o b s e a r c h was

going. At

the meeting,

Dr. M o r i a r t y

looked bang."

down a t h e r agenda, (R. 89-90) could

at which p o i n t and c o v e r e d

she h e a r d "a l o u d [her] head. loud

She " d u c k e d look

And b e f o r e

[she] 89-90, "bang" saw 90)

up, t h e r e was

a second

b a n g [ . ] " (R. a third

94) When D r . M o r i a r t y a n d saw D r . J o h n s o n

l o o k e d up, she h e a r d (C. R. 8 9-90)

"slump."

She t h e n a gun. (R.

t h a t Anderson Then and

h a d s t o o d up a n d begun f i r i n g saw A n d e r s o n 90, say "point

Dr. M o r i a r t y shoot

t h e gun a t D r . t o Dr. "looked

Davis

h e r . " (C. R. did not

105) A c c o r d i n g anything and

Moriarty,

Anderson

extremely determined" during the shooting.

(R. 91, 94-95)

Dr. effort another to

Moriarty

took

cover

under

the legs

table, as she

and

in

an yet Dr.

stop Anderson, (R. 90) (R.

grabbed her But Anderson Dr.

fired of

shot.

"stepped yelled,

out" "Amy,

Moriarty's Stop. again. this." Don't

grasp. do

90)

Moriarty you

stop. you do

this.

I helped

before; o f my Dr.

I will

help

Think (R.

o f my 90)

daughter. Think Brushing aside her and

g r a n d s o n . Don't Moriarty's the

pleas, (R. 90, room

Anderson turned 90, 105, into to 105)

the

gun

on

pulled

trigger. fire. (R.

However, t h e Dr. and

gun

jammed and

d i d not crawled

114-15, 123) the hallway, (R.

M o r i a r t y then Anderson

out

of the still

followed

her,

trying

shoot her.

90-92) that the gun was not firing, Dr. Moriarty one of the 105)

Recognizing "threw her [her]self"

back i n t o

the

conference the

room, and

colleagues in order

"came f l y i n g to keep inside (R. 92)

across

room and (R. their

locked 91-92,

door"

Anderson the

outside.

Some o f t h e p e o p l e calling for help.

room were on

telephones of

Six people and

were wounded, t h r e e that See wasn't (R.

whom were d e a d o r was quickly trying

dying, to help

"[e]verybody

shot

someone who

was."

92-94;

Supp. R.

8-9).

While help the

Dr.

Moriarty

and

her

colleagues

were

trying

to

t h e wounded second floor,

(R. 9 2 - 9 4 ) , A n d e r s o n went t o a r e s t r o o m on apparently washed the gun i n the 114, 122) sink, She and After class (R. him

and d r o p p e d then put

i t i n t h e t r a s h b i n . (R. 106-07, jacket in the same (R. trash

her

receptacle 122)

covered she on left the

i t with

t i s s u e paper.

106,

113-14,

the restroom, Anderson second 122-24) floor She and then asked called

entered t o borrow her

a laboratory a

telephone. and asked 123)

106-07,

husband

t o p i c k h e r up she

outside

the b u i l d i n g . Anderson dock. the

(R. 106-07,

After of the police they 107) Dr. 778 wound then the

t a l k e d t o h e r husband, through were a

e x i t e d the rear (R. loading 107) But

building officers

loading near

stationed

dock,

and (R.

t o o k A n d e r s o n i n t o c u s t o d y when she came o u t s i d e . Three Davis each of Anderson's died R. from victims died. Dr.

Johnson

and (C.

gunshot

wounds t o t h e h e a d ,

79, 786-87; that

112-13) Dr. P o d i l a d i e d his chin, (C. passed R. into 113)

from a gunshot h i s chest, In addition three and

penetrated h i s back. people of

exited three members

770-71;

to

she

killed,

Anderson Stephanie

wounded

other Joseph

her

department:

Monticciolo, Supp. R. 8)

L e a h y , and R o g e r C r u z - V e r a . See

(R. 92-93;

10

Once A n d e r s o n was t a k e n i n t o Department 101, 107) Investigator During the Charlie interview,

custody, H u n t s v i l l e Gray interviewed denied Gray,

Police (R.

her.

Anderson

shooting Anderson It wasn't (R. Gray

anyone. "would me.' 107)

(R. 107) say,

According

to Investigator I wasn't

I t didn't pretty the much

happen.

there.

That's After

t h e theme

of the i n t e r v i e w . " Investigator

interview (R. 108)

concluded,

a r r e s t e d Anderson.

11

STANDARDS OF REVIEW 1. part fully "[A] defendant can waive [her] right t o a p p e a l as as [s]he i s [s]he

of a negotiated advised

plea

agreement

so l o n g

o f the i m p l i c a t i o n s of doing t o enter into

so and

voluntarily Sorsby, 2. issues

agrees

t h e agreement."

Ex p a r t e

12 So. 3d 139,

146 ( A l a . 2 0 0 7 ) . i s restricted t o q u e s t i o n s and . . . ^"[T]o be

" ^ R e v i e w on a p p e a l properly an and t i m e l y

raised at t r i a l . ' review, a timely grounds

preserve presented motion

issue

f o r appellate court by

i t must and in

to the t r i a l setting out

specific support

the

specific

thereof.'"

Ex p a r t e

Coulliette,

857 So. 2 d 793, 794 ( A l a .

2003) ( c i t a t i o n s 3. validity voluntary courses Lockhart, (citation 4. trial right "The

omitted). longstanding test for determining the

o f a g u i l t y p l e a i s ^whether t h e p l e a r e p r e s e n t s a and i n t e l l i g e n t of 474 action U.S. open choice to the S. among the alternative Hill v.

defendant.'"

52, 56, 106

C t . 366, 369 (1985)

omitted). I n cases where a d e f e n d a n t h a s p l e a d e d t o inform her that sentence guilty, the she has a u n l e s s she

court

i s not required before

t o appeal

i t pronounces

12

either when guilty

reserved

particular guilty

issue

or

issues

f o r appeal

she p l e a d e d plea(s)

o r she has moved court

t o withdraw her that motion.

and t h e t r i a l

has d e n i e d

See A l a . R. C r i m .

P. 2 6 . 9 ( b ) ( 4 ) ( i - i i ) .

13

SUMMARY OF THE ARGUMENT On not court 14.4(a) appeal, Anderson argues that herguilty because provisions Criminal pleas were

knowingly

and v o l u n t a r i l y with

entered various of

the t r i a l of Rule

d i d n o t comply of

t h e Alabama Anderson

Rules that

Procedure. court failed

Specifically, to: faced her

argues

the t r i a l

1) c o r r e c t l y f o r each

inform

h e r o f t h e minimum murder

sentence she 2) i n f o r m

o f t h e attempted guilty,

charges;

t h a t , by p l e a d i n g unless

s h e was w a i v i n g issues

her right t o f o r appeal or

appeal

she r e s e r v e d

specific

appealed from t h e d e n i a l o f a motion t o withdraw h e r g u i l t y pleas; 3) a f f o r d her the opportunity 4) d e t e r m i n e t o comment that on her

attorneys' the give

performance;

she understood h e r ; 5) t o the s h e was b u t then

charges and the elements o f the charges a g a i n s t heraccurate murder information because about h e r g u i l t y i ttold plea

capital waiving she by

charge

her that guilty

her right tried

to a trial on t h a t

by p l e a d i n g

was s t i l l pleading

c h a r g e ; a n d 6) i n f o r m h e r t h a t , the right t o personally to

guilty,

s h e was w a i v i n g witnesses,

confront have

the State's

as w e l l

as t h e r i g h t

t h e a i d o f compulsory appear at t r i a l .

process

i n having also claims

h e r own that the

witnesses

Anderson

14

trial

court

failed of the

to

comply

with of

the

provisions

of

Rule at

26.9(b) (4) sentencing appeal

Alabama

Rules

Criminal her her

Procedure she

because first the

i t d i d not moved to

inform withdraw

that

could pleas. is not

i f she for

guilty

However,

reasons

stated

below,

Anderson claims. to

e n t i t l e d t o a r e v e r s a l b a s e d on any o f t h e s e First, as part Anderson v o l u n t a r i l y agreements this

waived her r i g h t with the State.

appeal

of her p l e a

Therefore,

this

C o u r t must d i s m i s s Second, even

appeal. were p r o p e r l y before this

i f this claims

appeal

Court,

Anderson's

are not. Anderson court; review.

never

presented her claims

any o f h e r c l a i m s are not p r e s e r v e d Finally, this on of the Court,

to the t r i a l for appellate

therefore,

even i f A n d e r s o n ' s c l a i m s she would n o t be entitled

were p r o p e r l y to a reversal t o the

before based

them. her

First,

Anderson's pleas fully

challenges

voluntariness shows of that Rule More

guilty court during

are m e r i t l e s s . complied with guilty also

The

record

trial

the p r o v i s i o n s plea

14.4(a)

Anderson's the record

proceedings. that

significantly,

shows

Anderson

k n o w i n g l y and v o l u n t a r i l y

pleaded g u i l t y .

Thus, A n d e r s o n i s

15

not

entitled

to

r e v e r s a l based guilty

on

any

of

her

challenges

t o the v o l u n t a r i n e s s of her Likewise, to comply Anderson's the

pleas. the trial court failed is

claim

that of

with

provisions argues that that

Rule trial could pleas. court she

2 6 . 9 ( b ) (4) court appeal

meritless. because filed

Anderson not to

the she

erred i f she Rule a be this

i t did

tell

her

a motion does who

withdraw her require

guilty trial what

However, to

2 6 . 9 ( b ) (4) defendant able

not

the

inform do of to

has an

pleaded appeal. no

guilty In fact, to court

must

to pursue

under the and

facts

c a s e , A n d e r s o n had did not require the

right trial

appeal, to tell

Rule s.

26.9(b)(4) Therefore, claim.

her

Anderson i s not

e n t i t l e d t o a r e v e r s a l b a s e d on t h i s

16

ARGUMENT I. Anderson Waived Her R i g h t To Appeal As Part Of Her P l e a Agreements With The S t a t e , And This Court Should Dismiss Her Appeal. In her pleas the Rule See the the her were brief not on appeal, Anderson argues t h a t her and voluntarily entered guilty because of

knowingly f a i l e d to the Brief failed of

trial

court of

comply w i t h Rules of

various

provisions

14.4(a)

Alabama at to

Criminal

Procedure. that of

(Appellant's trial court

12-30). Anderson a l s o argues comply with Rule when 2 6 . 9 ( b ) (4) it

Alabama without to

Rules

Criminal that

Procedure she could

sentenced first at when State.

a d v i s i n g her her

a p p e a l i f she

moved 20-21) she

withdraw

guilty

pleas. her

(Appellant's right to with appeal. entered (C.

Brief

However,

Anderson her

waived plea

appeal the

entered

into

agreements dismiss this

Therefore, Before separate 78) In

t h i s Court should she pleaded agreements of the the three

guilty, with

Anderson the State.

into

two 677 plead the life

plea one to

668-69, to and of

agreements, attempted to

Anderson murder

agreed charges,

guilty district

attorney that

agreed would

recommend

sentences with one

imprisonment and with her

run for

consecutively the capital

another

sentence

murder

conviction.

17

(C. plead

668-69) guilty

In to

the

other

agreement, and life

Anderson district

agreed

to

capital

murder,

the

attorney without

a g r e e d t o recommend a s e n t e n c e o f parole, for the which would run

imprisonment with (C. her

consecutively convictions. as

sentences Anderson the

a t t e m p t e d murder both of these

677-78)

signed

agreements, and two

d i d her

attorneys,

district (C. 669, The waiver the that

attorney, 678)

assistant

district

attorneys.

l a s t p r o v i s i o n i n e a c h o f t h e p l e a a g r e e m e n t s was of the right to appeal. as (C. 669, 678) On both

forms, agrees that

waiver by

p r o v i s i o n read the and

f o l l o w s : "The of full this plea

Defendant agreement of the to

accepting

terms with

he/she v o l u n t a r i l y he/she is

knowledge any rights guilty at the

[r]ights appeal (C. each or 669, plea both

surrendering, collaterally

waives

otherwise 678) In

attack

this

plea." end of

a d d i t i o n to

her

signature the

agreement, Anderson i n i t i a l e d forms. (C. 669, 678) can waive

waiver

p r o v i s i o n s on

" [A] of a

defendant

[her] so of

right long

to as

appeal [s]he so

as is

part fully [s]he parte

negotiated of the

plea

agreement

advised

implications to enter into

doing

and Ex

voluntarily

agrees

the

agreement."

18

Sorsby, the the

12 So. 3d 139, 146 that reflects and t h a t

( A l a . 2007). that

"[A] c o l l o q u y

with

defendant right

he o r she was i n f o r m e d o f this

t o appeal

he o r she c h o s e t o w a i v e

right A has

i s s u f f i c i e n t t o show a v a l i d a n d e n f o r c e a b l e plea agreement the right that to indicates a direct that

waiver.

signed

the defendant is also

waived

appeal

s u f f i c i e n t . " Watson v . S t a t e , App. 2 0 01). Again, waived her Anderson signed right initialed to

808 So. 2d 77, 80

(Ala. Crim.

two p l e a a g r e e m e n t s i n w h i c h she her convictions, on and each she form.

appeal

separately See that 808

the waiver alone

provisions

(C. 669, 6 7 8 ) . T h i s she v o l u n t a r i l y

was

sufficient

to

establish Watson,

waived

her right

t o appeal.

So. 2d a t 80. B u t , i n a d d i t i o n , court at sentencing that when

Anderson

also t o l d the into the and

trial plea that

she e n t e r e d

agreements, she

she knew she h a d t h e r i g h t waived that right

t o appeal she

voluntarily

when

pleaded

guilty. In initials the

(R. 167-68) light of the signed section plea agreement, Anderson's and at

on t h e w a i v e r court's

of the plea colloquy that

agreement, Anderson

trial

subsequent

with

sentencing,

the record

establishes

Anderson's

waivers

19

of

her right

t o appeal

were

voluntary

and a r e

therefore

"valid because no

a n d e n f o r c e a b l e [ . ] " Watson , Anderson waived her right to

808 So. 2d a t 80. Thus, t o appeal, "[t]here are appeal;

3

issues

for this this appeal

Court

consider

i n this

therefore, at 81.

i s due t o be

. . . dismissed."

Id.

II.

Anderson F a i l e d Review. Even

To

Preserve appeal

Her were

Claims properly

For A p p e l l a t e before this wellto

i f Anderson's

Court, settled

her s p e c i f i c that

claims

are n o t . I t i s , of course, on appeal and t i m e l y is restricted at

"^[r]eview

questions . . . be

and i s s u e s

properly an

raised

trial.'

^"[T]o

preserve to

issue

f o r appellate court by a

review, i t timely and

must

presented

the t r i a l

specific

motion s e t t i n g

out the s p e c i f i c

grounds i n support

To t h e e x t e n t t h a t A n d e r s o n may a r g u e t h a t h e r c h a l l e n g e s to the voluntariness of her g u i l t y pleas also c a l l into question the voluntariness of her waivers, that issue i s not p r o p e r l y b e f o r e t h i s C o u r t . T h i s C o u r t " w i l l consider the i s s u e o f t h e v o l u n t a r i n e s s o f t h e waiver of t h e r i g h t to appeal only i f that issue i s properly presented t o the t r i a l c o u r t , e i t h e r by way o f a m o t i o n t o w i t h d r a w t h e p l e a o r a m o t i o n f o r new t r i a l . " Watson, 808 So. 2d a t 8 1 . A n d e r s o n d i d n o t move t o w i t h d r a w h e r g u i l t y p l e a , n o r d i d she move f o r a new t r i a l . T h e r e f o r e , t h i s Court w i l l not c o n s i d e r any c h a l l e n g e t o t h e v o l u n t a r i n e s s o f h e r w a i v e r s . Id.
3

20

thereof.'"

Ex

parte

Coulliette, "^Even

857

So.

2d

793,

794 claims to

(Ala. may the 1280 So. 2d

2003) ( c i t a t i o n s be waived on

omitted). appeal

constitutional

i f not v.

specifically State, 953 v.

presented 2d 1275, 705

trial (Ala. 871,

court.'" Crim. 875 App.

Shouldis

So.

2006) ( q u o t i n g

Brown

State^

( A l a . C r i m . App.

1997)). guilty pleas, of nor her

A n d e r s o n n e v e r moved t o w i t h d r a w h e r did she present pleas to her challenges trial to the by the

voluntariness any trial other court

guilty

the

court

means. with of her Rule never to See this were need

Likewise, claim that

Anderson never presented i t f a i l e d to when her i t

comply w i t h her.

the

provisions

2 6 . 9 ( b ) (4) presented preserve Coulliette, Court were

sentenced to the

Because court, she

Anderson has

claims

trial this 794. that are

failed

those 857 to

claims So. 2d

for at

Court's

review. even if

Therefore, Anderson's not, and

determine i t , her

appeal Court court.

properly go no

before

claims the

this

further to affirm But

judgment o f t h e t r i a l

even i f A n d e r s o n ' s c l a i m s she would not be for entitled the

were p r o p e r l y b e f o r e to a reversal stated based

this on they

Court, those

claims

because,

reasons

below,

are m e r i t l e s s .

21

I I I . Anderson's Challenges To The G u i l t y Pleas Are M e r i t l e s s . As were with Rules 30). noted above, Anderson claims

Voluntariness

Of

Her

that court

her g u i l t y failed of

pleas

involuntary various

because

the t r i a l of Rule See

t o comply Alabama a t 12pleads

provisions

14.4(a)

the Brief

of Criminal Rule 14.4(a)

Procedure. provides court

(Appellant's before

that,

a defendant

guilty, confirm her

the t r i a l that

i s t o engage h e r i n a c o l l o q u y t o her r i g h t s knowingly and t o ensure and that

she u n d e r s t a n d s being entered

plea

is

voluntarily. cases:

Specifically,

R u l e 14(a) p r o v i d e s

that, i n felony

[T]he court s h a l l not accept a p l e a of g u i l t y without f i r s t addressing the defendant p e r s o n a l l y i n t h e p r e s e n c e o f c o u n s e l i n open c o u r t f o r t h e purposes o f : (1) A s c e r t a i n i n g t h a t t h e d e f e n d a n t has a f u l l understanding o f what a p l e a o f g u i l t y means a n d its c o n s e q u e n c e s , by i n f o r m i n g t h e d e f e n d a n t o f and d e t e r m i n i n g t h a t t h e d e f e n d a n t u n d e r s t a n d s : ( i ) The n a t u r e o f t h e c h a r g e a n d t h e m a t e r i a l elements of the offense t o which the p l e a i s offered; ( i i ) The m a n d a t o r y minimum p e n a l t y , i f any, and t h e maximum p o s s i b l e p e n a l t y p r o v i d e d by law, including any enhanced sentencing provisions; (iii) I f applicable, the fact that sentence may run consecutively to concurrently with another sentence sentences; the or or

22

( i v ) The f a c t t h a t t h e d e f e n d a n t has t h e r i g h t t o p l e a d n o t g u i l t y , n o t g u i l t y by r e a s o n o f m e n t a l d i s e a s e or d e f e c t , or b o t h not g u i l t y and n o t g u i l t y by r e a s o n o f m e n t a l d i s e a s e o r d e f e c t , and t o p e r s i s t i n s u c h a p l e a i f i t has a l r e a d y b e e n made, o r t o p l e a d g u i l t y ; (v) The f a c t t h a t to remain s i l e n t t e s t i f y or give h e r s e l f , b u t has w i s h e s t o do so, behalf; t h e d e f e n d a n t has t h e r i g h t and may n o t be c o m p e l l e d t o evidence against himself or the r i g h t , i f the defendant t o t e s t i f y on h i s o r h e r own

(vi) The f a c t t h a t , by e n t e r i n g a p l e a of guilty, the defendant waives the right to t r i a l by j u r y , t h e r i g h t t o c o n f r o n t witnesses a g a i n s t him o r h e r , t h e r i g h t t o c r o s s - e x a m i n e witnesses o r have them c r o s s - e x a m i n e d i n t h e d e f e n d a n t ' s p r e s e n c e , t h e r i g h t t o t e s t i f y and present evidence and witnesses on the d e f e n d a n t ' s own b e h a l f , and t h e r i g h t t o have the a i d of compulsory process i n s e c u r i n g the attendance of w i t n e s s e s ; ( v i i ) The f a c t t h a t , i f t h e p l e a o f g u i l t y i s a c c e p t e d by t h e c o u r t , t h e r e w i l l n o t be a f u r t h e r t r i a l on t h e i s s u e o f t h e d e f e n d a n t ' s g u i l t ; and (viii) The f a c t t h a t t h e r e i s no r i g h t to appeal unless the defendant has, before entering the plea of guilty, expressly r e s e r v e d the r i g h t t o appeal w i t h respect t o a p a r t i c u l a r i s s u e or i s s u e s , i n which event appellate review shall be limited to a determination of the issue or issues so reserved[.] Anderson with the claims that of of the trial court f a i l e d to comply 1) for 23

provisions inform her

Rule the

14.4(a) because minimum s e n t e n c e

i t d i d not: she faced

correctly

each by

of

the

attempted guilty, reserved of

murder she was

charges; waiving issues to to

2) her

inform right or

her to

that, appeal

pleading she

unless from 3)

specific a motion

f o r appeal

appealed pleas;

the

denial

withdraw her comment on she

guilty her

a f f o r d her

the 4)

opportunity that

attorneys' the 5) the charges give her

performance; and the

determine of the

understood her; to was

elements

charges her

against

accurate

information

about

guilty her that but

plea she

capital her still

murder charge because right tried to on a trial that she by

i t told

waiving was

pleading and 6) the

guilty inform right

then

she by

charge;

her to

that,

pleading confront aid at

guilty, the of

was

waiving as

personally right

State's

witnesses,

w e l l as

the

t o have t h e appear

compulsory process

i n having

her

own

witnesses

trial.

( A p p e l l a n t ' s B r i e f at for the is

12-30) set forth below, each of is

However, Anderson's not

reasons

claims

meritless.

Accordingly,

Anderson

e n t i t l e d t o a r e v e r s a l b a s e d on t h o s e

claims.

24

A.Anderson's Claim That Her G u i l t y Pleas Were Rendered I n v o l u n t a r y Because o f the T r i a l Court's F a i l u r e to Inform Her o f the C o r r e c t Minimum P o t e n t i a l Sentence f o r the Attempted Murder Charges During the G u i l t y P l e a Colloquy Is M e r i t l e s s . Anderson attempted the trial first claims that her g u i l t y plea t o the because

murder court

charges told

was r e n d e r e d

involuntary

h e r t h e i n c o r r e c t range colloquy.
4

o f punishment Brief a t 12

during 17)

her guilty

plea

(Appellant's her plea

Anderson court

i s correct that, during misinformed her of

colloquy, the punishment

trial

t h e minimum charges.

applicable the her record

t o the attempted shows that

murder

Nevertheless, informed

the t r i a l

court

correctly

o f t h e minimum charges

possible

sentence

f o r the attempted the Explanation known of

murder Rights Ireland also

5

by u s i n g

and a c c e p t i n g form,

and P l e a form.

of Guilty

otherwise

as an i t is

Furthermore, the record

a n d more that,

significantly, the t r i a l pleaded based

c l e a r from

despite

court's guilty. on this

mistake, Anderson Therefore, claim.

knowingly and v o l u n t a r i l y to relief

she i s n o t e n t i t l e d

Anderson guilty plea claim.

4 5

i s not challenging the voluntariness of her t o t h e c a p i t a l murder charge i n t h i s p a r t i c u l a r

I r e l a n d v. S t a t e ,

47 A l a . App. 65, 250 So. 2 d 602 (1971) . 25

1. The t r i a l c o u r t ' s use and acceptance o f the I r e l a n d form s a t i s f i e d the requirements o f Rule 14.4(a) (1) ( i i ) o f the Alabama Rules o f C r i m i n a l Procedure. As Rules ensure maximum course, 14.4(a), to ensure s e t out above, of Criminal that range the Rule 1 4 . 4 ( a ) (1) ( i i ) o f t h e A l a b a m a requires the t r i a l the court to and Of Rule

Procedure defendant

understands before

minimum guilty. by

o f punishment

she p l e a d s

t h e purpose including that See,

f o r the requirements s e t out i n Rule knowingly Crim.

imposed

those

1 4 . 4 ( a ) (1) ( i i ) , i s pleads The

a defendant

and v o l u n t a r i l y P.

guilty. Alabama 124,

e.g., A l a . R. Court 1974),

14.4(a)(1-2).

Supreme

h e l d i n Twyman "that

v. S t a t e ^ 300 So. 2d f o r m e x e c u t e d by t h e

130 ( A l a .

an I r e l a n d

defendant judge

and acknowledged that

by defense

c o u n s e l and t h e t r i a l

may e s t a b l i s h made,

a g u i l t y p l e a was v o l u n t a r i l y a n d there i s other evidence i n 784 So. v. State^ in of

intelligently

^provided

the r e c o r d s u p p o r t i n g that 2d 348 367, 370 So. 2d (Ala. 844, Crim. 846

f a c t . ' " Waddle v. S t a t e , App. 2000) ( q u o t i n g D a v i s App.

( A l a . Crim. 14.4(d) that

1977) (emphasis Rules

Davis) . Criminal

Similarly, Procedure

Rule

o f t h e Alabama "[t]he court

provides of Rule

may

comply

with the requirements personal

1 4 . 4 ( a ) by d e t e r m i n i n g f r o m a that t h e defendant has

c o l l o q u y w i t h the defendant

26

read, each 44A,

or

has

had

read

to

the

defendant,

and

understands C-

i t e m c o n t a i n e d i n Form C-44B, CR-51, CR-52, o r Form as t h e c a s e may In this case, be." Anderson (Form completed CR-51). (C. and signed

four

separate The three

Ireland Ireland

forms forms that

670-75, murder

679-80) charges felony or some 672,

f o r the

attempted

informed Anderson for which the

a t t e m p t e d murder i s a c l a s s A i s imprisonment for life

6

punishment

t e r m b e t w e e n t e n y e a r s and n i n e t y - n i n e y e a r s . 674) she The used Ireland a forms also a d v i s e d Anderson commission of the of of

(C. 670, that,

because the

firearm of was

i n the

offenses, the ten.

7

minimum p e r i o d murder 672, charges

incarceration twenty years

f o r each instead on

attempted (C. 670, forms had i t she

674)

Anderson that she

signed a statement had she either

each form

of the o r had

declaring

read the

read to her, that

understood the

c h a r g e s , and

that

S e c t i o n 1 3 A - 4 - 2 ( d ) ( 1 ) o f t h e Code o f A l a b a m a c l a s s i f i e s a t t e m p t e d m u r d e r as a c l a s s A f e l o n y . A c l a s s A f e l o n y i s p u n i s h a b l e by l i f e i m p r i s o n m e n t o r a t e r m o f no more t h a n n i n e t y - n i n e n o r l e s s t h a n t e n y e a r s . A l a . Code 13A-56 (a) .

6

S e c t i o n 13A-5-6(a)(4) p r o v i d e s t h a t i f a f i r e a r m or deadly weapon i s " u s e d o r a t t e m p t e d t o be u s e d i n t h e c o m m i s s i o n of [a c l a s s A] f e l o n y , " t h e minimum s e n t e n c e i s t w e n t y years.

7

27

understood

her

rights.

(C.

671,

673,

675)

A l l three 673, 675)

of

her

a t t o r n e y s a l s o signed the forms. Anderson which she also signed that the two there

(C. 671,

separate had

plea

agreements

in and full as the

stated

been and given

"discussion that to "a [her] to

negotiation explanation evidenced plea by

between of the" rights

parties" ha[d] been

I r e l a n d f o r m s , w h i c h were a t t a c h e d (C. 668, 677) All three of

agreements.

Anderson's 678) the forms forms trial and with she and asked [was]

attorneys a l s o signed these During court that her had that she the she plea had

agreements. Anderson of go the

(C. 669, informed Ireland those

colloquy, signed

each to

had

had

enough

time 4)

over

attorneys. reviewed them.

(Supp. R. the plea R.

She

a l s o acknowledged t h a t with trial her attorneys then she

agreements 3-4) The

signed

(Supp.

court

Anderson's attorneys fully that that able to

i f they

were " c o n v i n c e d and understand p a r t i e s were] of

that the

comprehend court R. and 4)

proceedings through" attorneys court that [was]

[the t r i a l day. (Supp.

the

going

A l l three

Anderson's 4-5) The

replied then "she

i n the

affirmative.

(Supp. R.

trial

asked Anderson's [was]

attorneys

whether

they

believed and

acting in f u l l

knowledge of her

rights

28

knowingly attempted attorneys then

and

voluntarily charges. "Yes,

entering" (Supp. R.

her 5)

guilty One 5) of The

plea

to

the

murder replied,

Anderson's trial to court the

s i r . " (Supp. R. [was] any

asked

whether any

"there of" her

evidence wanted to

contrary (Supp. R. Judge."

that 5)

attorneys

present. "No, with

Another R. 5)

of Anderson's The trial (Supp. R. colloquy to

attorneys then

replied, proceeded

(Supp.

court 5) with

Anderson's g u i l t y p l e a s . The attorneys read she the the trial was court's sufficient

Anderson

and

her had that

satisfy had

i t that

Anderson and

I r e l a n d f o r m s o r had information of

them r e a d

t o her

understood the potential forms

contained

i n them, i n c l u d i n g the the 2d at use of the

range was

punishment. to

Thus,

Ireland

sufficient

comply w i t h So.

provisions 37 0; 695 So. Ala. 2d

o f R u l e 1 4 . 4 ( a ) (1) ( i i ) . See R. 153 Crim. (Ala. P. 14.4(d). App. the See

Waddle, 7 84 also Brown v.

State, of

Crim. in

1996)("The record-which trial

presence contained

the

executed set

Ireland out to in the

form Rule court of

the

rights

1 4 . 4 ( a ) (1) ( i v ) , during his in the

counsel's that he had

reaffirmation advised colloquy that the that the

colloquy and the

appellant took place

rights, this

extensive this

case-convince

court

29

requirement pleaded

o f Twyman has b e e n met guilty knowingly,

and t h a t

the appellant and

voluntarily,

intelligently."). But, the as A n d e r s o n with for or a s s e r t s , when t h e t r i a l i t told her that court reviewed of life

charges

Anderson, the

t h e range was

punishment imprisonment ninety-nine the as weapon a

attempted

murder term

charge between

imprisonment (Supp. R.

for a 3)

t e n and her that

years.

I t d i d not t e l l t o those charges

enhancement

applied

and t h a t , was

result, years. had

t h e minimum (Supp. R.

sentence 3) been But,

f o r those as

charges

twenty Anderson

discussed of She the signed

above, correct those the

previously

informed forms. she

sentencing forms,

range

v i a the Ireland indicating and she c i t e s the t r i a l that

thereby range, that

understood

sentencing proposition guilty plea

no a u t h o r i t y t o s u p p o r t t h e misstatement during the on t h e

court's

colloquy

rendered the explanation

8

given

I r e l a n d forms

inadequate.

Thus, A n d e r s o n

i s not e n t i t l e d t o

r e l i e f b a s e d on t h i s

claim.

A n d e r s o n does c i t e R i l e y v . S t a t e , 892 So. 2d 471 ( A l a . C r i m . App. 2 0 0 4 ) , i n w h i c h t h i s C o u r t h e l d t h a t t h e f a c t that the appellant's attorney had a d v i s e d him o f t h e c o r r e c t s e n t e n c i n g range d i d not r e n d e r t h e t r i a l court's f a i l u r e t o do so h a r m l e s s . See R i l e y , 892 So. 2d a t 475-76;
8

30

2. D e s p i t e the t r i a l c o u r t ' s misstatement d u r i n g the c o l l o q u y , Anderson knowingly and v o l u n t a r i l y pleaded guilty. But Anderson even about i f the the trial court's of the failure weapon to inform

applicability that

enhancement

somehow v i t i a t e d her not of be the

the f a c t

the I r e l a n d

f o r m had a d v i s e d still would and for the among

correct

s e n t e n c i n g range, to relief guilty. of a because "The

Anderson she

entitled

knowingly test

voluntarily determining plea the Hill 369 615 In

pleaded the

longstanding plea is

validity a

guilty and

^whether choice

represents alternative v.

voluntary

intelligent open t o t h e 56, also App. 180, 106

courses

of a c t i o n U.S. 52,

defendant.'" S. Ct. v. 366, State, same) . App.

L o c k h a r t , 474

(1985) ( c i t a t i o n So. Trice 2d v. 640, 644

o m i t t e d ) . See ( A l a . Crim. 601 So. 2d

Alderman

1992) ( h o l d i n g 183

State, Court

( A l a . Crim.

1992), t h i s

stated:

Before accepting a g u i l t y plea, a trial judge "should undertake a f a c t u a l i n q u i r y to determine if the plea is voluntarily made with an u n d e r s t a n d i n g o f t h e n a t u r e o f t h e c h a r g e and t h e consequences o f t h e p l e a . " C a s h i n v. S t a t e ^ 428 So.2d 179, 182 ( A l a . C r . A p p . 1 9 8 2 ) . The r e c o r d o f A p p e l l a n t ' s B r i e f a t 16-17. However, t h e r e q u i r e m e n t s o f R u l e 14.4(a) a r e n o t s a t i s f i e d by i n f o r m a t i o n a d e f e n d a n t ' s a t t o r n e y g i v e s him; t h e y a r e , however, s a t i s f i e d by t h e t r i a l c o u r t ' s use and a c c e p t a n c e o f an I r e l a n d f o r m . See Waddle, 784 So. 2d a t 370; A l a . R. C r i m . P. 1 4 . 4 ( d ) . 31

t h e p l e a p r o c e e d i n g s must a f f i r m a t i v e l y " r e f l e c t s u f f i c i e n t f a c t s from which such a determination c o u l d p r o p e r l y be made." D i n g l e r v. S t a t e ^ 408 So.2d 530, 532 ( A l a . 1 9 8 1 ) . W h i l e a t r i a l court's inquiry on t h e s e m a t t e r s n e e d n o t f o l l o w "any particular ritual," the inquiry must be "sufficient to determine that the defendant understands the charges against him and t h e c o n s e q u e n c e s o f h i s p l e a , and t h a t the defendant's plea Is truly voluntary." United States v. O' D o n n e l l y 539 F.2d 1233, 1235 ( 9 t h C i r . ) , c e r t , d e n i e d , 429 U.S. 960, 97 S . C t . 386, 50 L.Ed.2d 328 (1976) ( e m p h a s i s a d d e d ) . This voluntary admission in that Court both that also said i n Trice i t that "[a] plea an must be

i n that

^constitute[s] committed

intelligent and

[the defendant]

the offense,'

i t i s ^free omitted). into is

o f c o e r c i o n [ . ] ' " I d . a t 183 Anderson does n o t a l l e g e so the pleas that

(internal she was

citations coerced remaining

pleading whether admission[s]

guilty, her

only

question

guilty that

constituted the

"intelligent

[she]

committed

o f f e n s e [ s ] . " They d i d . It plea must i s of course considered true that, " [ i ] n order for a guilty

t o be be

knowing

and v o l u n t a r y , the v. minimum 686

the defendant and So. maximum 2d 1300, held

properly possible."

advised

of

sentences 1304 that

Pritchett

State,

( A l a . C r i m . App. 1 9 9 6 ) . T h i s " ^ " [ t ] h e accused's r i g h t

C o u r t has r e p e a t e d l y

t o know t h e p o s s i b l e

sentence

32

[s]he to

faces

i s absolute,"' advise

and

^the t r i a l

court's

failure

correctly

a defendant

o f t h e minimum a n d maximum plea renders that

sentences

before

accepting

[her] g u i l t y

guilty plea 1006

i n v o l u n t a r y . ' " McCary v. S t a t e , App. 2011) ( c i t a t i o n s

93 So. 3d 1002, omitted) . Accord

( A l a . Crim.

White v. S t a t e , 2008); 1288, advise Riley, 1290

4 So. 3d 1208, 1212, 1215 ( A l a . C r i m . App. 888 So. 2d failure to

892 So. 2d a t 475; W h i t e v. S t a t e , App. 2 0 0 4 ) ( t r i a l court's

( A l a . Crim.

t h e defendant

o f t h e a p p l i c a b i l i t y o f t h e weapon reversal); Gordon v . S t a t e , Handley 692 So. 2d 686 So.

enhancement r e q u i r e d 871, 2d 872

( A l a . C r i m . App. 1 9 9 6 ) ; ( A l a . Crim.

v. S t a t e , return

540, 541

App. 1 9 9 6 ) ( o n

t o remand); App.

Peoples 1994); App. Crim. our

v. S t a t e , Clemons

651 So. 2d 1125, 1127

( A l a . Crim.

v. S t a t e ,

542 So. 2d 331, 332

( A l a . Crim. (Ala. plea,

1989);

McClaren

v. S t a t e ,

500 So. 2d 1325, 1327 of a negotiated

App. 1986) ("Even courts

i n t h e case that

higher

require

the accused

be i n f o r m e d o f

the c o r r e c t range But position.

o f maximum a n d minimum this Court the took a

penalties."). somewhat court different incorrectly applicable this

i n Trice, In that

case,

trial

informed the defendant in h i s case. Trice,

o f t h e minimum p u n i s h m e n t 601 So. 2d a t 181-82.

However,

33

C o u r t made a d i s t i n c t i o n defendant punishment defendant Id. and of incorrect and the

between a t r i a l about

court's the to

giving the range give of the

information trial court's about

failure

any i n f o r m a t i o n

t h e range

of punishment. Trice,

a t 185. B e c a u s e t h e t r i a l not completely punishment, this failed Court

court

had m i s i n f o r m e d him regarding

t o advise

t h e range automatic

declined t o follow the

reversal given is

r u l e and h e l d

i n s t e a d t h a t , when t h e d e f e n d a n t i s "the dispositive of actual accurate question sentencing information a

sentencing ^whether

misinformation, [he] was aware

possibilities, would

and, i f n o t , whether

have made any d i f f e r e n c e i n h i s d e c i s i o n t o e n t e r

9

plea.'"

I d . (Quoting

Williams

v. S m i t h y

591 F.2d 169, 172

(2d C i r . 1979)) .

In Peoples, t h i s Court, q u o t i n g T r i c e , s t a t e d t h a t "we must r e a f f i r m o u r e a r l i e r h o l d i n g t h a t ^ [ w ] h e r e t h e t r i a l c o u r t f a i l s t o a p p r i s e t h e d e f e n d a n t o f b o t h t h e maximum and minimum s e n t e n c e s , o r e i t h e r o f t h e t w o , a r e v e r s a l i s automatically mandated.'" Peoples, 651 So. 2d a t 1127 ( q u o t i n g T r i c e , 601 So. 2d a t 1 8 5 ) . A n d e r s o n r e l i e s on t h i s same q u o t a t i o n f r o m T r i c e i n h e r a r g u m e n t . (Appellant's B r i e f a t 17) B u t t h e P e o p l e s c o u r t m i s r e a d T r i c e , a n d so has A n d e r s o n . To be s u r e , the quotation from T r i c e i s a c c u r a t e ; b u t i t has b e e n t a k e n o u t o f c o n t e x t . I n T r i c e , t h i s C o u r t d i d s t a t e t h a t i t s p r i o r p r a c t i c e had been t o automatically reverse cases where the defendant was m i s i n f o r m e d a b o u t t h e p o s s i b l e s e n t e n c i n g r a n g e . T r i c e , 601 So. 2d a t 185. T h i s was t h e s o u r c e o f t h e q u o t e t h a t t h i s C o u r t used i n Peoples and t h a t Anderson uses i n h e r b r i e f .
9

34

In

addition to

Trice,

this

Court

has

also

considered defendant not

the p o s s i b i l i t y misinformation affect 686 that So. the the 2d

t h a t the

trial

court's

g i v i n g the

a b o u t t h e minimum a v a i l a b l e s e n t e n c e may guilty p l e a . See

v o l u n t a r i n e s s of her at state 1305 may ("We be do able not

Pritchett, possibility

f o r e c l o s e the demonstrate .

to

that

See P e o p l e s , 651 So. 2d a t 1127; But a f t e r making the statement stated:

A p p e l l a n t ' s B r i e f a t 17. i n question, this Court

That standard of automatic r e v e r s a l has been a p p l i e d by t h i s C o u r t t o c a s e s where t h e trial court i n c o r r e c t l y informed the defendant of the maximum and minimum p e n a l t i e s . R e c e n t l y , however, we have e s p o u s e d t h e view of s e v e r a l of the federal c i r c u i t courts: "[W]here the defendant i s g i v e n sentencing misinformation, t h e mere f a c t t h a t he was g i v e n such m i s i n f o r m a t i o n "^"does n o t end t h e m a t t e r . ^The standard was and remains whether the plea represents a v o l u n t a r y and intelligent c h o i c e among t h e a l t e r n a t i v e c o u r s e s of action open to the defendant.' North C a r o l i n a v. A l f o r d ^ 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162, 168 (1970). The dispositive issue ... is whether [the defendant] would have or would not have pleaded g u i l t y had he been given the correct [information]. See P i t t s v. U n i t e d S t a t e s ^ 763 F.2d 197, 201 (6th C i r . 1 9 8 5 ) ; W i l l i a m s v. S m i t h y 591 F.2d 169 ( [2nd C i r . ] 1 9 7 9 ) . " ' " Trice, 601 So. c i t a t i o n s and one 2d at 185 (emphasis footnote omitted). in Trice, other

35

despite form,

any

m i s i n f o r m a t i o n on was properly

the

e x p l a n a t i o n of

rights the this 2d to plea

the

appellant

i n f o r m e d and

aware o f In f a c t , 526 So.

minimum s e n t e n c e he possibility 897, 899 was (Ala.

f a c e d upon c o n v i c t i o n . " ) . i n McDougal App. the 1988), defendant he v. a

realized Crim.

State, case

similar a

Anderson's. agreement

In McDougal, with the

entered into agreed to a

State wherein

fifteendegree.

year sentence McDougal, the of 526

f o r the crime of a s s a u l t So. 2d at 897-98. He

i n the f i r s t

subsequently challenged in a petition that, due for writ to of Id. his the at

voluntariness error coram

of h i s g u i l t y p l e a nobis on the he

ground was not

counsel's correct 898 . The written

ineffectiveness, punishment

informed charge.

minimum

f o r the

assault

trial order, had

court denied the p e t i t i o n . the trial court found the

I d . a t 897. that the

In i t s of at

range Id.

punishment 899.

b e e n m i s s t a t e d on the trial

Ireland found

form.

Specifically, advised

court that

that

the

form

incorrectly for two the the

McDougal was But

the

minimum i t was

punishment actually that the

assault

charge

ten

years

when

y e a r s . I d . a t 898. fifteen-year

the t r i a l t o which

court also

found was

sentence

McDougal

agreed

36

minimum

sentence

to

which

the

State

would

agree

and

that

McDougal's a t t o r n e y 898-99. properly face the The trial

had made h i m court also

aware o f t h a t that

fact.

Id. at counsel

found the

McDougal's range 898. he

advised were court

him

about by

sentencing

would

i f he trial

convicted found that

a jury. the error

I d . at on the

Finally, form

Ireland

"^had [his 899.

no b e a r i n g case],

on t h e d e f e n d a n t

entering

a guilty plea i n Id. at

and was

harmless e r r o r , i f a n y t h i n g [ . ] ' "

This

Court

affirmed

the

trial

court's

denial

of this

McDougal's p e t i t i o n . Court that to said,

I d . In the course of i t s o p i n i o n , that McDougal should has that received be

" [ I ] t appears

exactly permitted become is

f o r w h i c h he b a r g a i n e d . He complain because Id. he

n o t now

subsequently same

dissatisfied."

Ultimately, case.

principle

applicable i n this Indeed, pleas and the

issue

here

is

whether

Anderson's

guilty First State capital

t o t h e a t t e m p t e d m u r d e r c h a r g e s were v o l u n t a r y . foremost, even t h e modicum Anderson of evidence the t r i a l that the

presented

against

during

of the

m u r d e r c h a r g e was the charges was

overwhelming. clear,

Because

her g u i l t was facing

on a l l o f certain

Anderson

37

conviction possible the of the

on

a l l four the State

charges, could seek

and the

i t

was

at

least

that

death

penalty for strength to

c a p i t a l murder charge.

Presumably

based

on t h e

the S t a t e ' s evidence, Anderson capital murder of a charge sentence in of

agreed to p l e a d g u i l t y exchange life for the

State's (C.

recommendation 677-78) Once

without

parole.

Anderson

agreed

to

accept

sentence the became would

of

life

w i t h o u t p a r o l e f o r the c a p i t a l murder charge, she faced on as the the attempted length murder charges sentences

sentences largely have no

irrelevant, bearing because to the

of those

on t h e o v e r a l l of that fact,

length Anderson

of her i n c a r c e r a t i o n . also agreed in to plead

Perhaps guilty the to

attempted

murder

charges

exchange she be

for

district terms

a t t o r n e y ' s recommendation t h a t imprisonment then signed

sentenced

of l i f e Anderson

on e a c h c h a r g e . and initialed

(C. 668-69) two separate and one plea for

agreements the

- one

f o r the

capital

murder charge out the

attempted

murder

charges

- setting

agreed-upon

terms.

(C. 668-69,

677-78) Thus, t h e p l e a explicitly would

agreement f o r t h e Anderson's court

a t t e m p t e d murder charges sentences f o r those

s e t o u t what be ( i f the

charges

trial

38

accepted the

the p l e a

agreement).

(C.

668-69,

677-78)

So, what

like her

defendant would

i n McDougal, be when she

Anderson pleaded

knew e x a c t l y guilty. See

sentences 526 So. But guilty

McDougal,

2d a t 898-99. now plea Anderson to not i s asking the because this Court to find that her was the

attempted she did not

murder

charges what

involuntary,

understand freely

c o n s e q u e n c e s were, n o t b e c a u s e she plead guilty, with but because the

d i d not

choose t o fully

trial

court,

after

complying use and

the p r o v i s i o n s of and the

of Rule Ireland tell

1 4 . 4 ( a ) ( 1 ) ( i i ) by i t s form, her made that a the mistake weapon 12

acceptance the colloquy applied to

during

d i d not case. the

enhancement 17)

i n her

(Appellant's trial the

B r i e f at

According

Anderson, had no

court's

misstep, of plea her

although her

i t clearly plea, But

e f f e c t on

voluntariness her that

guilty

nevertheless rule guilty Anderson plea a was

rendered proposes rendered

involuntary. knowing because rule case of and of

the

voluntary what was

involuntary is a

essentially and form

clerical

error

Pharisaical rigidity, be a triumph of

i t s application in over substance."

this of

"would

Bank

39

Anniston 507 So. In [she]

v.

Farmers 930

& Merchants ( A l a . 1987).

State

Bank

of

Krum,

Tex.,

2d 927, this

case, Anderson " r e c e i v e d e x a c t l y t h a t f o r which [She] should not has So. now be permitted to

bargained. because

complain

[she] 526

subsequently Indeed, guilty issue,

become because and then

dissatisfied." Anderson got it

McDougal, and she

2d a t 899. pleaded for, this

knowingly what

voluntarily bargained

precisely

even i f

were p r o p e r l y b e f o r e t h i s C o u r t , i s m e r i t l e s s . B.Anderson's Claim That Her G u i l t y P l e a Was Rendered I n v o l u n t a r y Because the T r i a l Court F a i l e d to Inform Her That She Was Waiving the R i g h t to Appeal by P l e a d i n g G u i l t y Is M e r i t l e s s . Anderson next entered that guilty she as of claims that the her guilty plea was not to by Rule

voluntarily inform her

because was i t the

trial her

court to do of

failed appeal by

waiving was

right to

pleading

required

1 4 . 4 ( a ) (1) ( v i i i ) Procedure. reasons

Alabama at

Rules

Criminal for the

(Appellant's Brief claim

18-21) fails.

However,

s t a t e d below, t h i s the Ireland

First, that by

forms she 1)

Anderson was

signed

advised right

her to

pleading

guilty, either:

waiving

her

a p p e a l u n l e s s she issue before

reserved a particular (which she did

i s s u e or or 2) 40

pleading

guilty

not);

filed appeal 671, these

timely from the

motion denial 680) along The

to of

withdraw that

her

plea (she and

and did

sought not) .

to (C. of

motion use

673,

675,

trial

court's

acceptance colloquy provisions 2d at

forms, and

with

its

subsequent the So. P.

with of 370; Thus,

Anderson Rule Brown, for from

her

attorneys, See 154;

satisfied Waddle, 784

14.4(a)(1)(viii). 695 So. reason waivers 2d at

Ala.

R.

Crim. fails. guilty

14.4(d).

this the

alone,

this in

claim the

Second, pleas

separate

inherent and

themselves, into two waived capital

Anderson separate her right

knowingly plea to

voluntarily the State

entered

agreements w i t h appeal
1 0

i n w h i c h she murder and

from (C.

her 669,

attempted 678) trial court

murder c o n v i c t i o n s . As the record of

shows, t h e

complied with by ensuring right and to

the that

provisions A n d e r s o n was by pleading that

Rule

1 4 . 4 ( a ) (1) ( v i i i ) she was waiving

aware t h a t guilty, right, and both

her

appeal

Anderson i n the f o r the

knowingly

voluntarily and in her

waived guilty A
10

plea

agreements

pleas. the

Moreover, record

reasons that

stated i n Anderson

sub-issue voluntarily

above,

establishes

A n d e r s o n a l s o t o l d t h e t r i a l c o u r t a t s e n t e n c i n g t h a t she u n d e r s t o o d t h a t she was w a i v i n g h e r r i g h t t o a p p e a l when she p l e a d e d g u i l t y and t h a t she had v o l u n t a r i l y c h o s e n t o w a i v e t h a t r i g h t . (R. 167-68) 41

pleaded parole for she

guilty

i n exchange

f o r sentences charge

of l i f e

without

for the capital

murder

and l i f e

imprisonment 677-78), and

t h e attempted has " r e c e i v e d

murder exactly

charges that

(C. 668-69,

f o r which

[she] b a r g a i n e d . " Anderson's issue were

McDougal, argument properly to

526 So. 2d a t 899. F o r t h e s e i s meritless. before this Therefore, even

reasons, i fthis

Court, Anderson

would

n o t be

entitled

a r e v e r s a l b a s e d on i t . C.Anderson's Claim That Her G u i l t y Pleas Were Rendered I n v o l u n t a r y by the T r i a l Court's A l l e g e d F a i l u r e t o Give Her an Opportunity t o Comment on Her A t t o r n e y s ' Performance I s M e r i t l e s s . Anderson next claims that her guilty pleas were

rendered i n v o l u n t a r y because her the opportunity

the t r i a l a

court d i d not afford regarding the t o do

t o make

statement

performance by Rule

of her attorneys, 14.4(a)(3) of

which

i t was r e q u i r e d Rules of

t h e Alabama a t 22-23)

Criminal Rule

Procedure. 14.4(a) (3) an to

(Appellant's requires

Brief

Specifically,

the t r i a l

court t o give "the

defendant

opportunity t o state defense counsel

any o b j e c t i o n s

he o r s h e may have i n which defense

o r t o t h e manner

c o u n s e l has conducted record rule. shows, Thus, t h i s

o r i s c o n d u c t i n g t h e d e f e n s e . " As t h e court fully complied with this

the t r i a l claim

fails. 42

First, she was

Anderson "satisfied

stated with

on a l l f o u r

Ireland

forms

that and

[her] a t t o r n e y ' s [sic]."

services

his/her handling Again, forms, her See Ala. the t r i a l along with

o f my c a s e court's

(C. 671, 673, 675, 680)

use and a c c e p t a n c e o f t h e I r e l a n d c o l l o q u y w i t h A n d e r s o n and Rule 14.4(a) (3) .

i t s subsequent sufficient

attorneys, Waddle, R.

was

to satisfy

784 So. 2d a t 370; Brown, P. 1 4 . 4 ( d ) . Second, her guilty everything plea

695 So. 2d a t 154; court did a s k her

Crim.

the t r i a l colloquy

Anderson attorneys that

during had

whether

"done

f o r [her],

to this

point,

[she had] a s k e d them t o d o . " (Supp. R. 3) I n r e s p o n s e , replied, "Yes." (Supp. R. court 3) Thus, despite her

Anderson

claim t o the contrary, opportunity t o comment

the t r i a l

d i d g i v e A n d e r s o n an performance when

on h e r a t t o r n e y s '

she p l e a d e d g u i l t y . For fails. before the above-stated even reasons, Anderson's were argument properly to a

Accordingly, this Court,

i f this would

argument n o t be

Anderson

entitled

r e v e r s a l b a s e d on i t .

43

D.Anderson's Claim That Her G u i l t y Pleas Were Rendered I n v o l u n t a r y by the T r i a l Court's A l l e g e d F a i l u r e to Determine That She Understood the Nature and the Material Elements of the Charges a g a i n s t Her Is Meritless. Anderson voluntary understood charges next claims the that her guilty d i d not pleas ensure elements to do were that of by not she the Rule

because the

trial and

court the

nature her, the at

material

against of

which

i t was Rules It

required of is and

14.4(a) (1) ( i ) (Appellant's court d i d not to R.

Alabama 23-27) the

Criminal true the that

Procedure. the of trial the

Brief

explain Anderson

nature her trial

elements plea was not

offenses (Supp.

during the

guilty court

colloquy. required

2-11)

However,

t o do t h i s , and, Anderson erred murder 23-27) because and She

therefore, this

claim

fails. that the trial of court capital Brief the at

specifically i t d i d not

complains explain to

the

elements

attempted even goes

murder so

her. as to

(Appellant's claim that

far

trial

c o u r t was

r e q u i r e d t o inform her t h a t :

the elements of c a p i t a l murder, i n [her] case, were t h a t , w i t h t h e i n t e n t t o c a u s e t h e d e a t h o f Gopi Podilla [sic], Adriel Johnson, and Maria D a v i s , she d i d i n t e n t i o n a l l y cause the death of Gopi Podilla [sic], Adriel Johnson, and Maria D a v i s , by one a c t o r p u r s u a n t t o one scheme o r c o u r s e o f c o n d u c t , and by s h o o t i n g them w i t h a firearm. 44

( A p p e l l a n t ' s B r i e f a t 24-25) But Anderson i s t r a v e l i n g under not require or the list a misconception. Rule trial the court to explain of those must the . . of

14.4(a) (1) ( i ) does the charges to

a defendant, in detail

elements

charges, present trial . the P.

o r s e t out t o prove

what e v i d e n c e t h e S t a t e I t only requires that

those

charges.

court

"determin[e] that charge

the defendant understands and the m a t e r i a l elements

[t]he nature of the offense t o which

the plea record

i s o f f e r e d [ . ] " A l a . R. establishes that the

Crim. trial

14.4(a)(1)(i).

The

court d i d j u s t that. First, understood 673, the 675, Anderson "the stated or on the Ireland against" use and forms her that (C. she 671, of

charge

charges court's

6 8 0 ) , and t h e t r i a l forms, her along with

acceptance colloquy

Ireland and

i t s subsequent sufficient So. 2d at

with Rule 695 trial and plea

Anderson

attorneys, Waddle,

was 784 P.

to satisfy 370; Brown, the murder guilty she them

14.4(a)(1)(i). So. 2d a t 154; d i d not

See

A l a . R. explain to

Crim. the

1 4 . 4 ( d ) . Second, of capital the

court

elements

attempted colloquy the

murder because and

Anderson clearly need

during

Anderson d i d not

said that about

understood explained

charges

anything

45

to

her.

(Supp. the

R.

2)

By to

d e c l i n i n g to her,

have

the

trial the

court error alone, CR-1029, and

explain about she 0516,

charges she now

Anderson and See for

invited that

which

complains, to r e l i e f . at *22

reason State, App.

i s not 2012

entitled WL

C o c h r a n v. Crim.

2481649,

(Ala.

June

2012)("^A defendant l a t e r p r o f i t by Third, professor Huntsville. position 73). for of the

cannot

invite

e r r o r by

his

conduct

error.'") (Citation was, at 70-72, prior the to

omitted). the of shootings, Alabama in (R. a in that 70

Anderson biology See five (R.

University She had

80) . the

served See

years

before

shootings.

In t h a t p o s i t i o n , " [ s ] h e i n the her [Biology] tenure

worked w i t h on

several different

people and

Department,

different projects," she published at

during two

a p p l i c a t i o n process, (R. 78, 80) She

least

academic

papers.

also

discussed before pleaded to as

writing the

a grant

proposal (R. 83)

with

Debra M o r i a r t y

shortly

shootings. she

Furthermore, she she the 2d was had

when A n d e r s o n mentally "a rational

guilty, stand factual Nicks v.

s t i p u l a t e d that - meaning that of So.

competent as well

trial

understanding State, 783

proceedings 895, 909

against (Ala.

[her]." App.

Crim.

46

1999)(citations

and

extra

quotation

marks

omitted

and

e m p h a s i s a d d e d ) . See a l s o Anderson who also i s clearly

(C. 765-69; R. 5 ) . an i n t e l l i g e n t complex and e d u c a t e d concepts. faculties woman

i s capable

of understanding control pleas. claim

She was when she to

i n complete

of her mental

entered accept have

her g u i l t y her apparent

I t i s , therefore, that the t r i a l that she,

difficult

court

should not the or did

believed

h e r when

she

said that or

she u n d e r s t o o d "by of one act

straightforward pursuant to

allegations one scheme

course

conduct,

intentionally them w i t h commit offense

cause t h e death o f [three and t h a t

p e o p l e ] by

shooting

a firearm,"

she " d i d , w i t h attempt other

the intent t o t o commit victims] said with

the crime

o f Murder [each

. . .

by s h o o t i n g 16)

of the three

a firearm[.]"(C. As Anderson the

personally charges

told

the her.

trial She

court,

she and This

understood voluntarily claim fails.

against guilty

knowingly charges.

chose

to plead

t o those

47

E.Anderson's Claim That Her G u i l t y P l e a to the C a p i t a l Murder Charge Was Rendered I n v o l u n t a r y Because She Was Required to Proceed to T r i a l on That Charge D e s p i t e Being T o l d That She Was Waiving Her R i g h t to a T r i a l by P l e a d i n g G u i l t y Is M e r i t l e s s . Anderson capital trial whether Brief the to a at murder court she next claims was give her that her guilty plea to the the

charge not

rendered her

involuntary

because

did was

accurate to

information

about

waiving

right

a trial.

(Appellant's because right that

27-29) court trial still

Specifically, informed her by pleading had to Brief not make 29)

Anderson she was but on

complains waiving that, the

trial jury

that

her

guilty trial 27-29)

despite

waiver, charge. that she

she

face at

capital

murder claims

(Appellant's she

Thus, A n d e r s o n accurate

because was

"was to at

provided a

information, plea." claims, were

unable Brief has no

voluntary,

informed

(Appellant's this claim

But

l i k e Anderson's other even i f this not

merit. Court,

Thus,

claim be

properly

before

this

Anderson

would

entitled

t o a r e v e r s a l b a s e d on i t . At only the the outset, the State notes that this claim relates of

to Anderson's c a p i t a l outcome o f to the this claim,

murder p l e a . i t should

Thus, r e g a r d l e s s affect As for her the

not

guilty claim

pleas

attempted

murder

charges.

48

itself, knowingly with

i t i s meritless. and v o l u n t a r i l y (C. 668-69, guilty She

As

discussed into a

above, plea

Anderson agreement

entered 677-78) pursuant offered

the State.

She t h e n t o that nothing

k n o w i n g l y and a g r e e m e n t . See but a bare her

voluntarily (Supp. R.

pleaded 2-11).

has

allegation guilty plea

of error to

to substantiate murder

her claim charge was

that

the capital a jury

rendered

involuntary guilty plea

because as

had t o e f f e c t i v e l y by 13A-5-42 fails. of

r a t i f y her of

required

t h e Code

A l a b a m a . A b s e n t more, t h i s

claim

F.Anderson's Claims That Her G u i l t y Pleas Were Rendered I n v o l u n t a r y Because the T r i a l Court F a i l e d t o Inform Her That She Had the R i g h t to P e r s o n a l l y Confront the Witnesses A g a i n s t Her and That She Had the R i g h t to Have the A i d o f Compulsory Process i n Securing the Attendance o f Any Witnesses That She Wanted t o T e s t i f y Are M e r i t l e s s . In guilty her f i n a l pleas, challenge claims to the voluntariness that her pleas failed were of her rendered

Anderson

involuntary that: State's 1)

because

the t r i a l

court

t o inform her confront the

she had t h e r i g h t

to personally

witnesses; process that

a n d 2) s h e h a d t h e r i g h t in securing the

to the a i d of o f any

compulsory witnesses which

attendance

s h e w a n t e d t o have t e s t i f y required by Rule

at t r i a l , both of of the

are notices

1 4 . 4 ( a ) (1) ( v i )

49

Alabama 29-30)

Rules

of

Criminal these

Procedure. are

(Appellant's and

Brief even

at i f be

However,

claims this

meritless,

t h e y were p r o p e r l y

before

Court,

Anderson would not

e n t i t l e d t o r e l i e f b a s e d on Rule court that 1 4 . 4 ( a ) (1) ( v i ) a

them. that, before the trial ensure rights right cross[her]

requires

accepts she

defendant's that

guilty she is

plea, waiving rights the

i t must various are right "the to in

understands with

associated to confront

a trial.

Among t h o s e [] them her,

witnesses or the the

against have right

examine presence, process record rule.

witnesses . . . and

cross-examined a i d of

t o have t h e

compulsory Id. The this

i n securing

attendance of w i t n e s s e s [ . ] " the trial court

demonstrates that

complied with

First, colloquy if she

the

transcript the trial she

of

Anderson's did t e l l

guilty Anderson with the

plea that [her] State's the she

shows t h a t

court

proceeded to t r i a l , and [she] could 6)

" w o u l d be

present a l l of

lawyers

cross-examine

witnesses." trial had her court

(Supp. R. failed to

Thus, A n d e r s o n ' s argument t h a t her during the the colloquy witnesses that

to t e l l

the

right

personally incorrect.

confront

against

is factually

50

Second, specifically

the told

Ireland her that, t o be

forms, i f she

which

Anderson to

signed, she right

proceeded as

trial, "the and The

" w o u l d have t h e to confront and

right

present" [her] 673, "would on

w e l l as

cross-examine (C. 671, she

accuser(s) 675, have 680) the

a l l the forms to have by

State's also

witnesses[.]" her

informed

that to

right to

subpoena their the of

witnesses in 671,

testify and 675, she

[her]

behalf

and

attendance (C.

court 673, that

their 680) had

testimony

required

court." the to in

A n d e r s o n s t a t e d on read the been that form or had

each i t with

Ireland her,

forms that and that 671, trial along

read [her] her

her

"rights

[had]

discussed she

detail and (C. the

fully she 673,

explained,"

understood her

rights,

understood the 675, 680) use and

consequences of

guilty plea. Again, Ireland Anderson

court's with

acceptance

of

the with Rule 695

forms, and her

its was 784

subsequent sufficient So. P. 2d at to

colloquy satisfy Brown,

attorneys, See Waddle, R. was the

14.4(a)(1)(vi). So. 2d at 154;

370;

Ala. she

Crim.

14.4(d). informed witnesses

Thus, of her

despite rights to have

Anderson's to

claims,

properly State's

personally

confront

and

51

the

a i d of

compulsory

process

i n s e c u r i n g the testify. stated in

testimony

of

any w i t n e s s e s t h a t she w a n t e d t o Furthermore, above, pleaded parole on the the for the

reasons

sub-issue

record in

establishes exchange for

that

Anderson of life

voluntarily life without

guilty on the

sentences and

capital

murder

charge (C.

imprisonment 677-78) She [She] has at

attempted exactly now be

murder that

charges. for which

668-69,

"received should not

[she]

bargained. because 526 [she] So.

permitted to

complain

subsequently 899.

become d i s s a t i s f i e d . "

McDougal,

2d

Because the t r i a l Rule 1 4 . 4 ( a ) (1) ( v i ) , pleaded

court complied w i t h the p r o v i s i o n s and because her Anderson knowingly

of and

voluntarily even i f

guilty, were

argument

fails.

Therefore, Court,

this

issue

properly

before

this

A n d e r s o n w o u l d n o t be e n t i t l e d t o a r e v e r s a l b a s e d

on i t .

G.Anderson Is Simply Not E n t i t l e d to a R e v e r s a l Based on Her Challenges to the V o l u n t a r i n e s s of Her G u i l t y Pleas. In are the end, Anderson's c h a l l e n g e s t o her guilty pleas the of

simply without the trial

m e r i t . Despite Anderson's court complied with the

claims to provisions

contrary, Rule

14.4(a)

i n a l l r e s p e c t s . More

i m p o r t a n t l y , the

reason

52

Rule pleads

14.4(a) guilty

exists does so that plead

is

to

ensure

that

defendant The

who

k n o w i n g l y and did, For

voluntarily. in fact,

record and if she

establishes voluntarily Anderson's would not be

Anderson guilty. were

knowingly even Court,

11

these

reasons, this

arguments

properly

before

e n t i t l e d t o a r e v e r s a l b a s e d on the in State this she notes appeal will murder run See that, and be

them. should be

Nevertheless, ultimately withdraw trial her prevail

Anderson to stand murder being P.

allowed to

guilty the

pleas,

required and the Ala. plea,

for

both and to she

attempted once

capital risk R. the any plea of

charges, subjected

will death

again

the

penalty. of a

Crim.

1 4 . 4 ( e ) ("Upon against the

withdrawal

guilty

charges

d e f e n d a n t as or dismissal

they e x i s t e d before made as part of a

amendment, agreement

reduction, s h a l l be

reinstated automatically.").

I t i s a l s o worth n o t i n g again t h a t t h i s i s the f i r s t time A n d e r s o n has challenged the v o l u n t a r i n e s s of her guilty pleas. As such, "[t]he tardiness of [her] claim[s] reflect[] upon [their] good faith, sincerity, and c r e d i b i l i t y . " S a n d e r s v. S t a t e , 414 So. 2d 482 , 484 (Ala. C r i m . App. 1982) ( a d d r e s s i n g t h e d e f e n d a n t ' s c l a i m t h a t she was i n c o m p e t e n t t o e n t e r h e r g u i l t y p l e a , w h i c h was not r a i s e d u n t i l t h r e e weeks a f t e r she p l e a d e d g u i l t y ) .
11

53

IV.

Anderson's Claim That The T r i a l Court Exceeded I t s A u t h o r i t y When I t Sentenced Her Because I t Did Not Give Her Information About Her R i g h t To Appeal Is M e r i t l e s s . Finally, Anderson claims t h a t the t r i a l the of provisions Criminal her of Rule at to court f a i l e d of to the

comply Alabama it

with Rules

2 6 . 9 ( b ) (4) sentencing appeal.

Procedure right

because

d i d not at

inform 20-21)

of her

(Appellant's that appeal the by

Brief trial first

Particularly, inform to But and what she

Anderson that she her

claims could

court

" d i d not a Brief is

[her]

filing

motion at 21)

withdraw

guilty reading court

plea." of was Rule not

(Appellant's 2 6 . 9 ( b ) (4) required Indeed, the to

Anderson's the trial

incorrect, her

inform

needed no to

to

do to her

to

appeal. and

in this court this

case, was claim

A n d e r s o n had not required

right inform

appeal,

trial

otherwise.

Therefore, Rule a

fails. does r e q u i r e t h e right to like appeal this, trial when court i t to inform

26.9(b)(4) of her

defendant

pronounces defendant

sentence. has

However, guilty:

i n cases

where t h e

pleaded

the c o u r t s h a l l a d v i s e the defendant of h i s or her r i g h t t o a p p e a l only i n t h o s e c a s e s i n w h i c h t h e d e f e n d a n t ( i ) has e n t e r e d a p l e a o f g u i l t y , but b e f o r e e n t e r i n g t h e p l e a o f g u i l t y has e x p r e s s l y r e s e r v e d h i s or her r i g h t t o appeal w i t h r e s p e c t to a particular i s s u e or i s s u e s , or ( i i ) has 54

timely filed a motion to withdraw the p l e a g u i l t y and t h e m o t i o n has b e e n d e n i e d , e i t h e r o r d e r o f t h e c o u r t o r by o p e r a t i o n o f l a w . Ala. R. C r i m . P. 2 6 . 9 ( b ) ( 4 ) ( e m p h a s i s t o Anderson's the trial added). Rule

of by

Contrary not require

argument, in any by

2 6 . 9 ( b ) (4) to

does a

court,

case,

inform a

defendant to did

that her

she

"could

appeal

first

filing the

motion court to

withdraw not

guilty plea." failing to t e l l

Accordingly, Anderson

trial

e r r by

what she

needed

do t o be a b l e t o a p p e a l . Furthermore, did had not r e q u i r e any right she R. did 2-11) . had not in this the t r i a l to appeal particular case, Rule 2 6 . 9 ( b ) (4) that she

c o u r t t o i n f o r m Anderson at a l l . When any at motion a motion issues the to time Anderson for of

pleaded See

guilty, (Supp. Anderson plea,

not

reserve

appeal.

Likewise, filed a

sentencing, her guilty because set trial right

withdraw denied.

much had

less not

had

such

Thus,

Anderson

satisfied either

o f t h e two

conditions

out i n Rule 26.9(b)(4) c o u r t was to appeal. Finally, remains

at the time of sentencing, the she had any

not r e q u i r e d t o i n f o r m her t h a t

beyond the r u l e

and

i t s requirements, the

fact of

t h a t Anderson

waived her r i g h t

t o a p p e a l as p a r t

55

her of

plea that

agreements fact,

with

the State. have made

(C. 669, no sense

678)

In

light trial

i t would

f o r the to

c o u r t t o i n f o r m A n d e r s o n t h a t she had a r i g h t For Thus, Court, on i t . the foregoing i f this would reasons, argument not be Anderson's were entitled

appeal. fails. this based

argument before

even

properly

Anderson

to a reversal

56

CONCLUSION Because Anderson the plea agreements waived her r i g h t with even t o appeal as p a r t o f this Court Court should i t ,i t

she made But

the State, i f this

should

dismiss that

her appeal. Anderson's

determine

appeal

i s properly before

should affirm stated above.

her convictions

and s e n t e n c e s

f o r the reasons

Luther Strange Attorney General By: / s / M i c h a e l G. Dean M i c h a e l G. Dean Assistant Attorney General

57

CERTIFICATE OF SERVICE I h e r e b y c e r t i f y t h a t on t h i s electronically counsel in filed 8 t h day o f March, and s e r v e d a 2013, I copy on

the foregoing

f o r t h e A p p e l l a n t by e - m a i l ,

o r b y p l a c i n g t h e same

the United

S t a t e s m a i l , f i r s t - c l a s s p o s t a g e p r e p a i d , and

a d d r e s s e d as f o l l o w s : R o n a l d W. S m i t h 315 F r a n k l i n S t r e e t S.E. P.O. Box 165 H u n t s v i l l e , A l a b a m a 35804 rsmith@ablesbaxter.com

/ s / M i c h a e l G. Dean M i c h a e l G. Dean Assistant Attorney

General

ADDRESS OF COUNSEL: O f f i c e of the Attorney General Criminal Appeals D i v i s i o n P.O. Box 300152 501 W a s h i n g t o n Avenue Montgomery, A l a b a m a 36130-0152 (334)242-7300; (334)353-0415* Fax: (334)242-2848 docketroom@ago.state.al.us

1525110/165613-001 58