Opinion
5 Div. 257.
March 18, 1975. Rehearing Denied April 22, 1975.
Appeal from the Circuit Court, Lee County, G. H. Wright, Jr., J.
Cleveland Thornton, Tuskegee, Solomon S. Seay, Jr., Montgomery, for appellant.
A guilty plea which is a result of plea bargaining between defense counsel and the District Attorney and where counsel communicates his understanding of the bargain to Defendants and based on this the Defendants plead guilty but it later turns out that this is a misunderstanding between the District Attorney and defense counsel, the guilty pleas of the Defendants are not "knowingly" or "voluntarily" made and it violates the due process clause of the Fourteenth Amendment to the United States Constitution to deny Defendants' motion to withdraw their guilty pleas. Blow v. State, 49 Ala. App. 623, 274 So.2d 652 (1973); Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1926); Johnson v. Commonwealth, 214 Va. 515, 201 S.E.2d 594; People v. Gilbert, 25 Cal.2d 422, 154 P.2d 657 (1944); United States ex rel. Leeson v. Damon, 496 F.2d 718 (2nd Cir. 1974) pet. for cert. filed 8/9/74, No. 74-96, 43 L.W. 3215. Note — Guilty Plea Bargaining: Compromises by Prosecutors to Secure Guilty Pleas, 112 U. of Penn.L.Rev. 864 (1964); Annotation — Validity of Guilty Pleas — Supreme Court Cases, 25 L.Ed.2d 1025 (1971). A guilty plea entered by Defendants as a result of plea bargaining where there is a material misrepresentation by defense counsel of the agreement to the Defendants through inadvertence and which is relied upon by Defendants is not made knowingly and voluntarily. Blow v. State, 49 Ala. App. 623, 274 So.2d 652 (1973), supra; Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), supra; Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1926), supra; Johnson v. Commonwealth, 214 Va. 515, 201 S.E.2d 594, supra; People v. Gilbert, 25 Cal.2d 422, 154 P.2d 657 (1944), supra; United States ex rel. Leeson v. Damon, 496 F.2d 718 (2nd Cir. 1974) pet. for cert. filed 8/9/74, No. 74-96, 43 L.W. 3215. Note — Guilty Plea Bargaining: Compromises by Prosecutors to Secure Guilty Pleas, 112 U. of Penn.L.Rev. 864 (1964). Annotation — Validity of Guilty Pleas — Supreme Court Cases, 25 L.Ed.2d 1025 (1971), supra.
William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
The granting or refusing of permission to withdraw a plea of guilty rests in the discretion of the trial court. Smith v. State, 32 Ala. App. 206, 23 So.2d 515, cert. denied, 247 Ala. 182, 23 So.2d 516. When an accused asks to withdraw a guilty plea, it must be shown by defendant that the trial court has abused its discretion. Ex parte Sykes, 44 Ala. App. 473, 213 So.2d 413; Malone v. State, 41 Ala. App. 230, 132 So.2d 749, cert. denied, 272 Ala. 706, 132 So.2d 752. The defendant has the burden of showing adequate grounds for permitting the withdrawal of his guilty plea. United States v. Lester, 2 Cir., 247 F.2d 496; Friedman v. United States, 8 Cir., 200 F.2d 690, cert. denied, 345 U.S. 926, 73 S.Ct. 784, 97 L.Ed. 1357.
Grand Larceny: sentence, ten years imprisonment. The conviction came upon a plea of guilty.
I
The appellant plead guilty with a full Boykin colloquy as required under Cooper v. State, 53 Ala. App. 36, 297 So.2d 169. After conviction the trial judge pronounced sentence of ten years.
Thereupon appellant asked for suspension of sentence under probation. The cause was postponed until May 20, 1974.
On this latter date appellant seems to have anticipated that the probation officer would give an unfavorable recommendation or perhaps he perceived upon the judge a saturnine cast of countenance. At all events, through counsel, he sought to cancel his former plea.
As grounds his lawyer advanced the notion that he, albeit mistakenly, had thought that the District Attorney would have recommended (or at least not contested) probation. No doubt this was a bona fide belief, though not reciprocal.
Probation is the ultimate and sole responsibility of the trial judge. Each judge has his own idiosyncracies and modus operandi. While we are sure that suggestions properly put on appropriate occasions are welcome, nevertheless when the Areopagitic rhetoric dies and the die of Fate must be cast the lonely seat of decision belongs to no one but the judge. This, in probation, is under the constitutional amendment and its corollary statute. Const. 1901, Amendment No. 38; Code 1940, T. 42, §§ 19-26, incl.
Furthermore, agreements between counsel must be in writing.
"No private agreement or consent between the parties or their attorneys, relating to the proceedings in any cause, shall be alleged or suggested by either against the other, unless the same be in writing, and signed by the party to be bound thereby." Sup.Ct. Rule 20 Rule 14 Cir.Ct. Rules
See Appendix II ARCP last comment B, as to Rules of Practice in the Circuit, etc. — being superseded in Civil cases only.
See Appendix II ARCP last comment B, as to Rules of Practice in the Circuit, etc. — being superseded in Civil cases only.
From the foregoing we believe it is demonstrable that the judgment denying the withdrawal of the guilty plea must be
Affirmed.
All the Judges concur.