
    Shane BLEVINS v. STATE.
    7 Div. 91.
    Court of Criminal Appeals of Alabama.
    July 19, 1983.
    On Return to Order of Remandment and Rehearing Denied Oct. 4, 1983.
    Rehearing Denied Nov. 29, 1983.
    John Baker, Fort Payne, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

On July 26, 1982, this appellant, while confined in the Dekalb County Jail, filed a pro se petition for writ of error coram no-bis, which in some respects is unintelligible but from which we understand he challenges the validity of judgments of conviction and sentence for eight separate and several felonies on grounds including a ground that he had not received effective assistance of counsel. On August 6, 1982, the trial court appointed an attorney to represent petitioner, set October 19, 1982, for the hearing of it, at which time a lengthy hearing was conducted, with petitioner and his appointed attorney present, and the testimony of petitioner and his two attorneys who represented him on the trial was taken. The trial court took the proceeding under advisement and on October 22, 1982, rendered a judgment denying the petition. A timely appeal was taken by counsel who represented him by appointment on the hearing of the petition, and the case was submitted on appeal on briefs of counsel for the parties on April 1, 1983.

Appellant’s brief presents two issues. In the first issue, he contends that defendant’s guilty pleas were not voluntarily, intelligently and understandingly entered. By the second issue, he contends that he did not receive effective assistance of counsel.

In the only appeal in any of the Circuit Court cases involved, the appeal was “from the court’s order denying his Writ of Error Coram Nobis Petition.” There is no appeal from the judgments of conviction and sentence, and the time is long past for such appeal. This precludes us from-passing on the merits of the judgments of conviction and sentence, other than as they may be affected by a resolution of the issue raised in the coram nobis petition as to effective representation of counsel vel non, the pivotal issue for us to decide, and we limit our determination herein to such issue. In doing so, however, we utilize the information contained in the court reporter’s transcript now before us by which the court reporter reports the hearing on the pleas of guilty and recites in full what was said and done by the trial judge, the defendant, and the attorneys on said hearing, which would be controlling as to whether the acceptance by the court of the defendant’s pleas of guilty in the several cases met the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and related authorities.

Between the time of the judgments of conviction and sentence and the time of the hearing of the coram nobis petition, there was another hearing conducted. That hearing was on January 15, 1982, and is captioned in the transcript as “Probation Hearing of Shane Blevins” and was commenced by a statement of the court as follows:

“Let the record reflect that before the Court is Mr. Shane Blevins with his attorneys, [the names of the attorneys who represented appellant on the trial]. Mr. Blevins was previously sentenced in cases [the numbers of the circuit court cases]. Sentences in those cases were all to run concurrently. The longest sentence being that imposed in CC-81-174. It was a sentence of confinement for a period of fifteen years. Sentences in those cases were imposed on September 11,1981. On October the 16th of 1981 Judge Cole’s office received a written communication from the defendant requesting that he be allowed to apply for probation. That correspondence was forwarded to me and on October 20th I replied to Mr. Blevins’ letter and asked [the attorneys by name who represented defendant in the trial court] to confer with the defendant about this matter. As a result of that, I have a petition filed on November the 25th of 1981 requesting the court to entertain a petition for probation on behalf of the defendant in these cases. Now, does that correctly make the history of this matter?”

To the above question, one of the attorneys for the defendant made this response:

“It correctly states the history. Our motion, actually, is sort of a two-prong thing. First is for the Court to change the sentencing in this case to reduce the sentence in the longest case to ten years so he could be considered for probation. It’s come to our attention since, we applied for probation that we could not be eligible to be considered according to the probation officer if he has a sentence longer than ten years. So, I think that’s the first hurdle we’d have to overcome.”

Thereupon, one of defendant’s trial attorneys, the defendant himself, and an uncle of defendant testified on behalf of the defendant. At the conclusion of the hearing, the court said:

“Okay. I’ll let you know something about this. I need to talk to the two lawyers about it and I need to do some research on the actual authority that I have gotten after having sentenced him. I really don’t know. But, we’ll try to make a decision about it in the next few days. And I’d like to talk to y’all maybe at pretrial sometimes when we have time, maybe talk to y’all about it. Thank you.”

From the transcript as a whole, we are convinced that at the time of the entry and acceptance of defendant’s guilty pleas in these cases the defendant was unaware of, and his attorneys were either unaware of or overlooked, the second sentence of Section 15-22-50 of Code of Alabama 1975 as follows: “The court shall have no power to suspend the execution of sentence imposed upon any person who has been found guilty and whose punishment is fixed at death or imprisonment in the penitentiary for more than 10 years.” We are reasonably satisfied, even though we are not absolutely convinced, that if defendant’s attention had been brought to the fact that the trial court would have been without power to grant him probation, he would not have pleaded guilty in the cases with the understanding that did exist between the parties that in one of such cases he would receive a sentence of fifteen years’ imprisonment, even though it should be noted in this connection that apparently there was some advantage to him in his receiving a fifteen-year sentence in one of the eight cases, specifically that he probably would “be eligible for parole sooner” than if he did not. It was understood between the parties by the plea bargaining arrangement between them, that, if the court approved, “Mr. Blevins would be sentenced to fifteen years ... and that he could divide that fifteen years as we [defendant and his attorneys] saw fit.”

We are reasonably convinced from what the trial court said at the hearing of the motion as to whether it could or should grant probation that it possibly would have done so, but we cannot say with reasonable certainty that it would have done so. If it would have done so, we are convinced that appellant has been prejudiced and that he has been done an injustice as a result of his attorneys’ not bringing to his attention the fact that a fifteen-year sentence would disqualify him for probation. Ordinarily, we think that such a mistake would entitle him to favorable action on his coram nobis petition and that a reversal of the judgment of the trial court would be in order; which reversal would require the setting aside of the judgments of conviction and sentence. We think, however, that instead of reversing the judgment at this time, we should remand the case to the trial court with instructions that it clarify, if it can, the question as to whether consideration by it of appellant’s request for probation would be a futile gesture and set forth its conclusion in a return to the order of remandment. We leave it to the trial court to determine whether there should be a hearing. If so, unless the parties agree otherwise, a court reporter’s transcript of the hearing shall be included in the return to the order of remandment. The trial court shall make return to the order of remand in due course with copies thereof to the attorneys for the respective parties. Either party aggrieved by the return will have fifteen days within which to file a brief in this court, and the opposing party will thereafter have fifteen days within which to file a reply brief.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

REMANDED WITH DIRECTIONS.

All the Judges concur, except BOWEN, P.J., who dissents.

ON RETURN TO ORDER OF REMANDMENT AND ON REHEARING

LEIGH M. CLARK, Retired Circuit Judge.

The trial court is to be commended for its extraordinarily prompt “RETURN TO THE ORDER OF REMANDMENT,” which was filed on July 27, 1983, eight days from the date of the order of this Court remanding the case with directions. Appellee’s application for rehearing was filed on August 2, 1983, well within the time required therefor.

In appellee’s brief in support of its application for rehearing, it sets forth a motion pursuant to Rule 39(k) of the Alabama Rules of Appellate Procedure, in which it “respectfully moves this Court to adopt the following facts and statements as a part of its opinion on rehearing” in this cause:

“The Appellant at the time of his original pleas of guilt (8) was fully advised of his Constitutional rights to a trial by jury, attorney, cross-examination, service of process, etc., which are necessary in order to receive a Constitutionally valid guilty plea. Also the Appellant made his plea voluntarily and of his own free will, and without any allegation of threat or coercion. Also, the Appellant entered the pleas because he was in fact guilty of these offenses.”

In our opinion, the statement indented and quoted above does not constitute an “additional or corrected statement of facts,” and for that reason is not within the coverage of Rule 39(k). However, we are in entire agreement with the conclusions set forth in each of the three sentences of said indented and quoted statement. We should have made it clear to all concerned, although the writer evidently did not do so, that of the only two issues presented by appellant, the second issue, the one claiming ineffective assistance of counsel, was the only issue upon which a disturbance of the judgment of the trial court would be justified.

We had some hope, faint though it may have been, that a return to our order remanding the case with directions, would show with reasonable certainty whether appellant’s failure to obtain probation was the result of his attorneys’ not bringing to his attention the fact that a fifteen-year sentence would disqualify him for probation.

In the well prepared “RETURN TO THE ORDER OF REMANDMENT” is the following:

“The Appellant takes the position that he did not know that his fifteen (15) year sentence rendered him ineligible for probation. However, even if the Appellant’s sentence had been for ten (10) years or less, since he failed to request probation prior to the commencement of the execution of the sentence, he would thereby be ineligible for probation. This Court therefore determines that the Appellant’s subsequent request for probation ‘would be a futile gesture’ for that reason.”

The statement to the effect that a failure to request probation prior to the commencement of the execution of a sentence bars probation is correct, as was held in Dailey v. State, Ala.Cr.App. 402 So.2d 1117, 1118 (1981), which is cited and relied upon in the return to the order of remandment. Nevertheless, we are not absolutely certain that the principle is applicable here as to the question of the timeliness of the application or request for probation. Dailey v. State, was expressly predicated upon Ex parte Smith, 252 Ala. 415,41 So.2d 570 (1949), and Ex parte Robinson, 44 Ala.App. 469, 213 So.2d 409 (1968). In Ex parte Robinson, at 213 So.2d 409, 410, we find:

“In Ex parte Smith, 252 Ala. 415, 41 So.2d 570, it was brought out that this power to suspend sentence is a continuing one until the execution of the sentence actually begins, i.e., up to the very moment of delivery of a convict by the sheriff to the penitentiary agent.”

Whether the defendant in the instant case had actually commenced service of the sentence remains somewhat vague, except for the positive declaration of the trial court. Of course, if the execution of the sentence had commenced before the request for probation was made, the trial court’s statement is correct that it “... therefore determines that the Appellant’s subsequent request for probation ‘would be a futile gesture’ for that reason.” Even so, there is the possibility that the failure of his counsel to initiate a timely request for probation would suggest an additional basis for coram nobis relief on the ground that appellant had not received effective assistance of his counsel. Such a suggestion, however, is not to be found in the petition for writ of error cor-am nobis, or in the transcript of the proceedings as to the judgments of conviction and sentence; it is to be found in the transcript of the coram nobis hearing and in the briefs of parties in this Court. We find, therefore, that we should not conclude that appellant’s contention as to ineffective representation by counsel does not encompass a claim to the effect that defendant’s failure to obtain probation was a result of defendant’s counsel’s failure to file within the time legally required a request or petition for probation.

In the “RETURN TO THE ORDER OF REMANDMENT," it is stated that “To make a current determination of whether Appellant should be granted probation, this Court [the trial court] would need to consider those fáctors which were not presented at the hearing on January 28, 1982.” According to the return, one such factor is “that the Appellant entered a guilty plea on February 14, 1983, in the Circuit Court of Dekalb County, Alabama, to the charge of escape in the second degree and was sentenced to fifteen (15) years in the State penitentiary to run concurrently with the sentence imposed here on appeal.” We have no further information as to when that crime occurred or as to the circumstances thereof.

We now acknowledge that the return to the order of remandment demonstrates that our effort to resolve by such remandment the question whether appellant has been injured by the failure of his counsel to know and advise him that he would not be eligible for probation if he received a sentence of more than ten years has been a “futile gesture” on the part of the writer. We now turn to the question whether their failure to so advise him constitutes a violation of his Constitutional right to effective representation of counsel.

We are informed by the record proper or the transcript of the proceedings that one attorney represented defendant in four of the cases and another attorney represented him in the other four. During the testimony on the coram nobis hearing of one of the attorneys appointed by the court to represent the defendant in four of the cases, he testified:

“... The way I remember that came about, we [he and the defendant’s attorney in the other four cases] weren’t sure exactly how to break it up and we talked with Mr. Igou [District Attorney] to see what would be most beneficial to Mr. Blevins as far as getting out. And at that point in time I don’t even think I was even considering probation mainly primarily due to the fact that there were eight felony cases. I didn’t think there was a chance for it. That’s my memory, but as a practical matter we called the probation officer and asked his suggestion on it and it was his suggestion that if you give him the one fifteen-year sentence and run the rest concurrent with it, that he’d be eligible for parole sooner, and, frankly, I didn’t know if that was true or not, but I’d be always had . ..
“Q. One aspect of probation is the split sentence. Split sentence is also possible where probation is possible.
“A. That’s correct.
“Q. Was it your and Mrs. Bush’s [the other attorney] opinion that with a fifteen-year sentence he might have been entitled to probation at that time?
“A. No, it was our opinion that based on what the probation officer had told us that he would be eligible for parole sooner if he had a fifteen-year sentence.
“Q. I believe you testified you don’t have any independent recollection yourself of any discussion with Shane Blevins about probation?
“A. No.
“Q. But I believe you said you suspected there was some discussion because you always have that discussion in plea bargaining situations with your client?
“A. That’s true.
“Q. If Mr. Blevins said that he did have discussions with you and Mrs. Bush at the time — do you recall a discussion you had with Shane Blevins when the District Attorney had proposed seventeen years?
“A. No. There again, I’m not saying it didn’t happen. I just don’t recall it.
“Q. If Mr. Blevins said that he did ask about probation and he was told by you or Mrs. Bush or both of you that he could apply for probation, would that have been consistent, possible at that time?
“A. It’s possible. If I had said it, it was poor judgment on my part because, you know, if you have more than a ten-year sentence you aren’t eligible for probation.
“Q. Okay.
“A. I think what you are basically asking me is did I know at the time that he couldn’t apply for probation if he got more than ten years, and to answer that honestly, I’m not sure. The only thing I’m sure about on probation, and I’m not sure if I communicated this to him or not, but in my own mind I was satisfied that eight felony convictions, I felt like he had very little chance of probation.”

Mrs. Terry Bush, defendant’s other appointed attorney at the time of the entry of the judgments of conviction and sentence, also testified on the hearing of the coram nobis petition. On cross-examination by the appointed attorney for the petitioner (now the appellant), she said:

“Q. Mrs. Bush, did you, however, tell him that he had the right to file an application for probation?
“A. I think at one point we talked about that he could apply for probation, but he generally wanted to know what his chances were and I told him, frankly, they were not very good with the number of cases he had and that he didn’t have any employment, and we were not having a whole lot of luck getting any help out of any of his family members at that time.
“Q. I believe from your testimony at the previous — at the probation — hearing you testified, as I understand, and I believe at that time that you did not learn until some timé after that, though, that he would be barred from probation by ten years or more?
“A. That’s correct.
“Q. And he was not informed that a ten-year sentence would bar him from being qualified for probation?
“A. I didn’t. I don’t know what Gillis
“Q. Now, is it not common and doesn’t it, in fact, happen many times that on application for probation that the Judge grants sometimes a split sentencing?
“A. I explained to him that the Judge would have the right to do whatever and that I would not speak for the Judge but that, frankly, there would not be that much of a chance of probation and he never indicated to me that he wanted to ' apply for probation.”

The return to the order of remandment contains the following statement by the trial judge:

“This Court’s Order of January 27, 1982, expressed a favorable impression of the rehabilitative potential in the home of the Appellant’s uncle.”

The testimony of appellant’s uncle was given on January 15, 1982, a few days more than three months from the date of the judgments of conviction and sentence. The testimony of appellant’s uncle manifested an extraordinarily kind and loving sympathy for appellant and a willingness on the part of the uncle to do all that he could in an effort to justify probation, notwithstanding the undisputed evidence otherwise, particularly as to repetitive crimes by him, to the effect that he would not be granted probation. There is no indication that defendant or either of his attorneys had been informed prior to the judgments of conviction and sentence of the attitude of defendant’s uncle that furnished the only consideration of a request for probation. This strengthens the conclusions we reach as hereinafter stated.

The failure of defendant’s attorneys to know that defendant would have been precluded from favorable action on a petition or request for probation by reason of a sentence to imprisonment for more than ten years is not to the credit of experienced attorneys handling criminal cases. However, it is to the credit of defendant’s attorneys that under the undisputed facts they manifested extraordinary ability and painstaking effort and loyal devotion to their client’s cause and achieved for him the result for which they can be proud and he should be everlastingly grateful. We are persuaded that they should not be unduly blamed and that he should -not be unjustly rewarded for their failure to check as to the ineligibility of defendant for probation in the event of a sentence to imprisonment for more than ten years, a matter which to them at the time was apparently of little, if any, importance. In addition, it is to be noted that the advantage defendant received as to future parole by reason of the sentence of fifteen years in one of the cases and that all concerned, including defendant, were conscious of that advantage emphasizes the fact that the thoughts of defendant and his attorneys chiefly centered, in the best interest of the defendant, upon a sentence that was not to be suspended in part or in full by probation.

In our opinion, the failure of defendant’s attorneys to advise him prior to the judgments of conviction and sentence that he would be ineligible for probation if he received a sentence of more than ten years did not constitute a violation of his Constitutional right to effective representation by counsel. The judgments of conviction and sentence, the thorough and painstaking consideration of the belated effort to obtain probation, and the judgment denying coram nobis petition were all by the same judge. This gave such judge an extraordinarily good opportunity to arrive at a correct judgment as to the petition for writ of error coram nobis. Whether such judgment was correct is the pivotal question for us to decide. In our opinion, it was correct.

Although the coram nobis petition was a pro se petition and is to some extent unintelligible, as noted in the first paragraph of our opinion on original submission, this does not prevent us from our giving thorough consideration to the issue presented by the petition and by appellant’s able counsel on this appeal. Even so, regardless of what appellant may now think, he failed on the hearing of the coram nobis proceeding to meet the burden that was upon him to show by clear and convincing evidence that he did not receive effective representation of counsel in the cases in which he was convicted and sentenced, which burden has been expressly recognized in a number of cases, including Woodard v. State, Ala.Cr.App. 433 So.2d 1198, 1201 (1983), Lewis v. State, Ala.Cr.App., 367 So.2d 542, writ denied, 367 So.2d 547, and Robinson v. State, Ala.Cr.App., 361 So.2d 1172.

The judgment of the trial court should be affirmed. Such.action would render moot appellee’s application for a rehearing.

The foregoing opinion, as well as the opinion on original submission, was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur, except BOWEN, P.J., who concurs in the result only.  