
    Robert HOLMAN v. STATE.
    6 Div. 578.
    Court of Criminal Appeals of Alabama.
    April 23, 1985.
    Rehearing Denied June 11, 1985.
    
      William E. Friel II, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Bernard B. Carr, Asst. Atty. Gen., for ap-pellee.
   TAYLOR, Judge.

Appellant Robert Holman was charged with selling drugs in violation of the Alabama Uniform Controlled Substances Act. His attorney, Mr. David Luker, negotiated a plea bargain with Deputy District Attorney Rod Nelson. The sentencing agreement was that upon a plea of guilty, Holman would receive a sentence of fifteen years’ imprisonment in this case, to run concurrent with a fifteen year sentence he had already received upon a plea of guilty in another case. In addition, a third case, pending before the Jefferson County grand jury, was to be dismissed or nol-prossed by the deputy district attorney.

The terms of the plea bargain appear to be undisputed. Holman was enrolled in a drug rehabilitation program at the time that he pleaded guilty and the court agreed to defer his sentencing from that date, March 20, 1984, until June 15, 1984, so that Holman might complete his drug rehabilitation program and get his affairs in order before going to prison. On March 20, the court informed Holman that it was imposing some additional conditions upon the sentencing agreement. The additional conditions imposed were, first, that Holman appear on June 15 for sentencing and, second, that he must not get arrested again.

Holman failed to appear on June 15 and was arrested by narcotics officers on June 28th. In the apartment or condominium where Holman was arrested along with other people, the narcotics officers discovered marijuana, some syringes, a sawed-off shotgun, a revolver, and a derringer. When Holman appeared for sentencing, the court sentenced him to life imprisonment in the penitentiary. He presents to us now the issue of whether the court erred in denying his motion to withdraw his guilty plea.

A strikingly similar situation was presented in Blow v. State, 49 Ala.App. 623, 274 So.2d 652 (Ala.Cr.App.1973). There too, the appellant, charged with an illegal sale of narcotics, failed to appear for sentencing and when he did so was sentenced to a longer term of imprisonment than had been agreed upon in the sentencing agreement. The court noted the appellant’s failure to appear and further violations. In that case, Judge DeCarlo, speaking for this court, stated:

“Our respected brother on the trial bench was in error in his actions. After advising the appellant that he could not take the recommended plea, he should have afforded him an opportunity to withdraw it. Although the judge’s prior concurrence may have been conditional, the plea withdrawal was necessary to correct the broken bargain.”

The court is not obliged to accept a sentencing agreement arrived at by plea bargaining. However, if the court decides not to accept the agreement, the accused must be informed of the court’s determination, and then afforded an opportunity to withdraw his guilty plea. English v. State, 56 Ala.App. 704, 325 So.2d 211 (Ala.Cr.App.1975).

Accordingly, the judgment must be reversed and this case remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

TYSON and PATTERSON, JJ„ concur.

McMILLAN, J., dissents with opinion.

BOWEN, P.J., concurs with the dissent.

McMILLAN, Judge

(dissenting).

Since the facts in this case are distinguishable from the facts as presented in the cases of Blow v. State, supra and English v. State, supra, as cited by the majority, I respectfully dissent.

In the present case, the following excerpted portions of the record reveal that the trial judge fully and compassionately explained to the defendant the ultimate consequences of his guilty plea, not only in terms of the permissible punishment, but also in terms of the action/inaetion on the part of the defendant in the meantime:

“THE COURT: Okay. As I understand it, Robert, you are to take a fifteen year plea on this 83-2319. That is, you are going to plead guilty today, right?
“MR. HOLMAN: Yes, sir.
“THE COURT: When you come in here at 9:00 a.m. on June the 15th, if you have not picked up any new cases and if you timely appear, come in on time, you will lock into a fifteen year minimum sentence on this case. The other case, the search warrant case, will be dismissed. [Emphasis added.]
“MR. HOLMAN: Yes, sir.
“THE COURT: If you fail to appear on June the 15th, or if you get arrested again, I reserve the option to sentence you up to life in the penitentiary. [Emphasis added.]
“MR HOLMAN: Yes.
“THE COURT: And the other case, the search warrant case, will not be dismissed.
“MR. HOLMAN: Okay.
“THE COURT: Do we understand each other?
“MR. HOLMAN: Yes, sir.
“THE COURT: Do you understand what will happen if you get arrested again?
“MR. HOLMAN: Yes, sir.
“THE COURT: What? When we catch up with you, what is going to happen?
“MR. HOLMAN: I have the other charge and when the sentence ...
“THE REPORTER: Judge, I am sorry, I can’t hear.
“THE COURT: The fifteen years will be off and I could give you up to life, right?
“MR. HOLMAN: Yes, sir.
“THE COURT: All right. So, your net sentence is fifteen years, when you come in in June. Now, if these narcotic officers tell me that you are active in narcotics, between now and then, all deals are off.
“MR. HOLMAN: Yes, sir.
“THE COURT: I would think that if you behave yourself appropriately, that it would go well for you. It would go worse for you if you didn’t behave. How old are you now?
“MR. HOLMAN: Fifty-four.
“THE COURT: Fifty-four. I don’t know how long you would be down there. I know you would be down there a long time on a life sentence, consecutive with the other case. So, you have every incentive to come in and bite the bullet on this thing and get it over with, okay?”

As the above clearly reveals, the court’s “fifteen year” recommendation was contingent upon the defendant’s “timely reporting and no criminal activity.” Thus, there was no “broken promise” on the part of the court; rather, the defendant’s subsequent actions precipitated the court's decision.

This court has repeatedly stated that the decision to allow a defendant to withdraw a guilty plea is within the sound discretion of the trial court and such decision will not be disturbed upon appeal “except when an abuse of that discretion is demonstrated”, Tiner v. State, 421 So.2d 1369, 1370 (Ala.Crim.App.1982). Here, there is no showing that there was any misrepresentation as to the length of the sentence which could, and would, be imposed upon the defendant. There is additionally no showing that the defendant was misled as to the maximum sentence he would receive by the judge nor is there any showing that the defendant’s plea did not represent a “knowing and intelligent choice among known alternatives.” Chapman v. State, 412 So.2d 1276, 1277 (Ala.Crim.App.1982). As this court noted in Chapman:

“The fact that a defendant who has knowingly and intelligently pled guilty later becomes dissatisfied with the sentence he received does not constitute a ground for invalidating the guilty plea.” Id. at 1278.

The practical effect of the majority’s decision is to reward .the defendant for disobeying the express order of a compassionate trial court judge who allowed the defendant additional time to obtain medical treatment for his drug problems and get his “affairs in order.” We are not dealing, in this case, with a youthful, naive and presumably impressionable defendant. Here, we have a fifty-four year old habitual felony offender who agrees that the court can and will “nail [the defendant’s] hide for life” and yet, evidently, believes that he does not have to live up to his part of the agreement. The majority’s decision is inequitable, since it puts the defendant in a much better position than he would have been in had he obeyed the express order of the court.

For the reasons outlined above, I respectfully dissent. 
      
       Both Blow and English cite the United States Supreme Court case of Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), for the rule that a plea-bargain promise “must be kept."
     