
    Oscar BROWN, Jr. v. STATE.
    CR-94-1868.
    Court of Criminal Appeals of Alabama.
    May 10, 1996.
    Rehearing Denied June 21, 1996.
    Certiorari Quashed April 18,1997 Alabama Supreme Court 1951695.
    Thomas M. Goggans, Montgomery, for appellant.
    Jeff Sessions, Atty. Gen., and Stephen Dodd, Asst. Atty. Gen., for appellee.
   COBB, Judge.

The appellant, Oscar Brown, Jr., pleaded guilty to and was convicted of arson in the second degree, burglary in the second degree, and theft in the second degree. He was sentenced to seven years’ imprisonment on each conviction, those sentences to run concurrently. On direct appeal he raises one issue.

The appellant contends that the trial court erred to reversal in allegedly failing to follow Rule 14.4, Ala.R.Crim.P., when accepting the appellant’s guilty pleas. Specifically, the appellant claims that his pleas were involuntarily given because, he says, the court did not address him personally when discussing the maximum and minimum sentence ranges for the appellant’s offenses, the right to remain silent, the right to confrontation and cross-examination, the right to subpoena witnesses to testify on his behalf, and whether the appellant fully understood his guilty pleas and the consequences of entering a guilty plea. Further, the court allegedly never discussed with the appellant his right to plead not guilty by reason of mental disease or defect or to plead both not guilty and not guilty by reason of mental disease or defect and to persist in those pleas. The trial court addressed a group of accused persons to discuss matters that pertained to them all.

Rule 14.4(a)(l)(iv), Ala.R.Crim.P., states that the trial court must inform the accused during the guilty plea colloquy that he or she has “the right to plead not guilty, not guilty by reason of mental disease or defect, or both not guilty and not guilty by reason of mental disease or defect, and to persist in such a plea if it has already been made, or to plead guilty.” As this court has previously stated:

“In Twyman v. State, 293 Ala. 75, 81-82, 300 So.2d 124, 130 (1974), our Supreme Court held that an Ireland [v. State, 47 Ala.App. 65, 250 So.2d 602 (1971)] form executed by the defendant and acknowledged by defense counsel and the trial judge may establish that a guilty plea was voluntarily and intelligently made, ‘provided there is other evidence in the record supporting that fact.’ Davis v. State, 348 So.2d 844, 846 (Ala.Crim.App.), cert. denied, 348 So.2d 847 (Ala.1977) (emphasis in Twyman).”

Trice v. State, 601 So.2d 180, 184 (Ala.Crim.App.1992) (footnote omitted).

The record in this case contains an Ireland form properly completed, signed by the trial court, the appellant’s counsel, and the appellant, and filed on the day of the guilty plea hearing. The Ireland form clearly informed the appellant that he had a right to plead not guilty and/or not guilty by mental disease or defect. The Ireland form also contained a signed statement that defense counsel had advised the appellant of his rights. Although the trial court did not specifically refer to the Ireland form, the trial court, during the colloquy, asked the appellant’s attorney if the appellant had been advised of his rights, and the attorney replied that he had. This question came after the trial court engaged in an extensive colloquy with the appellant. That colloquy consists of 20 pages of the transcript. The presence of the executed Ireland form in the record — which contained the rights set out in Rule 14.4(a)(l)(iv), trial counsel’s reaffirmation to the court during the colloquy that he had advised the appellant of his rights, and the extensive colloquy that took place in this case — convince this court that the requirement of Twyman has been met and that the appellant pleaded guilty knowingly, voluntarily, and intelligently. The fact that the trial court did not speak one-to-one with the appellant regarding certain of the above matters has no bearing on the propriety of the colloquy with the appellant. The appellant does not now complain that he did not understand the colloquy, and he did not complain when asked by the trial court whether he had been advised of his rights and whether he understood his rights. (R. 17-18, 23.)

Further, any error that may have been caused by the trial court’s failure to inform the appellant of his right to plead not guilty, not guilty by reason of mental disease or defect (or any combination thereof), or guilty, is harmless error. The appellant obviously knew he had a right to plead not guilty; he had already done so and was withdrawing his plea of not guilty. Likewise, the appellant obviously knew he had a right to plead guilty — he was pleading guilty. The fact that the appellant was not informed that he could plead not guilty by reason of mental disease or defect is harmless error because the appellant has provided us with no evidence that had he known of this right he would have invoked the right. He has not alleged that he was suffering from a mental disease or defect at the time of the offense and would have pleaded not guilty by reason of mental disease or defect if the trial court had informed him of this right.

Those who dissent in this ease cite Brewster v. State, 624 So.2d 217 (Ala.Crim.App.1993), to support their position that the trial court, in failing to personally advise the appellant of his constitutional rights, committed reversible error. However, as Judge Bowen, writing for the majority, stated in Brewster:

“The record in this case contains both a signed form and a minute entry reciting compliance with Boykin, but the minute entry is contradicted by the court reporter’s transcript. The judgment entry states that the appellant had been “advised of HIS legal rights by the Court,” CR. 16,18, 20, 22, but the court reporter’s transcript of the colloquy between the trial court and the appellant shows that the trial court neither advised the appellant of his rights nor inquired whether he had read, or had had read to him, the rights form before signing it or before 'pleading guilty. The trial court merely ascertained that the appellant had ‘signed’ the form.”

624 So.2d at 220 (emphasis added). The facts of Brewster thus clearly distinguish it from the case before us. Here, the court reporter’s transcript reveals that the trial court did, in fact, personally inquire whether the appellant understood his rights and the form he had signed, to which inquiries the appellant responded in the affirmative. (R. 17-18, 23.) In Brewster, the transcript revealed that the trial court had not actually made those inquiries of the appellant. We agree with the theoretical position of those who dissent here; however, the facts of this case do not support their position.

For the foregoing reasons, this court affirms the judgment of the trial court.

AFFIRMED.

PATTERSON and McMILLAN, JJ., concur.

TAYLOR, P.J., and LONG, J., dissent with opinions.

TAYLOR, Presiding Judge,

dissenting.

I dissent from the majority’s opinion in this case, which upholds the appellant’s guilty plea. The appellant pleaded guilty to arson in the second degree, burglary in the second degree, and theft of property in the second. The record reflects that the appellant was not individually addressed by the trial court but was addressed as one of a group before the court pleading guilty to charges against them. The appellant contends that his guilty plea was not knowingly and voluntarily entered and that it was therefore invalid because the court did not personally address him concerning his rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and Rule 14.4, Ala. R.Crim.P. Rule 14.4(a), specifically addresses the requirements for accepting a guilty plea and states in part:

“In all ... cases [other than minor misdemeanors] ... the court shall not accept a plea of guilty without first addressing the defendant personally in the presence of counsel in open court for the purposes of:
“(1) Ascertaining that the defendant has a full understanding of what a plea of guilty means and its consequences, by informing the defendant of and determining that the defendant understands:
“(i) The nature of the charge and the material elements of the offense. to which the plea is offered;
“(ii) The mandatory minimum penalty, if any, and the maximum possible penalty provided by law, including any enhanced sentencing provisions;
“(in) If applicable, the fact that the sentence may run consecutively to or concurrently with another sentence or sentences;
“(iv) The fact that the defendant has the right to plead not guilty, not guilty by reason of mental disease or defect, or both not guilty and not guilty by reason of mental disease or defect, and to persist in such a plea if it has already been made, or to plead guilty;
“(v) The fact that the defendant has the right to remain silent and may not be compelled to testify or give evidence against himself or herself, but has the right, if the defendant wishes to do so, to testify on his or her behalf;
“(vi) The fact that, by entering a plea of guilty, the defendant waives the right to trial by jury, the right to confront witnesses against him or her, the right to cross-examine witnesses or have them cross-examined in the defendant’s presence, the right to testify and present evidence and witnesses on the defendant’s own behalf, and the right to have the aid of compulsory process in securing the attendance of witnesses; and
“(vii) The fact that, if the plea of guilty is accepted by the court, there will not be a further trial on the issue of defendant’s guilt; and
“(2) Determining that the plea is voluntary and not the result of force, threats, or coercion, nor of any promises apart from the plea agreement that has been disclosed to the court as provided in Rule 14.3(b).

Rule 14.4(d), addresses the use of forms when accepting a guilty plea. This section states:

“(d) Use of Form The court may comply with the requirements of Rule 14.4(a) by determining from a personal colloquy with the defendant that the defendant has read, or has had read to the defendant, and understands each item contained in Form 68, 69, 70, or Form 71, as the case may be.”

The majority concludes that “any error that may have been caused by the trial court’s failure to inform the appellant of his right to plead not guilty, not guilty by reason of mental disease or defect (or any combination thereof), or guilty, is harmless error.” The majority’s conclusion conflicts with Rule 14.4(d) and Brewster v. State, 624 So.2d 217 (Ala.Cr.App.1993). In Brewster, this court, mindful of the problems that can arise when a guilty plea is based on a “form” and not a personal colloquy, stated:

“The record in this case contains both a signed form and a minute entry reciting compliance with Boykin, but the minute entry is contradicted by the court reporter’s transcript. The judgment entry states that the appellant had been ‘advised of HIS legal rights by the Court,’ CR. 16,18, 20, 22, but the court reporter’s transcript of the colloquy between the trial court and the appellant shows that the trial court neither advised the appellant of his rights nor inquired whether he had read, or had had read to him, the rights form before signing it or before pleading guilty. The trial court merely ascertained that the appellant had ‘signed’ the form.
“Although the convictions based on these guilty pleas could not stand ... their invalidity is even more striking when the convictions are examined in light of the current procedure for accepting a guilty plea outlined in Rule 14.4, A.R.Crim.P., and in light of the fact that ‘the spirit of the Rule is to adopt a statement in the dissenting opinion in Twyman [v. State, 293 Ala. 75, 300 So.2d 124 (1974) ] by Chief Justice Heflin, wherein he said: “There is a danger that the use of such [forms] can become so commonplace and perfunctory that they fail to serve the purpose for which they are intended.” H. Maddox, Alabama Rules of Criminal Procedure § 14.4 at 439 (1990).

“The appellant’s conviction must be reversed because the trial court did not comply with Rule 14.4, specifically subsection (d) of that rule, which

“ ‘authorizes the use of a form to advise the defendant of his rights, but the Rule specifically retains a requirement that the judge must personally address the defendant in order to make sure that he or she understands the form, and that the judge still ascertain that the defendant understands the provisions of the form. The record should show in every case a colloquy between the trial judge and the defendant concerning the plea. Cf. Twyman v. State, 293 Ala. 75, 300 So.2d 124 (1974).”
“H. Maddox, Alabama Rules of Criminal Procedure § 14.4 at 438 (emphasis in original).”

624 So.2d at 220.

The trial court here failed to comply with Rule 14.4, Ala.R.Crim.P. For that reason, I must dissent.

LONG, Judge

(dissenting).

I would hold that the trial court erred by denying the appellant’s motion to withdraw his guilty pleas, because I believe that before those pleas were entered, the trial court failed to comply with Rule 14.4(a)(l)(iv), Ala. R.Crim.P., which requires the court to inform the defendant of “[t]he fact that the defendant has the right to plead not guilty, not guilty by reason of mental disease or defect, or both not guilty and not guilty by reason of mental disease or defect and to persist in such a plea if it has already been made, or to plead guilty.” The record reflects that the appellant was not advised of these rights by the trial court during the Boykin colloquy, and, as the majority notes, the trial court made no reference to the signed Ireland form (wherein these rights are set out) during its colloquy with appellant. In Brewster v. State, 624 So.2d 217, 220 (Ala.Cr.App.1993), this court held that Brewster could withdraw his guilty plea because the trial court did not comply with Rule 14.4, even though the record on appeal contained an Ireland form signed by Brewster and reflected that the trial court had ascertained that Brewster had “signed” the form. This court held that the record was insufficient to establish compliance with Rule 14.4(d), which allows the use of an Ireland form to advise a defendant of his rights, because, where the Ireland form is used as the means of advising a defendant, the record must show that the trial court personally addressed the defendant to ascertain whether the defendant has read the form, or has had the form read to him, before pleading guilty and to ascertain — presumably by the defendant’s affirmative representation — that the defendant understands the form. See Rule 14.4(d); Brewster, 624 So.2d at 220.

I believe that the majority stretches Rule 14.4(d) and the holding in Twyman too far when it holds that Rule 14.4 was satisfied in this ease by the signed Ireland form coupled with defense counsel’s statement to the trial court during the colloquy that he had advised the appellant of his rights. This court noted in Brewster, quoting H. Maddox, Alabama Rules of Criminal Procedure § 14.4 at 439 (1990), that ‘“the spirit of the Rule is to adopt a statement in the dissenting opinion in Twyman by Chief Justice Heflin, wherein he said: “There is a danger that the use of such [forms] can become so commonplace and perfunctory that they fail to serve the purpose for which they are intended.”’” Brewster, 624 So.2d at 220. I do not think that it is too much to ask that the trial court, when accepting a guilty plea, establish a record that affirmatively reflects that the defendant has been advised of his or her rights. When the record does not show that the trial court has advised the defendant of his or her rights directly during the colloquy, it should at least show that the trial court has ascertained from the defendant that the defendant has read and understood the signed Ireland form. Because that was not done here, I must respectfully dissent.  