Committee Comments

Section (a) adopts the requirement that the court address the defendant personally in open court in the presence of counsel (unless counsel has been waived pursuant to Rule 6.1(b) ) and is applicable in all cases except those involving minor misdemeanors and offenses where the defendant is a corporation. See Rule 1.4(r) for the definition of “minor misdemeanor.” See Rule 11(c), Fed. R. Crim. P. This procedure is called for by ABA, Standards for Criminal Justice, Pleas of Guilty 14-1.4 (2d ed. 1986), and is widely practiced by Alabama trial judges. See, e.g., Johnson v. State, 52 Ala. App. 94, 289 So. 2d 662 (1973). The record should affirmatively reflect the questions asked and the defendant’s responses. This practice will protect the courts by providing an adequate basis for review on appeal.

Subsection (a)(1) requires a full colloquy to ensure that the defendant understands what the “plea connotes and … its consequence” as required by Boykin v. Alabama, 395 U.S. 238 (1969). Sub-subsection (i) requires that the nature of the charge and the material elements of the offense be explained so that the defendant understands what he is accused of. The provision is similar to Rule 11, Fed. R. Crim. P. “[R]eal notice of the true nature of the charge [is] the first and most universally recognized requirement of due process….” Smith v. O’Grady, 312 U.S. 329, 334 (1941). The instant provision is designed to meet that requirement. See ABA, Standards for Criminal Justice, Pleas of Guilty, comments to 14-1.4(a) (2d ed. 1986). The method used to determine whether the defendant understands the charge is left to the sound discretion of the trial judge; it will vary according to such factors as age, intellectual capacity, educational background, and complexity of the charge. For example, the defendant’s plea of guilty to second degree murder was set aside on the finding that the requisite element of the offense – that the assault was “committed with a design to effect the death of the person killed” – was not explained to the defendant. Considering the youth and low intelligence of the defendant, the court held the plea was not voluntary. Henderson v. Morgan, 426 U.S. 637 (1976).

Sub-subsection (ii) is designed to meet the requirement of Alabama decisions holding that the defendant must be informed of the maximum and minimum possible sentences as an “absolute constitutional prerequisite to acceptance of a guilty plea.” See Carter v. State, 291 Ala. 83, 277 So.2d 896 (1973); Knight v. State, 55 Ala. App. 565, 317 So.2d 532 (1975). While not required under the rule, trial judges are free to follow what the Alabama Supreme Court has termed the “better practice” of eliciting the “maximum and minimum sentences from the defendant himself, so that his knowledge thereof appears on the face of the record.” Carter v. State, 291 Ala. at 85, 277 So.2d at 898.

The habitual felony offender statute requires that a criminal defendant who, having been previously convicted of any felony, commits another felony for which he is convicted must receive additional penalties. Ala. Code 1975, § 13A-5-9.

Furthermore, any person who possesses a firearm during the commission of trafficking in a controlled substance will receive an additional five-year sentence and an additional $25,000 fine. Ala. Code 1975, § 13A-12-231.

Any person who uses a firearm or deadly weapon in the commission of a Class A felony will receive a minimum sentence of twenty (20) years and in the commission of a Class B or C felony a minimum of ten (10) years. Ala. Code 1975, § 13A-5-6.

In addition to any other penalty, a person who sells a controlled substance within three (3) miles of a school will receive an additional five-year sentence with no provision for probation. Ala. Code 1975, § 13A-12-250. The additional punishment also applies to any person selling controlled substances within three (3) miles of a public housing project. Ala. Code 1975, § 13A-12-270.

A person over the age of 18 who sells controlled substances to a person under the age of 18 shall, upon conviction, be punished as a Class A felony offender and shall not be granted probation. Ala. Code 1975, § 13A-12-215.

Sub-subsection (iii), requiring that the trial judge inform the defendant that the sentence may run concurrently or consecutively with another sentence, is included to insure that the defendant is aware of the additional consequences of his guilty plea. See Cooper v.. State, 47 Ala. App. 178, 252 So.2d 104 (1971). Compare ABA, Standards for Criminal Justice, Pleas of Guilty 14-1.4 (2d ed. 1986). Under the corresponding federal rule, the court is not required to disclose information concerning additional consequences that might follow from his plea of guilty, although it is free to do so if it feels that the information is “likely to be of real significance to the defendant.” Comment to Rule 11, Fed. R. Crim. P. The Advisory Committee believes that, in light of the Boykin requirement that the trial judge “make sure that [the defendant] has a full understanding of what the plea connotes and of its consequence,” the better practice is routine disclosure of such information.

Sub-subsections (iv), (v), (vi), and (vii) are intended to meet the Boykin requirement that the defendant fully understand the constitutional rights which he waives by pleading guilty.

Section (b) satisfies the requirement in Clark v. State, 294 Ala. 485, 488, 318 So.2d 805, 807-808 (1974), that:

“In a plea of guilty proceedings, the judge should undertake a factual inquiry to determine if the plea is voluntarily made with an understanding of the nature of the charge and the consequences of the plea. Further, the judge should be satisfied that there is a factual basis for the plea….

“In such proceedings a trier of fact does not seek to determine if the accused’s actions would justify a conviction on the full charge contained in an indictment, but only if such action satisfies the degree of guilt admitted by the plea.” (Emphasis added.)

The court may meet this requirement by eliciting an in-court statement from the defendant, by an in-court statement from the district attorney, or from evidence presented, including that of witnesses, which may be hearsay in whole or in part.

Section (c) requires that the court keep a verbatim record of pleas of guilty to felonies. In Jarman v. State, 54 Ala. App. 557, 310 So.2d 481 (1975), the appellant pleaded guilty to a misdemeanor and was sentenced to 90 days’ imprisonment. The court reversed and remanded, since the “record [was] completely devoid of any colloquy between the trial judge and the appellant and his attorney, which is necessary to show compliance with Boykin,” pointing out that “[t]he record itself or the minute entry must affirmatively reflect the questions asked and answers given at the time of taking the guilty plea” quoting Allen v. State, 50 Ala. App. 310, 278 So.2d 758, citing McGullion v. State, 49 Ala. App. 248, 270 So.2d 680 (Ala. Crim. App. 1972).

Section (d) is included to accommodate the current Alabama practice of informing the defendant of his rights through a form similar to that approved in Ireland v. State, 47 Ala. App. 65, 250 So.2d 602 (1971), and subsequent cases. The rule, however, specifically retains the requirement that the trial judge personally address the defendant in order to determine that he understands the contents of the form and that the judge specifically question the defendant concerning the information contained in each item. Thus, in every case, the record should affirmatively show a colloquy between the trial judge and the defendant concerning all such matters. Twyman v. State, 293 Ala. 75, 300 So.2d 124 (1974), held that where the record affirmatively shows that the defendant was informed of and understood his rights, the record need not include a full transcript of the colloquy. Subsequent cases in the Court of Appeals have held that while a full colloquy is not required where the form is used, the record must show that the trial judge made inquiry as to the defendant’s understanding of the rights set out in the form. This rule requires such a colloquy and requires that specific inquiry be made with regard to the rights set out in Rule 14.4(a)(1) and (2). Such procedure will insure that the form herein approved does not “become so commonplace and perfunctory that [it fails] to serve the purpose for which [it is] intended.” See Twyman v. State, 293 Ala. 75, 83, 300 So.2d 124, 131 (1974) (Heflin, C.J., dissenting).

Section (e) permits withdrawal of a guilty plea when necessary to correct a manifest injustice. In such case, if the charges have been reduced or amended to accommodate the guilty plea as part of the overall agreement, withdrawal of the plea automatically reinstates the original charges.

Conversely, if trial has commenced before a jury, the parties may reach a plea agreement at any time prior to return of a verdict by the jury. If such an agreement is reached and approved by the court, the court may tentatively permit a withdrawal of the plea of not guilty and may proceed to accept defendant’s plea under Rule 14.4, outside the presence of the jury. Once accepted by the court, the jury may be discharged without necessity for submission of the agreement to the jury.

Court Comment to Amendment Effective August 1, 2002

This amendment added the sub-subsection (a)(1)(viii) requiring that the defendant be informed that he or she has no right to appeal unless the defendant, before entering the guilty plea, reserves the right to appeal with respect to a particular issue. It added subsection (a)(3) requiring the trial court, before accepting a guilty plea, to give the defendant the opportunity to object to the way defense counsel had conducted the defense. It also changed the form numbers in the rule to correspond to the Appendix of Forms currently published with the Rules of Criminal Procedure. Rule 26.9 governs a defendant’s appeal rights in the event the court rejects a plea bargain, the defendant moves to withdraw a plea, and that motion is denied.

Note from the reporter of decisions: The order amending Rule 14.4, effective August 1, 2002, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 2d.