93 So. 3d 1002
Ala. Crim. App.2011Background
- McCary pleaded guilty on October 1, 2009 to sodomy in the first degree as a habitual offender, resulting in a life sentence; no direct appeal was taken.
- McCary timely filed a Rule 32 petition on September 24, 2010 claiming involuntary plea due to being misinformed he would be eligible for parole.
- The State responded with trial counsel affidavit, Ireland form, and plea documents; the circuit court summarily dismissed the petition on February 14, 2011.
- McCary argues the guilty plea was involuntary because he was never informed that § 15-22-27.3 would render him ineligible for parole, increasing the potential maximum sentence.
- The court recognized that § 15-22-27.3 can be a direct consequence of a guilty plea when it increases the maximum sentence, and remanded for an evidentiary showing of whether McCary was informed or not.
- The remand instructs the circuit court to conduct a hearing or receive affidavits and to issue written findings, with due return including a transcript of the plea colloquy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether parole ineligibility under §15-22-27.3 must be disclosed to render the plea voluntary. | McCary entitled to know the direct consequences of parole ineligibility. | State agrees in appeal that information was not provided and the plea was involuntary. | Parole ineligibility must be disclosed when it increases the maximum sentence; remand for findings. |
| Whether the case should be remanded for an evidentiary hearing to prove the information conveyed at plea. | McCary has pleaded facts showing lack of information entitling relief. | State concedes information was not provided; trial court’s findings needed. | Remand for evidentiary proceedings and written findings required. |
Key Cases Cited
- Ex parte Rivers, 597 So.2d 1308 (Ala. 1991) (required informing of maximum/minimum sentences for plea validity)
- White v. State, 888 So.2d 1288 (Ala. Crim. App. 2004) (must inform minimum/maximum sentences; life vs. term of years distinction)
- Bozeman v. State, 686 So.2d 556 (Ala. Crim. App. 1996) (absolute right to know possible sentence when accepting plea)
- Rumpel v. State, 847 So.2d 399 (Ala. Crim. App. 2002) (parole eligibility treated as collateral/consequences analysis)
- Frost v. State, 76 So.3d 862 (Ala. Crim. App. 2011) (parole ineligibility as direct consequence when increasing period of incarceration)