Dustin Glenn Connally appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his January 31, 2005, conviction, entered pursuant to a guilty plea, for manslaughter and his resulting sentence of 17 years’ imprisonment. Connally did not appeal his conviction and sentence.
On December 8, 2005, Connally filed his Rule 32 petition. In his petition, Connally alleged:
(1) that his guilty plea was involuntary because, he said, the trial court did not properly inform him of the minimum and maximum sentences he could receive, and did not ascertain that his plea was free from coercion and/or promises; and
(2) that his trial counsel was ineffective because, he said:
(a) his counsel did not explain to him the elements of murder (the crime with which he was charged), manslaughter (the crime to which he pleaded guilty), or criminally negligent homicide and, thus, he was unable to make an informed decision as to whether to plead guilty to manslaughter, and that, had he been properly informed by his counsel of the various lesser-included offenses of the murder charge, he would not have pleaded guilty to manslaughter;
(b) his counsel did not investigate his competency to stand trial or the possibility of asserting an insanity defense based on intoxication and did not request psychiatric assistance; and
(c) his counsel did not investigate possible defenses, interview possible witnesses, or use the private investigator his family hired.
After receiving a response from the State, the circuit court summarily denied the petition on February 21, 2006, on the ground that Connally’s claims could have been, but were not, raised and addressed on appeal, see Rule 32.2(a)(5), Ala.R.Crim.P., and were bare allegations insufficient to satisfy the pleading requirements in Rule 32.3 and Rule 32.6(b), Ala.R.Crim.P.
I.
Initially, we point out that the circuit court erred in finding that Connally’s claims were procedurally barred. It is well settled that “claims of ineffective assistance of counsel and challenges to the voluntariness of a guilty plea may be presented for the first time in a timely filed Rule 32 petition.”
Murray v. State,
922
However, with respect to claims (2)(b) and (2)(c), as set out above, we agree with the circuit court that these claims were bare allegations insufficient to satisfy the pleading requirements in Rule 32.3 and Rule 32.6(b). Rule 32.3 states that “[t]he petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.” Rule 32.6(b) states that “[t]he petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.” As this Court noted in
Boyd v. State,
“ ‘Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief.’ Boyd v. State,746 So.2d 364 , 406 (Ala.Crim.App.1999). In other words, it is not the pleading of a conclusion ‘which, if true, entitle[s] the petitioner to relief.’ Lancaster v. State,638 So.2d 1370 , 1373 (Ala.Crim.App.1993). It is the allegation of facts in pleading which, if true, entitles a petitioner to relief. After facts are pleaded, which, if true, entitle the petitioner to relief, the petitioner is then entitled to an opportunity, as provided in Rule 32.9, Ala.R.Crim.P., to present evidence proving those alleged facts. ”
In
Strickland v. Washington,
A.
With respect to Connally’s claim that his trial counsel was ineffective for not investigating his competency to stand trial or the possibility of asserting an insanity defense based on intoxication and for not requesting psychiatric assistance, Connally alleged that he had been “drinking heavily” on the night of the crime (C. 41) and that his aunt had requested that his counsel have Connally evaluated, but that counsel refused “even though counsel knew of the petitioner’s intoxication, history of depression and emotional problems, and learning difficulties throughout his life.” (C. 45.) Connally pleaded no other facts in his petition.
“[NJeither low intelligence, mental deficiency, nor bizarre, volatile, and irrational behavior can be equated with mental incompetence to stand trial.”
Medina v. Singletary,
Likewise, Connally’s bare allegation that he had been “drinking heavily” on the night of the crime was not sufficient to indicate that intoxication would have been a viable defense to the murder charge. As the United States Supreme Court explained in
Hill v. Lockhart,
“We hold, therefore, that the two-part Strickland v. Washington[,466 U.S. 668 (1984),] test applies to challenges to guilty pleas based on ineffective assistance of counsel. In the context of guilty pleas, the first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence already set forth in Tollett v. Henderson, [411 U.S. 258 (1973),] and McMann v. Richardson, [397 U.S. 759 (1970) ]. The second, or ‘prejudice,’ requirement, on the other hand, focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.
“In many guilty plea cases, the ‘prejudice’ inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error ‘prejudiced’ the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the ‘prejudice’ inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial. See, e.g., Evans v. Meyer,742 F.2d 371 , 375 (C.A.7 1984) (‘It is inconceivable to us ... that [the defendant] would have gone to trial on a defense of intoxication, or that if he had done so he either would have been acquitted or, if convicted, would nevertheless have been given a shorter sentence than he actually received’). As we explained in Strickland v. Washington, supra, these predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the ‘idiosyncrasies of the particular decisionmaker.’ Id.,466 U.S., at 695 .”
“To negate the specific intent required for a murder conviction, the degree of the accused’s intoxication must amount
Therefore, Connally failed to plead sufficient facts indicating that his counsel was ineffective in this regard.
B.
With respect to Connally’s claim that his trial counsel was ineffective for not investigating possible defenses, interviewing possible witnesses, or using the private investigator his family had hired, Connally failed to allege what possible defenses his counsel did not investigate, what possible witnesses his counsel did not interview or what those witnesses would have said had they been interviewed, or what information his family’s private investigator would have found had his services been used. Clearly then, Connally failed to plead sufficient facts indicating that his counsel was ineffective in this regard.
II.
With respect to claims (1) and (2)(a), however, we conclude that Connally pleaded sufficient facts in his petition regarding these claims to satisfy the pleading requirements in Rule 32.3 and Rule 32.6(b).
Connally alleged in his petition that his guilty plea was involuntary because, he said, the trial court did not properly advise him of the minimum and maximum sentences that he could receive for his manslaughter conviction and did not ascertain that his plea was free from coercion and/or promises. Connally argued that although he signed an
Ireland v. State,
These facts were sufficient to satisfy the pleading requirements in Rule 32.3 and Rule 32.6(b), and they were unrefuted by the State. Therefore, they must be accepted as true. See
Bates v. State,
Connally also alleged in his petition that his trial counsel was ineffective for not explaining to him the elements of murder (the crime with which he was charged), manslaughter (the crime to which he pleaded guilty), or criminally negligent homicide. He argues that absent any information regarding the charged crime and its lesser-included offenses, he was unable to make an informed decision as to whether to plead guilty to manslaughter. He also argues that had he been informed of the elements of these crimes, based on the facts in his case, he would not have pleaded guilty to manslaughter, but would have insisted on going to trial in hopes of obtaining an acquittal or a conviction for criminally negligent homicide.
Connally pleaded in his petition specific facts regarding the crime and his participation in it — he alleged that playful banter between him and his friend, Chad Boy-ette, escalated into a fight; that during the fight the victim, David Bibby, knocked him to the floor; that he reacted to being knocked down by hitting Bibby in the face four times; that he did not intend to hurt or kill Bibby; and that he did not perceive the risk that he would kill Bibby by punching him in the face. These facts indicate that, had he gone to trial, Connally may have been entitled to a jury instruction on criminally negligent homicide, see
Koppersmith v. State,
Based on the foregoing, we must remand this case for the circuit court to allow Connally an opportunity to present evidence to support his allegations (1) that his guilty plea was involuntary because, he said, the trial court did not properly advise him of the minimum and maximum sentences that he could receive for his manslaughter conviction and did not ascertain that his plea was free from coercion and/or
REMANDED WITH DIRECTIONS. *
Notes
Note from the reporter of decisions: On October 2, 2009, on return to remand, the Court of Criminal Appeals affirmed, without opinion.