721 So. 2d 233
Ala. Crim. App.
1997

Lead Opinion

TAYLOR, Presiding Judge.

Thе appellant, Nettie Mae Weakley, pleaded guilty to the unlawful distribution of a controlled substance, specifically cocaine, a violation of § 13A-12-211, Code of Alabama 1975. She was sentenced to five years in the state penitentiary.

The appellant contends that her constitutional rights were violated because she was not represented by counsel at her arraignment. The record makes nо mention that the appellant was represented by counsel at the arraignment hearing. In fact, the case action summary contains the following notation: “3-14-96. The defendant appeared in court and pled not guilty. Will hire an attorney. Trial set April 15, 1996, at 8:30 a.m., with pretrial April 10, 1996, at 8:30 a.m.” An attorney was not appointed for the appellant until April 9,1996.

In its brief to the court, the state correctly argues that a voluntary plеa of guilt waives all nonjurisdictional defects, unless the defendant specifically reserves an issue for purposes of appeаl. Prim v. State, 616 So.2d 381 (Ala.Cr.App.1993). The question becomes: Is the right to counsel at arraignment a jurisdictional issue not subject to waiver by a plea of guilt?

“Things that have been held to be subject to waiver [and, thus, nonjurisdictional,] ... include claims of illegal search and seizure, coerced confession, imрroper grand jury selection, and denial of speedy trial; and a defendant may waive the right to present the entrapment defense. ‘Ninеteenth An*234nual Review of Criminal Procedure: U.S. Supreme Court and Courts of Appeals 1988-89,’ 78 Georgetown L.J. 853 at 1006 (April 1990). However, a guilty plea does nоt waive ‍‌​​‌​​‌‌​‌‌‌​​‌​‌​​‌​​‌​‌​​​‌​​​‌‌‌‌‌‌‌​​‌‌‌​​​​‍such jurisdictional challenges to a conviction as an argument that the indictment failed to charge an offense or that the court lacked subject matter jurisdiction. Id. at 1007.”

Gordon v. Nagle, 647 So.2d 91, 94 (Ala.1994) (footnotes omitted). In Berry v. State, 630 So.2d 127 (Ala.Cr.App.1993), this Court stated:

“The constitutional ‘right to counsel, or waiver thereof, is an essential jurisdictional prerequisite to the authority to convict an aceused[, and cjonviction without this safeguard is void.’ People v. Carroll, 140 Cal.App.3d 135, 140 189 Cal.Rptr. 327, 331 (Cal.App. 2 Dist.), cert. denied, 464 U.S. 820, 104 S.Ct. 83, 78 L.Ed.2d 93 (1983) (citing Johnson v. Zerbst[, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) ]). Unless a defendant has or waives assistance of counsеl, the Sixth Amendment is a jurisdictional bar to a valid conviction and sentence. Johnson v. Zerbst; Stokes v. Singletary, 952 F.2d 1567 (11th Cir.1992); Boruff v. United States, 310 F.2d 918 (5th Cir.1962). See also Lancaster v. State, [638 So.2d 1374] (Ala.Cr.App.1993) (‘the appellant’s ... right to have counsel appointed on appeal [is a] jurisdictional matter[ ]; Lake v. City of Birmingham, 390 So.2d 36, 38 (Ala.Cr.App.1980)) (a record failing to reveal any of the circumstances surrounding the aрpellant’s self-representation ‘will not support the trial court’s judgment wherein the appellant was sentenced to a loss of liberty’).”

630 So.2d at 130 (footnotes omitted).

In Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), the United States Supreme Court reversed a judgment in a capital case where the defendant had been convicted after pleading not guilty. In that case, the Court reversed the conviction because the defendant had been arraigned without the assistance of cоunsel.

The right to counsel at arraignment is jurisdictional. Alabama cases have held that a conviction must be reversed when the record ‍‌​​‌​​‌‌​‌‌‌​​‌​‌​​‌​​‌​‌​​​‌​​​‌‌‌‌‌‌‌​​‌‌‌​​​​‍does not affirmatively show that the appellant was represented by counsel at arraignment. The Alabama Supreme Court, in Perkins v. State, 281 Ala. 139, 199 So.2d 839 (1967), in first addressing this issue, stated:

“But the record before us is silent as to whether [the defendant] was represented by an attorney at arraignment. We cannot presume, as argued in the Stаte’s brief, that the trial court checked on the matter of whether the accused was represented by counsel when he was arraigned. In the absence of waiver, it is required that a defendant accused of a felony be represented by counsel on arraignment.”

199 So.2d at 840. See also Brazzley v. State, 395 So.2d 161 (Ala.Cr.Aрp.1981) (reversible error existed where “[t]he record at arraignment and the judgment entry affirmatively show that appellant was not represented by counsel at arraignment and that he did not waive the presence of counsel”); Drummond v. State, 353 So.2d 546 (Ala.Cr.App.1977) (reversible error existed where “[t]he record at arraignment and the judgment entry affirmatively show that appellant was not represented by counsel at arraignment and that he did not waive arraignment”); Rogers v. State, 332 So.2d 165 (Ala.Cr.App.), cert. denied, 332 So.2d 168 (Ala.1976); Joiner v. State, 57 Ala.App. 177, 326 So.2d 705, n. 3 (1976) (“If arraignment occurs at a court session before trial date, counsel’s presence is mandatory at eaсh session beginning with arraignment unless the cause is continued for attendance of counsel.”); Maynor v. State, 55 Ala.App. 310, 314 So.2d 913 (1975) (reversal is necessary where “[a]t the trial appellant represented himself and the record does not reflect an attorney at arraignment, inquiry as to indi-gency or waiver of counsel”); Garsed v. State, 51 Ala.App. 622, 288 So.2d 161 (1973) (record must affirmatively show that the ‍‌​​‌​​‌‌​‌‌‌​​‌​‌​​‌​​‌​‌​​​‌​​​‌‌‌‌‌‌‌​​‌‌‌​​​​‍defendant was afforded counsel at arraignment); Merritt v. State, 50 Ala.App. 635, 282 So.2d 74, 75 (1973) (“The failure of the record to show that appellant was attended by counsel at arraignment was error apparent on the record.”); Knight v. State, 42 Ala.App. 672, 178 So.2d 101 (1965).

Furthermore, the record does not show thаt the appellant waived her right to counsel *235at arraignment. In Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70, 77 (1962), the United States Supreme Court stated:

“Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegаtion and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.”

Bеcause the appellant was not represented by counsel at her arraignment, her conviction must be reversed. This cause is remаnded to the circuit court for Lauderdale County for proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

All the Judges concur except COBB, J., who cоncurs specially with opinion.



Concurrence Opinion

COBB, Judge,

concurring specially.

As the majority correctly noted, the ‍‌​​‌​​‌‌​‌‌‌​​‌​‌​​‌​​‌​‌​​​‌​​​‌‌‌‌‌‌‌​​‌‌‌​​​​‍United States Supreme Court in Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), began what is now a long line of cases that hоld that the absence of counsel at arraignment constitutes reversible error, unless the record evidences a waiver of counsеl. Hamilton, however, was a capital murder case, and the Supreme Court stated, “When one pleads to a capital charge without benefit of counsel, we do not stop to determine whether prejudice resulted.” 368 U.S. at 55, 82 S.Ct. at 159. In the ensuing 35 years, this court has applied Hamilton, without further analysis and without regard to the circumstances of the case, to all cases in which defendants were arraigned without counsel. While I must acknowledge that the rule of law in Alabama is prеsently as the majority has stated it, I believe that it is an unwise rule and one that is not necessarily mandated by Hamilton or any other case.

I believe that the better rule would be thаt the absence of counsel at arraignment, at least in noncapital cases, is subject to a harmless error analysis and does nоt necessarily require a reversal. When a defendant, such as Nettie Mae Weakley, is arraigned without counsel and pleads not guilty and later appears with counsel and pleads guilty, but never even attempts to raise a special plea or enter any other objection, it is impossible to argue that the initial lack of counsel resulted in any prejudice. The present rule, that I believe has carelessly evolved from Hamilton, mandates reversals that serve no purpose except to further burden, at both the trial and appellate court levels, an already overwhelmed justice ‍‌​​‌​​‌‌​‌‌‌​​‌​‌​​‌​​‌​‌​​​‌​​​‌‌‌‌‌‌‌​​‌‌‌​​​​‍system. Because Alabama law presently requires a reversal in this case, I must concur with the majority’s decision in this ease.