Many people are familiar with using Rule 32 of the Alabama Rules of Criminal Procedure to attempt to obtain a new jury trial in Alabama after being convicted in a criminal trial. Not as many people are aware that, in some limited circumstances, Rule 32 may also be used to set aside a conviction after a guilty plea. This is the first of a series of articles addressing ways to use Rule 32 of the Alabama Rules of Criminal Procedure to set aside a felony conviction. Links to cases cited in this article are provided through Google Scholar. Rule 32 of the Alabama Rules of Criminal Procedure should not be confused with Rule 32 of the Alabama Rules of Judicial Administration, which deals with the calculation of child support.
The first way to try to set aside a guilty plea under Rule 32 is through a claim of “ineffective assistance of counsel.” Alabama law provides that claims of ineffective assistance of counsel may be presented for the first time in a timely filed Rule 32 petition. Murray v. State, 922 So. 2d 961 (Ala. Crim. App. 2005). Even if a person specifically waived the right to file an appeal or a post-judgment petition (a Rule 32 petition) as a condition of his or her guilty plea, that waiver is not valid or enforceable against a claim that the person received ineffective assistance of counsel. Boglin v. State, 840 So. 2d 926 (Ala. Crim. App. 2002). A person cannot waive the right to receive effective assistance of counsel. Whitman v. State, 903 So. 2d 152 (Ala. Crim. App. 2004), Whitehead v. State, 955 So. 2d 448 (Ala. Crim. App. 2006).
In the Boglin case, the Alabama Court of Criminal Appeals stated:
“We hold that although a waiver of the right to seek postconviction relief given as part of a plea agreement is generally enforceable, it cannot operate to preclude a defendant from filing a Rule 32 petition challenging the voluntariness of the guilty plea, the voluntariness of the waiver, or counsel’s effectiveness. Therefore, the circuit court erred in finding that Boglin’s claims that his guilty plea was involuntary, that his waiver of his right to appeal and to collaterally attack his conviction was involuntary, and that his trial counsel was ineffective were waived by the plea agreement.”
To prevail on a claim of ineffective assistance of counsel, the defendant must show that his trial counsel’s performance was deficient and that he was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Lawley, 512 So. 2d 1370 (Ala. 1987). “In the context of a guilty-plea proceeding, a petitioner must show that, but for counsel’s errors, the petitioner would not have pleaded guilty but would have insisted on proceeding to trial.” Carson v. State, ___ So. 3d ___ (Ala. Crim. App. 2008), citing Hill v. Lockhart, 474 U.S. 52, 58-59 (1985).
At the pleading stage, a defendant is not required to prove his claims by a preponderance of the evidence. Rather, he must merely provide a “clear and specific statement of the grounds upon which relief is sought.” Rule 32.6(b), Ala. R. Crim. Proc.; Ford v. State, 831 So. 2d 641 (Ala. Crim. App. 2001).
A defense commonly raised by the State is that the defendant stated he was satisfied with his attorney’s performance when entering the guilty plea. However, statements indicating satisfaction with trial counsel at the time of his plea do not preclude a person from presenting a Rule 32 challenge to the conviction because any prior subjective satisfaction is irrelevant in a Strickland claim. “Counsel’s performance is viewed objectively; therefore, a defendant’s subjective satisfaction with counsel’s performance is irrelevant in determining whether counsel was ineffective.” Harris v. State, 916 So. 2d 627 (Ala. Crim. App. 2005).
Setting aside a conviction after a guilty plea is difficult, but it is not impossible if the person has legitimate grounds for asserting ineffective assistance of counsel. For a consultation about whether your case can be reopened under Rule 32, please contact our office to discuss the facts of your situation.
William L. Pfeifer, Jr.
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