Joiner v. State

625 So. 2d 1173 (1993)

Donald Wilburn JOINER, alias
v.
STATE.

CR-92-342.

Court of Criminal Appeals of Alabama.

May 28, 1993. Rehearing Denied July 9, 1993.

Arthur Clarke, Mobile, for appellant.

James H. Evans, Atty. Gen., and Gail Hampton, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

This is an appeal from the denial of a petition for post-conviction relief. The appellant, Donald Wilburn Joiner, challenges his three 1991 guilty plea convictions for attempted robbery in the first degree.

The appellant contends that he was not sentenced in accordance with the plea bargain agreement. He claims that it was his understanding that the 20-year sentence he received on each conviction would not only be served concurrently with each other and with the sentence he was then serving, but they would also be "coterminous" so that those sentences would "coterminate" or end at the same time as the other sentence the appellant was then serving. The assistant district attorney indicated that this "coterminous" aspect was not a part of the plea bargain agreement. In the record of the actual guilty plea colloquy, there is nothing to indicate that the sentences would be "coterminous." After an evidentiary hearing on the petition, the circuit court found no merit to the appellant's allegation.

On appeal, the attorney general states: "The defendant testified that he was misled as to the terms of his plea bargain agreement. His attorney basically confirmed the defendant's version of the plea bargain." Appellee's brief at 4. At the evidentiary hearing, the following occurred:

"THE COURT: Well, then someone misled you. And if someone misled you, I'll allow you to withdraw your plea of guilty. You can go to trial on the three robberies.

"DEFENDANT: I don't wish to withdraw my plea, sir.

"THE COURT: Go ahead.

"MR. CLARKE [appellant's attorney]:

"Q. You don't want to withdraw your plea of guilty, you want your sentence to modify that's what you understood the plea agreement was?

"A. Yes, sir." R. 26.

The appellant is not entitled to specific enforcement of his understanding of the plea bargain agreement. It does not appear that the State and the appellant ever agreed upon the terms of that plea bargain agreement. Ex parte Cassady, 486 So. 2d 453 (Ala.1986); Congo v. State, 455 So. 2d 896 (Ala.1984); Ex parte Yarber, 437 So. 2d 1330 (Ala.1983); Bland v. State, 565 So. 2d 1240 (Ala.Cr.App. 1990). The appellant declined the opportunity to withdraw his guilty plea and that was the only remedy to which he was entitled.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.