JOINER, Judge.
Kinard Julius Henson appeals his guilty-plea convictions and subsequent sentences for attempted murder, a violation of § 13A-4-2, Ala.Code 1975, and bribing a witness, a violation of § 13A-10-121, Ala. Code 1975.
On August 23, 2010, pursuant to a plea agreement, Henson entered guilty pleas to the charges of attempted murder and bribing a witness.
Following Henson's admission of guilt, the State proffered an account of the evidence against Henson. According to the State, Henson used his cousin Roderick Sykes to shoot and attempt to kill Larry Barker, a straw buyer in a mortgage scheme in which Henson was involved and for which Henson was then being investigated by federal authorities.
On October 26, 2010, two days before Henson's sentencing date, Henson filed a "Motion to Set Aside Guilty Plea." (C. 54-55.) In his motion, Henson argued that his "plea was a product of coercion and threat to [Henson] and [his] family." Specifically, Henson alleged that "his father
Henson's father, John Henson (hereinafter "John"), was the only other witness to testify at the hearing. He testified that he learned, through a series of telephone conversations with his son, that Henry was threatening Henson, John, and other members of Henson's family; John's testimony, however, largely consisted of his recollections of telephone conversations with Henson in which Henson relayed threats allegedly made by Henry. John also testified that he and his wife relocated to Alabama from New Jersey as a result of the threat posed by Henry. On cross-examination, however, John acknowledged that he had no firsthand knowledge of any threat posed by Henry. Specifically, John testified that his understanding of the threat posed by Henry was based solely on his conversations with Henson and, further, that Henry had never personally threatened John. (R. 39, 42.) John also testified that he was first apprised of the alleged threats in July 2008 (R. 48) but that he did not relocate to Alabama until June 2010. (R. 46.) Finally, John acknowledged that he had had a recent encounter with Henry at a bank in New Jersey that was neither frightening nor threatening. (R. 41-42.)
At the close of the hearing on Henson's motion to set aside his guilty pleas, the State urged the court to deny Henson's motion, arguing that the timing of the motion was suspect; specifically, the State noted that the cases against Henson's two codefendants had been resolved and, thus, that the State could expect no further cooperation from either codefendant. (R. 62.) Henson argued, however, that there was no evidence indicating that Henson was aware of the status of the cases against his codefendants before he filed his motion. (R. 62.) At the conclusion of the hearing, the circuit court denied Henson's motion, finding that Henson's pleas had been "made freely, understandingly, knowingly, and voluntarily." (R. 64.) The circuit court proceeded to sentence Henson, stating as follows:
(R. 66.)
Henson subsequently filed a "Renewed Motion to Set Aside Guilty Plea and For New Trial." (C. 56.) In addition to "realleg[ing] and re-assert[ing] each and every allegation set forth in his original [m]otion," Henson argued only that his "plea was involuntary" and that his "plea was made by coercion." (C. 56.) The circuit court denied the motion. On appeal, Henson argues that his guilty pleas were not voluntary and, further, that both his sentences
Rule 14.4(e), Ala. R.Crim. P., states that "[t]he court shall allow withdrawal of a plea of guilty when necessary to correct a manifest injustice." "`Whether a defendant should be allowed to withdraw a guilty plea is a matter within the discretion of the trial court, whose decision will not be disturbed on appeal absent a showing of abuse of that discretion.'" Johnson v. State, 886 So.2d 900, 902 (Ala.Crim.App. 2003) (quoting Ex parte Blackmon, 734 So.2d 995, 997 (Ala.1999)). "`Moreover, any conflicting evidence is not subject to review on appeal unless it is shown that the trial court abused its discretion. Ex parte Heaton, 542 So.2d 931 (Ala.1989).'" Cobb v. State, 895 So.2d 1044, 1048 (Ala. Crim.App.2004) (quoting Duncan v. State, 838 So.2d 1064, 1065 (Ala.Crim.App.2000)).
The voluntariness of a guilty plea will not be addressed by an appellate court absent a showing that the trial court was first given the opportunity to address the specific issue. See Ex parte Parks, 892 So.2d 372, 374 (Ala.2004) (explaining that the prerequisites to appeal a claim that a guilty plea was involuntary are that "`the defendant ... either (1) make a motion before the trial court to withdraw the guilty plea or (2) file a Rule 32 petition before the trial court. Through either avenue, the trial court must be given the opportunity to address this issue.'" (quoting Stinson v. State, 669 So.2d 1010, 1011 (Ala.1995))); see also Ginn v. State, 894 So.2d 793, 795 (Ala.Crim.App.2004) (noting, with respect to an argument on appeal related to the voluntariness of a guilty plea, "[b]ecause this specific claim was not first presented to the trial court, it is not properly before this Court for review"). "It has been a rare occasion where this Court has seen fit to reverse the trial court's refusal to set aside a guilty plea." Cobb, 895 So.2d at 1048.
Henson first argues that his plea was not voluntary because, according to Henson, it was made only after he and members of his family were threatened by Henry; this argument was the basis of Henson's motions before the trial court. Although Henson testified briefly at the hearing, the bulk of the evidence before the circuit court was the testimony of John Henson, Henson's father. First, John's testimony largely consisted of what Henson had told John about the alleged threat posed by Henry; as John acknowledged, however, John was never directly threatened by Henry. Second, although John testified that he and his wife had relocated to Alabama because of the alleged threat, it appears that the couple relocated to Alabama nearly two years after John claims he was first made aware of Henry's threats; likewise, John testified to a recent encounter with Henry that was neither threatening nor frightening. Third, and finally, the timing of Henson's motion raises concerns. Although Henson alleges that Henry posed a threat as early as July 2008, Henson did not raise the issue of coercion until two days before he was scheduled to be sentenced and, further, until after the cases against his codefendants had been resolved. After a review of the record, we cannot say that the circuit court abused its discretion when it denied Henson's motions. Johnson, 886 So.2d at 902.
Henson's second argument is that his plea was not voluntary because, according to Henson, the circuit court failed to apprise him of the correct range of sentencing
Henson also argues that the trial court sentenced him outside the statutorily prescribed sentencing range on both charges. (Henson's brief, p. 16; Henson's reply brief, p. 1.) We agree.
Section 13A-5-6, Ala.Code 1975, the relevant portions of which are quoted below, prescribes the limitations on terms of imprisonment for felony sentences:
As noted above in Henson's plea colloquy, as well as the State's proffer, Henson was sentenced to a 15-year term of imprisonment on his conviction for attempted murder in which a firearm was used. However,
Daniels v. State, 762 So.2d 864, 868 (Ala. Crim.App.1999). As Henson unequivocally argues,
Furthermore, Henson was sentenced to 15 years' imprisonment for bribing a witness, a class C felony. See § 13A-10-121, Ala.Code 1975. As the State concedes,
Because Henson's sentences are not within the statutorily prescribed range, we reverse the circuit court's sentencing order and remand this case with instructions that the circuit court hold a new sentencing hearing. The circuit court shall sentence Henson for the attempted-murder conviction and the bribing-a-witness conviction in accordance with § 13A-5-6(a)(3) and (4), respectively. The circuit court shall take all necessary action to ensure that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days of the release of this opinion. The return to remand shall include a new sentencing order and a transcript of the proceedings.
Henson's convictions are affirmed, and the case is remanded for a new sentencing hearing.
AFFIRMED AS TO CONVICTIONS; REVERSED AS TO SENTENCES; AND REMANDED WITH INSTRUCTIONS.
WELCH, P.J., and WINDOM, KELLUM, and BURKE, JJ., concur.