Ex parte Curtis Earl Scarver. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Curtis Earl Scarver v. State of Alabama) (Montgomery Circuit Court: CC-08-1351.60; Criminal Appeals : CR-12-0741). Writ Denied. No Opinion.

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REL:10/25/2013 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2013-2014 _________________________ 1121262 _________________________ Ex parte Curtis Earl Scarver PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Curtis Earl Scarver v. State of Alabama) (Montgomery Circuit Court, CC-08-1351.60; Court of Criminal Appeals, CR-12-0741) SHAW, Justice. WRIT DENIED. NO OPINION. Stuart, Bolin, Parker, Murdock, Main, Wise, and Bryan, JJ., concur. 1121262 Moore, C.J., dissents. 2 1121262 MOORE, Chief Justice (dissenting). I respectfully dissent from the Court's decision to deny the petition for a writ of certiorari in this case. In 2009, Curtis Earl Scarver pleaded guilty to trafficking in cocaine, a Class A felony. At the time of his plea, Scarver had three prior felony convictions. Two of those prior convictions, dating to 1982, were for first-degree robbery, a Class A felony. The trial court had no choice but to impose a sentence of life imprisonment without the possibility of parole. § 13A5-9(c)(4), Ala. Code 1975. At the plea hearing, the following colloquy occurred: "THE COURT: You'd be looking at a mandatory life sentence without the possibility of parole. You understand that? "SCARVER: Yes. "THE COURT: Knowing that, you still want to plead guilty? "SCARVER: Yes." I do not read the colloquy between Scarver and the trial court -- particularly the judge's imprecise "you'd be looking at" phrase -- as Scarver's acquiescence to a sentence of life imprisonment without the possibility of parole, but instead as 3 1121262 his recognition that a sentence of life imprisonment without parole was an alternative available to the court. Because I do not find it rational for a person to plead guilty to the maximum sentence allowed by law if he went to trial, I question consequences of his whether plea Scarver and thus fully whether understood it was the truly voluntary. Scarver filed a Rule 32, Ala. R. Crim. P., petition challenging his guilty-plea conviction, which the trial court summarily dismissed. Scarver appealed to the Court of Criminal Appeals, which affirmed, without an opinion. Scarver v. State (No. CR-12-0741, July 3, 2013), ___ So. 3d ___ (Ala. Crim. App. 2013) (table). Scarver properly raises the issue of the voluntariness of his guilty plea in his Rule 32 petition, the first he has filed. "A challenge to the voluntariness of a guilty plea may be presented for the first time in a timely filed Rule 32 petition." Gilmore v. State, 937 So. 2d 547, 550 (Ala. Crim. App. 2005). I would grant Scarver's petition for a writ of certiorari to see if the record, including the transcript, if any, of the 4 1121262 sentencing hearing, supports his claim that understand the consequences of his guilty plea. 5 he did not

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