APPEAL from the Circuit Court of Adams County; the Hon.
RICHARD F. SCHOLZ, JR., Judge, presiding.
MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
But first, the background.
Puckett pleaded guilty to a charge of theft over $150 and was sentenced to a penitentiary term of 2 to 10 years. After imposing sentence, the trial court advised Puckett that he had a right to appeal and that Attorney John Wooleyhan Puckett's appointed counsel at the entry of the guilty plea and an Adams County public defender would be appointed to represent him unless defendant objected. Puckett stated that he did object to being represented by Wooleyhan. Then, Anthony Cameron, another Adams County public defender, was appointed to represent the defendant.
Puckett later filed a motion to vacate his guilty plea. The principal points in the motion were that (1) Puckett was denied effective assistance of counsel because counsel did not advise defendant of a valid and viable defense, namely, that of intoxication; and that (2) he was denied the right to effective assistance of counsel because his counsel did not explain the differences in the sentencing laws in a manner which allowed defendant to make an intelligent election between the two laws.
At the hearing on the motion to vacate, Puckett testified that on the same day of the theft he had consumed three 6-packs of beer and five shots of vodka. In addition, Puckett stated that he had been stopped in Missouri on the day in question and, although the charge was later dismissed, was ticketed for driving while intoxicated, and a breathalyzer test was administered. Defendant testified that he had talked about the circumstances of the ticket with defense counsel Wooleyhan on one occasion, but they had not discussed any possible defenses to the automobile theft charge.
Puckett's testimony concerning his alcoholic consumption was contradicted on cross-examination by defendant's admission that he had previously told the probation officer that he had drunk about eight beers considerably earlier on the day in question. Defendant admitted that what he told the probation officer "would be a little more accurate" than what he had said during his testimony at the hearing on his motion to withdraw the guilty plea.
The only other witness at the hearing to vacate defendant's guilty plea was Puckett's prior defense counsel, John Wooleyhan. Wooleyhan testified that he had interviewed Puckett but had not advised defendant of the defense of intoxication nor had he asked Puckett whether he wanted to avail himself of that defense. However, Wooleyhan did state that he was aware of the possibility of the defense of intoxication if a person met the statutory requirement and had talked with defendant about the extent of his drinking on the day in question.
On cross-examination, Wooleyhan stated that he was aware that Puckett had been arrested in Missouri for driving while intoxicated and had been administered a breathalyzer test. On redirect examination, Wooleyhan admitted that he had not found out the results of the breathalyzer test.
Defense counsel Cameron then elicited testimony concerning the fact that he and John Wooleyhan were both Adams County public defenders. Wooleyhan declared that he and Cameron were not associated with the same office, did not share personnel, expenses, or have a mutual caseload.
The trial court then denied defendant's motion to vacate and specifically found that any contention that the defense of intoxication should have been used was pure speculation. The court decided that defense counsel had merely exercised his discretion and judgment in ...