Branner v. State

355 Ga.App. 137

843 S.E.2d 26

BRANNER

v.The STATE.

A20A0424

Court of Appeals of Georgia.

May 7, 2020

Charlie Branner Jr., pro se.

Clifford Paul Bowden, District Attorney, Robert Alan Rogers, Assistant District Attorney, for Appellee.

Barnes, Presiding Judge.

Charlie Branner, Jr., contests the denial of his motion to withdraw his guilty plea. For reasons that follow, we vacate the judgment and remand the case with direction to dismiss Branner's motion.

In November 2018, while represented by counsel, Branner entered in the Superior Court of Tift County a negotiated Alford¹ plea to three counts of child molestation.² At the end of Branner's plea hearing, the trial judge orally pronounced sentence. Three days later, on November 16, Branner filed a pro se motion to withdraw his plea. On November 28, 2018, the trial court entered judgment upon Branner's plea,³ convicting him of the three child molestation counts, and imposing an aggregate sentence of thirty years, to serve fourteen in confinement.

The following year, in July 2019, the trial court conducted a hearing on Branner's motion to withdraw his plea. Thereafter, the trial court denied Branner's motion on the merits, and Branner challenges that ruling in this appeal. As more fully explained below, Branner supplied the trial court no viable basis to rule in his favor – his pro se motion amounted to a nullity, and subsequent efforts undertaken were untimely because the trial court had meanwhile lost jurisdiction over the issue.

It is well settled that "[a] criminal defendant in Georgia does not have the right to represent himself and also be represented by an attorney, and pro se filings by represented parties are therefore unauthorized and without effect." Tolbert v. Toole , 296 Ga. 357, 363 (3), 767 S.E.2d 24 (2014). When Branner filed his pro se motion to withdraw his plea, he was still represented by plea counsel. As the Supreme Court of Georgia has recently reaffirmed, "at a minimum, legal representation continues – unless interrupted by entry of an order allowing counsel to withdraw or compliance with the requirements for substitution of counsel, – through the end of the term at which a trial court enters a judgment of conviction and sentence on a guilty plea." (Citation and punctuation omitted.) Dos Santos v. State , 307 Ga. 151, 153 (2), 834 S.E.2d 733 (2019).

The term of court during which Branner was convicted and sentenced ended on March 11, 2019.⁴ Prior to that date, no order was entered either for plea counsel to withdraw or for substitution of counsel. Consequently, Branner's pro se motion amounted to a legal nullity, presenting the trial court with nothing to decide. See Ricks v. State , 307 Ga. 168, 169, 835 S.E.2d 179 (2019) ("Given that the record contains no order allowing plea counsel to withdraw before [the defendant] submitted her pro se filings ..., [the defendant] was still represented by counsel when she submitted them, such that her pro se motions were legal nullities."); Dos Santos , 307 Ga. at 154 (3), 834 S.E.2d 733 ("Dos Santos's pro se motion to withdraw her pleas was unauthorized and without effect, because she had no right to represent herself at the same time she was represented by a lawyer.").

It is also well settled that "a trial court lacks jurisdiction to permit the withdrawal of a guilty plea once the term of court has expired in which the defendant was sentenced." (Citation and punctuation omitted.) Bankston v. State , 307 Ga. 656, 657 (2), 837 S.E.2d 788 (2020). See Colquitt v. State , 307 Ga. 43, 44, 834 S.E.2d 52 (2019) (same); Humphrey v. State , 299 Ga. 197, 198 (1), 787 S.E.2d 169 (2016) (reciting that a "motion must be filed within the term of court in which the defendant was sentenced under the plea, as the trial court lacks jurisdiction to entertain a motion to withdraw filed beyond the term of sentencing"). Here, after the expiration of the term of court during which Branner was sentenced, additional pleadings were filed, orders were entered, and a hearing was conducted on his purported motion to withdraw. In particular, on March 29, 2019, Branner's plea counsel filed a motion to withdraw as counsel; the trial court granted that motion on April 1, 2019; the court also appointed new counsel (hereinafter, "motion-to-withdraw counsel"); and motion-to-withdraw counsel filed a notice of representation on May 13, 2019.

[A]lthough motion-to-withdraw counsel argued at the [July 2019] hearing that [Branner] should be allowed to withdraw [his] guilty plea, that could not breathe life into [Branner's] inoperative pleading[.] The trial court therefore should have dismissed [Branner's November 2018] pro se motion[ ], rather than denied [it].

(Citations and punctuation omitted.) Ricks , 307 Ga. at 169, 835 S.E.2d 179. See Bankston , 307 Ga. at 657 (2), 837 S.E.2d 788 ("Because the ... term of court in which Bankston entered his plea expired decades ago, the trial court did not have jurisdiction over Bankston's motion to withdraw. The trial court therefore properly dismissed Bankston's motion to the extent it sought to withdraw his guilty pleas.") (citation and punctuation omitted); Dos Santos , 307 Ga. at 155 (3), 834 S.E.2d 733 ("The trial court should have dismissed Dos Santos's pro se motion rather than ruling on its merits."); White v. State , 302 Ga. 315, 320 (2), 806 S.E.2d 489 (2017) ("The only filing that could be treated as a valid motion to withdraw Appellant's guilty pleas was the amended motion that his new counsel ... filed .... By that time, however, the term of court during which Appellant entered his guilty pleas had ended, so the trial court no longer had jurisdiction to grant a motion to withdraw guilty pleas."); Brooks v. State , 301 Ga. 748, 752 (2), 804 S.E.2d 1 (2017) ("Because the trial court decided the merits of a motion it lacked jurisdiction to decide, we vacate the trial court's order and remand with instructions to dismiss.").

In light of the foregoing, we vacate...