Charles v. State

338 Ga.App. 688

791 S.E.2d 584

Charles

v.The State.

A16A1088

Court of Appeals of Georgia.

September 26, 2016

Gerard Bradley Kleinrock, Decatur, for Appellant.

Anna Green Cross, Robert D. James Jr., Deborah D. Wellborn, for Appellee.

Phipps, Presiding Judge.

Trey Charles challenges the rejection of his request to withdraw his guilty plea. Because Charles has failed to demonstrate that he was entitled to such relief, we affirm.

Accused of using a handgun to take property from the person of another, Charles was indicted in DeKalb County Superior Court as follows: Count 1—armed robbery; Count 2—aggravated assault; and Count 3—possession of a firearm during the commission of a felony. Represented by counsel, Charles pled guilty to the reduced offense of robbery, aggravated assault, and firearm possession during the commission of a felony; Charles also asked to be treated under the First Offender Act.¹

On December 9, 2014, the court sentenced Charles pursuant to that Act,² imposing upon him: (i) for Count 1—fifteen years to serve ten; (ii) for Count 2—fifteen years to serve ten, concurrently with the sentence imposed for Count 1; and (iii) for Count 3—five years to serve on probation, consecutively to the sentences imposed for the other two counts.

A few months later, pro se, Charles sent a letter to the Clerk of the DeKalb County Superior Court. Therein, Charles asserted, “Ive [sic] had time to think. I do not agree with this plea. ... I wish to withdraw my guilty pled [sic].”

After obtaining new counsel, Charles pursued the following three motions in the sentencing court. On September 20, 2015, Charles filed a “Motion to Vacate Illegal Conviction,” asserting,

This Court sentenced Mr. Charles for both armed robbery and aggravated assault. The charged aggravated assault was for pointing a deadly weapon at [the victim]. But as the facts of this case make clear, such pointing was done simultaneously with, and simply to accomplish, the armed robbery. In these circumstances, the two charges must merge. ... Mr. Charles urges this Court to vacate his illegal sentence.³

In a subsequent pleading, Charles sought a ruling on what he asserted was his original request to withdraw his guilty plea—his letter to the clerk. In such subsequent pleading, captioned “Amended Motion to Withdraw Guilty Plea,” Charles claimed that due to his plea counsel's ineffectiveness, “his guilty plea was not knowing and voluntary”; and that had he understood “the true nature of the plea he was being asked to make, he would have rejected the guilty plea and proceeded to trial.”

In a third motion, Charles sought an out-of-time appeal for the purpose of pursuing the merger issue.⁴ According to Charles, such issue could be resolved by facts appearing of record.⁵

The sentencing court convened an evidentiary hearing, at which Charles and his plea counsel took the stand. Charles testified that, when he pled guilty, he was of the understanding that he was pleading guilty only to the reduced charge of robbery; that he was not then aware that he was pleading guilty also to aggravated assault and to firearm possession; that he further had believed that being sentenced as a first offender meant that he would serve no prison time because “I was going to get straight probation”; and that, had he known otherwise, he would have gone to trial. Charles was specifically asked at the motion hearing, “Did your attorney consult with you about what a first offender sentence is?” Charles answered, “No, not really.” Charles reiterated, “I thought first offender meant straight probation. That's the only reason why I took the plea because of first offender.”

When Charles's plea counsel took the stand at the motion hearing, he gave a different account. He testified that, during plea negotiations, he discussed with Charles the specifics of the state's offer, including that the armed robbery charge would be reduced to robbery, but that neither the aggravated assault nor the firearm possession charge would get reduced, dismissed, nolle prossed, or otherwise “go away.” Plea counsel testified that, during plea negotiations, he had discussed with Charles the sentencing aspect of the state's offer. Plea counsel was specifically asked at the motion hearing, “Did you ever have a discussion with him that first offender sentence did not mean straight probation?” The attorney answered, “Absolutely,” recalling having had multiple conversations with Charles about first offender sentencing. Plea counsel testified that he had advised Charles that a “first offender plea” did not necessarily mean no prison time. Plea counsel went on to testify that he had specifically informed Charles that in his particular case, the state had offered to recommend, as plea counsel summarized at the motion hearing: “fifteen to do ten on the robbery and the aggravated assault, and the gun charge had to run consecutive.”

At the close of the evidence, the prosecutor sought confirmation that “the plea transcript is considered part of the record,” and the court responded, “Yes, Ma'am.” Thereafter, on December 23, 2015, the sentencing court entered a detailed order on Charles's three motions: (i) rejecting his request to withdraw his guilty plea; (ii) granting his request to merge the aggravated assault count into the robbery count for sentencing purposes (explicitly vacating the aggravated assault sentence); and (iii) denying Charles's motion for an out-of-time appeal as moot.⁶

In his sole claim of error on appeal, Charles contends that the sentencing court should have allowed him to withdraw his guilty plea. For reasons explained below, Charles has demonstrated no reversible error.

Charles's request to withdraw his guilty plea was rejected on procedural and substantive grounds. The sentencing court explained in its order that Charles's motion was procedurally inept because Charles had failed to establish that his motion was timely filed. As a general rule, “a defendant must file a post-sentencing motion to withdraw a guilty plea in the same term in which he was sentenced. After the expiration of that term, the trial court lacks jurisdiction to allow the withdrawal of the plea.”⁷ Charles was initially sentenced by the DeKalb County Superior Court on December 9, 2014, during that court's November 2014 term.⁸ Charles filed his “Amended Motion to Withdraw Guilty Plea” on September 20, 2015, characterizing his earlier letter to the clerk as his original motion to withdraw his guilty plea. Even accepting arguendo Charles's contention that the letter constituted a motion to the superior court,⁹ that document was filed on Monday, January 5, 2015—thus, after the term of court during which Charles was sentenced.¹⁰

Relying upon an exception to the general rule, Charles urges on appeal that his (amended) motion to withdraw his guilty plea was nevertheless timely presented to the sentencing court. He points out that in its December 23, 2015 order, the sentencing court granted his “Motion to Vacate Illegal Conviction,” thereby explicitly vacating his sentence for aggravated assault and merging that count into the (armed) robbery count. Those circumstances, Charles argues, invoke the exception: “Where a void sentence has been entered, it is as if no sentence has been entered at all, and the defendant stands in the same position as if he had pled guilty and not yet been sentenced. And pursuant to OCGA § 17–7–93 (b),^{[11 ]}the defendant may withdraw his plea as of right prior to [re-]sentencing,”¹² —“even following the expiration of the term of court in which the void sentence was pronounced.”¹³

Charles does not assert, and the record does not establish, that Charles argued this exception to the sentencing court.¹⁴ But even accepting arguendo Charles's position that his initial aggravated assault sentence was “void”¹⁵ such that his (amended) motion to withdraw his guilty plea was properly before the sentencing court,¹⁶ Charles has failed to demonstrate error in the court's (alternative) conclusion that his motion lacked substantive merit. In that regard, the sentencing court explained in the order:

Regardless [of the timeliness issue pertaining to Charles's (amended) motion], upon review of the evidence presented at the hearing, the guilty plea transcript, and this Court's recollection of the plea, the guilty plea entered by Defendant Charles was entered knowingly, intelligently and voluntarily. When the plea was entered by the Defendant the Defendant was clearly informed of what the State's recommendation of sentence was. Additionally, the Court directly informed the Defendant of what charges to which he was entering a plea of guilty. Lastly, the Defendant was instructed to begin his sentence by reporting to the DeKalb County Jail no later than December 26, 2014 at 5:00 p.m. Consequently, this Court finds that the Defendant's testimony at the motion hearing was not credible. Further, the Defendant has failed to establish any manifest injustice or that he received ineffective assistance of counsel.¹⁷

These findings are amply supported by the record. When Charles entered his guilty plea on December 9, 2014, he was 25 years old. At the start of the plea hearing, the prosecutor presented a factual basis of the underlying criminal incident that had occurred about two years prior, on October 12, 2012. Next, Charles took the stand and was asked by the prosecutor whether he understood that the state's plea offer included: “a sentence of fifteen years to serve ten as to Court 1, ten years to serve as to Count 2 concurrent with Count 1, and five years probation as to Count 3 to be served consecutive to Counts 1 and 2...?” Charles answered, “Yes, Sir.” Charles then testified about the details of the underlying criminal incident, after which the prosecutor revisited:

Q: Mr. Charles, do you understand that the District Attorney has made the following recommendations?

A: Yes, Sir.

Q: A plea to Count 1 reduced to robbery from armed robbery?

A: Yes, Sir.

Q: With

...