Clemons v. State

900 S.E.2d 315

CLEMONS

v.The STATE.

A24A0083

Court of Appeals of Georgia.

April 9, 2024

Tyler R. Conklin, for Appellant.

Sherry Boston, Decatur, Thomas L. Williams, for Appellee.

Hodges, Judge.

Dimitrius Clemons appeals from the denial of his request for a hearing on a previously withdrawn, 12-year-old motion to withdraw his guilty plea. Clemons asserts that the trial court’s order "essentially dismissed [his] motion to withdraw guilty plea by failing to reach the merits of it." Finding no error, we affirm.

The undisputed record shows that Clemons pled guilty in 2010 to two counts of armed robbery and one count of aggravated assault. He filed a timely motion to withdraw his guilty plea, and a hearing was scheduled. At the hearing, Clemons’ counsel announced that Clemons wanted to withdraw the motion. The court swore in Clemons and confirmed his intention to withdraw the motion on the record, since the State was ready to proceed with the hearing. Clemons acknowledged, "I don’t feel comfortable with taking [the motion to withdraw his plea] forward[,]" and the trial court took the motion off the calendar and ended the hearing.

Twelve years later, Clemons, by his own admission, "reversed course" and sought to revive the motion to withdraw his plea by filing a "Request for hearing on motion to withdraw' guilty plea." The trial court denied Clemons’ request for a hearing, finding that: (i) Clemons' motion to withdraw his guilty plea ceased to exist when it was withdrawn; (ii) therefore, there was no pending motion to be heard; and (iii) Clemons’ remedy, if any, was through habeas corpus. Clemons appeals from this order.

[1] Clemons’ sole argument on appeal is that the trial court erred in denying his request for a hearing because he retained the right to amend his motion to withdraw his guilty plea until the trial court entered a final order on the motion. We disagree.

[2] Clemons does not dispute that his motion was orally withdrawn. In fact, his appellate brief lists the following statement of the case: "The question presented in this case is whether a defendant may proceed on a motion to withdraw guilty plea prior to the entry of a final order, despite his earlier oral withdrawal of the motion." (Emphasis supplied.) We conclude that the trial court’s denial of Clemons’ request for a hearing on the extinguished motion was proper. It is well settled that a criminal defendant cannot complain of a ruling which his own conduct procured or aided in causing. See generally Blackwell v. State, 299 Ga. 122, 125, 786 S.E.2d 669 (2016) (concluding that defendant waived through agreement his right to withdraw a guilty plea before sentence was pronounced); Mitchell v. State, 282 Ga. 416, 419 (5) (b), 651 S.E.2d 49 (2007) (finding that defendant could not complain about court order granting State’s motion to exclude evidence when defendant expressly agreed to order). That is exactly what happened here.

Clemons appeared at the hearing on his motion to withdraw the guilty plea, his counsel indicated Clemons wished to withdraw his motion, the trial court questioned Clemons on the record and Clemons stated that he did not feel comfortable taking the motion forward, the trial court took the motion off the calendar and concluded the hearing, and then Clemons changed his mind 12 years later and attempted to revive the motion to withdraw his plea by filing a request for a hearing on the extinguished motion. The lengthy time between Clemons' filing of his motion to withdraw his guilty plea and his request for a hearing on the withdrawn motion belies his assertion - made in his appellate brief and not his request for a hearing in the lower court - that he "did not intend to withdraw the motion[.]" Clemons’ acquiescence in both his trial counsel's proffer regarding withdrawal of the motion and the trial court’s conclusion of the hearing on the motion to withdraw his guilty plea deprives him of the right to complain on appeal.

[3] Moreover, we disagree with Clemons’ assertion that his "oral withdrawal was not dispositive" because the trial court did not "ruled upon" the motion and enter an "appealable order[.]" The cases relied upon by Clemons do not support this proposition. Those cases specifically involve motions for new trial, where an order "granting, overruling, or otherwise finally disposing of the motion" must be filed under OCGA § 5-6-38 (a). (Emphasis...