Dos Santos v. State

307 Ga. 151

834 S.E.2d 733

DOS SANTOS

v.The STATE.

S19A1352

Supreme Court of Georgia.

Decided: October 21, 2019

John W. Kraus, for appellant. Tracy Graham Lawson, District Attorney, Elizabeth A. Baker, Jeffrey M. Hawkins, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew D. O'Brien, Assistant Attorney General, for appellee.

Nahmias, Presiding Justice.

On April 16, 2018, Tia Marie Dos Santos entered negotiated guilty pleas to felony murder and other crimes. In the same term of court, she filed a pro se motion to withdraw her guilty pleas. The trial court denied the motion as meritless, and Dos Santos timely appealed to this Court. As we explain below, under our decision in White v. State , 302 Ga. 315, 806 S.E.2d 489 (2017), the trial court should have dismissed Dos Santos's pro se motion as a legal nullity, because she was still represented by her plea counsel when she filed the motion. We therefore vacate the trial court's judgment and remand the case with direction to dismiss the motion to withdraw guilty pleas as inoperative. We also recognize, as we did not in White and some other cases, that had the trial court properly dismissed the motion, we would properly dismiss a subsequent appeal from that judgment, rather than affirming the judgment. Finally, we emphasize how important it is for criminal defense lawyers not to abandon their clients immediately after a guilty plea, and we discuss how to deal with some of the practical issues that may arise from the holdings in White that we reiterate today.

1. On May 11, 2017, a Clayton County grand jury indicted Dos Santos for murder and a variety of other crimes, most of which were in connection with the non-fatal shooting of her ex-boyfriend Jose Moore, the fatal shooting of his new girlfriend Claudette Duclos, and the aggravated assault of a bystander. Three weeks later, a lawyer who apparently was retained by Dos Santos's mother filed an entry of appearance in the case. On April 16, 2018, the first day of her scheduled trial, Dos Santos, who was still represented by counsel, entered negotiated guilty pleas under North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to felony murder based on aggravated assault, two counts of aggravated assault (of Moore and the bystander), and theft by taking. In exchange, the State agreed to nolle pros the remaining charges and to recommend sentences of life in prison with the possibility of parole for the murder and concurrent terms of twenty years for the two aggravated assaults and ten years for the theft. The trial court then sentenced Dos Santos in accordance with the negotiated agreement. The court filed the final judgment of conviction and sentence that same day.

Eight days later, on April 24, Dos Santos filed a pro se motion to withdraw her guilty pleas.¹ The trial court's new term of court began less than two weeks later, on May 7. See OCGA § 15-6-3 (10) (fixing the starting dates for the terms of the Clayton County Superior Court as the "[f]irst Monday in February, May, August, and November"). On May 11, the trial court filed an order saying that Dos Santos had appeared at a motions hearing that day and had indicated that she wanted to retain a new lawyer. The court ordered Dos Santos to retain new counsel by June 11; otherwise, new counsel would be appointed for her. On May 14, Dos Santos's plea counsel filed a written request to withdraw from the case, which the trial court granted on May 22. The court appointed post-conviction counsel for Dos Santos, and he filed an entry of appearance. He did not file a new or amended motion to withdraw the guilty pleas.

On July 31, 2018, the trial court held an evidentiary hearing on Dos Santos's pro se motion, at which her post-conviction counsel presented argument and called as witnesses Dos Santos, her plea counsel, her mother, and her mother's boyfriend.² On December 31, 2018, the trial court entered an order denying Dos Santos's motion on the merits. Through her post-conviction counsel, Dos Santos then filed a timely notice of appeal, and in her appellate brief she raises essentially the same claims that she asserted in the pro se motion and at the hearing. We do not consider the merits of those claims, however, because Dos Santos's pro se motion was a legal nullity and should have been dismissed by the trial court on that ground.

2. Two years ago in White v. State , 302 Ga. 315, 806 S.E.2d 489 (2017), we considered whether White's two pro se motions to withdraw his guilty pleas, which were timely filed during the same term of court in which he was convicted and sentenced, were properly dismissed by the trial court on the ground that he was represented by counsel when he filed them. See id. at 315, 806 S.E.2d 489. We rejected White's argument that a criminal defendant should be deemed unrepresented immediately after the entry of sentence and concluded instead that counsel's representation does not "terminate[ ] automatically on the entry of a judgment and sentence – whether following the return of a jury verdict or the entry of a guilty plea." Id. at 317-318, 806 S.E.2d 489. To conclude otherwise, we explained,

would deprive defendants of the "guiding hand of counsel," Powell v. Alabama , 287 U.S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158 (1932), at a point in the proceeding when important decisions need to be made and actions potentially taken, often with short deadlines, regarding the filing of a post-trial motion (e.g., a motion for new trial), a post-plea motion (e.g., a motion to withdraw a guilty plea), or a notice of appeal. Such a holding also would contradict this Court's precedents on out-of-time appeals, which recognize that defense counsel's duties toward their clients extend for at least the 30 days after the entry of judgment when a notice of appeal may be filed.

Id. , 806 S.E.2d 489. We therefore held that,

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, see USCR 4.3 (1)-(3) – through the end of the term at which a trial court enters a judgment of conviction and sentence on a guilty plea ....

Id. at 319, 806 S.E.2d 489.

Applying this holding, we explained that when White filed his pro se motions to withdraw his guilty pleas, he was still represented by his plea counsel, because the motions were filed during the term in which White was convicted and sentenced and his counsel had not properly withdrawn from the case. See White , 302 Ga. at 319, 806 S.E.2d 489 . Thus, the trial court correctly dismissed White's pro se motions as "legal nullities," because " ‘[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." ’ " Id. (quoting Tolbert v. Toole , 296 Ga. 357, 363, 767 S.E.2d 24 (2014) (quoting Cotton v. State , 279 Ga. 358, 361, 613 S.E.2d 628 (2005) )).

3. In this case, Dos Santos, like White, filed her pro se motion to withdraw her guilty pleas before the end of the term of court in which she was sentenced, which is the deadline for filing such a motion. See Brooks v. State , 301 Ga. 748, 751, 804 S.E.2d 1 (2017) (" ‘A motion to withdraw a guilty plea must be filed within the same term of court as the sentence entered on the guilty plea.’ " (citation omitted)). However, when she filed her motion, Dos Santos was still represented by her plea counsel, who had a duty under White to continue his representation of her at least through the end of the term of court, unless he properly withdrew from the case or was replaced by substitute counsel. The record indicates that plea counsel did not even request to withdraw from Dos Santos's case until a week after the term had ended, and the trial court did not file its order permitting him to do so until more than a week after that.³

Accordingly, just like White, 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. See White , 302 Ga. at 319, 806 S.E.2d 489. See also Williams v. Moody , 287 Ga. 665, 669, 697 S.E.2d 199 (2010) ("A pro se motion filed by a convicted defendant while represented by counsel is ‘unauthorized and without effect.’ " (citation omitted)); Cargill v. State , 255 Ga. 616, 622-623, 340 S.E.2d 891 (1986) (holding that neither the Sixth Amendment to the United States Constitution nor the Georgia Constitution affords a criminal defendant the hybrid right to simultaneously represent himself and to be represented by counsel), overruled on other grounds by Manzano v. State , 282 Ga. 557, 651 S.E.2d 661 (2007). The trial court should have dismissed Dos Santos's pro se motion rather than ruling on its merits. See White , 302 Ga. at 320, 806 S.E.2d 489.⁴ We therefore vacate the trial court's judgment and remand the case with direction to dismiss the motion. See Brooks , 301 Ga. at 752, 804 S.E.2d 1. See also Cason v. State , 348 Ga. App. 828, 830, 823 S.E.2d 357 (2019) ; Hernandez-Ramirez v. State , 345 Ga. App. 402, 403, 812 S.E.2d 798 (2018).

4. Our consideration of the proper judgment in this case has led to the realization that our judgment lines in White and similar cases were incorrect. Where a filing in a criminal case is a legal nullity, we have held in several contexts not only that the trial court should dismiss the nugatory filing rather than ruling on its merits, but also that no appeal from such an inoperative filing is authorized, so if a defendant appeals a trial court order that properly dismisses (or denies) such a filing as a nullity, the appeal should be dismissed rather than the trial court's judgment being affirmed. See, e.g., ...