Nero v. State

338 Ga.App. 512

790 S.E.2d 298

Nero

v.The State

A16A1341

Court of Appeals of Georgia.

August 10, 2016

Jesse Weatherspoon Owen, Augusta, for Appellant.

Joshua Bradley Smith, Rebecca Ashley Wright, for Appellee.

Ray, Judge.

Keoshamine Lydasia Nero pled guilty to armed robbery, burglary in the first degree, and possession of a firearm during the commission of a crime. After sentencing, Nero moved to withdraw her guilty plea. The trial court denied the motion. Nero now appeals the denial of her motion, contending that her guilty plea was not knowingly and voluntarily entered because she did not understand whether she was charged as a party to or a principal for possession of a firearm during the commission of a crime. For the following reasons, we affirm.

Nero's indictment arose from an armed robbery of a victim in his home. Prior to the trial court accepting her plea of guilty, the State set forth the factual basis for the plea, including that Nero pretended to be sexually interested in the victim to gain entry to his home and, once inside, unlocked the door, allowing four men with a handgun to enter the victim's bedroom, where they forced him into a closet, shot at him, and robbed him.

Nero entered a negotiated guilty plea with the assistance of counsel on February 19, 2015. The trial court sentenced Nero to serve the twenty-four years recommended by the prosecution: nineteen years for armed robbery in count one, ten years for burglary in the first degree in count three to be served concurrent with count one, and five years for possession of a firearm during the commission of a crime in count four to be served consecutive to counts one and three. After sentencing, Nero filed a motion to withdraw her guilty plea to the charge of possession of a firearm during the commission of a crime. Nero testified at the hearing on her motion to withdraw that she did not understand that she could be charged as a party to the crime of possession of a firearm when she did not carry one during the robbery. Nero also testified that “[i]t's my first offense and I think that I shouldn't have got 24 years for my first offense.” The trial court denied her motion.

In her sole enumeration, Nero contends that her guilty plea was not freely and voluntarily entered because she did not understand Georgia law regarding being a party to the crime as it related to the charges against her. We disagree.

After sentence is pronounced, whether to allow the withdrawal of a guilty plea lies within the trial court's sound discretion, and we review the trial court's decision for manifest abuse of that discretion. On a motion to withdraw a guilty plea, the trial court is the final arbiter of all factual issues raised by the evidence. Where the validity of a guilty plea is challenged, the State bears the burden of showing that the plea was voluntarily, knowingly, and intelligently made. The State may do this by showing through the record of the guilty plea hearing that (1) the defendant has freely and voluntarily entered the plea with (2) an understanding of the nature of the charges against [her] and (3) an understanding of the consequences of [her] plea.

(Citation and footnote omitted.) Carter v. State , 272 Ga.App. 158, 160, 611 S.E.2d 790 (2005).

Here, the record contains a transcript of the plea hearing, which reveals that the trial court informed Nero that she was waiving her constitutional rights to, inter alia, a trial by jury, to the presumption of innocence, to confront the witnesses against her, and to not incriminate herself.¹ The trial court asked Nero if she was satisfied with her attorney, if she understood that she was pleading guilty and the sentence recommendation, and if everything put in front of her was explained to her. Nero testified that she has ADHD, but a mental evaluation found she did not suffer from any disability that would prevent her from knowing right from wrong and that she was competent to stand trial.

Nero cites to Henderson v. Morgan , 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), for the assertion that her guilty plea should be withdrawn because it was not explained to her during the plea hearing that she was being charged as a party to the crime or that she was responsible for what the others did during the robbery. Id. at 644–647 (II), 96 S.Ct. 2253 (holding where neither defense counsel nor the trial court explained to the defendant that intent to cause death was an element of second-degree murder, and there was no factual statement or admission implying intent, the plea was involuntary). However, this Court has previously found that the Henderson decision “was unique because the trial judge found as a fact that the element of intent was not explained ... This decision does not require the trial judge accepting a guilty plea to...