Perez v. State

333 Ga.App. 716

776 S.E.2d 312

PEREZ

v.The STATE.

No. A15A1330.

Court of Appeals of Georgia.

Aug. 6, 2015.

Certiorari Dismissed Nov. 16, 2015.

Rafael Perez, pro se.

John Richard Edwards, Asst. Dist. Atty., D. Victor Reynolds, Dist. Atty., Marietta, for Appellee.

Opinion

PHIPPS, Presiding Judge.

Pro se, Rafael Perez appeals the denial of his motion to withdraw his guilty plea. For reasons explained below, we affirm.

Perez was indicted in Cobb County Superior Court on charges of child molestation and aggravated child molestation. Represented by counsel, Perez entered a negotiated guilty plea to the child molestation charge. On April 12, 2011, the trial court sentenced Perez for that crime, and entered an order of nolle prosequi on the other charge.

On December 6, 2013, representing himself, Perez filed in the sentencing court a motion to withdraw his guilty plea. He claimed that his plea counsel had rendered ineffective assistance and that, consequently, his guilty plea had been entered unknowingly and unintelligently.

In denying the motion, the court noted that the term of court during which Perez was sentenced had long expired prior to his filing the motion, and thereupon determined that it was without jurisdiction to entertain the motion.¹ Indeed, “[i]t is well settled that when the term of court has expired in which a defendant was sentenced pursuant to a guilty plea the trial court lacks jurisdiction to allow the withdrawal of the plea.”²

1. Although Perez maintains on appeal that his plea counsel rendered ineffective assistance, Perez has shown no basis to disturb the trial court's denial of his motion to withdraw guilty plea.³

2. We do not reach Perez's remaining claim of error. Because the issue was not raised below, it is not properly before this court.⁴

Judgment affirmed.

DOYLE, C.J., and BOGGS, J., concur.

1 In 2011, the year Perez was sentenced, the court terms for the Superior Court of Cobb County began on the second Mondays in January, March, May, July, September, and November. OCGA § 15–6–3(11) (2010, 2011).

2 Davis v. State, 274 Ga. 865, 561 S.E.2d 119 (2002) (citation and punctuation omitted); see Henderson v. State, 295 Ga. 333, 336–337(2), 759 S.E.2d 827 (2014).

3 See Henderson, supra (upholding trial court's denial of defendant's motion to withdraw guilty plea, because—despite defendant's claim of “manifest injustice in the form of ineffective assistance of counsel”—the trial court had no jurisdiction to entertain the motion filed after the term of court during which the defendant had been sentenced); Dupree v. State, 279 Ga. 613, 614, 619 S.E.2d 608 (2005) (rejecting the defendant's claim that manifest injustice from ineffective assistance of counsel permitted him to pursue a motion to withdraw his guilty plea, where the motion was untimely filed); Davis, supra at 865–866, 561 S.E.2d 119 (affirming denial of motion to withdraw guilty plea because, irrespective of defendant's claim that he was denied effective assistance of counsel during the plea proceedings, the trial court lacked jurisdiction to grant the...