State v. Grant

359 Ga.App. 423

858 S.E.2d 238

The STATE

v.GRANT.

A21A0340

Court of Appeals of Georgia.

May 7, 2021

Daniel J. Porter, District Attorney, Brandon M. Delfunt, Assistant District Attorney, for appellant.

Maryann F. Blend, for appellee.

McFadden, Chief Judge.

The state appeals the trial court's order dismissing two indictments against Dylan Grant. The trial court entered the order after granting Grant's motion to compel the state to comply with a plea agreement. The state argues that Grant breached the terms of the plea agreement and so is not entitled to the benefit of that agreement — to be prosecuted for charges less serious than those for which he was indicted. But the state has not shown that the trial court erred in granting Grant's motion to compel. So we affirm.

1. Factual background.

Early in 2017, Grant was sentenced as a first offender to seven years of probation for possession of more than an ounce of marijuana and possession of a firearm or knife during the commission of a felony. On July 31, 2017, while he was on probation, Grant was arrested on warrants accusing him of having committed the new offenses of armed robbery and aggravated assault.

Less than a month later, the state filed a petition to revoke Grant's first offender probation on the grounds that he had violated the terms of his probation by committing the new offenses and by committing the technical violations of failing to complete his community service hours, failing to undergo a substance abuse evaluation, and failing to pay court-ordered fines and fees.

On August 31, 2017, Grant had two hearings scheduled: a bond hearing on the new offenses and a hearing on the state's petition to revoke his probation. At some point that day, Grant's attorney and the assistant district attorney reached a plea agreement that addressed both the new charges and the probation revocation petition. They stated most of the terms of the agreement on the record at the probation revocation hearing. Under the agreement:

• The state would not pursue the allegation in the probation revocation petition that Grant had committed new offenses;

• Grant would stipulate to the allegation that he had committed technical violations of the terms of his probation;

• Grant would consent to the revocation of his first offender status and to an adjudication of guilt on the marijuana and weapon possession charges that underlay his first offender probation;

• Grant would be sentenced to nine years, to serve 180 days in confinement and the balance on probation, on the marijuana and weapon possession charges;

• As for the new offenses, Grant would plead guilty to the misdemeanor offenses of obstruction of a law enforcement officer and criminal attempt to purchase less than an ounce of marijuana;

• Grant would be questioned under oath and would testify truthfully regarding the new offenses.

The parties did not complete the plea proceedings for the new charges that day because the victim had not been notified as required by law, see OCGA § 17-17-5, so those plea proceedings were continued. But the parties completed other aspects of the plea agreement: the court revoked Grant's first offender status; the court adjudicated Grant guilty and sentenced him in his probation case; and Grant was placed under oath and questioned by the assistant district attorney about the new charges.

In response to the assistant district attorney's questions, Grant testified that on July 31, 2017, Bruce Chambers asked Grant and Grant's girlfriend, Isis McCloud, to drive him to the victim's house.

Once they arrived, Chambers went into the victim's house alone, and then he signaled Grant to come in. Grant entered the house, where Chambers was buying marijuana from the victim. Chambers pulled out a gun and shot the victim. Grant did not know what was going on, and he exited the house. Before Grant could drive away, Chambers got in the car. Chambers directed Grant where to drive. Grant crashed the car, and he, McCloud, and Chambers fled. The police found Grant and McCloud in the woods.

The assistant district attorney asked Grant if he knew in advance that Chambers had a weapon or the purpose of Chambers's trip to the victim's house. To both questions, Grant answered, "No, ma'am."

About a month later, after the case had been assigned to a new assistant district attorney, the state notified Grant that it was withdrawing from the plea agreement because Grant had materially breached the terms of the agreement. The state contended that it had discovered from text messages on the phone of Bruce Chambers — who was not arrested until after the probation revocation hearing where Grant gave his proffer and was adjudicated guilty — that Grant had been untruthful when he answered questions during his proffer.

On November 15, 2017, Grant was indicted for two counts of armed robbery, aggravated assault, cruelty to children, and fleeing or attempting to elude a police officer for the July 31 events.

Grant filed a motion to compel the state to comply with the terms of the plea agreement and a motion to quash the indictment. The superior court conducted a hearing on the motion to compel and granted it. The state appealed the order, but we dismissed the appeal for lack of jurisdiction.

After the case was returned to the trial court, the state moved for reconsideration of the grant of Grant's motion to compel. The next month, while its motion for reconsideration was pending, the state indicted Grant again for the July 31 events in an indictment that also charged Bruce Chambers as well as a third man. The new indictment charged Grant with two counts of armed robbery, aggravated assault, fleeing or attempting to elude a police officer, and eleven counts of street gang terrorism.

The court conducted a hearing on the state's motion for reconsideration at which the state presented new evidence — the testimony of McCloud, Grant's girlfriend who had been with Grant and Chambers on July 31 — in support of its contention that Grant had been untruthful at the proffer. The court denied the motion for reconsideration, found the state to be in contempt for failing to produce an accusation in accordance with the plea agreement, and dismissed both indictments against Grant. The state filed this appeal.

2. The trial court did not err in granting the motion to enforce the plea agreement.

The state argues that the evidence demands a finding that Grant materially breached the terms of his plea agreement. We affirm. There was sufficient evidence to support the trial court's ruling. And, as detailed below, any legal error in its initial order was superseded by its order on reconsideration.¹

It is the trial court's responsibility to determine, "based on the presentation of adequate evidence with respect to the parties’ performance," whether a defendant has materially breached a plea agreement by failing to provide truthful testimony. State v. Lewis , 298 Ga. 126, 133-134 (4), 779 S.E.2d 643 (2015). "A trial court's order on a motion to enforce a settlement agreement based on undisputed facts is subject to de novo review." In re Estate of Hubert , 325 Ga. App. 276, 279 (2), 750 S.E.2d 511 (2013) (citation and punctuation omitted). See also Syms v. State , 331 Ga. App. 225, 227, 770 S.E.2d 305 (2015) (contract law...