Coleman v. the State

SECOND DIVISION
BARNES, P. J.,
BOGGS and RICKMAN, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

July 6, 2016

In the Court of Appeals of Georgia
A16A0660. COLEMAN v. STATE.

BARNES, Presiding Judge.

Walter Coleman appeals from the denial of his motion to withdraw a non-

negotiated guilty plea, arguing that the trial court’s denial was a manifest abuse of

discretion. We disagree and affirm.

Coleman pled guilty to influencing a witness and was sentenced to the

maximum sentence of ten years, with the possibility of parole. During three plea

hearings on the same day, Coleman kept changing his mind as to whether or not he

should enter a guilty plea before he finally entered his plea and was sentenced.

On March 3, 2015, Coleman’s case was called for trial, and Coleman indicated

that he did not want to proceed to a jury trial but would rather enter a guilty plea. The

trial court asked Coleman if he had a full opportunity to discuss the case with his

counsel, if he was satisfied with counsel’s services, and if he understood the

constitutional rights he would be waiving by entering a guilty plea. Coleman
answered in the affirmative, and the trial court then informed him that the maximum

penalty could be up to ten years in prison.

The State proffered a factual basis for the plea, stating that on October 19,

2013, Coleman’s associate assaulted a man at a convenience store. The responding

police officers observed Coleman “yelling at the victim and threatening him not to

reveal the identity of [the associate] who had made the assault against him.” The trial

court then accepted the guilty plea, finding that it was freely and voluntarily made and

supported by a factual basis. The State recommended the maximum ten year sentence

because of Coleman’s multiple prior convictions.

Based on an earlier negotiated offer of three years of probation, the potential

ten-year sentence and the introduction of the prior convictions, Coleman’s trial

counsel informed the trial court that he would recommend that Coleman withdraw his

plea The trial court responded that once it accepted Coleman’s non-negotiated plea,

Coleman “no longer ha[d] an absolute right to withdraw his plea,” and that the ten-

year sentence was indicated based on Coleman’s five prior felony convictions, about

which the State had sent a notice of evidence to be used in aggravation of sentence.1

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The State’s notice of evidence in aggravation of sentence listed convictions
for theft by taking a motor vehicle, burglary, terroristic threats, theft by taking, and
cocaine possession.

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 When asked if Coleman had been advised of the notice of evidence to be used

in aggravation of sentence and the consequences that could flow from it, Coleman’s

trial counsel admitted that he had had trouble contacting Coleman, so Coleman may

not have been aware of the notice or the mandatory sentence that would result from

entering a guilty plea to another felony. The trial court allowed Coleman the

opportunity to speak with his attorney to determine if he wanted to stand on the plea

or not, and told him if the State withdrew the notice of evidence in aggravation of

sentence, he would sentence Coleman to 10 years with three to serve in custody and

the balance to serve on probation. Coleman decided to withdraw his plea and to

proceed with a trial.

During the second colloquy a half an hour later, Coleman told the trial court

that he was unsatisfied with his trial counsel, stating that there were “a lot of things

I wanted him to do, but due to the circumstances, I want to move forward with the

case.” Coleman indicated that he wanted to enter a plea of guilty. The trial court again

went over the constitutional rights Coleman would waive if he entered a guilty plea.

But when the trial court then asked Coleman, “How do you plead?,” Coleman

responded, “Not guilty,” and said he wanted to go to trial. The parties then proceeded

to select a jury.

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 During the third colloquy, after the jury had been selected and court resumed

after lunch, Coleman told the trial court that he had again decided to enter a guilty

plea. For a third time, the trial court reviewed the constitutional rights Coleman

would waive by pleading guilty. The trial court then accepted Coleman’s guilty plea

as intelligently and voluntarily entered. The State decided to present only two of the

five prior convictions it had listed in its notice of evidence to be used in aggravation

of sentence so that Coleman could possibly be paroled under OCGA § 17-10-7 (a).

The trial court then sentenced Coleman to ten years under that code section.

Nine days later, on March 12, 2015, Coleman moved to withdraw his guilty

plea, alleging among other things that his counsel had been ineffective. Following a

hearing during which Coleman was represented by new counsel and his trial counsel

did not appear, the trial court denied the motion. Coleman filed a timely appeal.2

1. Coleman contends that the trial court erred by denying his motion to

withdraw his guilty plea because his trial counsel was ineffective. We disagree.

2
As an initial matter, we note that Coleman’s brief fails to comply with our
rules. He enumerates the same issues in different errors and argues error different
from those he initially enumerates. “[A] party will not be granted relief should we err
in deciphering a brief which fails to adhere to the required form.” Pruitt v. State, 323
Ga. App. 689 (1) (747 SE2d 694) (2013). See Court of Appeals Rule 25 (c) (1) (“The
sequence of arguments in the briefs shall follow the order of the enumeration of
errors, and shall be numbered accordingly.”)

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 “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.” Pruitt, 323 Ga. App. at 690 (2).

Coleman alleged his trial counsel was ineffective because he was unprepared,

unreachable, and did not fully explain to Coleman the nature of the guilty plea and

maximum sentence.

Because [Coleman’s] motion was based on an ineffective assistance of
counsel claim, the trial court was required to apply the two-pronged test
set forth in Strickland v. Washington, 466 U.S. 668 (104 SCt 2052, 80
LE2d 674) (1984), to determine whether counsel’s performance was
deficient, and, if so, whether [Coleman] was prejudiced by the
deficiency.

Pruitt, 323 Ga. App. at 690 (2). “If the defendant is unable to satisfy either the

deficiency or prejudice prong of the test, his ineffective assistance claim

fails.”(Citations and punctuation omitted) Taylor v. State, 304 Ga. App. 878, 880-881

(698 SE2d 384) (2010). See also Wright v. State, 298 Ga. 124, 125 (2) (779 SE2d

660) (2015) (defendant who seeks to withdraw guilty plea must show both deficient

performance and a reasonable probability that, but for counsel’s errors, defendant

would have insisted on trial). When this court reviews a trial court’s denial of a

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motion to withdraw a guilty plea, “the voluntariness of the plea depends upon

whether counsel’s advice was within the range of competence demanded of attorneys

in criminal cases.” (Citation and punctuation omitted.) Alexander v. State, 297 Ga.

59, 61 (772 SE2d 655) (2015).

Under the first prong of the Strickland test, there is a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance

and “without trial counsel’s testimony, his actions are presumed strategic.” Freeman

v. State, 282 Ga. App. 185, 188 (2) (638 SE2d 358) (2006); Earley v. State, 310 Ga.

App. 110, 112 (712 SE2d 565) (2011). Coleman asserts that his trial counsel’s

performance was deficient because counsel did not adequately prepare for the trial,

failed to communicate with Coleman, and failed to inform him of any similar

transaction and recidivism evidence.

However, during the initial plea colloquy, Coleman’s trial counsel stated that

he tried multiple times to contact Coleman but was unable to reach him. Trial counsel

said that he had called and left messages for Coleman but had “never received any

response in my communications from him . . . and I ha[d] no way of verifying

whether or not he got the communication.” Additionally, the record reflects

throughout the three colloquies that the trial court gave Coleman the opportunity to

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consult with his trial counsel before deciding to enter his plea. Moreover, Coleman

also made several conflicting statements at the hearing on his motion to withdraw his

guilty plea, first telling the trial court that he had never talked to his trial counsel, but

then conceding that the trial counsel had represented him in two prior court

appearances. Coleman also testified that the trial counsel would call his uncle, who

would then pass along the information to Coleman.

Regarding Coleman’s contention that trial counsel was deficient for failing to

adequately inform him about the State’s use of similar transactions in aggravation of

his sentence, at the hearing on the motion to withdraw guilty plea, the trial court

informed Coleman that it had not considered any similar acts in sentencing because

there was no pre-trial determination as to their admissibility. Thus, trial counsel was

not deficient in this regard.

In its order denying Coleman’s motion to withdraw his guilty plea, the trial

court found that Coleman’s “sworn testimony at the time of the guilty plea was that

he had a full opportunity to talk with his lawyer about his case, and that he told his

lawyer everything he knew to tell him about the facts of the case.” The court then

held that Coleman’s plea “was entered into knowingly, intelligently, and voluntarily

. . . with a full understanding of what the plea connoted and of its consequences.”

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 “As the final arbiter of the facts, the trial court was authorized to reject

[Coleman’s] self-serving testimony during the hearing on his motion to withdraw the

plea and find that he entered it knowingly and voluntarily.” Young v. State, 267 Ga.

App. 91, 92 (598 SE2d 840) (2004). Further, Coleman has not described any evidence

or defenses that could have been presented at trial if his plea counsel had spent more

time with him. Pruitt, 323 Ga. App. at 693 (2) (c). “Credibility determinations are

within the purview of the trial court and the court’s factual findings will not be

disturbed unless clearly erroneous. Despite appellant’s stated motivation [for pleading

guilty instead of going to trial], he fails to demonstrate coercion or that his decision

to enter the plea was not voluntarily made.” (Citations omitted.) McGuyton v. State,

298 Ga. 351, 355 (1) (b) (782 SE2d 21) (2016).

Because Coleman failed to meet his burden of showing that his trial counsel’s

performance was deficient, this Court need not address the prejudice prong. Horne

v. State, 333 Ga. App. 353, 353 (1) (773 SE2d 467) (2015). Accordingly, the trial

court did not abuse its discretion when it denied Coleman’s motion to withdraw his

guilty plea based on an ineffective assistance of counsel claim. See Gresham v. State,

300 Ga. App. 158, 163 (684 SE2d 336) (2009) (affirming trial court’s denial of

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motion to withdraw guilty plea based on assertion plea counsel did not spend enough

time on the case).

2. Next, Coleman contends that the trial court erred in denying him a full

hearing on his ineffectiveness claim. He argues that to meet the first prong of

Strickland, his trial attorney had to be present and testify at the motion to withdraw

guilty plea hearing. Coleman asserts that the trial court should have stayed the motion

to withdraw guilty plea hearing because his trial attorney’s absence denied him the

right to a full due process hearing and he “would not have plead guilty if he knew

there was a risk of getting any prison time without parole.”

Coleman was not sentenced to a term without the possibility of parole. He was

sentenced under OCGA § 17-10-7 (a), which does not prevent the Board of Pardons

and Paroles from granting Coleman parole at some point during his sentence. Further,

during the plea hearing, the trial court informed Coleman that it was not the court’s

“intention that [he] not be eligible for parole,”and later, when Coleman asked if he

was eligible for parole, the trial court said that parole “will be up to the Parole

Board.” The trial court also gave Coleman and his trial counsel ample time to discuss

the consequences of the State’s notice of evidence to be used in aggravation of

sentence. The State withdrew all but two of the four counseled felony convictions

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included in its notice of evidence to be used in aggravation of sentence, specifically

so that Coleman could be sentenced as a recidivist under OCGA § 17-10-7 (a) and

receive a split sentence, with some portion to be served on probation. If the State had

insisted on presenting all four convictions, OCGA § 17-10-7 (c) would have required

the court to sentence him to ten years without the possibility of parole.

Finally, during the first plea colloquy, after the trial court accepted Coleman’s

guilty plea and the State recommended ten years to serve, Coleman expressed surprise

that the recommended sentence of ten years to serve without parole was much higher

than he thought it would be. His trial counsel told the trial court that Coleman had not

been fully aware of the notice of evidence to be used in aggravation of sentence until

moments before, and Coleman told the court that he had entered his plea expecting

the State to recommend the three years probation it had originally offered. The trial

court explained the mandatory minimum sentence it would be constrained to give

Coleman based on the four certified felony convictions the State had introduced,

which was ten years to serve without the possibility of parole. Coleman indicated that

he understood the explanation and that he did not have any further questions. After

the explanation, the trial court allowed Coleman to withdraw his initial guilty plea

and gave him the opportunity to discuss his case further with his trial counsel. When

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Coleman returned to the court, the trial court asked if his trial counsel had “explained

to [him] what the statute says and what it means?” Coleman responded that he

understood and wanted to go to trial.

After the jury was struck, when Coleman indicated again that he wanted to

plead guilty, the trial court told him that it would be a blind plea, that there would not

“be any guarantees whatsoever,” and the court would entertain the plea, hear

argument, and decide what the sentence would be. After the court again accepted

Coleman’s guilty plea, the State again recommended ten years to serve, but withdrew

two of the four counseled felonies to give the trial court the discretion to probate

some portion of the sentence if it wished to. The court declined to probate any of the

required ten-year sentence, but did sentence Coleman under OCGA § 17-10-7 (a) as

if this were his third felony, rather than under OCGA § 17-10-7 (c) as if this were his

fifth felony, so that he is eligible for parole, in the discretion of the Board.

Despite his assertion that his trial counsel’s absence from the motion hearing

denied him a fair and proper determination of his ineffectiveness claim, Coleman fails

to indicate what additional information his trial counsel could have added to meet his

“burden of showing that, had it not been for his attorney’s deficient representation,

a reasonable probability exists that he would have insisted on a trial.” (Citation and

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punctuation omitted.) Howard v. State, 274 Ga. App. 861, 861-862 (619 SE2d 363)

(2005).

At the hearing on the motion to withdraw his guilty plea, Coleman’s new

counsel informed the trial court that Coleman’s trial counsel was unavailable but that

he “planned to go forward . . . and get started with this proceeding.” He then indicated

that he would later request a stay so that the trial attorney could be “here at motions.”

The trial court asked Coleman’s new counsel what additional information the trial

counsel could testify to that would be favorable to Coleman, and appellate counsel

had no response. The transcript also indicates that appellate counsel did not later

approach the trial court and indicate that Coleman wanted to stay the proceedings.

This enumeration fails.

3. Coleman also contends that the trial court erred by participating in plea

negotiations and that it abused its discretion when it failed to specifically and

expressly inform Coleman what sentence he would receive if he entered a guilty plea

as opposed to going to trial. However, the record shows that Coleman never raised

these issues at the hearing on his motion to withdraw his guilty plea or in the actual

motion, and “it is well settled that issues neither raised nor ruled on in the trial court

cannot be raised for the first time on appeal.” (Citation and punctuation omitted.)

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Talton v. State, 324 Ga. App. 9, (749 SE2d 18) (2013). Further, the transcript of the

plea colloquies makes it clear that Coleman was only offered a non-negotiated, blind

plea, and the trial court was not required to announce its sentence before accepting

the guilty plea.

4. We also find no merit to Coleman’s argument that the trial court’s denial of

Coleman’s motion to withdraw his guilty plea was a manifest injustice. Based on our

conclusion that the trial court did not err in finding that trial counsel was not

ineffective, and Coleman’s waiver of the remaining arguments, this enumeration also

fails. See Williams v. State, 318 Ga. App. 744, 745 (734 SE2d 745) (2012) (“The test

for manifest injustice will by necessity vary from case to case, but it has been said

that withdrawal is necessary to correct a manifest injustice if, for instance, a

defendant is denied effective assistance of counsel, or the guilty plea was entered

involuntarily or without an understanding of the nature of the charges.”) (citations

and punctuation omitted.)

Judgment affirmed. Boggs and Rickman, JJ., concur.

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