THIRD DIVISION
MILLER, P. J.,
MCFADDEN and MCMILLIAN, 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
September 21, 2016
In the Court of Appeals of Georgia
A16A1158. UNDERWOOD v. THE STATE.
PER CURIAM.
Trimaine Underwood appeals from the trial court’s denial of his motion to
withdraw his guilty plea, arguing that when the trial court rejected his plea agreement
with the State, it failed to comply with the requirements of Uniform Superior Court
Rule (“USCR”) 33.10 and State v. Germany, 246 Ga. 455 (271 SE2d 851) (1980). We
agree and reverse.
In January 2012, Underwood was charged with two counts of theft by
shoplifting. At his plea hearing in June 2014, he presented a negotiated plea
agreement to the trial court. Under the terms of that agreement, the State
recommended a sentence of two-and-a-half to three years’ confinement followed by
probation, concurrent with any other sentence Underwood was serving, and a waiver
of recidivist treatment. After the State recited the factual basis for the plea and
summarized Underwood’s lengthy criminal history, the trial court stated that it would
not accept the negotiated agreement. Specifically, the court stated:
And the Court is going to reject the plea agreement in the case. I’m
going to tell you what I’m inclined to do in the event Mr. Underwood
would like to reconsider. I’m inclined to sentence him to ten years of
incarceration on count 1, followed by ten years of probation on count 2,
if you would like to consider that.
Underwood conferred with his attorney, who advised the court that Underwood still
wanted to plead guilty. The trial court then entered a judgment of conviction and
imposed the twenty-year sentence it had described. Underwood subsequently filed a
timely motion to withdraw his guilty plea, which the court denied. This appeal
ensued.
In State v. Germany, our Supreme Court held that where the trial court intends
to reject a negotiated plea agreement,
the trial court shall, on the record, inform the defendant personally that
(1) the trial court is not bound by any plea agreement, (2) the trial court
intends to reject the plea agreement presently before it, (3) the
disposition of the present case may be less favorable to the defendant
than that contemplated by the plea agreement, and (4) that the defendant
may then withdraw his or her guilty plea as a matter of right.
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(Emphasis supplied.) 246 Ga. at 456 (1). See also USCR 33.10. We have described
this rule as a “bright line test” that requires the trial court to “expressly” inform the
defendant, “personally and on the record,” of his right to withdraw his guilty plea. See
Lawrence v. State, 234 Ga. App. 603, 605 (1) (507 SE2d 490) (1998). And in a case
where the trial court failed to give a statement that was required by the rule – there,
an explicit statement that the court intended to impose a harsher sentence than
contemplated by the agreement – we rejected the State’s argument that this deficiency
was cured by the fact that the defendant “was represented by experienced defense
counsel who would surely have discussed the possibility of a less favorable sentence
with her.” Mulkey v. State, 265 Ga. App. 631, 632 (595 SE2d 330) (2004).
Here, as in Mulkey, the trial court did not explicitly advise Underwood of all
four of the principles identified in State v. Germany and USCR 33.10. Specifically,
the court did not advise Underwood that, because it had decided not to impose the
recommended sentence, he could withdraw his guilty plea as a matter of right, which
the State concedes on appeal. Further, as in Mulkey, this deficiency was not cured by
defense counsel advising the defendant, off the record, of the same principle. See
Mulkey, 265 Ga. App. at 632. Accordingly, the trial court’s failure to comply with the
directives of USCR 33.10 and Germany necessitates a reversal in this case.
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Judgment reversed. Division Per Curiam. All Judges concur.
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