Underwood v. the State

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.