THIRD DIVISION
ELLINGTON, P. J.,
ANDREWS 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
June 6, 2017
In the Court of Appeals of Georgia
A17A0369. GILMORE v. THE STATE.
RICKMAN, Judge.
Jermaine James Gilmore was tried by a jury and convicted of aggravated assault,
burglary, and aggravated battery. Following the denial of his motion for new trial,
Gilmore appealed contending that the trial court erred by granting his motion to
withdraw his guilty plea and denying his motion for directed verdict. Gilmore also
contended, in the alternative, that his plea counsel rendered ineffective assistance by
moving to withdraw his guilty plea. In an unpublished opinion (Gilmore I), this Court
found that the trial court did not abuse its discretion by granting Gilmore’s motion to
withdraw guilty plea or err by denying his motion for directed verdict. Gilmore v.
State, Case No. A15A2288, p. 3-6 (1) and 9-11 (3) (decided March 8, 2016)
(unpublished opinion). However, this Court vacated the trial court’s judgment that
Gilmore’s plea counsel was effective and remanded this case to the trial court for
further proceedings. Gilmore I at 6-9 (2). On remand, following a hearing, the trial
court again denied Gilmore’s motion for new trial. This appeal follows.
The pertinent procedural history of this case is as follows:
Prior to trial . . . Gilmore had entered a negotiated guilty plea to
aggravated assault, burglary, and robbery. He was sentenced as a
recidivist under OCGA § 17-10-7 (c) to serve three concurrent 20-year
sentences, with 10 years in confinement followed by 10 years on
probation. After sentencing, however, he moved to withdraw his plea,
arguing that he “did not knowingly and voluntarily plead guilty to being
sentenced as a “Class ‘C’ Recidivist.” Finding that Gilmore did not
knowingly and voluntarily plead because he had not been advised on the
record of his recidivist sentencing, its meaning, or its consequences, the
trial court granted his motion to withdraw his guilty plea and vacated his
sentence.
Later, however, Gilmore moved to vacate the trial court’s order
allowing withdrawal of his guilty plea. The trial court denied that motion
on the morning of trial, reasoning that it had allowed Gilmore to
withdraw his plea to correct a manifest injustice because he had not been
informed of his recidivist sentencing and noting that Gilmore “doesn’t
want to go back to the sentence that I entered. He wants to withdraw his
guilty plea and go back to a different sentence without recidivism[.]
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At trial, a jury convicted Gilmore of aggravated assault, burglary,
and aggravated battery. He was sentenced to serve 40 years in
confinement without parole, followed by 20 years on probation, upon
proper notice and proof of his recidivism.
Gilmore I at 2-3.
In Gilmore I, this Court remanded this case to the trial court for the trial court
to determine whether Gilmore “had actually begun to serve [his sentence pursuant to
the guilty plea] after the oral pronouncement [which made no reference to recidivist
sentencing] and prior to the sentencing form [which indicated Gilmore was being
sentenced as a “Class ‘C’ Recidivist”] having been signed by the judge.” Gilmore I at
9 (2). Following a hearing, the trial court determined that “there is no evidence that
Gilmore began to serve his sentence between the time the [trial court] pronounced the
oral sentence and minutes later when the written order was signed.” Gilmore concedes
this issue on appeal.
After conceding the only issue that this case was remanded for, Gilmore
continues to argue that his plea counsel rendered ineffective assistance of counsel by
failing to advise him of other available options to challenge the recidivist portion of
his sentence other than withdrawing his guilty plea. Specifically, Gilmore argues that
his counsel was ineffective for neglecting to challenge his recidivist sentence on the
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basis that the State failed to meet its burden of proving his recidivism. To the extent
that Gilmore’s arguments have not already been rejected by this Court in Gilmore I,1
for the following reasons we find that his claim has no merit.
To prevail on an ineffective assistance of counsel claim, a criminal
defendant must show both that his counsel’s performance was deficient
and that the deficient performance so prejudiced him that there is a
reasonable likelihood that, but for counsel’s errors, the outcome of the
1
Although the “law of the case” rule has been statutorily
abolished, any ruling by the Supreme Court or the Court of
Appeals in a case shall be binding in all subsequent
proceedings in that case in the lower court and in the
Supreme Court or the Court of Appeals as the case may be.
OCGA § 9-11-60(h). This law of the case rule is not
confined to civil cases, but applies also to rulings made by
appellate courts in criminal cases. There is an exception to
this rule when the evidentiary posture of the case changes
such that the original evidence submitted is found to be
insufficient, and the deficient evidence is later
supplemented. The evidentiary posture of this case has not
changed since our previous decision in [Gilmore I], supra;
therefore, the “law of the case” rule applies and that
previous decision is binding on this Court.
(Citations and punctuation omitted.) Pierce v. State, 278 Ga. App. 162, 163-164 (1)
(628 SE2d 235) (2006). See Gilmore I at 6-8 (2).
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proceedings would have been different. Hill v. State, 291 Ga. 160, 164
(4) (728 SE2d 225) (2012). “The likelihood of a different result must be
substantial, not just conceivable.” (Citation omitted.) Id. In challenging
counsel’s strategic decisions, a defendant “must show that no competent
attorney, under similar circumstances, would have made [the same
decision].” (Citation and punctuation omitted.) Davis v. State, 290 Ga.
584, 585-586 (2) (723 SE2d 431) (2012). On appeal “we accept the trial
court’s factual findings and credibility determinations unless clearly
erroneous, but we independently apply the legal principles to the facts.”
(Citation omitted.) Hill, supra.
Gilmore I at 6-7 (2).
In Gilmore I, this Court noted that, in some instances, the State’s burden of
proving a defendant’s recidivism may be waived. Gilmore I at 6 (1), n. 1. See von
Thomas v. State, 293 Ga. 569, 572-573 (2) (748 SE2d 446) (2013) (listing cases). “A
plea agreement is, in essence, a contract between a defendant and the State.” (Citation
and punctuation omitted.) Simmons v. State, 292 Ga. 265, 267 (2) (736 SE2d 402)
(2013). See Martin v. State, 207 Ga. App. 861, 862-863 (429 SE2d 332) (1993).
Gilmore’s plea counsel testified at his first motion for new trial that she negotiated his
guilty plea with the District Attorney’s Office and that one of the terms of the
negotiated plea agreement was that he would be sentenced as a recidivist. Gilmore’s
plea counsel further testified that Gilmore would have been sent a copy of the
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recidivist notice and that she discussed the recidivist notice with him during “lengthy
back and forth discussions about the plea offer.” In addition, the trial court noted for
the record that prior to taking the plea, counsel for both sides explained the terms of
the proposed plea agreement in a meeting in the trial court’s chambers and “they asked
me to accept this negotiated plea as a recidivist plea.” The trial court explained that he
reluctantly, due to the seriousness of the offense, agreed to accept the recidivist plea
with a relatively light sentence because the victim was experiencing health problems.
At Gilmore’s second motion for new trial hearing, his plea counsel testified that
she filed a motion to withdraw his guilty plea because he requested that she do so and
that she did not speak with him about other possible grounds for relief because “the
[plea] deal originally was under a recidivist notice.” Gilmore’s plea counsel also
testified that she did not think it would have been appropriate to file a motion to
correct Gilmore’s sentence because “I’m not going to affirmatively lie to the Court and
say, oh well, this is something that we didn’t bargain for.” We recognize that “[t]he
failure to make a meritless motion cannot provide the basis upon which to find
ineffective assistance of counsel.” (Citation omitted.) Funck v. State, 296 Ga. 371, 374
(1) (768 SE2d 468) (2015).
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However, we need not determine definitively whether Gilmore’s plea counsel
could have successfully challenged his sentence by alternate means because Gilmore
invited the error that he now complains of. As noted in Gilmore I at 8 (2), n. 2, “[t]his
Court has repeatedly held that, in connection with an ineffective assistance claim, a
defendant cannot blame trial counsel for a decision he himself made over counsel’s
objection.” (Citation and punctuation omitted.) Brewer v. State, 328 Ga. App. 801, 804
(762 SE2d 622) (2014). Gilmore’s plea counsel testified that “[t]he filing of the motion
[to withdraw his guilty plea] was to preserve what he wanted to do, but I had hoped
that after we discussed it and reasoned about it he would withdraw that and would
leave it as it was. And I encouraged him very strongly to do so.” “I remember
explaining to [Gilmore] that if we were successful in that course of action that he
would be facing up to 140 years without parole if he were convicted on all the counts.
. . . I believe that we had a very good deal to start off with and that it shouldn’t be
bothered and that we should withdraw the motion.”
When Gilmore moved to vacate the trial court’s order allowing withdrawal of
his guilty plea, Gilmore testified that he asked his plea counsel to withdraw his guilty
plea, “[b]ut at the time that I asked she didn’t do it because she said that wasn’t the
right thing to do. . . . I had to threaten her with the Bar, writing the Bar Association and
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stuff like that before she put the motion to withdraw my plea in.” In the face of his
plea counsel’s advice that if he withdrew his plea he could face up to 140 years in the
state prison system without the opportunity for parole, Gilmore insisted that his plea
counsel go forward with the motion, even going so far as to threaten reporting her to
the bar association if she failed to do so. Now, he wishes to claim his plea counsel was
ineffective for pursuing the same motion. “In other words, [Gilmore] rolled the dice
hoping that they would come up sixes; when they came up snake eyes, he now claims
that rolling was a mistake in the first place.” Priest v. State, 335 Ga. App. 754, 759 (1)
n. 2 (782 SE2d 835) (2016).
“Under these circumstances, [plea] counsel cannot be labeled ineffective where
the defendant proceeded against counsel’s advice and blundered.” Sanders v. State,
211 Ga. App. 859, 861 (1) (440 SE2d 745) (1994). Accordingly, the trial court did not
err in concluding that Gilmore failed to show that his plea counsel was ineffective. See
Brewer, 328 Ga. App. at 804-805; see also Alvarado v. State, 271 Ga. App. 714, 718 (3)
(610 SE2d 675) (2005); Sanders, 211 Ga. App. at 861-862 (1).
Judgment affirmed. Ellington, P. J., and Andrews, J., concur.
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