FIFTH DIVISION
MCFADDEN, P. J.,
MCMILLIAN and GOSS, 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
April 10, 2019
In the Court of Appeals of Georgia
A19A0630. REEDER v. THE STATE.
MCFADDEN, Presiding Judge.
While represented by counsel, Jayoun Reeder entered a non-negotiated plea of
guilty to the charges of terroristic threats and disorderly conduct. The trial court
sentenced Reeder as a recidivist to five years confinement. After sentencing, Reeder
moved to withdraw the plea. Represented by new counsel, he amended his motion to
withdraw to allege that he received ineffective assistance of plea counsel. The trial
court denied the motion to withdraw, and Reeder filed this appeal. Finding no error,
we affirm.
After sentencing, the decision on a motion to withdraw a guilty
plea is within the trial court’s discretion, and withdrawal of the plea is
allowed only when necessary to correct a manifest injustice. 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.
Giddens v. State, __ Ga. App. __, __ (1) (__ SE2d __) (Case No. A18A2122, decided
Mar. 12, 2019) (citations and punctuation omitted).
When a defendant challenges the validity of his guilty plea in this
way, the [s]tate bears the burden of showing that the defendant entered
his plea knowingly, intelligently, and voluntarily. The [s]tate may meet
its burden by showing on the record of the guilty plea hearing that the
defendant understood the rights being waived and possible
consequences of the plea or by pointing to extrinsic evidence
affirmatively showing that the plea was voluntary and knowing. In
evaluating whether a defendant’s plea was valid, the trial court should
consider all of the relevant circumstances surrounding the plea.
Johnson v. State, 303 Ga. 704, 706-707 (2) (814 SE2d 688) (2018) (citations and
punctuation omitted). “The trial court is the final arbiter of all factual issues raised by
the evidence, and its refusal to allow a withdrawal will not be disturbed absent a
manifest abuse of discretion.” Allen v. State, 333 Ga. App. 853, 855 (2) (777 SE2d
699) (2015) (citation and punctuation omitted).
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Reeder argues that plea counsel was ineffective because he failed to properly
advise Reeder of the consequences of entering a non-negotiated guilty plea and led
Reeder to believe that he would be sentenced to a day reporting center, a type of
probation supervision program that provides counseling, educational programming
and supervision. See https://dcs.georgia.gov/probation-supervision-programs
(retrieved Mar. 25, 2019).
The record shows that before accepting his plea, the trial court expressly
advised Reeder that he would be sentenced to five years — a mandatory sentence,
given his recidivism; that he could be ordered to serve the entire sentence in
confinement; that she would decide whether to suspend or probate any portion of it;
that there was no agreement between plea counsel and the assistant district attorney
because she would decide the sentence; and that there was no way for Reeder to guess
what sentence he would receive because she did not yet know how she would
sentence him. Reeder responded that he understood.
At the hearing on the motion to withdraw the guilty plea, plea counsel testified
that although he thought there was “a really good chance” that Reeder would be
sentenced to probation at a day reporting center, he warned Reeder of the risks of
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entering a non-negotiated plea. He testified that he did not make promises or
guarantees about the sentence. Nonetheless, Reeder testified that plea counsel
promised him that if he pled guilty, he would be sentenced to two years at a day
reporting center and that he would go home that same day.
The only evidence that trial counsel promised Reeder a particular sentence is
Reeder’s own testimony. “[A]ny contradiction between (Reeder’s) testimony during
the plea hearing and his [and plea counsel’s] testimony during the motion hearing is
a matter of witness credibility, which the trial court was authorized to decide against
him.” Thompkins v. State, 348 Ga. App. 511, 514 (1) (b) (__ SE2d __) (2019)
(citation and punctuation omitted). We discern no abuse of discretion in the trial
court’s denial of the motion to withdraw his guilty plea, so it is affirmed. See Allen,
333 Ga. App. at 856 (2).
Judgment affirmed. McMillian and Goss, JJ., concur.
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