FIRST DIVISION
BARNES, P. J.,
GOBEIL and PIPKIN, 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.
Please refer to the Supreme Court of Georgia Judicial
Emergency Order of March 14, 2020 for further
information at (https://www.gaappeals.us/rules).
May 7, 2020
In the Court of Appeals of Georgia
A20A0424. BRANNER v. THE STATE.
BARNES, Presiding Judge.
Charlie Branner, Jr. contests the denial of his motion to withdraw his guilty
plea. For reasons that follow, we vacate the judgment and remand the case with
direction to dismiss Branner’s motion.
In November 2018, while represented by counsel, Branner entered in the
Superior Court of Tift County a negotiated Alford1 plea to three counts of child
1
See generally North Carolina v. Alford, 400 U. S. 25, 37 (91 SCt 160, 27
LE2d 162) (1970) (“[W]hile most pleas of guilty consist of both a waiver of trial and
an express admission of guilt, the latter element is not a constitutional requisite to the
imposition of criminal penalty.”); Berrien v. State, 300 Ga. 489, 493 (3) (796 SE2d
718) (2017) (summarizing the “situation that the United States Supreme Court
confronted in Alford . . . [as] the defendant had entered a guilty plea to second-degree
murder but accompanied his plea with the statement that he had not shot the victim”)
(citation and punctuation omitted).
molestation.2 At the end of Branner’s plea hearing, the trial judge orally pronounced
sentence. Three days later, on November 16, Branner filed a pro se motion to
withdraw his plea. On November 28, 2018, the trial court entered judgment upon
Branner’s plea,3 convicting him of the three child molestation counts, and imposing
an aggregate sentence of 30 years, to serve 14 in confinement.
The following year, in July 2019, the trial court conducted a hearing on
Branner’s motion to withdraw his plea. Thereafter, the trial court denied Branner’s
motion on the merits, and Branner challenges that ruling in this appeal. As more fully
explained below, Branner supplied the trial court no viable basis to rule in his favor
– his pro se motion amounted to a nullity, and subsequent efforts undertaken were
untimely because the trial court had meanwhile lost jurisdiction over the issue.
2
The indictment alleged that these offenses were committed “between the 1st
day of August, 2015, and the 30th day of August, 2016, the exact date of the
offense[s] being unknown.”
3
See generally Humphrey v. State, 299 Ga. 197, 198 (1) (787 SE2d 169) (2016)
(“[W]ithdrawal [of a guilty plea] is permitted as a matter of right at any time before
the trial court orally pronounces a defendant’s sentence. Once the sentence has been
pronounced, the defendant loses the absolute right to withdraw his plea, though he
may still seek to withdraw, within the trial court’s discretion, where necessary to
correct a manifest injustice.”) (citations and punctuation omitted).
2
It is well settled that “[a] criminal defendant in Georgia does not have the right
to represent himself and also be represented by an attorney, and pro se filings by
represented parties are therefore unauthorized and without effect.” Tolbert v. Toole,
296 Ga. 357, 363 (3) (767 SE2d 24) (2014). When Branner filed his pro se motion to
withdraw his plea, he was still represented by plea counsel. As the Supreme Court of
Georgia has recently reaffirmed, “at a minimum, legal representation continues –
unless interrupted by entry of an order allowing counsel to withdraw or compliance
with the requirements for substitution of counsel, – through the end of the term at
which a trial court enters a judgment of conviction and sentence on a guilty plea.”
(Citation and punctuation omitted.) Dos Santos v. State, 307 Ga. 151, 153 (2) (834
SE2d 733) (2019).
The term of court during which Branner was convicted and sentenced ended
on March 11, 2019.4 Prior to that date, no order was entered either for plea counsel
to withdraw or for substitution of counsel. Consequently, Branner’s pro se motion
amounted to a legal nullity, presenting the trial court with nothing to decide. See
Ricks v. State, 307 Ga. 168, 169 (835 SE2d 179 (2019) (“Given that the record
4
See OCGA § 15-6-3 (39) (B) (“The terms of court for the superior courts for
each of the judicial circuits shall commence as follows: . . . Tift County – Second
Monday in March and second Monday in September.”).
3
contains no order allowing plea counsel to withdraw before [the defendant] submitted
her pro se filings . . . , [the defendant] was still represented by counsel when she
submitted them, such that her pro se motions were legal nullities.”); Dos Santos, 307
Ga. at 154 (3) (“Dos Santos’s pro se motion to withdraw her pleas was unauthorized
and without effect, because she had no right to represent herself at the same time she
was represented by a lawyer.”).
It is also well settled that “a trial court lacks jurisdiction to permit the
withdrawal of a guilty plea once the term of court has expired in which the defendant
was sentenced.” (Citation and punctuation omitted.) Bankston v. State, 307 Ga. 656,
657 (2) (837 SE2d 788) (2020). See Colquitt v. State, 307 Ga. 43, 44 (834 SE2d 52)
(2019) (same); Humphrey, 299 Ga. at 198 (1) (reciting that a “motion must be filed
within the term of court in which the defendant was sentenced under the plea, as the
trial court lacks jurisdiction to entertain a motion to withdraw filed beyond the term
of sentencing”). Here, after the expiration of the term of court during which Branner
was sentenced, additional pleadings were filed, orders were entered, and a hearing
was conducted on his purported motion to withdraw. In particular, on March 29,
2019, Branner’s plea counsel filed a motion to withdraw as counsel; the trial court
granted that motion on April 1, 2019; the court also appointed new counsel
4
(hereinafter, “motion-to-withdraw counsel”); and motion-to-withdraw counsel filed
a notice of representation on May 13, 2019.
[A]lthough motion-to-withdraw counsel argued at the [July 2019]
hearing that [Branner] should be allowed to withdraw [his] guilty plea,
that could not breathe life into [Branner’s] inoperative pleading[.] The
trial court therefore should have dismissed [Branner’s November 2018]
pro se motion[ ], rather than denied [it].
(Citations and punctuation omitted.) Ricks, 307 Ga. at 169. See Bankston, 307 Ga. at
657 (2) (“Because the . . . term of court in which Bankston entered his plea expired
decades ago, the trial court did not have jurisdiction over Bankston’s motion to
withdraw. The trial court therefore properly dismissed Bankston’s motion to the
extent it sought to withdraw his guilty pleas.”) (citation and punctuation omitted);
Dos Santos, 307 Ga. at 155 (3) (“The trial court should have dismissed Dos Santos’s
pro se motion rather than ruling on its merits); White v. State, 302 Ga. 315, 320 (2)
(806 SE2d 489) (2017) (“The only filing that could be treated as a valid motion to
withdraw Appellant’s guilty pleas was the amended motion that his new counsel . .
. filed . . . . By that time, however, the term of court during which Appellant entered
his guilty pleas had ended, so the trial court no longer had jurisdiction to grant a
motion to withdraw guilty pleas.”); Brooks v. State, 301 Ga. 748, 752 (2) (804 SE2d
5
1) (2017) (“Because the trial court decided the merits of a motion it lacked
jurisdiction to decide, we vacate the trial court’s order and remand with instructions
to dismiss.”).
In light of the foregoing, we vacate the contested judgment, and remand this
case with instruction to dismiss Branner’s pro se motion to withdraw his plea.
Judgment vacated and case remanded with direction. Gobeil and Pipkin, JJ.,
concur.
6