FIFTH DIVISION
MCFADDEN, C. J.,
RICKMAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
May 7, 2021
In the Court of Appeals of Georgia
A21A0340. THE STATE v. GRANT.
MCFADDEN, Chief Judge.
The state appeals the trial court’s order dismissing two indictments against
Dylan Grant. The trial court entered the order after granting Grant’s motion to compel
the state to comply with a plea agreement. The state argues that Grant breached the
terms of the plea agreement and so is not entitled to the benefit of that agreement —
to be prosecuted for charges less serious than those for which he was indicted. But
the state has not shown that the trial court erred in granting Grant’s motion to compel.
So we affirm.
1. Factual background.
Early in 2017, Grant was sentenced as a first offender to seven years of
probation for possession of more than an ounce of marijuana and possession of a
firearm or knife during the commission of a felony. On July 31, 2017, while he was
on probation, Grant was arrested on warrants accusing him of having committed the
new offenses of armed robbery and aggravated assault.
Less than a month later, the state filed a petition to revoke Grant’s first-
offender probation on the grounds that he had violated the terms of his probation by
committing the new offenses and by committing the technical violations of failing to
complete his community service hours, failing to undergo a substance abuse
evaluation, and failing to pay court-ordered fines and fees.
On August 31, 2017, Grant had two hearings scheduled: a bond hearing on the
new offenses and a hearing on the state’s petition to revoke his probation. At some
point that day, Grant’s attorney and the assistant district attorney reached a plea
agreement that addressed both the new charges and the probation revocation petition.
They stated most of the terms of the agreement on the record at the probation
revocation hearing. Under the agreement:
the state would not pursue the allegation in the probation revocation
petition that Grant had committed new offenses;
Grant would stipulate to the allegation that he had committed technical
violations of the terms of his probation;
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Grant would consent to the revocation of his first-offender status and to
an adjudication of guilt on the marijuana and weapon possession charges
that underlay his first-offender probation;
Grant would be sentenced to nine years, to serve 180 days in
confinement and the balance on probation, on the marijuana and weapon
possession charges;
as for the new offenses, Grant would plead guilty to the misdemeanor
offenses of obstruction of a law enforcement officer and criminal
attempt to purchase less than an ounce of marijuana;
Grant would be questioned under oath and would testify truthfully
regarding the new offenses.
The parties did not complete the plea proceedings for the new charges that day
because the victim had not been notified as required by law, see OCGA § 17-17-5,
so those plea proceedings were continued. But the parties completed other aspects of
the plea agreement: the court revoked Grant’s first-offender status; the court
adjudicated Grant guilty and sentenced him in his probation case; and Grant was
placed under oath and questioned by the assistant district attorney about the new
charges.
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In response to the assistant district attorney’s questions, Grant testified that on
July 31, 2017, Bruce Chambers asked Grant and Grant’s girlfriend, Isis McCloud, to
drive him to the victim’s house. Once they arrived, Chambers went into the victim’s
house alone, and then he signaled Grant to come in. Grant entered the house, where
Chambers was buying marijuana from the victim. Chambers pulled out a gun and shot
the victim. Grant did not know what was going on and he exited the house. Before
Grant could drive away, Chambers got in the car. Chambers directed Grant where to
drive. Grant crashed the car, and he, McCloud, and Chambers fled. The police found
Grant and McCloud in the woods.
The assistant district attorney asked Grant if he knew in advance that Chambers
had a weapon or the purpose of Chambers’s trip to the victim’s house. To both
questions, Grant answered, “No, ma’am.”
About a month later, after the case had been assigned to a new assistant district
attorney, the state notified Grant that it was withdrawing from the plea agreement
because Grant had materially breached the terms of the agreement. The state
contended that it had discovered from text messages on the phone of Bruce Chambers
— who was not arrested until after the probation revocation hearing where Grant
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gave his proffer and was adjudicated guilty — that Grant had been untruthful when
he answered questions during his proffer.
On November 15, 2017, Grant was indicted for two counts of armed robbery,
aggravated assault, cruelty to children, and fleeing or attempting to elude a police
officer for the July 31 events.
Grant filed a motion to compel the state to comply with the terms of the plea
agreement and a motion to quash the indictment. The superior court conducted a
hearing on the motion to compel and granted it. The state appealed the order, but we
dismissed the appeal for lack of jurisdiction.
After the case was returned to the trial court, the state moved for
reconsideration of the grant of Grant’s motion to compel. The next month, while its
motion for reconsideration was pending, the state indicted Grant again for the July
31 events in an indictment that also charged Bruce Chambers as well as a third man.
The new indictment charged Grant with two counts of armed robbery, aggravated
assault, fleeing or attempting to elude a police officer, and eleven counts of street
gang terrorism.
The court conducted a hearing on the state’s motion for reconsideration at
which the state presented new evidence in support of its contention that Grant had
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been untruthful at the proffer, the testimony of Isis McCloud, Grant’s girlfriend who
had been with Grant and Chambers on July 31. The court denied the motion for
reconsideration, found the state to be in contempt for failing to produce an accusation
in accordance with the plea agreement, and dismissed both indictments against Grant.
The state filed this appeal.
2. The trial court did not err in granting the motion to enforce the plea
agreement.
The state argues that the evidence demands a finding that Grant materially
breached the terms of his plea agreement. We affirm. There was sufficient evidence
to support the trial court’s ruling. And, as detailed in the margin, any legal error in its
initial order was superceded by its order on reconsideration.1
1
Two trial court judges were involved in this case. The original trial court order
granting Grant’s motion to compel the state to comply with the terms of the plea
agreement, issued on May 18, 2018, was erroneous on its face to the extent that it
stated that evidence discovered after Grant’s acceptance and reliance on the plea offer
was categorically “irrelevant” to the issue of whether he subsequently breached that
agreement by failing to testify truthfully in accordance with the agreement’s
provisions. See, e.g., Simmons v. State, 292 Ga. 265, 267-268 (2) (736 SE2d 402)
(2013). Nevertheless, upon a motion to reconsider filed by the state, a subsequently-
assigned judge conducted an evidentiary hearing for the purpose of accepting and
considering the state’s new evidence offered in support of its assertion that Grant
breached the agreement. The trial court then denied the motion for reconsideration
by summary order dated June 25, 2020, and it is that order that is before this Court
for review. Although the trial court did not and was not required to make express
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It is the trial court’s responsibility to determine, “based on the presentation of
adequate evidence with respect to the parties’ performance,” whether a defendant has
materially breached a plea agreement by failing to provide truthful testimony. State
v. Lewis, 298 Ga. 126, 133-134 (4) (779 SE2d 643) (2015). “A trial court’s order on
a motion to enforce a settlement agreement based on undisputed facts is subject to de
novo review.” In re Estate of Hubert, 325 Ga. App. 276, 279 (2) (750 SE2d 511)
(2013) (citation and punctuation omitted). See also Syms v. State, 331 Ga. App. 225,
227 (770 SE2d 305) (2015) (contract law can provide the framework for addressing
disputes about plea agreements). But “the question here turns on a factual issue
resolved by the trial court after considering evidence presented[, so] we treat
resolution of such factual issues as subject to the ‘clearly erroneous’ standard of
review. Under this standard we will uphold the trial court’s factual findings if there
is any evidence to support them.” In re Estate of Huff, 287 Ga. App. 614, 614-615
(652 SE2d 203) (2007) (citations and punctuation omitted).
findings of fact or conclusions of law, we can infer from the procedural posture of
this case and the ruling made subsequent to the evidentiary hearing that the court
considered and rejected the state’s argument of breach and the newly-discovered
evidence offered in support thereof.
7
The state argues that Grant lied in his proffer when he testified that he did not
know that Chambers was going to rob the victim on July 31. It argues that the text
messages from and to Chambers’s cellular telephone, some involving Grant, some
involving other individuals, are evidence that Grant knew Chambers’s intentions. It
argues that Isis McCloud’s testimony directly contradicted Grant’s testimony that he
did not know what was planned for July 31 and why Chambers wanted Grant to drive
him to the victim’s house.
In denying the state’s motion for reconsideration, the trial court did not make
any express factual findings, but we can infer from the denial of the motion that the
court implicitly found that the state’s evidence did not prove that Grant had materially
breached the plea agreement by testifying untruthfully at the proffer. “The trial court
made no explicit factual findings or credibility determinations on the record, but by
[denying the state’s motion for reconsideration], the court implicitly credited
[Grant’s] testimony, as it was authorized to do, to conclude that [Grant was not
untruthful at his proffer].” Scott v. State, 307 Ga. 37, 42 (834 SE2d 88) (2019). The
state has failed to show that this implicit factual finding is clearly erroneous. See
generally Kemp v. State, 303 Ga. 385, 393 (2) (b) (810 SE2d 515) (2018) (reviewing
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trial court’s implicit factual findings regarding the admissibility of evidence for clear
error).
The state relies on Simmons v. State, 292 Ga. 265, 267-268 (2) (736 SE2d 402)
(2013), and Brown v. State, 261 Ga. App. 115 (582 SE2d 13) (2003), to support its
argument that it is entitled to withdraw from the plea agreement because of Grant’s
breach. Those cases are distinguishable because neither depended on the trial court
resolving the factual issue of whether the defendant had been untruthful.
In Simmons, the defendant testified at her plea hearing that she and three named
individuals were involved in planning a murder, but afterwards, she told cell mates
that one of the others was not involved and that she had lied to obtain a lesser
sentence. 292 Ga. at 267-268 (2).
In Brown, we held that a defendant whose testimony at his co-defendant’s trial
directly contracted the defendant’s testimony at his own plea hearing breached the
plea agreement that required him to testify truthfully. 261 Ga. App. at 116.
Here, in contrast, Grant maintained the position that he had been truthful. He
did not contradict himself.
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Because the state has not shown that the trial court clearly erred in granting
Grant’s motion to enforce the plea agreement, we affirm.
Judgment affirmed. Rickman, P. J., and Senior Appellate Judge Herbert E.
Phipps concur.
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