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http://www.gaappeals.us/rules
June 30, 2017
In the Court of Appeals of Georgia
A17A0060. GAY v. THE STATE.
MCMILLIAN, Judge.
During the plea colloquy prior to the entry of this non-negotiated plea, the trial
court misstated, in defendant Jerry L. Gay, Jr.’s favor, the range of possible sentence
for armed robbery, leading trial counsel to speculate later with his client that the trial
court may have been indicating that he was not inclined to impose life imprisonment.
Although the trial court referred to the correct sentencing range before pronouncing
judgment, the trial court should have permitted Gay to withdraw his guilty plea under
the circumstances of this case. Accordingly, we now reverse the trial court’s denial
of Gay’s motion to withdraw his guilty plea.
The standard for reviewing a denial of a motion to withdraw a guilty plea is
well established. “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.” (Citations omitted) Allen v. State, 333
Ga. App. 853, 855 (3) (777 SE2d 699) (2015). “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.” Id. Once a guilty plea is challenged, the State generally
bears the burden of showing affirmatively from the record that the defendant entered
his plea knowingly, intelligently, and voluntarily and with an understanding of the
nature of the charges and the consequences of entering the plea. Maples v. State, 293
Ga. App. 232, 234 (2) (666 SE2d 609) (2008); Zellmer v. State, 273 Ga. App. 609,
611 (2) (615 SE2d 654) (2005).
Gay was initially charged with malice murder, armed robbery, two counts of
possession of a firearm during the commission of a felony, and possession of a
firearm by a first offender probationer. After plea negotiations, Gay agreed to plea to
voluntary manslaughter and armed robbery with the remainder of the charges to be
dismissed. The State and Gay, however, were not able to agree to a sentence
recommendation to present to the trial court. At the guilty plea hearing, it is
2
undisputed that the trial court asked Gay with respect to the armed robbery charge:
“Do you understand that carries a penalty range of ten to 20 years in prison?” to
which Gay responded in the affirmative.
After the guilty plea hearing but before sentencing, trial counsel realized that
the trial court had omitted the potential of a life sentence in describing the sentencing
range for armed robbery. Counsel also testified that he told Gay that the omission of
the life sentence may indicate that the trial court was not going to impose a life
sentence.1 To counsel’s credit, he brought the misstatement to the trial court’s
attention prior to the sentencing hearing about a month later. The trial court then
began the sentencing hearing by addressing Gay as follows:
You’re in court today for sentencing in your case. I have reviewed a
presentence investigation report in your case, and I’ve reviewed material
that your attorney has sent to me on your behalf. One thing I do want to
do before we get started this morning is to make sure I properly advised
you of the sentencing ranges in your cases when we took your plea of
guilty. I believe I informed you that the voluntary manslaughter carried
a penalty term of not more than twenty years in state prison and armed
1
Gay testified that he did not recall counsel speaking to him about the trial
court’s misstatement. However, the trial court in denying the motion to withdraw the
guilty plea credited counsel’s testimony that he had extensively discussed the correct
sentencing range with Gay.
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robbery carries a minimum mandatory of ten years and not more than
twenty years or life. I just want to make sure I properly advised you of
the sentencing range for both offenses.
The trial court then proceeded with the hearing, and after testimony from several
witnesses, sentenced Gay to life imprisonment for the armed robbery and twenty
years for the voluntary manslaughter. Two days later, Gay, through trial counsel, filed
a motion to withdraw the guilty plea, which after amendment, was denied.
“As a matter of constitutional due process, before a defendant pleads guilty, the
trial court must advise him of the ‘direct’ consequences of entering the plea[.]” Smith
v. State, 287 Ga. 391, 394 (2) (a) (697 SE2d 177) (2010). “Direct consequences may
be described as those within the sentencing authority of the trial court, as opposed to
the many other consequences to a defendant that may result from a criminal
conviction.” Id. Clearly, the sentencing range is within the direct authority of the trial
court and thus must be considered a direct consequence of entering the plea.
However, our Supreme Court has held that the failure to advise a defendant of
the sentencing range does not invalidate the guilty plea “when [the defendant] makes
no claim that he was disadvantaged by the omission or even that he was in fact
unaware of the possible sentence which could be imposed.” Adams v. State, 285 Ga.
4
744, 746-47 (3) (683 SE2d 586) (2009). See also Hill v. Hopper, 233 Ga. 633, 634
(212 SE2d 810) (1975). The Supreme Court has further held that withdrawal of the
guilty plea was not required to correct a manifest injustice when the trial court
omitted telling the defendant what the mandatory minimum sentence was, but counsel
testified that he correctly advised the defendant about the length of her sentence.
Arnold v. State, 292 Ga. 95, 97 (2) (734 SE2d 382) (2012).
But none of these cases are controlling here. A key factor in these cases is that
the trial court’s error, if any, was the omission of the sentencing range, instead of an
affirmative misrepresentation, which is what happened here. See Hill, 233 Ga. at 634
(“nor has he alleged that the possible sentence was affirmatively misrepresented”).
Also, in each case, our Supreme Court noted that the sentence was negotiated, and the
defendants were sentenced according to the plea bargain, notwithstanding the failure
of the trial court to describe the sentencing range on the record. Adams, 285 Ga. at
746 (3) (“Appellant entered a negotiated guilty plea and received the sentence for
which he bargained.”); Hill, 233 Ga. at 634 (“[Hill] has at no time claimed that the
state made and breached any sort of plea bargain with him[.]”); see Arnold, 292 Ga.
at 95 (“[p]ursuant to a negotiated plea”).
5
In contrast, Gay’s sentence was not negotiated, nor is this an “omission” or
failure to inform case. Instead, the trial court misstated Gay’s sentencing range for
armed robbery, which led trial counsel to speculate and raise the hope in Gay that the
trial court would not impose life imprisonment at sentencing. Although the trial court
then referred to the correct sentencing range at the sentencing hearing, it is clear from
the face of the transcript that the trial court did not acknowledge the error and instead
appears to compound the misstatement by asking Gay to confirm that the trial court
stated the correct sentencing range at the guilty plea hearing. Cf. Pike v. State, 245
Ga. App. 518, 519-20 (538 SE2d 172) (2000) (prosecutor drew defendant’s attention
to misstatements made about sentencing range, stated the correct ranges, and
emphasized “I’m correcting it at this time so that you will know.”). And even though
it is true, as the dissent points out, that Gay knew from a previous hearing that he
could withdraw his plea at anytime before he was sentenced, the trial court did not
reiterate that right to Gay at the time the court “corrected” its earlier mistake. Further,
although the dissent and the trial court in its order denying the motion both
specifically rely on the testimony that Gay had been advised accurately by his counsel
about the sentencing range, the issue in this case is not Gay’s knowledge of the
sentencing range. Instead, the misstatement gave Gay the false impression that the
6
trial court, who had the discretion to sentence within that range, may have been
inclined to sentence him to twenty years instead of life.
For these reasons, Gay should have been allowed to withdraw his guilty plea
to correct a manifest injustice, and the judgment of the trial court must be reversed
and the case remanded for further proceedings consistent with this opinion.
Judgment reversed. Barnes, P. J., Miller, P. J., Branch, Mercier, Reese, and
Bethel, JJ., concur. Doyle, C. J., and McFadden, P. J., dissent.
7
A17A0060. GAY v. THE STATE.
MCFADDEN, Presiding Judge, dissenting.
I respectfully dissent from the majority opinion reversing the trial court’s denial
of Jerry Gay’s motion to withdraw his guilty plea. The record shows that despite the
trial court’s misstatement regarding the sentencing range for armed robbery, Gay
actually knew the range of possible sentences before, during, and after the entry of
his guilty plea; that prior to sentencing, Gay’s attorney informed the court of its
mistake and suggested that the court correct it on the record; that the trial judge then
corrected the mistake before the start of the sentencing hearing and Gay expressly
acknowledged that he understood the corrected sentencing range; and that Gay then,
despite having been informed of his right to withdraw his guilty plea before
sentencing, did not withdraw his plea and instead proceeded with the sentencing
hearing. Under these circumstances, the trial court did not abuse its discretion in
finding that Gay entered his plea with full knowledge of the possible consequences,
including a life sentence, and yet still chose not to withdraw his plea prior to
sentencing. Accordingly, there was no manifest injustice mandating that Gay be
allowed to withdraw his knowing and voluntary plea after sentence was imposed.
A ruling on a motion to withdraw a guilty plea lies within the
sound discretion of the trial court and will not be disturbed absent a
manifest abuse of such discretion. When the validity of a guilty plea is
challenged, the [s]tate bears the burden of showing affirmatively from
the record that the defendant offered his plea knowingly, intelligently,
and voluntarily. The [s]tate must show that the defendant was cognizant
of all of the rights he was waiving and the possible consequences of his
plea. After a defendant’s sentence has been pronounced, his guilty plea
may be withdrawn only 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.
Jones v. State, 325 Ga. App. 845, 846 (2) (755 SE2d 238) (2014) (citation omitted).
In this case, the majority finds that the trial court’s failure to inform Gay of the
possibility of a life sentence at the plea hearing constitutes a manifest injustice
2
mandating that he be allowed to withdraw his plea. Indeed, if the court’s mistake had
in fact misled Gay and caused him to enter his guilty plea without actual knowledge
of life as a possible consequence, it very well might have constituted a manifest
injustice. But that is not what happened in this case. On the contrary, the record
plainly shows that the trial court’s mistake had no impact on Gay’s entry of his guilty
plea because in spite of the court’s omission, which was corrected on the record
before sentencing, Gay was fully cognizant of the fact that a life sentence was a
possible consequence of his guilty plea to armed robbery.
At the hearing on the motion to withdraw the guilty plea, Gay’s plea counsel
testified that he had met with Gay at least 25 times prior to the plea hearing and that
they had discussed the possible outcomes of his case many times, including the
possibility of a life sentence for armed robbery. According to counsel, Gay
“absolutely” knew before his plea that life was a potential sentence for armed
robbery. Gay himself testified that he knew about the possible life sentence,
confirming that prior to the plea hearing counsel had informed him of the possibility
of a life sentence. Moreover, at the plea hearing, Gay submitted a signed waiver of
rights form acknowledging that his attorney had discussed the case with him, that he
understood the charges, and that he understood the maximum penalty the court could
3
impose. Thus, the evidence in the record clearly supports a finding that Gay knew a
life sentence was a possible consequence before and during the entry of his guilty
plea.
Furthermore, counsel testified that after the plea hearing and before the
sentencing hearing, which was held over a month after the plea, he and Gay discussed
the trial court’s failure to mention the possibility of a life sentence at the plea hearing.
Counsel said that during those discussions he had speculated that the court’s
misstatement might be an indication that it was not going to impose a life sentence,
but that there was never a promise to cap the sentence at 20 years. Gay contradicted
counsel’s testimony, denying that after the plea hearing they had discussed the court’s
failure to mention the possibility of a life sentence. Given such conflicting testimony,
the trial court was authorized to believe counsel’s testimony over Gay’s self-serving
account. See, e.g., Trapp v. State, 309 Ga. App. 436, 438 (1) (710 SE2d 637) (2011)
(Because credibility determinations are for the fact-finder to make, “the trial court
was authorized to disbelieve [the defendant]’s self-serving testimony and to find that
he knowingly, freely, and voluntarily entered the plea.”). Thus, there is evidence
supporting a finding that even after the trial court’s misstatement at the plea hearing
and before sentencing, Gay still knew that he faced a possible life sentence.
4
In addition to the above-recited evidence of Gay’s knowledge of a possible life
sentence, the record also shows that prior to the start of the sentencing hearing held
weeks after the plea hearing, Gay’s attorney actually brought to the court’s attention
its earlier misstatement at the plea hearing and suggested that the court needed to
correct the omission of a possible life sentence on the record. The trial court did just
that before starting the sentencing hearing, correcting the mistake on the record by
informing Gay that the armed robbery charge carried a possible life sentence. Gay
then acknowledged that he understood the sentencing range. Indeed, Gay later
confirmed at his plea withdrawal hearing that the trial court, at the sentencing
hearing, had corrected its previous error by stating that life was a possible sentence.
The majority discounts the trial court’s correction of its mistake, finding that
the correction compounded the mistake by asking Gay, before the start of the
sentencing hearing, to confirm that the trial court had state the correct sentencing
range at the guilty plea hearing. But this finding elevates semantics over the
substance of the trial court’s clear statement to Gay that life was a possible sentence
for armed robbery. Contrary to the majority’s finding, this court “do[es] not find error
based on mere semantics.” Rodriguez v. State, 280 Ga. App. 423, 424 (634 SE2d 182)
(2006) (citation omitted) (affirming denial of motion to withdraw guilty plea where
5
plea form incorrectly stated maximum possible sentence and minimum sentence not
properly described to defendant at plea hearing as a mandatory minimum).
After that correction informing Gay of a possible life sentence, Gay did not
seek to withdraw his guilty plea, which he could have done as a matter of right before
sentence was imposed. See OCGA § 17-7-93 (b). Indeed, at the earlier plea hearing,
the court had expressly informed Gay of his absolute right to withdraw his guilty plea
before sentence was pronounced, and Gay had stated that he understood his right to
withdraw his plea before sentencing. Nevertheless, before the start of the sentencing
hearing, after having clearly been informed by the court of the possibility of a life
sentence for armed robbery, Gay did not attempt to withdraw his guilty plea and
instead opted to proceed with the sentencing hearing. Gay then fully participated in
the sentencing hearing, including the presentation of witnesses on his behalf and his
own statement. Thereafter, the court announced the sentences, including the life
sentence that Gay knew he could receive for the armed robbery.
Given the evidence in the record, it is clear that Gay was fully aware of the fact
that he faced a possible life sentence for armed robbery before, during, and after entry
of his guilty plea. It is clear that he was informed of his right to withdraw his plea at
any time before sentence was imposed. It is clear that he understood the trial court’s
6
correction of the mistake made at the plea hearing, acknowledging that he knew he
faced a life sentence before the sentencing hearing. It is clear that despite that
knowledge he still chose not to withdraw his guilty plea and instead to proceed with
the sentencing hearing. And it is clear that he only sought to withdraw his plea after
the life sentence, which he had known was a possible consequence of his plea, was
in fact imposed.
Under these circumstances, the instant case is similar to Pike v. State, 245 Ga.
App. 518 (538 SE2d 172) (2000). In Pike, the prosecutor misstated some of the
possible maximum punishments at the defendant’s guilty plea hearing, but corrected
those mistakes several weeks later at the sentencing hearing. Id. at 519-520 (1). The
defendant made no objection and did not seek to withdraw his plea after the
corrections, and instead called witnesses and testified at the sentencing hearing, after
which the trial court imposed the maximum sentences on each count. Id. at 520 (1).
On appeal, this court affirmed the trial court’s denial of the defendant’s motion to
withdraw his guilty plea, rejecting the argument that his plea was not knowing and
voluntary because the prosecutor had misstated the maximum sentences at the guilty
plea hearing. In so ruling, this court concluded:
7
The record shows that [the defendant] was aware of the possible severe
consequences of his plea during the plea hearing, even if he was not
aware of the exact maximum sentence. Given this fact, in addition to
[his] plea petition indicating his knowledge of the maximum possible
sentence, as well as the fact that [he] continued with his sentencing
hearing after being made fully aware of the exact possible consequences
of pleading guilty, we cannot say that a manifest injustice exists in this
case warranting withdrawal of his plea.
Id. at 521 (1) (footnote omitted).
Likewise, in the instant case, the court’s misstatement about the sentencing
range at the plea hearing does not constitute a manifest injustice requiring that Gay
be allowed to withdraw his guilty plea because the record establishes that Gay
actually knew before and after his plea, and prior to sentencing, that he faced a
possible life sentence. See Arnold v. State, 292 Ga. 95, 97 92) (734 SE2d 382) (2012)
(where counsel testified that he correctly advised defendant concerning the length of
her sentence, defendant “has not demonstrated that she should be permitted to
withdraw her plea to correct a manifest injustice”); Wood v. State, 190 Ga. App. 179,
181 (2) (378 SE2d 520) (1989) (any error in court’s failure to fully inform defendant
of sentencing possibilities was harmless because counsel satisfactorily explained
consequences of plea). Because the trial court did not abuse its discretion in denying
Gay’s motion to withdraw his guilty plea, that ruling should be affirmed.
8
I am authorized to state that Chief Judge Doyle joins in this dissent.
9