Andrews v. State

739 S.E.2d 445, 320 Ga. App. 816, 2013 Fulton County D. Rep. 568, 2013 WL 829265, 2013 Ga. App. LEXIS 142
CourtCourt of Appeals of Georgia
DecidedMarch 7, 2013
DocketA12A1874
StatusPublished
Cited by5 cases

This text of 739 S.E.2d 445 (Andrews v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Andrews v. State, 739 S.E.2d 445, 320 Ga. App. 816, 2013 Fulton County D. Rep. 568, 2013 WL 829265, 2013 Ga. App. LEXIS 142 (Ga. Ct. App. 2013).

Opinion

MILLER, Presiding Judge.

Ronald Bernard Andrews appeals from the trial court’s order denying his motion to withdraw his guilty plea. Andrews contends that (i) plea counsel provided ineffective assistance, and (ii) the trial court erred in finding that the duplicitous counts in his indictment did not merge for sentencing purposes.1 For the reasons discussed below, we affirm.

After sentencing, “a guilty plea may only be withdrawn if the defendant establishes that such withdrawal is necessary to correct a manifest injustice — ineffective assistance of counsel or an involuntary or unknowingly entered guilty plea.” (Footnote omitted.) Wilson v. State, 302 Ga. App. 433, 434 (1) (691 SE2d 308) (2010). 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. See Lawton v. State, 285 Ga. App. 45, 46 (645 SE2d 571) (2007).

The record shows that in July 2003, Andrews was charged by indictment with rape (OCGA § 16-6-1 (a) (1) (2003)), aggravated assault (OCGA § 16-5-21 (a) (2003)), two counts of burglary (OCGA § 16-7-1 (a) (2003)), theft by taking (OCGA § 16-8-2 (2003)), and three counts of robbery (OCGA § 16-8-40 (a) (2003)). On November 18, 2003, Andrews entered a nonnegotiated guilty plea to each count. The trial court sentenced Andrews to twenty years to serve concurrently on the burglary, aggravated assault, and robbery charges (Counts 1, 2, 4, 5, 6 and 7); ten years to serve concurrently on the theft by taking charge (Count 8); and life in prison on the rape charge (Count 3).

On December 19,2003, in the same term of court in which he was sentenced,2 Andrews filed a pro se letter to the clerk and the district attorney stating that he wished to withdraw his plea on the grounds of misrepresentation and ineffectiveness of counsel. Following an evidentiary hearing, the trial court found that Andrews’s letter should [817]*817be construed as a motion to withdraw his guilty plea.3 The trial court entered an order denying Andrews’s motion.

The trial court found that the two burglary counts (Counts 1 and 2), and the three robbery counts (Counts 5, 6 and 7) should have merged, but the merger issue was waived due to Andrews entering a plea. The trial court also found that the sentence imposed was not void because Andrews was sentenced to 20 years on the burglary, robbery and aggravated assault counts (Counts 1,2,4,5,6 and 7), and the 20-year sentences on those counts did not exceed the maximum permitted under the Georgia Code.

1. Andrews contends that the trial court erred in refusing to allow him to withdraw his plea because plea counsel rendered ineffective assistance during the guilty plea. We do not agree.

“When the validity of a guilty plea is challenged, the [SJtate bears the burden of showing affirmatively from the record that the defendant offered his plea knowingly, intelligently, and voluntarily.” (Citation, punctuation and footnotes omitted.) Terrell v. State, 274 Ga. App. 539, 540 (2) (618 SE2d 175) (2005). Since Andrews based his motion to withdraw his plea on a claim of ineffective assistance of counsel, he had the burden of showing that counsel was deficient, and in the absence of that deficiency, there was a reasonable probability that he would have insisted on a trial, rather than pleading guilty. See James v. State, 309 Ga. App. 721, 722 (2) (710 SE2d 905) (2011); Sims v. State, 299 Ga. App. 698, 700 (1) (683 SE2d 668) (2009). “A trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed unless that determination is clearly erroneous.” (Citation and punctuation omitted.) Sims, supra, 299 Ga. App. at 700 (1).

The plea hearing transcript shows that the State met its burden of proving that Andrews’s nonnegotiated plea was knowingly and voluntarily entered. The State laid a factual basis for each crime to which Andrews entered a guilty plea, and Andrews’s counsel stated [818]*818that he had informed Andrews of his rights and explained them to him. Andrews testified under oath that he was not under the influence of drugs or alcohol, he had never been under the care of a psychiatrist or psychologist, he had three years of college, he understood the charges in the indictment, and he understood the rights he was waiving by entering a guilty plea. Andrews further testified that he understood the maximum sentences for the charged offenses, no promises or threats were made in exchange for his plea, he was satisfied with his counsel’s services, and he was in fact guilty of the charged crimes.

(a) Andrews contends that his counsel did not prepare him to enter a plea.

Andrews’s counsel testified at the hearing on the motion to withdraw plea that he discussed the possibility of a plea with Andrews; explained the ramifications of entering a nonnegotiated plea to Andrews; advised Andrews that he would have to register as a sex offender if he pled guilty to rape; advised Andrews of his constitutional rights and the minimum and maximum sentence he faced if he entered a plea; and advised Andrews that he had three options — a negotiated plea, a nonnegotiated plea or going to trial.

Andrews admitted at the hearing on his motion to withdraw his plea that before he entered his plea he executed a written plea questionnaire, which set out the minimum and maximum sentence, and his counsel told him at that time that the maximum possible sentence was life plus 140 years, and a fine of up to $800,000. Moreover, the transcript of Andrews’s plea hearing shows that he was advised of and understood the maximum sentence and fine he faced upon entering his plea. Although Andrews provided some conflicting testimony at the hearing, the trial court was authorized to credit trial counsel’s testimony over Andrews’s self-serving statements. See Jones v. State, 287 Ga. 270, 272 (695 SE2d 271) (2010); Gower v. State, 313 Ga. App. 635, 637 (722 SE2d 383) (2012). Thus, Andrews failed to carry his burden of proving that trial counsel was deficient in preparing him to enter his plea.

(b) Andrews also contends that trial counsel was deficient in failing to properly advise him about the potential merger of the charged offenses.

Trial counsel testified that he did not discuss the potential merger of the charged offenses with Andrews because he did not believe that the offenses would merge as a matter of law or fact. Assuming arguendo that trial counsel erred in this respect, Andrews still had to show that but for trial counsel’s error, there was a reasonable probability that he would have insisted on a trial, rather than pleading guilty. See James, supra, 309 Ga. App. at 722 (2). [819]

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739 S.E.2d 445, 320 Ga. App. 816, 2013 Fulton County D. Rep. 568, 2013 WL 829265, 2013 Ga. App. LEXIS 142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andrews-v-state-gactapp-2013.