SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
December 21, 2012
In the Court of Appeals of Georgia A12A1704. VALLDEPARAS v. THE STATE.
ADAMS, Judge.
Carlos E. Valldeparas appeals from the trial court’s dismissal of his pro se
“Motion to Modify Sentence” as untimely. Valldeparas argues on appeal that the
Superior Court of Gwinnett County erred, and his appointed counsel was ineffective,
in failing to construe his motion as one for habeas corpus and thus in failing to
address the motion on its merits.
While represented by retained counsel, Valldeparas pled guilty to four counts
of child molestation on August 25, 2011, and the trial court sentenced him to forty
years, to serve twenty. On September 20, 2011, and October 26, 2011, Valldeparas
filed pro se “Motion[s] to Modify Sentence.” The first requested a reduction in the
sentence to “a more reasonable judgment in order that he may continue his contribution to society and his family.” The second motion raised issues of equal
protection and fairness, citing other sentences imposed for similar crimes, and once
again asked the court, based upon his “work history with law enforcement, his limited
criminal history and his age” to modify its sentence “to a more reasonable and fitting
judgment in order that he may continue his contribution to society.” Both motions
were denied by written order without a hearing.
On November 23, 2011, Valldeparas filed a third pro se “Motion to Modify
Sentence” (the “Third Motion”). In this motion, Valldeparas asserted that his guilty
plea was not “intelligently made or fully understood nor wholly voluntary, but
undertaken while under duress, stress, and prolonged anxiety.” He further asserted
that his plea counsel was ineffective “by withholding information, misrepresenting
facts, and adding an unnecessary, unethical urgency to the decision making process.”
Valldeparas also acknowledged that any attempt to withdraw his guilty plea was
barred by the “restriction on motions and expired court terms,” in addition to “the loss
of entitled legal counsel during this critical stage of the criminal proceedings.” His
motion once again sought modification of his sentence.
Despite Valldeparas’s acknowledgment in the Third Motion that he could not
seek to withdraw his guilty plea, the trial court denominated the motion as a motion
2 to withdraw a guilty plea in its orders setting the matter for a hearing. The trial court
also appointed an attorney to represent Valldeparas in connection with the Third
Motion.
At the motion hearing in February 2012, Valldeparas’s attorney never
addressed the Third Motion or the issues raised therein. Instead, he addressed the
September 20, 2011 motion, conceding that even if the trial court were to have
construed that motion as one to withdraw a guilty plea, it would have been untimely
because it was outside the term in which the plea had been entered.1 He noted that the
trial court would have no choice but to deny that motion as untimely. Valldeparas
explained, however, that he had not filed a motion to withdraw because “I understood
that it was out of time . . . .” Nevertheless, following Valldeparas’s attorney’s
statement regarding his first pro se motion, the State moved to dismiss the Third
Motion as untimely. And the trial court subsequently issued an order stating that it
had construed the Third Motion as a motion to withdraw a guilty plea “[b]ased on the
nature of the motion” and dismissed the motion as untimely.
1 See Matthews v. State, 295 Ga. App. 752, 754 (1) (673 SE2d 113) (2009) (motion to withdraw guilty plea must be filed in same term in which defendant sentenced; otherwise court lacks jurisdiction to consider motion).
3 1. We agree with Valldeparas that the trial court erred in interpreting the Third
Motion as a motion to withdraw his guilty plea and in dismissing it as untimely.
Valldeparas clearly expressed his understanding in his motion, and at the hearing, that
the time had passed to file a motion to withdraw his plea and that he was not asserting
such a motion.
Moreover, we agree with Valldeparas that the trial court should have looked
past the form of the Third Motion to its substance to determine whether it could have
been considered as a valid petition for habeas corpus. Valldeparas asserted in the
Third Motion that his guilty plea was not fully understood, knowing or voluntary, but
rather was entered under duress, stress and anxiety. The motion also asserted that he
received ineffective assistance of counsel in the form of withheld facts,
misrepresentations and undue time pressure at the time of entering his plea. The
proper remedy for making a claim of ineffective assistance of counsel in connection
with a guilty plea is “to move to withdraw the plea or, if the term of court in which
the plea was entered has expired, to petition for a writ of habeas corpus.” (Citation
omitted.) Beaver v. State, 308 Ga. App. 380, 382 (3) (707 SE2d 590) (2011). Here,
because a motion to withdraw would have been untimely, the trial court should have
considered whether it was appropriate to treat the Third Motion as a habeas petition.
4 See Waye v. State, 239 Ga. 871, 875 (1) (238 SE2d 923) (1977) (petition for writ of
coram nobis and/or motion to vacate plea should have been treated as a habeas
petition where the petition/motion alleged that plea was not voluntary, was not
knowingly made and the assistance of counsel was ineffective); Sims v. State, 230 Ga.
589 (198 SE2d 298) (1973) (same for petition for writ of coram nobis seeking to set
aside a sentence on ground that defendant was insane at time of plea), overruled on
other grounds, Parris v. State, 232 Ga. 687, 690 (208 SE2d 493) (1974) (same for
petition for coram nobis on ground that defendant denied right to counsel at time of
plea); Moss v. State, 255 Ga. App. 107, 108 (564 SE2d 516) (2002) (same where
petition for writ of coram nobis alleged that Moss entered plea without being
informed of his rights and no effort to ensure factual basis existed for plea).2 Compare
Martin v. State, 240 Ga. 488 (241 SE2d 246) (1978) (Supreme Court treated motion
to vacate and set aside as an extraordinary motion for new trial, and not as habeas
2 A petition for coram nobis “is the ancestor of an extraordinary motion for new trial based on newly discovered evidence,” and the prerequisites for both “appear to be identical.” (Citations omitted.) Waye v. State, 255 Ga. App. at 872-873 (1).
5 petition where trial court lacked venue to consider habeas and defendant failed to file
application in Supreme Court following the denial of the motion).3
Accordingly, we reverse the trial court’s order dismissing the Third Motion as
untimely and remand the case for a consideration of the motion on its merits. Upon
remand, the trial court must determine whether the Third Motion could be considered
to be a valid habeas petition, given the requirements for initiating such a proceeding.4
See OCGA §§ 9-14-1, et seq. If the Third Motion is construed as a habeas petition,
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SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
December 21, 2012
In the Court of Appeals of Georgia A12A1704. VALLDEPARAS v. THE STATE.
ADAMS, Judge.
Carlos E. Valldeparas appeals from the trial court’s dismissal of his pro se
“Motion to Modify Sentence” as untimely. Valldeparas argues on appeal that the
Superior Court of Gwinnett County erred, and his appointed counsel was ineffective,
in failing to construe his motion as one for habeas corpus and thus in failing to
address the motion on its merits.
While represented by retained counsel, Valldeparas pled guilty to four counts
of child molestation on August 25, 2011, and the trial court sentenced him to forty
years, to serve twenty. On September 20, 2011, and October 26, 2011, Valldeparas
filed pro se “Motion[s] to Modify Sentence.” The first requested a reduction in the
sentence to “a more reasonable judgment in order that he may continue his contribution to society and his family.” The second motion raised issues of equal
protection and fairness, citing other sentences imposed for similar crimes, and once
again asked the court, based upon his “work history with law enforcement, his limited
criminal history and his age” to modify its sentence “to a more reasonable and fitting
judgment in order that he may continue his contribution to society.” Both motions
were denied by written order without a hearing.
On November 23, 2011, Valldeparas filed a third pro se “Motion to Modify
Sentence” (the “Third Motion”). In this motion, Valldeparas asserted that his guilty
plea was not “intelligently made or fully understood nor wholly voluntary, but
undertaken while under duress, stress, and prolonged anxiety.” He further asserted
that his plea counsel was ineffective “by withholding information, misrepresenting
facts, and adding an unnecessary, unethical urgency to the decision making process.”
Valldeparas also acknowledged that any attempt to withdraw his guilty plea was
barred by the “restriction on motions and expired court terms,” in addition to “the loss
of entitled legal counsel during this critical stage of the criminal proceedings.” His
motion once again sought modification of his sentence.
Despite Valldeparas’s acknowledgment in the Third Motion that he could not
seek to withdraw his guilty plea, the trial court denominated the motion as a motion
2 to withdraw a guilty plea in its orders setting the matter for a hearing. The trial court
also appointed an attorney to represent Valldeparas in connection with the Third
Motion.
At the motion hearing in February 2012, Valldeparas’s attorney never
addressed the Third Motion or the issues raised therein. Instead, he addressed the
September 20, 2011 motion, conceding that even if the trial court were to have
construed that motion as one to withdraw a guilty plea, it would have been untimely
because it was outside the term in which the plea had been entered.1 He noted that the
trial court would have no choice but to deny that motion as untimely. Valldeparas
explained, however, that he had not filed a motion to withdraw because “I understood
that it was out of time . . . .” Nevertheless, following Valldeparas’s attorney’s
statement regarding his first pro se motion, the State moved to dismiss the Third
Motion as untimely. And the trial court subsequently issued an order stating that it
had construed the Third Motion as a motion to withdraw a guilty plea “[b]ased on the
nature of the motion” and dismissed the motion as untimely.
1 See Matthews v. State, 295 Ga. App. 752, 754 (1) (673 SE2d 113) (2009) (motion to withdraw guilty plea must be filed in same term in which defendant sentenced; otherwise court lacks jurisdiction to consider motion).
3 1. We agree with Valldeparas that the trial court erred in interpreting the Third
Motion as a motion to withdraw his guilty plea and in dismissing it as untimely.
Valldeparas clearly expressed his understanding in his motion, and at the hearing, that
the time had passed to file a motion to withdraw his plea and that he was not asserting
such a motion.
Moreover, we agree with Valldeparas that the trial court should have looked
past the form of the Third Motion to its substance to determine whether it could have
been considered as a valid petition for habeas corpus. Valldeparas asserted in the
Third Motion that his guilty plea was not fully understood, knowing or voluntary, but
rather was entered under duress, stress and anxiety. The motion also asserted that he
received ineffective assistance of counsel in the form of withheld facts,
misrepresentations and undue time pressure at the time of entering his plea. The
proper remedy for making a claim of ineffective assistance of counsel in connection
with a guilty plea is “to move to withdraw the plea or, if the term of court in which
the plea was entered has expired, to petition for a writ of habeas corpus.” (Citation
omitted.) Beaver v. State, 308 Ga. App. 380, 382 (3) (707 SE2d 590) (2011). Here,
because a motion to withdraw would have been untimely, the trial court should have
considered whether it was appropriate to treat the Third Motion as a habeas petition.
4 See Waye v. State, 239 Ga. 871, 875 (1) (238 SE2d 923) (1977) (petition for writ of
coram nobis and/or motion to vacate plea should have been treated as a habeas
petition where the petition/motion alleged that plea was not voluntary, was not
knowingly made and the assistance of counsel was ineffective); Sims v. State, 230 Ga.
589 (198 SE2d 298) (1973) (same for petition for writ of coram nobis seeking to set
aside a sentence on ground that defendant was insane at time of plea), overruled on
other grounds, Parris v. State, 232 Ga. 687, 690 (208 SE2d 493) (1974) (same for
petition for coram nobis on ground that defendant denied right to counsel at time of
plea); Moss v. State, 255 Ga. App. 107, 108 (564 SE2d 516) (2002) (same where
petition for writ of coram nobis alleged that Moss entered plea without being
informed of his rights and no effort to ensure factual basis existed for plea).2 Compare
Martin v. State, 240 Ga. 488 (241 SE2d 246) (1978) (Supreme Court treated motion
to vacate and set aside as an extraordinary motion for new trial, and not as habeas
2 A petition for coram nobis “is the ancestor of an extraordinary motion for new trial based on newly discovered evidence,” and the prerequisites for both “appear to be identical.” (Citations omitted.) Waye v. State, 255 Ga. App. at 872-873 (1).
5 petition where trial court lacked venue to consider habeas and defendant failed to file
application in Supreme Court following the denial of the motion).3
Accordingly, we reverse the trial court’s order dismissing the Third Motion as
untimely and remand the case for a consideration of the motion on its merits. Upon
remand, the trial court must determine whether the Third Motion could be considered
to be a valid habeas petition, given the requirements for initiating such a proceeding.4
See OCGA §§ 9-14-1, et seq. If the Third Motion is construed as a habeas petition,
it would have been timely because Valldeparas has four years from his felony
convictions in which to initiate such proceedings. OCGA § 9-14-42 (c). If the Third
Motion does not meet the requirements for a valid habeas petition, then the trial court
would have no choice but to treat the motion as yet another motion to modify the
sentence. Such a motion also would have been timely. See OCGA § 17-10-1 (f) (trial
3 The Third Motion in this case cannot be treated as an extraordinary motion for new trial because “[o]ne who has entered a plea of guilty cannot move for a new trial, as there was no trial.” (Citation and punctuation omitted.) Davis v. State, 274 Ga. 865 (561 SE2d 119) (2002). 4 For example, a petition for habeas corpus must be filed in the superior court of the county in which the petitioner is being detained, OCGA § 9-14-43, and Valldeparas listed his address on the Third Motion as the Gwinnett County Detention Center. Thus, the trial court must determine whether Valldeparas was indeed detained in Gwinnett County when he filed the motion.
6 court retains jurisdiction for one year from the time the sentence is imposed to correct
or reduce a sentence). Either way, therefore, Valldeparas is entitled to have his
motion considered on its merits.
2. And although we note that Valldeparas’s motion counsel inexplicably failed
to even mention the Third Motion at the motion hearing, we do not reach
Valldeparas’s claim of ineffective assistance of counsel in this appeal given our
holding above. In any event, the current appellate record is inadequate to address such
a claim, and any remaining claim that motion counsel was ineffective would have to
be addressed on remand.
Judgment reversed and case remanded with direction. Barnes, P. J., and
McFadden, J., concur.