Collum v. State

438 S.E.2d 401, 211 Ga. App. 158, 93 Fulton County D. Rep. 4399, 1993 Ga. App. LEXIS 1493

• Court: Court of Appeals of Georgia
• Decided: November 30, 1993
• Docket: A93A1592
• Status: Published

Opinions

Cooper, Judge.

■ Appellant, represented by counsel, pled guilty to driving without insurance, leaving the scene of an accident, driving under the influence and following too closely. He appeals from the denial of his motion to withdraw guilty plea.

The record reveals that following an automobile accident on Christmas Day 1992, appellant was arrested and charged with leaving the scene of an accident and driving under the influence. The State subsequently added charges of following too closely and no insurance. Appellant’s attorney negotiated with the prosecutor for a recommended sentence of nine months, but when appellant appeared in court with his attorney on January 4, 1993, appellant entered a plea of not guilty because he believed that he had insurance. The prosecutor notified appellant’s counsel in writing that the case would be placed on the February 15, 1993 trial calendar and that after the case was on the calendar there would be no further plea discussions. The prosecutor further informed appellant’s counsel that if appellant desired to enter a plea after February 5, 1993, it would be a non-negotiated plea. On February 15, appellant appeared in court with his attorney to enter a guilty plea. The trial court inquired of the prosecutor whether she had a recommended sentence, and when the prosecutor responded that she did not, the trial judge commented that the plea was non-negotiated. After accepting the plea, the trial judge sentenced appellant to two consecutive twelve-month sentences. Appellant’s attorney immediately requested that appellant be allowed to withdraw the guilty plea, but the trial judge refused. Appellant then filed a motion to withdraw the guilty plea on the ground it was not voluntarily and intelligently entered because appellant believed he would receive a nine-month sentence. Two days after the guilty plea proceedings, which were not transcribed, the trial judge held a hearing on appellant’s motion to withdraw the plea. The motion was denied and this appeal followed.

“Before accepting a plea of guilty, a trial court must determine that the plea is voluntarily made and that the defendant ‘ “intelligently and understanding^” ’ waives his constitutional rights, which requires a showing on the record that the defendant has freely and voluntarily entered the plea with an understanding of the nature of the charges against him and the consequences of his plea. [Cit.]” Wood v. State, 190 Ga. App. 179, 180 (1) (378 SE2d 520) (1989). The trial judge should not enter a judgment on a guilty plea before determining that there is a factual basis for the plea. Uniform Superior Court Rule 33.9; Head v. State, 262 Ga. 795 (2) (426 SE2d 547) (1993). “When a defendant enters a plea of guilty and subsequently challenges the validity of the guilty plea, the State may meet its burden of demonstrating the plea was intelligently and voluntarily entered ‘ “by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea; or (2) fill(ing) a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.” (Cit.)’ [Cit.]” Wood, supra at 180.

Although the guilty plea proceedings were not recorded, the transcript from the hearing on appellant’s motion to withdraw guilty plea provides some evidence of what transpired during the guilty plea proceedings. The record includes appellant’s signed plea statements in which appellant acknowledged that he was represented by counsel; that he understood the nature of the charges against him, the possible sentence on each of the charges, and the rights waived by pleading guilty; that no one made any promises of a lesser sentence, and that his plea was freely and voluntarily given. The transcript from the hearing also reveals that prior to accepting appellant’s guilty plea, the trial judge read each plea statement to appellant. The trial judge also noted that when appellant’s counsel stated during the guilty plea proceedings that it was his understanding appellant would receive a nine-month sentence, the trial judge explicitly told appellant’s counsel that he was not bound by any recommendation the State might have made. The judge then asked the prosecutor whether she had a recommendation, and the prosecutor stated that she did not. Appellant also testified that during the plea proceedings the trial judge stated that appellant’s plea was non-negotiated and appellant acknowledged that the prosecutor had stated she did not have a sentence recommendation.

However, “the record does not affirmatively show that the court ascertained the factual basis for appellant’s plea as required by [Uniform Superior Court Rule] 33.9.” Watt v. State, 204 Ga. App. 839, 840 (1) (420 SE2d 769) (1992). Since the record does not show that the trial court determined that a factual basis existed for the guilty plea, we conclude that the State did not meet its burden of showing affirmatively by the record that appellant’s guilty plea was knowingly and voluntarily entered. Watt, supra at 840. Consequently, the trial court should have granted appellant’s motion to withdraw guilty plea.

Judgment reversed.

Beasley, P. J., and Smith, J., concur specially.