350 Ga. 835 FINAL COPY
S19A0173. GOODEN v. THE STATE.
BOGGS, Justice.
Shontori Neoshuba Gooden appeals after the denial of her
motion to withdraw her plea of guilty to felony murder, asserting as
her sole enumeration of error that the case should be remanded for
a hearing on alleged ineffective assistance of counsel. We disagree
and affirm.
On November 18, 2016, Gooden was indicted for felony murder
and other crimes arising out of the October 2016 shooting of Nyla
Foster. On May 30, 2017, represented by public defender Monica
Myles, Gooden entered a negotiated plea of guilty to felony murder
and was sentenced. On June 8, 2017, Gooden’s second attorney,
Lawrence W. Daniel, was “assigned [as] outside conflict counsel” and
filed a motion to withdraw the guilty plea. The trial court denied
that motion after a hearing. Daniel filed a notice of appeal to the
Court of Appeals, and James Luttrell was substituted as Gooden’s appellate counsel. The Court of Appeals properly transferred
Gooden’s appeal to this Court.
The motion to withdraw Gooden’s guilty plea was filed on June
16, 2017. Counsel filed a skeletal pleading, including only the
following factual allegation:
Counsel is awaiting meaningful instruction from his client as to what constitutes the basis for her Motion to Withdraw Guilty Plea. Counsel is uncertain whether [s]he is alleging that the plea was not given “freely, voluntarily and knowingly,” or whether [s]he is alleging ineffective assistance of trial counsel in entering the plea.
On July 28, 2017, the trial court issued an order to produce
Gooden at the hearing on the motion, which was set for October 10,
2017. As soon as the hearing began, Daniel moved for a continuance.
He told the court that shortly after he filed the motion, Gooden
informed him that she did not want to pursue withdrawal of her
guilty plea. He sent the necessary papers to her to withdraw the
motion, but she signed them on the wrong signature line; he sent
them to her again, but she signed them in too many places, including
the signature line for a witness; he sent them to her a final time, but he received no response. He concluded that it would be simpler to
have Gooden attend the hearing and withdraw the motion in person,
but when he met with her immediately before the hearing, she told
him that she wanted to proceed with the motion to withdraw her
guilty plea after all.1 Daniel also informed the court that Gooden had
told him that she had mental health issues and refused medication
while detained at the county jail but that she had begun taking
medication again once in state custody and “is thinking better and
that’s why she wants to go forward.”
The trial court denied the motion for a continuance and went
forward with the hearing. Daniel called no witnesses and presented
no evidence but argued that Myles should have moved for a
psychiatric evaluation before allowing Gooden to enter a guilty plea.
The State argued that Gooden’s plea was knowing and voluntary,
that she had shown no evidentiary basis for withdrawing her guilty
plea, and, finally, that the State’s investigation had uncovered
1 The State also believed until the time of the hearing that Gooden intended to withdraw her guilty plea. evidence that Gooden was malingering and “attempting to
manufacture a mental health defense to the underlying charges.”
On October 13, 2017, the trial court entered a written order
denying the motion to withdraw the guilty plea. The court explained
that it denied the motion for a continuance because it was “based on
the Defendant’s decision to plead guilty, then move to withdraw the
guilty plea, then change her mind about that motion, then change it
again, all the while declining to cooperate with counsel.” The court
further found that “four months is ample time for the Defendant to
decide whether she wants to proceed with a Motion to Withdraw or
not, and communicate with her counsel the information necessary
to pursue the Motion” and quoted this Court’s statement in Rivers
v. State, 250 Ga. 303, 307 (5) (298 SE2d 1) (1982), that the fact “that
[defendant’s counsel] did not have the benefit of the defendant’s
cooperation until shortly before trial, is the defendant’s own fault,
about which he cannot now complain.” The trial court further found
no evidence of deficient performance on the part of Myles, ruled that
Gooden was properly advised of the rights listed in Boykin v. Alabama, 395 U. S. 238, 243 (89 SCt 1709, 23 LE2d 274) (1969), and
entered her plea freely and voluntarily and with a factual basis, and
therefore denied the motion to withdraw the guilty plea. Gooden
filed a timely notice of appeal, and Luttrell then filed an entry of
appearance on her behalf as appellate counsel.
In her sole enumeration of error, Gooden contends that her
case should be remanded to the trial court for an evidentiary hearing
on the issue of ineffective assistance of plea counsel Myles, arguing
that she had “no meaningful opportunity to examine whether plea
counsel rendered ineffective assistance by failing to seek a
competency evaluation prior to entering the plea.”2 She relies upon
Johnson v. State, 259 Ga. 428 (3) (383 SE2d 115) (1989), overruled
in part on other grounds, Wilson v. State, 277 Ga. 195, 199 (2) (586
SE2d 669) (2003). This Court has noted, citing Johnson,
that, where the issue of effectiveness is raised for the first time on appeal by an appellate attorney who did not represent the defendant at trial or on motion for new trial and who did not file an amended motion for new trial, a
2 Importantly, Gooden does not raise a claim regarding the ineffective
assistance of her motion to withdraw counsel, Daniel. Nor does she assert that the trial court erred in denying her motion for continuance. remand for hearing on the issue of effectiveness may be appropriate.
(Citation, punctuation and emphasis omitted.) Owens v. State, 263
Ga. 99, 102 (3) (428 SE2d 793) (1993).3
At the hearing on the motion to withdraw Gooden’s guilty plea,
Daniel plainly raised this ineffectiveness claim, although he did not
examine plea counsel or Gooden herself and did not present any
evidence regarding the circumstances surrounding the plea or
Gooden’s alleged mental health issues.4 Consequently,
[o]nly where no opportunity existed for the defendant to raise an ineffectiveness claim prior to appeal have cases been remanded for a hearing. . . . Here, appellant not only had the opportunity to raise a claim of ineffective assistance of [plea] counsel on motion [to withdraw guilty plea], but [s]he actually raised this claim in [that motion] following the appointment of new counsel. As a result, this claim has already been raised and adjudicated by the
3 We agree with the parties and with our Court of Appeals that this standard applies equally to motions to withdraw a guilty plea, and “we can discern no reasonable basis on which to distinguish the two procedural postures in light of the underlying principles.” Dawson v. State, 302 Ga. App. 842, 843 (691 SE2d 886) (2010). 4 Gooden asserts that she must have a “meaningful opportunity” to
present this claim, contending that she did not receive such an opportunity because her motion to withdraw counsel did not present evidence regarding the alleged deficiency.
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350 Ga. 835 FINAL COPY
S19A0173. GOODEN v. THE STATE.
BOGGS, Justice.
Shontori Neoshuba Gooden appeals after the denial of her
motion to withdraw her plea of guilty to felony murder, asserting as
her sole enumeration of error that the case should be remanded for
a hearing on alleged ineffective assistance of counsel. We disagree
and affirm.
On November 18, 2016, Gooden was indicted for felony murder
and other crimes arising out of the October 2016 shooting of Nyla
Foster. On May 30, 2017, represented by public defender Monica
Myles, Gooden entered a negotiated plea of guilty to felony murder
and was sentenced. On June 8, 2017, Gooden’s second attorney,
Lawrence W. Daniel, was “assigned [as] outside conflict counsel” and
filed a motion to withdraw the guilty plea. The trial court denied
that motion after a hearing. Daniel filed a notice of appeal to the
Court of Appeals, and James Luttrell was substituted as Gooden’s appellate counsel. The Court of Appeals properly transferred
Gooden’s appeal to this Court.
The motion to withdraw Gooden’s guilty plea was filed on June
16, 2017. Counsel filed a skeletal pleading, including only the
following factual allegation:
Counsel is awaiting meaningful instruction from his client as to what constitutes the basis for her Motion to Withdraw Guilty Plea. Counsel is uncertain whether [s]he is alleging that the plea was not given “freely, voluntarily and knowingly,” or whether [s]he is alleging ineffective assistance of trial counsel in entering the plea.
On July 28, 2017, the trial court issued an order to produce
Gooden at the hearing on the motion, which was set for October 10,
2017. As soon as the hearing began, Daniel moved for a continuance.
He told the court that shortly after he filed the motion, Gooden
informed him that she did not want to pursue withdrawal of her
guilty plea. He sent the necessary papers to her to withdraw the
motion, but she signed them on the wrong signature line; he sent
them to her again, but she signed them in too many places, including
the signature line for a witness; he sent them to her a final time, but he received no response. He concluded that it would be simpler to
have Gooden attend the hearing and withdraw the motion in person,
but when he met with her immediately before the hearing, she told
him that she wanted to proceed with the motion to withdraw her
guilty plea after all.1 Daniel also informed the court that Gooden had
told him that she had mental health issues and refused medication
while detained at the county jail but that she had begun taking
medication again once in state custody and “is thinking better and
that’s why she wants to go forward.”
The trial court denied the motion for a continuance and went
forward with the hearing. Daniel called no witnesses and presented
no evidence but argued that Myles should have moved for a
psychiatric evaluation before allowing Gooden to enter a guilty plea.
The State argued that Gooden’s plea was knowing and voluntary,
that she had shown no evidentiary basis for withdrawing her guilty
plea, and, finally, that the State’s investigation had uncovered
1 The State also believed until the time of the hearing that Gooden intended to withdraw her guilty plea. evidence that Gooden was malingering and “attempting to
manufacture a mental health defense to the underlying charges.”
On October 13, 2017, the trial court entered a written order
denying the motion to withdraw the guilty plea. The court explained
that it denied the motion for a continuance because it was “based on
the Defendant’s decision to plead guilty, then move to withdraw the
guilty plea, then change her mind about that motion, then change it
again, all the while declining to cooperate with counsel.” The court
further found that “four months is ample time for the Defendant to
decide whether she wants to proceed with a Motion to Withdraw or
not, and communicate with her counsel the information necessary
to pursue the Motion” and quoted this Court’s statement in Rivers
v. State, 250 Ga. 303, 307 (5) (298 SE2d 1) (1982), that the fact “that
[defendant’s counsel] did not have the benefit of the defendant’s
cooperation until shortly before trial, is the defendant’s own fault,
about which he cannot now complain.” The trial court further found
no evidence of deficient performance on the part of Myles, ruled that
Gooden was properly advised of the rights listed in Boykin v. Alabama, 395 U. S. 238, 243 (89 SCt 1709, 23 LE2d 274) (1969), and
entered her plea freely and voluntarily and with a factual basis, and
therefore denied the motion to withdraw the guilty plea. Gooden
filed a timely notice of appeal, and Luttrell then filed an entry of
appearance on her behalf as appellate counsel.
In her sole enumeration of error, Gooden contends that her
case should be remanded to the trial court for an evidentiary hearing
on the issue of ineffective assistance of plea counsel Myles, arguing
that she had “no meaningful opportunity to examine whether plea
counsel rendered ineffective assistance by failing to seek a
competency evaluation prior to entering the plea.”2 She relies upon
Johnson v. State, 259 Ga. 428 (3) (383 SE2d 115) (1989), overruled
in part on other grounds, Wilson v. State, 277 Ga. 195, 199 (2) (586
SE2d 669) (2003). This Court has noted, citing Johnson,
that, where the issue of effectiveness is raised for the first time on appeal by an appellate attorney who did not represent the defendant at trial or on motion for new trial and who did not file an amended motion for new trial, a
2 Importantly, Gooden does not raise a claim regarding the ineffective
assistance of her motion to withdraw counsel, Daniel. Nor does she assert that the trial court erred in denying her motion for continuance. remand for hearing on the issue of effectiveness may be appropriate.
(Citation, punctuation and emphasis omitted.) Owens v. State, 263
Ga. 99, 102 (3) (428 SE2d 793) (1993).3
At the hearing on the motion to withdraw Gooden’s guilty plea,
Daniel plainly raised this ineffectiveness claim, although he did not
examine plea counsel or Gooden herself and did not present any
evidence regarding the circumstances surrounding the plea or
Gooden’s alleged mental health issues.4 Consequently,
[o]nly where no opportunity existed for the defendant to raise an ineffectiveness claim prior to appeal have cases been remanded for a hearing. . . . Here, appellant not only had the opportunity to raise a claim of ineffective assistance of [plea] counsel on motion [to withdraw guilty plea], but [s]he actually raised this claim in [that motion] following the appointment of new counsel. As a result, this claim has already been raised and adjudicated by the
3 We agree with the parties and with our Court of Appeals that this standard applies equally to motions to withdraw a guilty plea, and “we can discern no reasonable basis on which to distinguish the two procedural postures in light of the underlying principles.” Dawson v. State, 302 Ga. App. 842, 843 (691 SE2d 886) (2010). 4 Gooden asserts that she must have a “meaningful opportunity” to
present this claim, contending that she did not receive such an opportunity because her motion to withdraw counsel did not present evidence regarding the alleged deficiency. But, as noted above, Gooden does not assert ineffective assistance of her motion to withdraw counsel. trial court and appellant is not entitled to a remand for further consideration of this issue below.
(Citations, punctuation and footnote omitted.) Terrell v. State, 300
Ga. 81, 87 (3) (791 SE2d 411) (2016).5 Moreover, Gooden presents no
argument in support of her claim of ineffective assistance of plea
counsel. See Patel v. State, 279 Ga. 750, 754 (c) (620 SE2d 343)
(2005).
Gooden’s “claim has already been raised and adjudicated by the
trial court and appellant is not entitled to a remand for further
consideration of this issue below.” (Citations and footnote omitted.)
Terrell, supra, 300 Ga. at 87 (3); cf. Davis v. State, 301 Ga. 658, 659
(802 SE2d 246) (2017) (“[B]ecause Davis was represented by the
same counsel at both his guilty plea hearing and on his motion to
withdraw guilty plea, Davis could not have raised a claim of
ineffective assistance at that time.”) (Citations omitted.).
Judgment affirmed. All the Justices concur.
5 In Terrell, as here, appellant did not raise on appeal an ineffective assistance of counsel claim against successor counsel (there, first appellate counsel; here, motion to withdraw counsel). See 300 Ga. at 87 n.6. Decided May 20, 2019.
Murder. Douglas Superior Court. Before Judge McClain.
Lawrence W. Daniel, James K. Luttrell, for appellant.
Ryan R. Leonard, District Attorney, Aimee F. Sobhani, Deah
B. Warren, Assistant District Attorneys; Christopher M. Carr,
Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General, for
appellee.