Marlo A. Malone v. State

• Court: Court of Appeals of Georgia
• Decided: May 20, 2013
• Docket: A13A0471
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., MILLER, and RAY, 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/

May 20, 2013

In the Court of Appeals of Georgia A13A0471. MALONE v. THE STATE.

BARNES, Presiding Judge.

Marlo A. Malone was indicted for committing the crimes of incest, aggravated

child molestation, aggravated sexual battery, aggravated sodomy, and child

molestation. Following a hearing, Malone entered a non-negotiated guilty plea on all

counts, and he was sentenced to serve thirty years in confinement.1 Malone appeals

from the trial court’s subsequent denial of his motion to withdraw his guilty plea.

Finding no abuse of discretion, we affirm.

1 The trial court sentenced Malone to 30 years to serve on the count of child molestation, 30 years to serve on the count of aggravated child molestation, 30 years to serve on the count of aggravated sodomy, 20 years to serve on the count of aggravated sexual battery, and 20 years to serve on the count of incest, with all the sentences to run concurrently. Malone argues that the State failed to show that he entered his plea with an

understanding of the consequences because he was under the influence of medication

when he entered his plea. Whether to grant a motion to withdraw a guilty plea is

“within the sound discretion of the trial court and will not be disturbed absent a

manifest abuse of such discretion.” (Footnote omitted.) Frost v. State, 286 Ga. App.

694 (649 SE2d 878) (2007). Upon a challenge to the validity of a guilty plea, the

State has “the burden of showing affirmatively from the record that the defendant

offered his plea knowingly, intelligently, and voluntarily.” (Footnote omitted.) Id. The

State’s burden may be met “by (1) showing on the record that the defendant was

cognizant of his rights and the waiver of those rights, or (2) using extrinsic evidence

that shows affirmatively that the guilty plea was entered knowingly and voluntarily.”

(Footnote omitted.) Shaw v. State, 302 Ga. App. 363, 364 (1) (691 SE2d 267) (2010).

The evidence shows that the State initially offered Malone a negotiated plea

of 20 years, to serve 12. Malone told his attorney that he wanted to accept the plea

offer, but Malone attempted to commit suicide on the day he was to appear in court

to enter the plea. At the subsequent plea calendar Malone changed his mind and

declined to enter a plea, although he met with his counsel later and indicated that he

had made a mistake and did want to enter a plea. Malone’s attorney then met with

2 Malone and his family and explained to them that the trial court had stated that any

subsequent plea would be non-negotiated and could not be withdrawn.

At the commencement of the plea hearing, the trial court announced that jury

selection for Malone’s trial was scheduled to commence the following Monday and

that “the Court doesn’t do negotiated pleas . . . during the trial calendar,” but that the

case could be resolved if that was what Malone wished. The prosecutor, after

confirming that if Malone entered a guilty plea it would be non-negotiated, described

in detail the factual basis for the charges and recommended that Malone be sentenced

to 25 year to serve 20. Malone’s attorney confirmed that Malone wished to plead

guilty, and he acknowledged that they had “thrown away” the State’s previous plea

offer, but asked the court to “temper this sentencing.” Malone’s attorney also

represented to the trial court that Malone was currently being treated with Remeron,

an anti-depressant medication, but that Malone had told him that he “is perfectly

clear-headed today.”

Malone took the stand and, under questioning by the State, represented that he

was “under medicine.” However, when asked “[a]re you under any alcohol, drugs or

any other substance that interferes with your ability to understand what you are doing

and think clearly at this time,” Malone answered, “No.” Malone confirmed, among

3 other things,2 that he understood that the maximum sentences for the charges against

him was two life sentences, followed by 80 years, and that the trial court was not

bound by any promises or recommendations and could impose such a sentence.

Malone then pled guilty to the charges, and the trial court accepted Malone’s plea of

guilty as freely and voluntarily given before sentencing him to serve 30 years in

confinement.

At the hearing on Malone’s motion to withdraw his guilty plea, Malone

testified that he did not enter the guilty plea of his own free will. According to

Malone, he was taking “Remerol,” a depression medication, and when asked the

“kind of effect” the drug had on him, he responded, “[j]ust tired, frustrated,

aggravated.” He also testified that he was taking medication for other illnesses, such

as high blood pressure, but he did not know what those medications were, and he was

“not really sure” if the other medications affected his ability to think. According to

Malone, his state of mind at the hearing was such that he “wanted to actually go to

2 In a series of questions and answers, Malone confirmed that his lawyer had explained the charges against him and that he understood: that he had the right to a jury trial; that he could have a jury trial by pleading not guilty or remaining silent; that he had the right to assistance of trial counsel; that he was entitled to the presumption of innocence; that he had the right not to incriminate himself; that he had the right at a jury trial to question witnesses against him and to subpoena witnesses on his behalf; and that he was giving up all those rights by pleading guilty.

4 sleep and never wake up again.” Malone further maintained that he entered a guilty

plea because he thought he was going to be sentenced consistently with the State’s

plea offer of “the 20 years to serve 12.”

Malone’s defense counsel testified that on the morning of the plea hearing he

explained to Malone that it “was totally up to the judge whether or not he went along

with the plea.” According to counsel, he did not have any concerns about Malone’s

medications impacting on his ability to understand what was going on in court. And

counsel “saw nothing at all that would make me think [Malone] did not know what

he was doing.”

Based on our review of the evidence, we find no error. “The record contains

no evidence, other than [Malone’s] own self-serving statements during the hearing

on his motion to withdraw the plea, that he labored under any impairment at the time

of the plea proceeding.” Brown v. State, 259 Ga. App. 576, 578 (578 SE2d 188)

(2003). On the other hand, Malone’s testimony during the plea hearing as well as the

testimony of defense counsel during the hearing on the motion to withdraw the plea

show that although Malone was taking an anti-depressant medication, his mental

faculties were not impaired thereby and he understood that the trial court was not

bound by the State’s initial plea offer in determining his sentence. See McDowell v.

5 State, 282 Ga. App. 754, 756 (639 SE2d 644) (2006) (where trial court was aware that

defendant was taking prescribed medications and defendant’s testimony at plea

hearing was that his prescribed medications did not affect his ability to understand the

plea proceedings, trial court was not under any duty to make further inquiry into the

medication’s effect on defendant’s ability to competently enter his plea). To the

extent that the evidence is in conflict, it was for the trial court to determine the

credibility of Malone’s testimony at the hearing on the motion to withdraw. See

Brown, 259 Ga. App. at 578. The evidence shows that the State carried its burden of

showing that Malone offered his plea knowingly, intelligently, and voluntarily, and

we find that the trial court did not abuse its discretion in denying Malone’s motion

to withdraw his guilty plea.

Judgment affirmed. Miller and Ray, JJ., concur.