309 Ga. 203 FINAL COPY
S20A0013. NELSON v. WILKEY.
BETHEL, Justice.
Appellant, Warden Dennis Nelson, challenges the habeas
court’s order setting aside Morocco Jacobi Wilkey’s conviction for one
count of possession of methamphetamine with intent to distribute,
to which he pled guilty. For the reasons that follow, we determine
that the habeas court’s findings of fact regarding Wilkey’s claim of
ineffective assistance of counsel — namely, that Wilkey desired to
withdraw his guilty plea prior to sentencing but was not informed
by counsel of his absolute statutory right to do so under OCGA § 17-
7-93 (b)1 and that trial counsel failed to give him the benefit of new
advice stemming from information learned between the entry of the
plea and the sentencing hearing — are supported by the record. We
also determine that such findings support the conclusion that
1 OCGA § 17-7-93 (b) provides, in relevant part, that “[a]t any time before
judgment is pronounced, the accused person may withdraw the plea of ‘guilty’ and plead ‘not guilty.’” Wilkey was deprived of his right under the Sixth Amendment to the
United States Constitution to the effective assistance of counsel. We
therefore affirm the habeas court’s determination that Wilkey is
entitled to habeas relief on this basis.
1. Background and Procedural History.
In 2014, Wilkey was indicted by a Bartow County grand jury
for possession of methamphetamine with intent to distribute, and
he entered a plea of not guilty.2 The case went to trial in April 2015,
and Wilkey was represented by counsel. On the third day of trial,
while one of his former co-defendants was testifying on behalf of the
State, Wilkey elected to change his plea to a guilty plea.
On April 28, 2015, 13 days following the entry of Wilkey’s
guilty plea, the trial court held a sentencing hearing. During the
sentencing hearing, but prior to the trial court’s pronouncement of
sentence, plea counsel stated the following:
I just want the record to reflect and I have let Mr. Wilkey know that it has come to my attention that there was an outstanding warrant for [the] sale of
2 Wilkey was indicted along with at least two co-defendants, a man and
a woman, both of whom were sentenced before Wilkey. methamphetamine, a felony warrant that had been outstanding on [Wilkey’s female co-defendant] since August of last year.[3] Even though she had come to court multiple times and sat in the courtroom for three days of trial, the warrant was not executed, nor was that information turned over to the defense at trial and that her testimony was that she was just a user, that she didn’t sell drugs, and that’s why the drugs [at issue in Wilkey’s case] were not hers. I let Mr. Wilkey know that information since it came about after he took a plea. I’ve also let him know and that the record will reflect he has thirty days from today’s date if he wanted to withdraw his plea because that certainly would have [an] effect on what we discussed.
These statements by Wilkey’s plea counsel were not disputed by the
State.
The trial court asked Wilkey whether there was anything he
wanted to say before his sentence was imposed. Wilkey stated that
3 The arrest warrant is not in the record. However, the record includes a
subsequent September 2, 2015, Bartow County grand jury indictment charging Wilkey’s co-defendant with the sale of methamphetamine on or about August 28, 2014, and illegal use of communication facility by arranging the sale of methamphetamine via telephone. The State’s request to enter a nolle prosequi in the case was granted on November 13, 2017, two years after Wilkey’s trial. The habeas court’s order noted “the similarities of the offenses [Wilkey’s co- defendant] was alleged to have committed in the case at bar and in the subsequent 2014 indictment (Case No. 15-1930), [and] the fact that the offenses were alleged to have occurred in the same jurisdiction and alleged to have been committed by an individual with the same first, middle and last names.” he did not. The trial court proceeded to impose a split sentence of 30
years, 15 years to be served in prison and 15 years on probation. The
trial court also stated that it was “bothered” that “the warrant was
held” on Wilkey’s co-defendant and that the failure to execute the
warrant was “unprofessional” and a violation of a law enforcement
officer’s duty to execute a valid warrant. The trial court added that
it would consider the failure to execute the warrant on Wilkey’s co-
defendant “when that matter comes up, but, at this point in time,
that’s something for [plea counsel] and Mr. Wilkey to consider and
something the Court will consider,” and that Wilkey’s sentence was
“based upon the plea that he entered.” The trial court’s statements
about the State’s failure to execute the outstanding warrant were
uncontested by the State.
Wilkey filed a motion to withdraw his guilty plea within 30
days of his sentencing hearing. However, that motion was rejected
as untimely on October 3, 2017, because the term of the Bartow
County Superior Court had ended on April 30, 2015, two days after
Wilkey’s sentencing hearing. See Brooks v. State, 301 Ga. 748, 751 (2) (804 SE2d 1) (2017) (“A motion to withdraw a guilty plea must
be filed within the same term of court as the sentence entered on the
guilty plea.” (citation and punctuation omitted)); OCGA § 15-6-3 (9)
(A) (The terms of court for Bartow County shall begin on the “[f]irst
Monday in February, May, August, and November.”).
On June 21, 2018, Wilkey filed a petition for a writ of habeas
corpus in the Superior Court of Clayton County. He raised three
grounds for relief. First, Wilkey argued that his guilty plea was not
freely and voluntarily entered due to the State’s failure to disclose
information about his co-defendant’s open arrest warrant prior to
the entry of the plea. Wilkey argued that this information would
have been both relevant and exculpatory because Wilkey’s defense
at trial was that another individual apprehended at the scene was
the individual who distributed the drugs.4 Second, Wilkey argued
that the trial court improperly advised him regarding the deadline
for filing a motion to withdraw his guilty plea. Finally, Wilkey
4 According to the transcript of the sentencing hearing, Wilkey had more
than one co-defendant. The record is not clear as to which co-defendant Wilkey claimed was responsible for distributing the drugs. argued that his plea counsel provided constitutionally ineffective
assistance by failing to advise Wilkey that his guilty plea could be
withdrawn for any reason at any time prior to sentencing and again
when she improperly advised him regarding the deadline for filing
a motion to withdraw his guilty plea after sentencing.
The habeas court held an evidentiary hearing on February 5,
2019. Wilkey was the only witness and testified as follows. At the
time Wilkey entered his guilty plea, he did so freely and voluntarily
after consultation with his counsel and knowing that he had the
right to continue with the trial. Wilkey entered a guilty plea because
he and plea counsel had no incriminating information about his co-
defendant, and he did not know about the outstanding warrant for
his co-defendant’s arrest at that time.
Wilkey learned about the outstanding arrest warrant on his co-
defendant in the 13 days between his guilty plea and sentencing
hearing. He wanted to withdraw his plea because the new
information showed “that [he] wasn’t the one . . . selling drugs.”
Wilkey was never informed by his plea counsel that he had the absolute right to withdraw his guilty plea prior to sentencing and
testified that “once they [sent him] to the jail sometime after [the
guilty plea] they arrested [Wilkey’s co-defendant] on that sell case.
And nobody informed [him] . . . [that he] could continue trial or none
of that, it was just that was it.” Wilkey did not discuss withdrawing
his plea with plea counsel “because [he] didn’t know [he] could even
withdraw it then” but instead “thought once [he] entered the plea it
was just, that was that, it was a process.” At the time of his
sentencing, Wilkey thought that he had 30 days from his sentencing
to file a motion seeking to withdraw his guilty plea. On the day he
returned to jail from his sentencing hearing, Wilkey requested new
court-appointed counsel so that he could withdraw his guilty plea
“immediately.”5 Wilkey’s plea counsel did not assist with Wilkey’s
5 The record is not clear as to when Wilkey’s motion to withdraw his
guilty plea was filed. Wilkey testified that he filed the motion “immediately, like almost the next shipping date” after his transfer from the Bartow County jail to the state prison, but that he did not know his motion was untimely at the time it was filed and did not learn it was untimely until it was dismissed in October 2017. motion to withdraw his plea.6
The habeas court granted Wilkey relief, concluding (1) that his
plea was not freely, voluntarily, and knowingly made because he did
not know that his co-defendant had a pending charge which would
have been exculpatory for Wilkey when he entered his guilty plea;
(2) that the trial court affirmatively misadvised Wilkey as to the
deadline for moving to withdraw his plea; and (3) that his plea
counsel provided ineffective assistance by (a) not advising Wilkey of
his statutory right to withdraw his guilty plea prior to sentencing,
(b) affirmatively misadvising Wilkey that he had 30 days from the
date of sentencing to withdraw his guilty plea, and (c) abandoning
representation of Wilkey after the sentencing hearing. The Warden
timely filed a notice of appeal on May 22, 2019. The case was
docketed to this Court’s term beginning in December 2019 and was
6 In his petition for a writ of habeas corpus, Wilkey indicated that he had
been represented by at least three different attorneys in relation to this case. One attorney represented Wilkey during his arraignment and original plea, at trial, and at sentencing. A different attorney represented Wilkey during his motion to withdraw his guilty plea. A third attorney has represented Wilkey during his habeas proceedings. submitted for a decision on the briefs.
2. The Warden challenges the habeas court’s determination
that Wilkey received ineffective assistance from his plea counsel
when plea counsel failed to advise Wilkey of his statutory right to
withdraw his guilty plea prior to sentencing.7 In addition to
determining that plea counsel performed deficiently, the habeas
court further determined that, but for plea counsel’s deficient
performance, Wilkey’s motion to withdraw his plea would have been
granted by operation of law if made prior to sentencing. The habeas
court thus granted relief to Wilkey on the basis of his claim of
ineffective assistance of counsel.
To prevail on his claim, Wilkey must show both that his plea
counsel’s performance was constitutionally deficient and that the
7 The Warden argues that Wilkey has the burden of proof and that, due
to the sparse record, the habeas court engaged in mere speculation in granting relief to Wilkey. See Washington v. Hopson, 299 Ga. 358, 366 (2) (b) (788 SE2d 362) (2016). The Warden is correct that Wilkey, as the habeas petitioner, “bears the burden to complete the habeas record with relevant records from the trial proceedings . . . .” Holt v. Ebinger, 303 Ga. 804, 807 (814 SE2d 298) (2018). However, Wilkey has provided the records needed to decide this ineffective assistance claim, namely, the transcript of his sentencing hearing during which the alleged ineffective assistance occurred and the transcript of his habeas hearing. deficient performance prejudiced his defense. See Strickland v.
Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)
(1984).
To meet the first prong of the [Strickland] test, [Wilkey] must overcome the strong presumption that counsel’s performance fell within a wide range of reasonable professional conduct, and that counsel’s decisions were made in the exercise of reasonable professional judgment.
(Citation and punctuation omitted.) Phelps v. State, 293 Ga. 873,
879-880 (3) (750 SE2d 340) (2013). To meet the second prong of the
test in the guilty plea context, Wilkey must demonstrate that “there
is a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial.”
(Citation and punctuation omitted.) Oubre v. Woldemichael, 301 Ga.
299, 304 (2) (800 SE2d 518) (2017).
On appeal, this Court defers to a habeas court’s findings of fact
unless they are clearly erroneous, but we apply the facts to the law
de novo in determining whether counsel’s performance was deficient
and whether any purported deficiency was prejudicial. See Morrow
v. Humphrey, 289 Ga. 864, 866 (II) (717 SE2d 168) (2011). See also Griffin v. Terry, 291 Ga. 326, 328 (2) (729 SE2d 334) (2012) (“The
habeas court’s determination as to counsel’s alleged ineffectiveness
must be affirmed unless the habeas court’s findings of fact are
clearly erroneous or are legally insufficient to establish that counsel
was ineffective.”).
As an initial matter, the Warden argues that, because Wilkey
had the burden to show that he had not waived his right to withdraw
his plea prior to sentencing, Wilkey’s failure to admit into evidence
a copy of his plea hearing transcript forecloses habeas relief. We
disagree. Although a defendant’s statutory right under OCGA § 17-
7-93 (b) to withdraw his guilty plea at any time prior to sentencing
is a right that can be waived, such a waiver must be made
“knowingly, voluntarily, and intelligently.” Blackwell v. State, 299
Ga. 122, 124 (786 SE2d 669) (2016). There is no indication in the
sentencing transcript, during which a potential motion to withdraw
his guilty plea was discussed, that Wilkey made such a waiver. At
the habeas hearing, Wilkey was asked about his plea colloquy with
the trial court. He was then cross-examined on his decision to enter a guilty plea, during which he was asked whether “the Judge went
through all of the rights that [Wilkey] had,” and answered “yes.”
There was no question about whether Wilkey waived his right to
withdraw his guilty plea. The habeas court was not required to infer
from this record that Wilkey had waived his right to file a motion to
withdraw his guilty plea.
The Warden further argues that plea counsel’s failure to
inform Wilkey of his statutory right to withdraw his guilty plea prior
to sentencing cannot form the basis of habeas relief because “[t]here
is no Federal or State constitutional provision stating that a
criminal defendant may withdraw his or her guilty plea as a matter
of right at any time prior to sentence being pronounced.” Blackwell,
299 Ga. at 123. The Warden’s argument suggests that Wilkey had
to show that he had a constitutional right to withdraw his guilty
plea at any time before sentencing in order to be granted habeas
relief. See Bruce v. Smith, 274 Ga. 432, 435 (3) (553 SE2d 808) (2001)
(“Our state habeas corpus statute provides relief only for a
substantial denial of constitutional rights under the United States Constitution or the Georgia Constitution.”).
Although we have recently held that “a defendant has no
constitutional right to be advised by the trial court that he cannot
withdraw his guilty plea as a matter of right after his sentence is
pronounced,” Mahaffey v. State, ___ Ga. ___, ___ (2) (b) (843 SE2d
571) (2020) (emphasis supplied), that is a different question than
whether a defendant has a constitutional right to effective
assistance of counsel. See Alexander v. State, 297 Ga. 59, 61 (772
SE2d 655) (2015) (distinguishing between a trial court’s duties in
accepting a guilty plea and defense counsel’s obligations to his client
in entering a guilty plea). “It is beyond dispute that a defendant who
receives ineffective assistance of counsel has been denied a right of
‘constitutional dimension.’” State v. Garland, 298 Ga. 482, 486-487
(1) (781 SE2d 787) (2016) (quoting Strickland, 466 U. S. at 686-687).
Therefore, it is Wilkey’s denial of his constitutional right to effective
counsel, not his statutory right to withdraw his guilty plea, that
forms the basis of the habeas court’s grant of relief.
Furthermore, the Warden’s reliance on Blackwell is misplaced, as Blackwell does not stand for the proposition that an attorney’s
failure to advise her client about a statutory right to withdraw his
guilty plea prior to sentencing cannot constitute ineffective
assistance. See 299 Ga. at 123. “All criminal defendants, including
those who waive their right to trial and enter a guilty plea, are
entitled to effective legal assistance.” (Citation and punctuation
omitted.) State v. Sabillon, 280 Ga. 1, 2 (622 SE2d 846) (2005). As
we have recently held, “[d]efendants who plead guilty to criminal
charges in Georgia courts have the right to timely pursue post-
conviction remedies, including a motion to withdraw the guilty plea
and an appeal.” Dos Santos v. State, 307 Ga. 151, 156 (5) (834 SE2d
733) (2019). “With respect to at least those two potential remedies,
defendants have a Sixth Amendment right to the effective
assistance of counsel to advise them about the potential remedy and
to pursue the remedy if appropriate.” Id. at 156-157 (5). Thus, a
defendant’s right to effective assistance of counsel regarding his
guilty plea includes the right to be advised about his absolute right
to withdraw his guilty plea prior to sentencing and whether he should pursue such a remedy. We turn now to whether the habeas
court correctly determined that Wilkey’s plea counsel performed
deficiently in this respect. We agree with the habeas court’s
determination that no reasonable attorney providing
constitutionally effective representation would fail to inform a client
of an absolute statutory right to withdraw a plea when the attorney
had obtained new information that changed the attorney’s
assessment of the client’s case and had not yet fully discussed that
information and its relevance with the client.
At the sentencing hearing, plea counsel told the trial court, and
the habeas court credited counsel’s statement, that she was aware
of new information “that certainly would have an effect” on her
advice to her client, which amounts to an admission that this new
information would have a material effect on her previous advice to
her client. Rather than ensuring that Wilkey had the benefit of that
different advice before he lost the absolute right to withdraw his
guilty plea for any reason, plea counsel allowed the sentencing
hearing to proceed. Plea counsel’s decision to let sentencing proceed despite this change in circumstances had immediate negative
consequences for Wilkey.
The effect of plea counsel’s failure to advise Wilkey of his
statutory right to withdraw his guilty plea prior to sentencing was
that, as a matter of law, Wilkey was prevented from withdrawing
his guilty plea for any reason. See Graham v. State, 300 Ga. 620, 620
(797 SE2d 459) (2017) (“A defendant may withdraw a guilty plea for
any reason prior to sentencing, but can withdraw the plea after
sentencing only to correct a manifest injustice.” (citation and
punctuation omitted; emphasis supplied)). Compare OCGA § 17-7-
93 (b) (“. . . At any time before judgment is pronounced, the accused
person may withdraw the plea of ‘guilty’ and plead ‘not guilty.’”),
with Uniform Superior Court Rule 33.12 (B) (“In the absence of a
showing that withdrawal is necessary to correct a manifest injustice,
a defendant may not withdraw a plea of guilty or nolo contendere as
a matter of right once sentence has been pronounced by the judge.”).
Prior to sentencing, a defendant can withdraw his guilty plea for any
reason. After sentencing, a defendant’s motion to withdraw his guilty plea must survive the trial court’s analysis under a stringent
legal standard. See Graham, 300 Ga. at 621 (noting that, under the
“manifest injustice” standard, “withdrawal is necessary . . . if, for
instance, a defendant is denied effective assistance of counsel, or the
guilty plea was entered involuntarily or without an understanding
of the nature of the charges” (citation and punctuation omitted)).
Here, plea counsel’s actions resulted in the imposition of an
unnecessary burden on Wilkey, as he had to show a manifest
injustice in his motion to withdraw his guilty plea after sentencing.
No reasonable lawyer would allow sentencing to go forward under
these circumstances. Indeed, the Warden concedes that plea counsel
provided “bad advice about [Wilkey’s] plea withdrawal options” at
his sentencing hearing.
The Warden argues, however, that the habeas court erred in
granting relief because Wilkey failed to show that his plea counsel’s
deficient performance was prejudicial. The Warden claims that
because the trial was essentially over — the prosecution had rested,
Wilkey’s co-defendant had testified, and Wilkey was considering what evidence, if any, to present — Wilkey has not and cannot show
that he would have continued with trial, because any erroneous
advice about his right to withdraw his guilty plea had nothing to do
with Wilkey’s decision two weeks earlier to forgo the remainder of
his trial. The Warden further argues that the habeas court applied
the wrong prejudice standard. We disagree with each of these
contentions.
Here, the habeas court credited Wilkey’s testimony that he did
not know about his statutory right to withdraw his guilty plea prior
to sentencing, and that he took immediate steps to file a motion to
withdraw his guilty plea as soon as he thought he could — after
sentencing. This Court defers to such credibility determinations
unless they are clearly erroneous, and they are not in this case. See
Humphrey v. Walker, 294 Ga. 855, 860 (757 SE2d 68) (2014)
(reaffirming that this Court must “yield to the judgment of the
habeas court with respect to the credibility of witnesses who testified
in the habeas proceedings”). Moreover, the habeas court’s findings
are sufficient to show prejudice, as they support a determination that Wilkey would have withdrawn his guilty plea prior to
sentencing and continued with trial. The habeas court’s
determination — that Wilkey would have had his motion to
withdraw his guilty plea granted and his right to a jury trial
reinstated by operation of law — is simply a conclusion about the
logical result of a motion to withdraw a guilty plea filed prior to
sentencing.
In sum, the habeas court’s factual and credibility findings
relevant to Wilkey’s claim of ineffective assistance of plea counsel
are supported by the record, and we defer to them. Because those
findings support the habeas court’s determination that Wilkey
received ineffective assistance of plea counsel, we affirm the grant
of habeas relief. See Griffin, 291 Ga. at 328 (2). Because we affirm
on Wilkey’s first claim of ineffective assistance of counsel, we need
not address the habeas court’s grant of relief on any of the other
claims brought by Wilkey. See Smith v. Magnuson, 297 Ga. 210, 210
n.1 (773 SE2d 205) (2015).
Judgment affirmed. All the Justices concur. DECIDED JUNE 29, 2020. Habeas corpus. Clayton Superior Court. Before Judge Carter. Tracy Graham Lawson, District Attorney, Elizabeth A. Baker, Billy J. Dixon, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellant. Maryann F. Blend, for appellee.