Perry v. State

847 S.E.2d 536, 309 Ga. 610

• Court: Supreme Court of Georgia
• Decided: August 24, 2020
• Docket: S20A0863
• Status: Published

Opinion

FINAL COPY 309 Ga. 610

S20A0863. PERRY v. THE STATE.

BLACKWELL, Justice.

Kyle Diamond Luke Perry pleaded guilty to the murder of

Jeremias Ortiz and other crimes. The trial court accepted Perry’s

plea and promptly imposed sentence, including a sentence of

imprisonment for life for the murder. Several years later, Perry filed

a motion for an out-of-time appeal, which the trial court granted.

Perry then filed a timely notice of appeal, and in this Court, he

claims that his plea was not entered freely and voluntarily. We see

no error and affirm.

The record shows that Perry was indicted by a Liberty County

grand jury and charged with murder with malice aforethought,

murder in the commission of a felony, two counts of aggravated

assault, burglary, theft by receiving stolen property, unlawful

possession of a firearm during the commission of a felony, and

possession of marijuana. At some point, Perry entered a guilty plea, but he withdrew that plea prior to sentencing.

His case went to trial in January 2016, but after about a dozen

witnesses testified, Perry announced that he wished to plead guilty

for a second time. The trial court conducted a plea hearing, during

which the prosecuting attorney proffered the following factual basis

for the plea (which was consistent with evidence introduced at the

trial): On June 1, 2013, Perry entered Ortiz’s apartment to steal a

television. Ortiz confronted Perry, and Perry shot at Ortiz and his

wife, fatally wounding Ortiz. Responding officers discovered a trail

of Perry’s blood, which led from Ortiz’s apartment to Perry’s

apartment in the same complex. The murder weapon (a stolen Rossi

.357 Magnum revolver) was found in Perry’s trash can. Perry had

ammunition for a .357 Magnum revolver in his pockets, as well as a

small amount of marijuana. Perry confessed to the crimes, except

that he claimed to have purchased the revolver.

During a colloquy with the trial court, Perry said that he was

24 years old, had attained a GED, was not suffering from any

physical or mental disease, was not under the influence of drugs or alcohol, could understand the judge’s statements and questions, and

understood each of the charges against him (which were read to him

twice during the plea hearing). Perry acknowledged that he

understood each of the charges and the sentences he could face for

each charge, he confirmed that he understood the rights he would

be waiving by entering a guilty plea (including the right to a jury

trial, the right against self-incrimination, and the right to confront

witnesses), and he said that he had discussed those rights with his

lawyers. Perry confirmed that he was entering his plea freely and

voluntarily, and he spontaneously asserted that “the evidence is

overwhelming . . . to convict [him] of what [he was] charged with.”

Finally, the trial court accepted the guilty plea, finding that it had

been freely and voluntarily made.

In his sole enumeration of error, Perry claims that his plea was

not freely and voluntarily made because the record does not show

that he “understood the law” related to the crimes to which he

pleaded guilty. Although it is true that the State bears the burden

of showing that Perry entered his plea freely and voluntarily, the State “may meet its burden by showing on the record of the guilty

plea hearing that [Perry] understood the rights being waived and

possible consequences of the plea or by pointing to extrinsic evidence

affirmatively showing that the plea was voluntary and knowing.”

Bradley v. State, 305 Ga. 857, 859 (2) (828 SE2d 322) (2019) (citation

and punctuation omitted). Here, Perry does not even identify the

“law” that he claims he did not understand when he entered his

guilty plea. Compare Kennedy v. Primack, 299 Ga. 698, 700-701 (1)

(791 SE2d 819) (2016) (upholding habeas court’s conclusion that

plea was not entered freely and voluntarily where the defendant

asked during her plea hearing about the meaning of “criminal

negligence” as it applied to a specific charge, and the trial court

acknowledged that it provided her with a “law school answer,” which

“compared legal terms of art such as ‘simple negligence’ and ‘gross

negligence’ without further context”) (punctuation omitted). To the

extent that Perry contends that he did not understand the charges

against him, he has not overcome the presumption that his lawyers

“explained the nature of the offense[s] in sufficient detail to give [him] notice of what he [was] being asked to admit,” and this

enumeration of error has no merit. Wharton v. Anderson, 270 Ga.

22, 23 (1) (504 SE2d 670) (1998) (citation and punctuation omitted).

Judgment affirmed. All the Justices concur.

DECIDED AUGUST 24, 2020.

Murder. Liberty Superior Court. Before Judge Stewart.

Brandon S. Clark, Robert L. Persse, for appellant.

Tom Durden, District Attorney, Melissa L. Poole, Assistant

District Attorney; Christopher M. Carr, Attorney General, Patricia

B. Attaway Burton, Deputy Attorney General, Paula K. Smith,

Senior Assistant Attorney General, Michael A. Oldham, Assistant

Attorney General, for appellee.