306 Ga. 166 FINAL COPY
S19A0674. TOOKES v. THE STATE.
BLACKWELL, Justice.
Kavion Wyzeenski Tookes pleaded guilty to murder with
malice aforethought, kidnapping, armed robbery, and other crimes,
all in connection with a violent home invasion. The trial court
accepted his plea and promptly imposed sentence, including a
sentence of imprisonment for life without the possibility of parole for
the murder. The next day, Tookes filed a motion to withdraw his
plea, claiming that his lawyer had misadvised him about his
sentence and that he was denied his right to be present for a portion
of his plea and sentencing. The trial court denied his motion, and
Tookes appeals. We see no error and affirm.
1. Early on the morning of June 23, 2017, Tookes, Travione
Reynolds, and Jeffrey Lee Wallace invaded the Fayette County
home of Albert and Beverly DeMagnus. In the course of this home
invasion, Mr. DeMagnus was fatally stabbed, and Mrs. DeMagnus was forced at gunpoint to surrender cash and jewelry. Tookes and
Wallace fled the scene in Mr. DeMagnus’s car, which they later
wrecked while attempting to elude law enforcement officers. When
Tookes eventually was apprehended, he grabbed the firearm of one
of the arresting officers, and he was subdued only after the officers
deployed a Taser.
In September 2017, the grand jury indicted Tookes, Reynolds,
and Wallace, charging them with murder, kidnapping, armed
robbery, home invasion, aggravated assault, and possession of a
firearm during the commission of a crime. In addition, the grand
jury charged Tookes and Wallace with theft by taking of a motor
vehicle or fleeing attempting to elude a law enforcement officer, and
it charged Tookes alone with attempting to remove a weapon from a
public official. Their case was set for trial in May 2018.
As trial approached, Tookes learned that Reynolds and Wallace
intended to plead guilty. Upon the advice of counsel, Tookes decided
to plead guilty as well, and on the day that the trial was set to
commence, Tookes and both of his co-defendants were brought to the
2 courtroom to enter their pleas. The trial court started with Reynolds,
advising him of his rights and conducting a plea colloquy. The trial
court then turned its attention to Tookes. The trial court advised
Tookes of his rights and began a plea colloquy. At first, Tookes
indicated that he did, in fact, intend to plead guilty, but as the plea
colloquy went on, Tookes apparently changed his mind. When he
announced that he did not want to plead guilty, the trial court
suspended the plea colloquy and turned to Wallace, advising him of
his rights and conducting a plea colloquy with him. When the trial
court finished the plea colloquy with Wallace, Tookes was excused
from the courtroom so that he could prepare for his trial, which
would commence shortly. After Tookes was led away, the
prosecuting attorney proffered the factual basis for the pleas entered
by Reynolds and Wallace, and the trial court received evidence in
aggravation and mitigation as to Reynolds and Wallace.
In the meantime, Tookes met with his lawyer and mother at
the jail, and he changed his mind yet again about pleading guilty.
He was returned to the courtroom as Reynolds was presenting his
3 mitigation evidence, and when Reynolds finished, the trial court
turned its attention back to Tookes. The trial court resumed its plea
colloquy with Tookes, advising him again of his rights. When the
plea colloquy was concluded and Tookes entered his guilty plea, the
trial court asked the prosecuting attorney to proffer the factual basis
for Tookes’s plea, noting that Tookes had been absent for the earlier
proffer. The prosecuting attorney did so, and the State then
presented evidence in aggravation as to Tookes — the testimony of
the officer from whom Tookes attempted to take a weapon and a
video recording of his efforts to resist arrest. Tookes then presented
three witnesses in mitigation. And his lawyer made a statement on
his behalf, expressing remorse and asking for mercy. The trial court
then proceeded to pronounce sentence for all three defendants.
2. Tookes argues that he is entitled to withdraw his plea
because it was induced by the assurance of his lawyer that, if he
pleaded guilty, he would only be sentenced to imprisonment for life
with the possibility of parole. But at the hearing on his motion to
withdraw, both his lawyer and mother testified that the lawyer gave
4 no such assurance. They both testified that the lawyer, in fact, told
Tookes only that there was a chance that he would be sentenced to
life with the possibility of parole if he pleaded guilty. The trial court
found that Tookes was not credible, that his lawyer and mother
were, and that the court actually had considered a sentence of life
with the possibility of parole. The findings of the trial court on these
points are not clearly erroneous, and Tookes is not entitled to
withdraw his plea upon his claim that he was misadvised by his
lawyer. See McGuyton v. State, 298 Ga. 351, 355 (1) (b) (782 SE2d
21) (2016) (“Credibility determinations are within the purview of the
trial court[,] and the court’s factual findings will not be disturbed
unless clearly erroneous.”).
3. Tookes also argues that he is entitled to withdraw his plea
because he was absent from the courtroom during a portion of the
proceedings on the day that he entered his plea, and his absence
amounts, he says, to a denial of his right to be present at any “critical
stage” of his prosecution. See Brewner v. State, 302 Ga. 6, 10 (II)
(804 SE2d 94) (2017) (“[A] ‘critical stage’ of a criminal proceeding is
5 defined as ‘one in which the defendant’s rights may be lost, defenses
waived, privileges claimed or waived, or one in which the outcome of
the case is substantially affected in some other way.’” (Citation
omitted)). See also Huff v. State, 274 Ga. 110, 111 (2) (549 SE2d 370)
(2001) (“The right to be present attaches at any stage of a criminal
proceeding that is critical to its outcome if the defendant’s presence
would contribute to the fairness of the procedure.” (Citation and
punctuation omitted)). Here, however, Tookes was not absent from
any part of his proceedings. He was present until after he indicated
in the midst of his original plea colloquy that he did not, in fact, wish
to plead guilty. He was removed from the courtroom for a time to
prepare himself for trial, and during that time, the trial court heard
a factual proffer from the prosecuting attorney and evidence in
aggravation and mitigation as to Reynolds and Wallace. After
Tookes was returned to the courtroom, the trial court reinitiated its
plea colloquy with Tookes, had the prosecuting attorney make a
separate proffer of the factual basis for his plea, and heard evidence
and argument in aggravation and mitigation as to Tookes.
6 Tookes claims that he should have been present during the
plea proceedings conducted for Reynolds and Wallace, and —
without pointing to anything in particular — Tookes says that the
trial court must have relied on something it learned during those
proceedings “given the harsh sentence . . . Tookes received” for
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306 Ga. 166 FINAL COPY
S19A0674. TOOKES v. THE STATE.
BLACKWELL, Justice.
Kavion Wyzeenski Tookes pleaded guilty to murder with
malice aforethought, kidnapping, armed robbery, and other crimes,
all in connection with a violent home invasion. The trial court
accepted his plea and promptly imposed sentence, including a
sentence of imprisonment for life without the possibility of parole for
the murder. The next day, Tookes filed a motion to withdraw his
plea, claiming that his lawyer had misadvised him about his
sentence and that he was denied his right to be present for a portion
of his plea and sentencing. The trial court denied his motion, and
Tookes appeals. We see no error and affirm.
1. Early on the morning of June 23, 2017, Tookes, Travione
Reynolds, and Jeffrey Lee Wallace invaded the Fayette County
home of Albert and Beverly DeMagnus. In the course of this home
invasion, Mr. DeMagnus was fatally stabbed, and Mrs. DeMagnus was forced at gunpoint to surrender cash and jewelry. Tookes and
Wallace fled the scene in Mr. DeMagnus’s car, which they later
wrecked while attempting to elude law enforcement officers. When
Tookes eventually was apprehended, he grabbed the firearm of one
of the arresting officers, and he was subdued only after the officers
deployed a Taser.
In September 2017, the grand jury indicted Tookes, Reynolds,
and Wallace, charging them with murder, kidnapping, armed
robbery, home invasion, aggravated assault, and possession of a
firearm during the commission of a crime. In addition, the grand
jury charged Tookes and Wallace with theft by taking of a motor
vehicle or fleeing attempting to elude a law enforcement officer, and
it charged Tookes alone with attempting to remove a weapon from a
public official. Their case was set for trial in May 2018.
As trial approached, Tookes learned that Reynolds and Wallace
intended to plead guilty. Upon the advice of counsel, Tookes decided
to plead guilty as well, and on the day that the trial was set to
commence, Tookes and both of his co-defendants were brought to the
2 courtroom to enter their pleas. The trial court started with Reynolds,
advising him of his rights and conducting a plea colloquy. The trial
court then turned its attention to Tookes. The trial court advised
Tookes of his rights and began a plea colloquy. At first, Tookes
indicated that he did, in fact, intend to plead guilty, but as the plea
colloquy went on, Tookes apparently changed his mind. When he
announced that he did not want to plead guilty, the trial court
suspended the plea colloquy and turned to Wallace, advising him of
his rights and conducting a plea colloquy with him. When the trial
court finished the plea colloquy with Wallace, Tookes was excused
from the courtroom so that he could prepare for his trial, which
would commence shortly. After Tookes was led away, the
prosecuting attorney proffered the factual basis for the pleas entered
by Reynolds and Wallace, and the trial court received evidence in
aggravation and mitigation as to Reynolds and Wallace.
In the meantime, Tookes met with his lawyer and mother at
the jail, and he changed his mind yet again about pleading guilty.
He was returned to the courtroom as Reynolds was presenting his
3 mitigation evidence, and when Reynolds finished, the trial court
turned its attention back to Tookes. The trial court resumed its plea
colloquy with Tookes, advising him again of his rights. When the
plea colloquy was concluded and Tookes entered his guilty plea, the
trial court asked the prosecuting attorney to proffer the factual basis
for Tookes’s plea, noting that Tookes had been absent for the earlier
proffer. The prosecuting attorney did so, and the State then
presented evidence in aggravation as to Tookes — the testimony of
the officer from whom Tookes attempted to take a weapon and a
video recording of his efforts to resist arrest. Tookes then presented
three witnesses in mitigation. And his lawyer made a statement on
his behalf, expressing remorse and asking for mercy. The trial court
then proceeded to pronounce sentence for all three defendants.
2. Tookes argues that he is entitled to withdraw his plea
because it was induced by the assurance of his lawyer that, if he
pleaded guilty, he would only be sentenced to imprisonment for life
with the possibility of parole. But at the hearing on his motion to
withdraw, both his lawyer and mother testified that the lawyer gave
4 no such assurance. They both testified that the lawyer, in fact, told
Tookes only that there was a chance that he would be sentenced to
life with the possibility of parole if he pleaded guilty. The trial court
found that Tookes was not credible, that his lawyer and mother
were, and that the court actually had considered a sentence of life
with the possibility of parole. The findings of the trial court on these
points are not clearly erroneous, and Tookes is not entitled to
withdraw his plea upon his claim that he was misadvised by his
lawyer. See McGuyton v. State, 298 Ga. 351, 355 (1) (b) (782 SE2d
21) (2016) (“Credibility determinations are within the purview of the
trial court[,] and the court’s factual findings will not be disturbed
unless clearly erroneous.”).
3. Tookes also argues that he is entitled to withdraw his plea
because he was absent from the courtroom during a portion of the
proceedings on the day that he entered his plea, and his absence
amounts, he says, to a denial of his right to be present at any “critical
stage” of his prosecution. See Brewner v. State, 302 Ga. 6, 10 (II)
(804 SE2d 94) (2017) (“[A] ‘critical stage’ of a criminal proceeding is
5 defined as ‘one in which the defendant’s rights may be lost, defenses
waived, privileges claimed or waived, or one in which the outcome of
the case is substantially affected in some other way.’” (Citation
omitted)). See also Huff v. State, 274 Ga. 110, 111 (2) (549 SE2d 370)
(2001) (“The right to be present attaches at any stage of a criminal
proceeding that is critical to its outcome if the defendant’s presence
would contribute to the fairness of the procedure.” (Citation and
punctuation omitted)). Here, however, Tookes was not absent from
any part of his proceedings. He was present until after he indicated
in the midst of his original plea colloquy that he did not, in fact, wish
to plead guilty. He was removed from the courtroom for a time to
prepare himself for trial, and during that time, the trial court heard
a factual proffer from the prosecuting attorney and evidence in
aggravation and mitigation as to Reynolds and Wallace. After
Tookes was returned to the courtroom, the trial court reinitiated its
plea colloquy with Tookes, had the prosecuting attorney make a
separate proffer of the factual basis for his plea, and heard evidence
and argument in aggravation and mitigation as to Tookes.
6 Tookes claims that he should have been present during the
plea proceedings conducted for Reynolds and Wallace, and —
without pointing to anything in particular — Tookes says that the
trial court must have relied on something it learned during those
proceedings “given the harsh sentence . . . Tookes received” for
malice murder. But it does not seem to us that Tookes received a
particularly harsh sentence given the severity of that crime. See,
e.g., Cunningham v. State, 304 Ga. 789, 790, n.2 (822 SE2d 281)
(2018) (defendant sentenced to imprisonment for life without the
possibility of parole for malice murder conducted during home
invasion); Harris v. State, 304 Ga. 276, 277, n.1 (818 SE2d 530)
(2018) (same); Brewner, 302 Ga. at 7, n.1 (same). Moreover, the trial
court found at the hearing on the motion to withdraw that Tookes’s
sentence was based on the proffer, evidence, and argument
presented in Tookes’s presence, not on things that occurred during
his absence, and the trial court noted that Tookes himself failed to
ask forgiveness or show remorse. These findings are not clearly
erroneous, and the record simply does not show that Tookes was
7 absent for any critical stage of his prosecution. The denial of the
motion to withdraw is not error.
Judgment affirmed. All the Justices concur.
DECIDED JUNE 10, 2019.
Murder. Fayette Superior Court. Before Judge Sams.
Michele B. Lord, for appellant.
Benjamin D. Coker, District Attorney, E. Morgan Kendrick,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Ashleigh D. Headrick,
Assistant Attorney General, for appellee.