Pierce v. State ( 2014 )

294 Ga. 842
FINAL COPY
S14A0053. PIERCE v. THE STATE.
THOMPSON, Chief Justice.
Appellant Jason Pierce appeals from the trial court’s denial of his plea in
bar based on double jeopardy. Finding no error in the denial of his motion, we
affirm.
Appellant was indicted in 1999 on charges of malice murder (two counts),
felony murder (four counts), aggravated assault (three counts) and possession
of a firearm by a convicted felon. The State filed a notice of intent to seek the
death penalty but withdrew its notice when appellant entered negotiated guilty
pleas to some but not all of the charges filed against him. He subsequently was
sentenced to two terms of life without parole on the malice murder convictions
and consecutive terms of years on his remaining convictions. This Court
vacated appellant’s sentences of life without parole on direct appeal because the
trial court did not specify an aggravating circumstance at the time of sentencing
as required under former OCGA § 17-10-32.1. See Pierce v. State, 289 Ga. 893
(717 SE2d 202) (2011).
On remand, and while still represented by counsel, appellant moved to
withdraw his guilty pleas as to all charges. The trial court granted the motion
with regard to the two malice murder counts because the malice murder
sentences had been vacated on appeal. See OCGA § 17-7-93 (b). The trial court
denied the motion as to appellant’s remaining convictions, however, because
those convictions and sentences were affirmed on appeal and appellant had no
statutory right to withdraw those pleas. See id.; Murray v. State, 314 Ga. App.
240, 241-242 (723 SE2d 531) (2012). Appellant filed a motion for plea in bar
based on double jeopardy seeking to preclude the State from continuing its
prosecution of the charges for which appellant’s pleas had been withdrawn. The
State again noticed its intent to seek the death penalty, causing appellant to
move to vacate the trial court’s order allowing him to withdraw his guilty pleas.
After a hearing, the trial court denied the motion for plea in bar and granted
appellant’s motion to vacate the order allowing the withdrawal of his guilty
pleas. With the consent of all parties, the trial court then resentenced appellant
on the remanded convictions. Appellant subsequently filed this pro se appeal
challenging only the trial court’s order denying his motion for plea in bar.
1. Appellant contends the trial court erred by denying his motion for plea
in bar because the grant of his motion to withdraw his guilty pleas as to only
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certain charges created an improper second prosecution in violation of
constitutional and statutory double jeopardy. See U. S. Const. Amend. V; Ga.
Const. of 1983, Art. I, Sec. I, Par. XVIII; OCGA §§ 16-1-7 (a) (1) and 16-1-8
(d) (2).1 We do not agree.
In reviewing a trial court's ruling on a motion for plea in bar, where the
evidence is uncontroverted and no question is presented regarding the credibility
of witnesses, we review de novo the trial court's application of the law to the
undisputed facts. See State v. Johnson, 274 Ga. 511, 514-515 (555 SE2d 710)
(2001); Surh v. State, 303 Ga. App. 380 (693 SE2d 501) (2010). Here, appellant
entered guilty pleas to the charges against him and based on these pleas,
judgments of conviction were entered. His convictions were not overturned on
appeal, although his sentences as to certain charges were vacated due to trial
court error, and on remand, the trial court properly determined that appellant
was entitled to withdraw his guilty pleas as to those charges. See OCGA § 17-7-
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OCGA §§ 16-1-7 (a) (1) and 16-1-8 (d) (2) govern the effect of a former conviction
upon a subsequent prosecution for the same crime based upon the same material facts and
provide that a prosecution is not barred by a former prosecution if “[s]ubsequent proceedings
resulted in the invalidation, setting aside, reversal, or vacating of the conviction, unless the
accused was thereby adjudged not guilty or unless there was a finding that the evidence did
not authorize the verdict.” See also Keener v. State, 238 Ga. 7 (230 SE2d 846) (1976).
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93 (b); Kaiser v. State, 285 Ga. App. 63, 68 (646 SE2d 84) (2007) (void
sentence is a nullity and defendant maintains his right to withdraw plea until he
is properly sentenced). The record establishes, however, that the order
authorizing the withdrawal of appellant’s guilty pleas was vacated on
appellant’s own motion, thereby reinstating his original guilty pleas and
convictions. Accordingly, there was not in this case a second prosecution, and
the trial court did not err by denying appellant’s motion for plea in bar.
2. Appellant contends for the first time on appeal that trial counsel
provided ineffective assistance during the remand proceedings. The claimed
deficiencies are counsel’s failure to present a meritorious double jeopardy
defense and their recommendation that he not withdraw his guilty pleas in order
to avoid a possible death sentence.
The proper method for raising a claim of ineffective assistance after entry
of a guilty plea is for a defendant to file either a timely motion to withdraw the
guilty plea, a direct appeal challenging the validity of the plea, or an action
seeking relief through habeas corpus. See, e.g., Frazier v. Mathis, 286 Ga. 647
(690 SE2d 840) (2010) (addressing in habeas corpus action claims of ineffective
assistance in connection with guilty plea); McCutchen v. State, 276 Ga. 532
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(579 SE2d 732) (2003) (raising ineffective assistance claims on appeal from
denial of motion to withdraw guilty pleas). An appeal from a guilty plea is
available “only if the issue on appeal can be resolved by facts appearing in the
record.” Morrow v. State, 266 Ga. 3 (463 SE2d 472) (1995). Appellant chose
not to withdraw his guilty pleas and has not filed a direct appeal challenging the
validity of his pleas; and even if he had, his allegations of deficient performance
could not be decided by reference to the record. Accordingly, his claims of
ineffective assistance of counsel must be pursued in an action for habeas corpus.
See Gibson v. State, 290 Ga. 516 (2) (b) (722 SE2d 741) (2012) (allegation of
ineffective assistance requiring post-plea hearing not subject to review
stemming from motion for out-of-time appeal but must be pursued in habeas
action); Kaiser, supra, 285 Ga. App. at 68 (“in cases where there is a void
sentence, but no motion to withdraw prior to resentencing, the rule remains that
further relief must be sought through habeas corpus”).
Judgment affirmed. All the Justices concur.
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Decided March 3, 2014 – Reconsideration denied March 28, 2014.
Murder, etc. Fulton Superior Court. Before Judge Lee.
Jason Pierce, pro se.
Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Lenny I.
Krick, Assitant District Attorneys, Samuel S. Olens, Attorney General, Patricia
B. Attaway Burton, Deputy Attorney General, Paula K.Smith, Senior Assistant
Attorney General, Rochelle W. Gordon, Assistant Attorney General, for
appellee.
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