Allen v. the State , 333 Ga. App. 853 ( 2015 )

FOURTH DIVISION
BARNES, P. J.,
RAY and MCMILLIAN, 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.
http://www.gaappeals.us/rules
September 22, 2015
In the Court of Appeals of Georgia
A15A1446. ALLEN v. THE STATE.
MCMILLIAN, Judge.
Appellant Rodney Allen entered negotiated guilty pleas to multiple charges1
set out in two separate indictments on May 9, 2013. The trial court orally pronounced
Allen’s sentence and signed the final disposition sentencing sheet on that same day,
but the final disposition was not stamped filed by the Clerk of the Dougherty County
Superior Court until May 16, 2013. On June 7, 2013, Allen filed a pro se motion to
withdraw his guilty pleas, and following a hearing at which Allen was represented by
counsel, the trial court denied his motion. Allen now appeals from the denial of his
motion, arguing that the withdrawal of his pleas is necessary to correct a manifest
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Allen was charged with armed robbery, robbery by sudden snatching,
burglary, aggravated assault, and various firearm charges.
injustice because he was incompetent at the time he entered his pleas and that he is
now incarcerated and serving a mandatory minimum 10 year sentence with violent
offenders despite having no prior history of committing violent crimes. As more fully
set forth below, we now affirm.
1. We first consider the question of whether the motion to withdraw guilty plea
was timely filed such that the trial court retained jurisdiction to determine the merits
of the motion. See Rubiani v. State, 279 Ga. 299, 299 (612 SE2d 798) (2005) (“Once
the term of court in which a defendant was sentenced has expired, the only available
means for an appellant to withdraw his guilty plea is through habeas corpus
proceedings.”). Although no statute sets forth the procedures by which a motion to
withdraw a guilty plea may be entertained by the trial court after a sentence has been
pronounced,2 it is well settled that 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
omitted.) Lay v. State, 289 Ga. 210, 212 (2) (710 SE2d 141) (2011). McKiernan v.
State, 286 Ga. 756, 757 (692 SE2d 340) (2010); Davis v. State, 274 Ga. 865 (561
2
Withdrawal of a guilty plea before judgment is governed by OCGA § 17-7-93
(b), which gives a defendant an absolute right to withdraw his or her plea any time
before judgment is “pronounced.” As used in this code section, our Supreme Court
has held that “pronounced” means “orally announced.” State v. Germany, 246 Ga.
455, 455 (1) (271 SE2d 851) (1980).
2
SE2d 119) (2002). “This is a judicially created rule, which evolved from the
established common law tenet that a court cannot set aside or alter a judgment after
the expiration of the term at which it was entered, unless the proceeding for that
purpose was begun during the original term.” (Citations omitted.) McKiernan, 286
Ga. at 757.
Ordinarily, the term of court is readily determined. But here, the guilty plea was
entered, and sentence was orally announced, reduced to writing and signed by the
trial court on May 9, 2013, which was within the March term of court. OCGA § 15-6-
3 (15). The May term of court began the following Monday on May 13, 2013,3 and
the final disposition and sentence were stamped filed by the clerk three days later on
May 16, 2013. Allen then filed his motion to withdraw on June 7, 2013, which was
also within the May term.
“An oral declaration as to what the sentence shall be is not the sentence of the
court; the sentence signed by the judge is.” Curry v. State, 248 Ga. 183, 185 (4) (281
SE2d 604) (1981). This is because “[w]hat the judge orally declares is no judgment
until it has been put into writing and entered as such.” (Citations and punctuation
3
Pursuant to OCGA § 15-6-3 (15) the terms of the Dougherty County Superior
Court commence the second Monday in January, March, May, July, September and
November.
3
omitted.) Bradshaw v. State, 163 Ga. App. 819, 820 (2) (296 SE2d 119) (1982). See
also OCGA § 5-6-31 (“[t]he filing with the clerk of a judgment, signed by the judge,
constitutes the entry of a judgment within the meaning of this article”); Sharp v. State,
183 Ga. 641, 642 (360 SE2d 50) (1987) (same). Thus, when the trial court orally
pronounced sentence in one term, but the sentence was not signed and filed until the
next term, as was the case here, the motion to withdraw was timely filed within the
term in which the sentence was entered, that is, filed by the clerk. See Young v. State,
328 Ga. App. 91, 92-93 (761 SE2d 504) (2014) (although the sentence was orally
announced in the prior term, defendant’s “motion to withdraw his guilty plea was
timely in that it was filed during the same term of court that the sentence was
entered”).
2. We now turn to the merits of Allen’s appeal. “After sentencing, the decision
on a motion to withdraw a guilty plea is within the trial court’s discretion and
withdrawal of the plea is allowed only when necessary to correct a manifest injustice.
Walden v. State, 291 Ga. 260[, 261] (1) (728 SE2d 186) (2012); Uniform Superior
Court Rule (USCR) 33.12. Wright v. State, 292 Ga. 825, 826 (1) (742 SE2d 468)
(2013).” Phelps v. State, 293 Ga. 873, 876 (2) (750 SE2d 340) (2013). “The test for
manifest injustice will by necessity vary from case to case, but it has been said that
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withdrawal is necessary to correct a manifest injustice 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 omitted.) Williams
v. State, 318 Ga. App. 744, 745 (734 SE2d 745) (2012). “The trial court is the final
arbiter of all factual issues raised by the evidence, and its refusal to allow a
withdrawal will not be disturbed absent a manifest abuse of discretion.” Green v.
State, 324 Ga. App. 133, 133-134 (749 SE2d 419) (2013).
The crux of Allen’s argument is that he was not competent to enter his pleas
and thus it was not entered knowingly or voluntarily with an appreciation of the
consequences of entering his plea. As to this issue, the record shows that at the time
of the guilty plea hearing, the trial court had been made aware of Allen’s mental
health and substance abuse history, and it was placed on the record that Allen had
been diagnosed with schizophrenia and anti-social personality disorder and that he
was being given medication at the jail to control his conditions. The record further
shows that Allen had undergone a mental health evaluation, and he had been deemed
competent to stand trial. Morrow v. State, 266 Ga. 3 (463 SE2d 472) (1995) (“the
standard of competency for pleading guilty is the same as the competency standard
for standing trial”). Additionally, the trial court questioned Allen at the guilty plea
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hearing to determine if he was oriented as to time, place, and person, and Allen gave
appropriate responses to the trial court’s questions. The trial court also questioned
Allen to determine if he understood the nature of the charges against him and the
mandatory nature of his sentence, whether he was satisfied with the services of his
attorney, and the rights he was waiving. The court also advised him of his post-plea
appeal rights, including his right to a court-appointed lawyer under certain
circumstances, and determined that a factual basis existed for the plea.
At the hearing on the motion to withdraw, the trial court reviewed the steps it
took to ascertain Allen’s competency prior to accepting his guilty plea and made a
finding that he would not have accepted Allen’s guilty pleas “if [he] had had any
hint” that he did not believe Allen was competent at the time he entered his pleas. The
trial court also noted, as it did at the guilty plea hearing, that he followed the State’s
recommendation and sentenced Allen to the minimum amount of prison time and
noted that he took Allen’s mental health issues into account in imposing that
sentence. Other than the fact that he had a history of mental illness and was taking
psychotropic drugs to control his illness at the time he entered his guilty plea, Allen
points to nothing to indicate that was not competent at the time he entered his guilty
plea. Accordingly, we discern no abuse of discretion in the trial court’s denial of the
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motion on this basis. Phelps, 293 Ga. at 878 (2) (b). See also Jones v. State, 325 Ga.
App. 845, 847 (2) (755 SE2d 238) (2014); Williams, 318 Ga. App. at 749.
Judgment affirmed. Barnes, P. J., and Ray, J., concur.
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