MERRICK v. the STATE. ( 2018 )

SECOND DIVISION
MILLER, P. J.,
ANDREWS, J., and SENIOR APPELLATE JUDGE BEASLEY
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
May 10, 2018
In the Court of Appeals of Georgia
A18A0398. MERRICK v. THE STATE.
BEASLEY, Senior Appellate Judge.
Following Jolisa Joanna Merrick’s January 17, 2017 guilty plea on one count
of family violence battery, the State Court of Clayton County sentenced Merrick to
12 months probation. On April 19, 2017, Merrick filed an “Extraordinary Motion to
Withdraw Guilty Plea,” claiming that she received ineffective assistance of counsel
in that her prior counsel misled her and failed to investigate her case.1 The trial court
1
On February 9, 2017, Merrick, acting pro se, also filed a pleading entitled
“Notice of Appeal with Documentary Evidence and Possible Dismissal Request.”
Although not discussed by the parties on appeal, the trial court construed Merrick’s
pleading as a motion to withdraw her guilty plea and entered a rule nisi on March 2,
2017, setting the motion for a hearing. The record does not show that a hearing
occurred. Nevertheless, Merrick obtained new counsel who filed the extraordinary
motion to withdraw her guilty plea at issue in this appeal. Because the result in this
appeal does not turn upon the manner in which the trial court treated Merrick’s
February 9, 2017 pleading, i.e., as a motion to withdraw a guilty plea or a properly
denied Merrick’s motion because it was filed outside the term of court at which her
guilty plea was entered, and Merrick appeals. Finding no error, we affirm.
In her sole enumeration of error, Merrick contends that the trial court erred in
denying her extraordinary motion for new trial without a hearing. However, because
the trial court lacked jurisdiction to consider Merrick’s motion, we need not consider
her argument.
It is well settled that a trial court does not have jurisdiction to entertain
a motion to withdraw a guilty plea filed after the term of court in which
the defendant was sentenced under the plea. After the term of court has
expired, a defendant’s only means for withdrawing a guilty plea is
through habeas corpus proceedings.
filed notice of appeal, and because Merrick has abandoned the issue by failing to
enumerate it as error on appeal, we need not decide whether the trial court should
have treated Merrick’s pleading as a notice of appeal and timely transmitted the
record to this Court at that time. See Court of Appeals Rule 25 (c) (2); White v. State,
302 Ga. 315, 318-319 (2) (806 SE2d 489) (2017) (pro se motion to withdraw a guilty
plea, filed during same term of court as guilty plea and by defendant who was
represented by counsel during guilty plea, was a nullity); Hernandez-Ramirez v. State,
— Ga. App. — , *2 - *3 (Case No. A18A0037, decided March 23, 2018) (same). See
also Soberanis v. State, — Ga. App. —, *3 - *4 (Case No. A17A1578, decided March
26, 2018) (pro se notice of appeal, filed during same term of court as judgment of
conviction and by defendant who was represented by counsel at trial, was a nullity);
Cornish v. State, 219 Ga. App. 884, 888 (3) (d) (466 SE2d 919) (1996) (issue not
enumerated as error deemed abandoned).
2
(Citations and punctuation omitted.) Ward v. State, 311 Ga. App. 53 (714 SE2d 731)
(2011). See also Wyatt v. State, 297 Ga. 679 (777 SE2d 476) (2015); Hagan v. State,
290 Ga. 353 (720 SE2d 645) (2012); Gholston v. State, 327 Ga. App. 790, 791 (761
SE2d 189) (2014).
In this case, Merrick entered her plea of guilty on January 17, 2017, during the
November 2016 term of court. See OCGA §§ 15-6-3 (10) (terms of court for Clayton
Judicial Circuit commence on the “[f]irst Monday in February, May, August, and
November”) and 15-7-40 (terms of court for state courts are “prescribed by local
laws”); Ga. L. 1980, p. 3890, 3892, § 3 (“The terms of the State Court of Clayton
County shall be held on the same dates now or hereafter provided for holding the
terms of the Superior Court of Clayton County.”); Ga. L. 1964, p. 2032, 2036-2037,
§ 10 (establishing the “Civil and Criminal Court of Clayton County” [later renamed
the “State Court of Clayton County”] and terms of court). It was not until April 19,
2017, during the February 2017 term of court, that Merrick filed her extraordinary
motion to withdraw her guilty plea. It necessarily follows that the trial court lacked
jurisdiction to consider Merrick’s motion and, as a result, properly denied the
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motion.2 See Brooks v. State, 301 Ga. 748, 752 (2) (804 SE2d 1) (2017) (“a trial
court’s mere ‘denial’ of a motion it lacks jurisdiction to decide without more cannot
be assumed to be a decision on the merits, and so its ‘denial’ rather than ‘dismissal’
of an untimely motion does not require vacatur of that order”); Ward, 311 Ga. App.
at 53. Because the term of court in which Merrick’s sentence was entered has expired,
her sole remedy for seeking to withdraw her guilty plea is to file a petition for habeas
corpus. See OCGA § 9-14-40 et seq.; Ward, 311 Ga. App. at 53.
Judgment affirmed. Miller, P. J., and Andrews, J., concur.
2
Notwithstanding the trial court’s lack of jurisdiction, Merrick’s enumeration
fails. “[P]retermitting whether a defendant has a right to a hearing on a motion to
withdraw a guilty plea, [Merrick] never requested that the trial court hold such a
hearing. It is well settled that, even if a defendant has a due process right to a hearing,
that right may be waived by failure to request a hearing.” Isaac v. State, 237 Ga. App.
723, 727-728 (3) (516 SE2d 575) (1999).
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