Manues v. State , 232 Ga. App. 454 ( 1998 )

501 S.E.2d 826 (1998) 232 Ga. App. 454

MANUES
v.
The STATE.

No. A98A0490.

Court of Appeals of Georgia.

April 7, 1998. Reconsideration Denied May 5, 1998.

David M. Rosenberg, Blue Ridge, for appellant.

Roger Queen, District Attorney, for appellee.

POPE, Presiding Judge.

Along with several co-defendants, Thomas Manues was charged with conspiring to possess methcathinone with intent to distribute; conspiring to traffick in methamphetamine; conspiring to possess methamphetamine with intent to distribute; theft by receiving a stolen firearm; possession of methcathinone; giving a false name; driving without a license; possession of a firearm by a convicted felon; and being a recidivist. In exchange for the State's agreement to drop the recidivist count and the charges of conspiracy to traffick in methamphetamine and to possess methamphetamine with intent to distribute, Manues pled guilty to the remaining charges. The court sentenced Manues to a total of 20 years in prison and a $10,000 fine but agreed to consider reducing that sentence following a post-sentence investigation. Before the hearing on the post-sentence investigation, Manues moved to withdraw his guilty plea. The trial court denied the motion, and we affirm its judgment.

First, we note that Manues did not move to withdraw his plea until after the trial court pronounced his sentence. Therefore, he had no right to withdraw the plea pursuant to OCGA § 17-7-93(b) even though he tried to do so before the court addressed his request to reduce the sentence. See Giddeons v. State, 156 Ga.App. 800, 801, 275 S.E.2d 370 (1980). Therefore, we must determine whether the trial court properly found that the State met its burden of showing, by the record, that Manues entered his plea freely and voluntarily with an understanding of the nature of the charges against him and an understanding of the consequences of his plea. King v. State, 226 Ga.App. 576, 579-580(1), 486 S.E.2d 904 (1997). The trial court's decision will be upheld absent an abuse of discretion. Moore v. State, 225 Ga.App. 860, 861(1), 485 S.E.2d 552 (1997).

The record establishes that the trial court complied with Uniform Superior Court Rules 33.8, 33.9, and 33.11 when it accepted the plea. Manues filled out a "Petition to Enter Plea of Guilty," attached as an appendix to this opinion, in which he swore that he was 44 years old and had an eleventh grade education, could read and write, was not under the influence of any drugs or alcohol, had reviewed his indictment, discussed the case with his attorney, was satisfied with his attorney, understood each of his enumerated constitutional rights, understood the maximum sentence, and understood that he was entering a negotiated plea but that the court could reject that plea agreement. He stated that he was in fact a party to the crimes of possession with intent to distribute unlawful drugs, theft by receiving a firearm, and possessing a firearm after having been convicted of a felony. He also admitted driving a vehicle without a license and having another person's driver's license. He averred that he desired to plead guilty, and that he did so freely and voluntarily. On this same form, his attorney verified that she had explained to Manues each of his rights and knew of no reason the court should not accept the guilty plea. Finally, the court determined on this form that the plea was freely and voluntarily made. At the plea hearing, the prosecutor explained the charges and the plea agreement. Manues signed his petition to enter the guilty plea in open court, and the trial judge went over the document with him. Again, on the record, the court made the determination that the plea was properly entered. The record supports the trial court's finding that Manues entered the plea knowingly and voluntarily. See Moore, 225 Ga. App. at 861-862, 485 S.E.2d 552.

At the hearing on his motion to withdraw the plea, Manues changed his prior sworn statement and testified that he did not commit any crimes, that he was very tired when he entered the plea, and that he did so only because he hoped to get a lesser sentence. These contentions do not require a different result. First, the hope of a lesser sentence is not the type of coercion that prevents the voluntary entry of a guilty plea. See Moore, 225 Ga.App. at 862, 485 S.E.2d 552. Second, given Manues' first sworn statements at the plea hearing, his later contradictory testimony presented a question of credibility which the trial judge was entitled to resolve against him. See Neal v. State, 216 Ga.App. 223, 224, 453 S.E.2d 807 (1995); Galbreath v. State, 130 Ga.App. 179, 180, 202 S.E.2d 562 (1973).

Judgment affirmed.

BEASLEY and RUFFIN, JJ., concur.

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