Durham v. the State , 329 Ga. App. 312 ( 2014 )

FOURTH DIVISION
DOYLE, P. J.,
MILLER and DILLARD, 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/
October 20, 2014
In the Court of Appeals of Georgia
A14A0916. DURHAM v. THE STATE. DO-034 C
DOYLE, Presiding Judge.
Travis Tyrone Durham pleaded guilty to trafficking in cocaine and possession
of cocaine with intent to distribute. Fifteen days later, Durham, acting pro se, moved
to withdraw his guilty plea, arguing that his guilty plea was involuntary and
requesting legal representation and a hearing on his motion. Durham later filed two
amended motions to withdraw his guilty plea, asserting additional grounds.
Thereafter, the trial court denied his motions without a hearing, without appointing
Durham counsel, without informing him of his right to counsel, and without obtaining
a valid waiver of Durham’s right to counsel during the proceeding on the motion to
withdraw his guilty plea.
1. Durham now appeals, contending that he was denied his Sixth Amendment
right to counsel during the proceedings on his motion to withdraw his guilty plea. As
the State concedes, this case is controlled by Fortson v. State,1 which
held that a proceeding to withdraw a guilty plea is a critical stage of a
criminal prosecution, and “the right to counsel attaches when a
defendant seeks to withdraw a guilty plea, thus entitling that defendant
to assistance of counsel.” Thus, the Court reasoned, the trial court must
inform the defendant of the right to counsel and ascertain whether that
right has been waived. [Absent a valid waiver, the defendant is entitled
to legal counsel.] The Court in Fortson also rejected application of the
harmless error analysis, being “instead persuaded by those majority of
cases holding that reversal and remand is the appropriate remedy for
violations of this constitutional right.”2
In light of Durham’s unheeded request for counsel and a hearing, “we reverse
and remand this case to the trial court for a [hearing] on [Durham’s] motion to
withdraw his guilty plea to be conducted in conformity with [Fortson].”3
1
272 Ga. 457 (532 SE2d 102) (2000).
2
Kennedy v. State, 267 Ga. App. 314, 314-315 (599 SE2d 290) (2004), quoting
Fortson, 272 Ga. at 460 (1) & 461 (2). See also dissenting opinion in Fortson, 272
Ga. at 462, finding no merit in the substance of Fortson’s motion to withdraw his
guilty plea.
3
Fortson, 272 Ga. at 461 (2).
2
2. Durham’s remaining enumerations of error are moot in light of our holding
in Division 1.4
Judgment reversed and case remanded. Miller and Dillard, JJ., concur.
4
See Ford v. State, 312 Ga. App. 80, 81 (2) (717 SE2d 676) (2011).
3