LaFette v. State , 285 Ga. App. 516 ( 2007 )

646 S.E.2d 725 (2007)

LaFETTE
v.
The STATE.

No. A07A0732.

Court of Appeals of Georgia.

May 23, 2007.

Jovan D. LaFette, pro se.

Gwendolyn Keyes Fleming, Dist. Atty., Barbara Blaine Conroy, Asst. Dist. Atty., for Appellee.

RUFFIN, Judge.

On August 24, 2006, Jovan D. LaFette entered a negotiated guilty plea to voluntary manslaughter and possession of a firearm by a convicted felon. He was sentenced by the trial court to serve a total of fifteen years in prison. On September 8, 2006, LaFette moved to withdraw his guilty plea, but the trial court dismissed the motion, concluding that it was not timely filed. Thereafter, LaFette filed a "Motion for Direct Appeal of Verdict by Guilty Plea" on September 13, 2006. On September 23, 2006, the trial court entered an order directing the clerk of court to treat the motion as a timely notice of appeal. LaFette appeals, alleging 21 enumerations of error. For reasons that follow, we affirm portions of LaFette's appeal and dismiss the remainder.

1. To the extent LaFette's appeal can be construed as a challenge to the trial court's dismissal of his motion to withdraw his plea, we find no error. LaFette's motion to withdraw his guilty plea was filed after the term of court in which sentence was imposed.^[1] "The superior court's jurisdiction to entertain a motion to withdraw a guilty plea ends after the term of court in which the judgment of conviction was rendered."^[2] And "it is well established that after the expiration of the term and of the time for filing an appeal from the conviction, the only remedy available to the defendant for withdrawing a plea is through habeas corpus proceedings."^[3] Accordingly, the trial court properly dismissed LaFette's motion to withdraw his plea.^[4]

2. We must also address the issues raised in LaFette's direct appeal. Specifically, he argues that he was denied effective assistance of counsel and that his plea was not voluntary or proper. A defendant may challenge a judgment entered on a guilty plea in a timely filed direct appeal "where the question on appeal is one which may be resolved by facts appearing in the record."^[5] Thus, we address the merits of LaFette's appeal "if, and only if, the questions that he seeks to raise on appeal may be resolved by facts appearing in the record, including the transcript of his guilty plea hearing."^[6]

(a) LaFette challenges his guilty plea in several respects. First, he alleges that he received ineffective of assistance of counsel and that his plea was involuntary. Because there was no post-plea hearing and the only evidence in the record is the plea transcript, LaFette may not pursue a direct appeal of his guilty plea on these bases.^[7] Accordingly, this portion of LaFette's appeal is dismissed.^[8]

(b) LaFette also contends that the trial court followed an improper procedure in accepting his plea. Specifically, he asserts that the trial court failed to personally advise him: (1) that the sentencing recommendations of the State were not binding on the court; and (2) of the maximum possible sentence for the charges. Here, the record shows that before the trial court accepted the plea, the State clearly advised LaFette of the maximum possible sentence and told him that the recommendations of the State were not binding and LaFette indicated that he understood. Thereafter, the trial court asked LaFette if he "heard and understood the questions asked by the district attorney," and LaFette responded affirmatively and stated that he had no questions. Under these circumstances, this enumeration presents no basis for reversal.^[9]

LaFette also argues that the trial court erred in "finding [a] factual basis [for] . . . accept[ing]" the plea and that his Alford^[10] plea was unconstitutional. We disagree. Clearly, "a plea under Alford does not violate constitutional protections."^[11] And the State advised the trial court that if the case proceeded to trial, he expected the evidence to show that LaFette confronted the victim about a previous burglary at LaFette's apartment and, during the argument, LaFette fatally shot him with a Glock nine millimeter handgun. According to the State's proffer, the shell casings recovered from the scene were consistent with a Glock nine millimeter handgun, as was a bullet recovered from the victim's body. Before accepting LaFette's plea, the trial court specifically stated that he found a factual basis for the plea. Accordingly, LaFette's contention that the trial court failed to find a factual basis for his plea is without merit.^[12]

3. Finally, in multiple enumerations of error, LaFette challenges the trial court's decisions — announced before LaFette pled guilty — to admit similar transaction evidence and to deny him a continuance. He also contends that it was improper for the State's witness who identified him to see LaFette during the suppression hearing.^[13] But LaFette waived his right to assert these arguments on appeal by pleading guilty.^[14] Thus, this argument presents no basis for reversal.

Judgment affirmed in part and appeal dismissed in part.

BLACKBURN, P.J., and BERNES, J., concur.

NOTES

[1] See OCGA § 15-6-3(37).

[2] (Punctuation omitted.) Harris v. State, 269 Ga. App. 92, 93(2), 603 S.E.2d 490 (2004).

[3] (Punctuation omitted; emphasis in original.) Foskey v. State, 232 Ga.App. 303, 501 S.E.2d 856 (1998).

[4] See Fox v. State, 241 Ga.App. 399, 527 S.E.2d 216 (1999).

[5] (Punctuation omitted.) Caine v. State, 266 Ga. 421, 467 S.E.2d 570 (1996).

[6] Id.

[7] See id. at 421-422, 467 S.E.2d 570; Thompson v. State, 275 Ga.App. 566, 567(1), 621 S.E.2d 475 (2005); Dorrough v. State, 226 Ga.App. 362, 363(2), 486 S.E.2d 644 (1997).

[8] See Dorrough, supra.

[9] See Uniform Superior Court Rule 33.7 ("If the prosecuting attorney has agreed to seek charge or sentence leniency which must be approved by the judge, the judge must advise the defendant personally that the recommendations of the prosecuting attorney are not binding on the judge."); Wiggins v. State, 245 Ga.App. 527, 528, 538 S.E.2d 180 (2000) ("[T]he question is not whether the trial court followed the letter of [Rule 33,] but whether the record, as a whole, affirmatively shows [the] plea was knowing and voluntary.") (punctuation omitted.).

[10] See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

[11] Wetherington v. Carlisle, 273 Ga. 854, 855, 547 S.E.2d 559 (2001).

[12] See McFadden v. State, 243 Ga.App. 896, 897(1), 534 S.E.2d 566 (2000).

[13] LaFette concedes on appeal that the facts supporting this argument do not appear in the record.

[14] See Hooten v. State, 212 Ga.App. 770(1), 442 S.E.2d 836 (1994) ("a plea of guilty generally waives all defenses or objections, known or unknown, other than an appellate issue of whether the plea was voluntarily made and accepted").