NGO v. the STATE. , 811 S.E.2d 440 ( 2018 )

THIRD DIVISION
ELLINGTON, P. J.,
ANDREWS and RICKMAN, 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
February 21, 2018
In the Court of Appeals of Georgia
A17A1846. NGO v. THE STATE.
ELLINGTON, Presiding Judge.
Phu Sy Ngo pleaded guilty to one count of burglary in the Superior Court of
Gwinnett County. He then filed, within the same term of court, a pro se motion to
withdraw his guilty plea. During the motion hearing, Ngo asked that counsel be
appointed to assist him with his motion to withdraw. The trial court denied Ngo’s
request for appointment of counsel and then denied his motion to withdraw the guilty
plea. On appeal, Ngo claims that the trial court erred in failing to either provide
counsel to assist in his motion to withdraw his plea or to inquire as to whether he had
waived his right to counsel. We agree and reverse and remand with direction.
If filed within the same term of court, the Sixth Amendment’s “right to counsel
attaches when a defendant seeks to withdraw a guilty plea, thus entitling that
defendant to assistance of counsel.” Fortson v. State, 272 Ga. 457 (1) (532 SE2d 102)
(2000). See Barnes v. State, 293 Ga. 365 (744 SE2d 795) (2013) (“[T]he Sixth
Amendment right to counsel attaches to the preparation and presentation of a motion
to withdraw a guilty plea filed within the same term of court in which a criminal
conviction is rendered[.]”) (citation omitted). Thus, the trial court has an obligation
to provide counsel or to obtain a constitutionally valid waiver of counsel from a
defendant who seeks to withdraw his guilty plea. See Fortson v. State, 272 Ga. at
458-460 (1). Rather than doing so in this case, the trial court denied Ngo’s express
request for assistance of counsel in pursuing his motion to withdraw.
The State acknowledges that the trial court erred in denying Ngo’s request for
assistance of counsel, but it argues that the error was constitutionally harmless. The
application of the harmless error doctrine, however, is inappropriate where the
defendant asserts that his guilty plea was not knowingly and voluntarily entered. See
Fortson v. State, 272 Ga. at 460 (2); Platt v. State, 342 Ga. App. 664, 667 (1) (805
SE2d 112) (2017). Here, Ngo asserted in his motion to withdraw that, among other
things, his guilty plea was not knowingly and voluntarily entered, and so the absence
of counsel in this case is deemed prejudicial. See Fortson v. State, 272 Ga. at 460 (2).
Accordingly,
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because [Ngo] was not appointed counsel for his motion to withdraw his
plea, the record does not reveal that the court informed him of his right
to counsel, and no waiver of counsel appears in the record, we reverse
and remand this case to the trial court for a re-hearing on [Ngo’s] motion
to withdraw his guilty plea to be conducted in conformity with this
opinion.
(Citations and punctuation omitted.) Douglas v. State, 317 Ga. App. 425, 426 (1) (731
SE2d 109) (2012). See Owens v. State, 335 Ga. App. 537, 538 (1) (782 SE2d 321)
(2016); Walker v. State, 332 Ga. App. 256, 257 (1) (771 SE2d 905) (2015).
Judgment reversed and case remanded with direction. Andrews and Rickman,
JJ., concur.
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