Hector Jacobo v. State ( 2021 )

FOURTH DIVISION
DILLARD, P. J.,
RICKMAN, P. J., and BROWN, J.
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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
January 19, 2021
In the Court of Appeals of Georgia
A20A2083. JACOBO v. THE STATE.
BROWN, Judge.
Hector Jacobo appeals from the trial court’s order dismissing for lack of
jurisdiction his extraordinary motion to withdraw guilty plea and vacate conviction.
The record shows that in January 2010, Jacobo waived his right to counsel and
pleaded guilty to possessing less than one ounce of marijuana. On May 5, 2020,
Jacobo filed his extraordinary motion to withdraw guilty plea and vacate conviction,
alleging that he was presently jailed and in “removal proceedings,” and that his guilty
plea had contributed greatly to his immigration dilemma. As grounds for his motion,
Jacobo asserted that nothing in the record, including the waiver of counsel form,
indicated that the trial court warned him that he could suffer negative immigration
consequences as a result of his guilty plea, and that, therefore, his Sixth Amendment
right to counsel and his substantive and procedural due process rights under the
Fourteenth Amendment were violated. Concluding that the motion was filed outside
the term of court and that Jacobo had made no contention that his sentence was void,
the trial court dismissed the motion for lack of jurisdiction.
On appeal, Jacobo, who allegedly entered into an agreement for voluntary
departure and is now living in his native Mexico, asserts that this Court should
establish a new standard in situations such as his where it appears the trial court failed
to “follow the rules” when taking his plea.1 He contends that the “‘void’/‘voidable’
distinction in this situation has led to a manifest injustice” and that “[a]rguing that the
conviction in this case is ‘void[,]’ or merely ‘voidable’ is an exercise in sophistry.”
1
These rules are OCGA § 17-7-93 (c), and Uniform Superior Court Rule 33.8
(D) (2). OCGA § 17-7-93 (c) provides that “[i]n addition to any other inquiry by the
court prior to acceptance of a plea of guilty, the court shall determine whether the
defendant is freely entering the plea with an understanding that if he or she is not a
citizen of the United States, then the plea may have an impact on his or her
immigration status.” USCR 33.8 (D) (2) provides that “[t]he judge should not accept
a plea of guilty . . . from a defendant without first . . . [i]nforming the defendant on
the record: . . . that a plea of guilty may have an impact on his or her immigration
status if the defendant is not a citizen of the United States[.]” See Smith v. State, 287
Ga. 391, 403 (3) (697 SE2d 177) (2010) (explaining that pursuant to OCGA § 17-7-
93 (c) and USCR 33.8 (D) (2), formerly USCR 33.8 (C) (2), a trial court is required
to advise all defendants who are not United States citizens and who wish to plead
guilty that the plea may have an impact on their immigration status), overruled on
other grounds, Collier v. State, 307 Ga. 363 (834 SE2d 769) (2019).
2
“[I]t is well settled that when the term of court has expired in which a
defendant was sentenced pursuant to a guilty plea the trial court lacks jurisdiction to
allow the withdrawal of the plea.” (Citation and punctuation omitted.) Perez v. State,
333 Ga. App. 716 (776 SE2d 312) (2015). See also Bankston v. State, 307 Ga. 656,
657 (2) (837 SE2d 788) (2020) (defendant’s motion to withdraw guilty plea properly
dismissed for lack of jurisdiction where term of court in which defendant entered plea
expired decades ago); Smith, 287 Ga. at 403 (3) (while timely motion to withdraw
guilty plea may lead to evidentiary hearing, trial court’s authority to withdraw guilty
plea ends with expiration of the term of court in which the plea was entered). Despite
Jacobo’s claim of manifest injustice because of the trial court’s alleged failure to
inform him of the impact on his immigration status, and his urging that we establish
a new standard, he “has shown no basis to disturb the trial court’s [dismissal] of his
motion to withdraw guilty plea.” Perez, 333 Ga. App. at 717 (1), citing Henderson
v. State, 295 Ga. 333, 336-337 (2) (759 SE2d 827) (2014) (upholding trial court’s
denial of defendant’s motion to withdraw guilty plea, because — despite defendant’s
claim of “manifest injustice in the form of ineffective assistance of counsel” — the
trial court had no jurisdiction to entertain the motion filed after the term of court
during which the defendant had been sentenced), and Dupree v. State, 279 Ga. 613,
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614 (619 SE2d 608) (2005) (rejecting the defendant’s claim that manifest injustice
from ineffective assistance of counsel permitted him to pursue a motion to withdraw
his guilty plea, where the motion was untimely filed). Cf. Smith, 287 Ga. at 402-403
(3) (on direct appeal, a defendant who seeks to show manifest injustice based on a
violation of OCGA § 17-7-93 (c) or USCR 33.8 (D) (2), and who files a timely
motion to withdraw guilty plea after sentencing, may be entitled to an evidentiary
hearing to expand the record to establish three facts relating to the impact on his
immigration status). Given the circumstances here, the trial court correctly dismissed
Jacobo’s motion to withdraw his guilty plea.
Judgment affirmed. Dillard, P. J., and Rickman, P. J., concur.
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