Alexander v. State

• Decision Date: 15 July 2014
• Docket Number: No. A14A0190.,A14A0190.
• Parties: ALEXANDER v. The STATE.
• Court: Georgia Court of Appeals

328 Ga.App. 300

761 S.E.2d 844

ALEXANDER

v.The STATE.

No. A14A0190.

Court of Appeals of Georgia.

July 15, 2014.

Kenneth D. Kondritzer, for Appellant.

Paul L. Howard Jr., Lenny I. Krick, for Appellee.

BRANCH, Judge.

Calvin Alexander brings this appeal from the denial of his timely-filed motion to withdraw his guilty plea. In his sole enumeration of error, Alexander argues that his lawyer's failure to advise him, prior to the entry of his guilty plea, that he would be ineligible for parole constituted ineffective assistance and entitles him to withdraw that plea. Pursuant to the Georgia Supreme Court's decision in Williams v. Duffy, 270 Ga. 580, 581(1), 513 S.E.2d 212 (1999), we find that Alexander's counsel was effective, as a matter of law. Accordingly, for reasons explained more fully below, we affirm the order of the trial court.

The record shows that on March 14, 2011, Alexander entered a non-negotiated Alford plea ¹ in Fulton County Superior Court under which he pled guilty to three counts of aggravated child molestation,² two counts of statutory rape,³ three counts of child molestation,⁴ and two counts of enticing a child for indecent purposes.⁵ At the plea hearing, Alexander stated that he was entering the plea because he believed doing so was in his best interest; that he understood he was entering a non-negotiated guilty plea with the sentence to be decided by the judge; that he had been advised of the maximum and minimum sentence he could receive for each charge; and that he understood that the State was asking for a sentence of 30 years, but that the judge did not have to honor that request.

The State had previously filed notice that it was seeking to have Alexander sentenced as a recidivist pursuant to OCGA § 17–10–7(a), and at the plea hearing the State introduced evidence of Alexander's two prior felony convictions.⁶ Following the introduction of this evidence, Alexander's attorney acknowledged that under OCGA § 17–10–7 the trial court had no option but to sentence Alexander to the statutory maximum of thirty years on each count of aggravated child molestation, but asked that the court require only ten years of the sentence be served in incarceration ⁷ and that sentences on all counts be imposed to run concurrently. The trial court then sentenced Alexander to 30 years on each of the aggravated child molestation charges with 15 years to be served in incarceration and the balance on probation; 15 years to serve on each of the statutory rape charges; and 15 years to serve on each of the child molestation charges, with all sentences to run concurrently.⁸

After being sentenced, Alexander filed a motion to withdraw his guilty plea on the grounds that it had resulted from ineffective assistance of counsel, due to trial counsel's failure to advise him that such a plea would render him ineligible for parole.⁹ The motion was heard by the same judge who presided at Alexander's plea hearing and imposed his sentence. As Alexander's lawyer's statements at the plea hearing made clear, he was aware that Alexander was being sentenced under the recidivist statute and that Alexander would therefore be required to serve in incarceration whatever portion of the sentence the trial judge did not suspend or probate. At the motion hearing, however, the lawyer testified he did not have any recollection of having discussed with his client the fact that his client would not be eligible for parole if he pled guilty.¹⁰ Trial counsel also testified that Alexander had rejected an initial plea offer by the State and had elected to proceed to trial. After witnessing general voir dire of the jury panel, however, Alexander told his attorney that he wanted to enter a guilty plea. Trial counsel then discussed with Alexander the fact that they did not know what sentence the judge would impose, but that he suspected it would be a longer sentence than that proposed by the State in its initial plea offer. ¹¹

Alexander also testified at the motion hearing and stated that he would not have entered a guilty plea had he known that he would be ineligible for parole. Alexander further testified, however, that he decided to plead guilty because he had doubts about whether his lawyer was prepared for trial and because the trial judge told him that if a jury found him guilty, she would sentence him to 60 years.

At the close of the hearing, the trial court denied Alexander's motion to withdraw his guilty plea, and it subsequently entered a written order to that effect, finding that Alexander's plea “was knowingly, voluntarily, and intelligently entered with the competent advice of counsel.” Alexander then filed this appeal.

Once a defendant has been sentenced he will be allowed to withdraw a guilty plea only where he “establishes that such withdrawal is necessary to correct a manifest injustice” e.g., that the plea resulted from ineffective assistance of counsel or that it was not entered voluntarily and knowingly. Green v. State, 324 Ga.App. 133, 749 S.E.2d 419 (2013) (citations and punctuation omitted). In determining whether such a manifest injustice occurred “the trial court is the final arbiter of all factual issues raised by the evidence” and its decision on whether to allow the withdrawal of a guilty plea will not be disturbed absent a manifest abuse of discretion. Bailey v. State, 313 Ga.App. 824, 825, 723 S.E.2d 55 (2012) (citation and punctuation omitted). Where, as here, a defendant asserts that his guilty plea is invalid because it resulted from ineffective assistance of counsel, the trial court was required to apply the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687(III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), under which a defendant must prove both that his trial counsel performed deficiently and that he suffered prejudice as a result of that performance. Id. A defendant's ineffective assistance claim will fail where he cannot meet his burden of proof as to either prong of the Strickland test and under such circumstances we need not examine the other prong.¹²Hargrove v. State, 291 Ga. 879, 881(2), 734 S.E.2d 34 (2012).

We begin with the issue of whether Alexander's trial counsel performed deficiently in advising Alexander with respect to his guilty plea. “To prove that the performance of his lawyer was deficient, [Alexander] must show that the lawyer performed his duties ... in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms.” Washington v. State, 294 Ga. 560, 564–565(3), 755 S.E.2d 160 (2014), citing Strickland, 466 U.S. at 687–688(III)(A), 104 S.Ct. 2052. The State argues that we must affirm the trial court's order because, as a matter of law, the collateral consequences doctrine prevents Alexander from proving the deficient performance prong of Strickland. Alexander, however, argues that the collateral consequences doctrine applies only where a defendant's motion to withdraw his guilty plea is based on a claim that the plea was neither knowing nor voluntary, and that it cannot apply where such a motion is based on a claim of ineffective assistance of counsel.

The collateral consequences doctrine stems from the rule that “[a]s a matter of constitutional due process, before a defendant pleads guilty, the trial court must advise him of the ‘direct’ consequences of entering the plea, but not of all the potential ‘collateral’ consequences, in order for the guilty plea to be considered knowing and voluntary.” Smith v. State, 287 Ga. 391, 394(2)(a), 697 S.E.2d 177 (2010), citing Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). “Direct consequences may be described as those within the sentencing authority of the trial court, as opposed to the many other consequences to a defendant that may result from a criminal conviction.” Smith, 287 Ga. at 394(2)(a), 697 S.E.2d 177 (citations omitted). Consequences over which the trial court has no control are considered collateral consequences. Id. The Georgia Supreme Court has previously held that ineligibility for parole represents a collateral consequence of a guilty plea as “eligibility or ineligibility for parole is not a ‘consequence’ of a plea of guilty, but a matter of legislative grace or a consequence of the withholding of legislative grace” and therefore has “only a collateral effect” on a defendant's sentence. Williams, 270 Ga. at 581(1), 513 S.E.2d 212 (noting that parole ineligibility “in no way lengthen [s] the sentence itself, but condition[s] satisfaction of that sentence upon [a defendant's] incarceration for the designated ... period” specified in the sentence of the court) (citations omitted).

As the foregoing demonstrates, the collateral consequences doctrine was originally formulated for application in those cases where a defendant seeks to withdraw his guilty plea based on an alleged violation of his Fifth Amendment right to due process, i.e., where the defendant's motion to withdraw his guilty plea is based on a claim that the plea was neither knowing nor voluntary. See Smith, 287 Ga. at 394(2)(a), 697 S.E.2d 177. Despite its origins, however, both the Georgia Supreme Court and this Court have applied the doctrine in cases where a defendant was seeking to withdraw his guilty plea based on an alleged violation of his Sixth Amendment right to effective assistance of counsel. See Williams, 270 Ga. at 582(1), 513 S.E.2d 212 (holding that trial counsel's failure to inform a defendant entering a negotiated guilty plea that he would be ineligible for parole “does not constitute ineffective assistance of counsel,” because parole ineligibility was “a collateral consequence of the negotiated sentence”); Toro v. State, 319 Ga.App. 39, 46(3)(c), 735 S.E.2d 80 (2012) (same); Hall v. State, 313 Ga.App. 670, 673(2), 722 S.E.2d 392 (2012) (same). It is these cases on which the State relies to support its argument that Alexander cannot prove the...