Bailey v. State

• Decision Date: 31 January 2012
• Docket Number: No. A11A2239.,A11A2239.
• Parties: BAILEY v. The STATE.
• Court: Georgia Court of Appeals

12 FCDR 426

313 Ga.App. 824

723 S.E.2d 55

BAILEY

v.The STATE.

No. A11A2239.

Court of Appeals of Georgia.

Jan. 31, 2012.

Kenneth D. Kondritzer, for appellant.

Tracy Graham–Lawson, Dist. Atty., Elizabeth A. Baker, Asst. Dist. Atty., for appellee.

ADAMS, Judge.

A grand jury indicted Antonio Orlando Bailey on two counts of aggravated battery and one count each of aggravated assault, battery, criminal damage to property and obstructing an officer stemming from an April 18, 2010 attack upon Brittany Smith and her mother, Sharon Glover. On November 30, 2010, Bailey entered a negotiated plea of guilty to one count each of aggravated assault, aggravated battery, and battery and was sentenced to fourteen years, with eight years of imprisonment. The remaining charges were dismissed. Bailey filed a timely, pro se motion to withdraw his guilty plea on December 8, 2010, alleging ineffective assistance of counsel. Bailey was assigned new counsel, who represented him at the hearing on his motion to withdraw. The trial court subsequently denied the motion, and Bailey appeals.

“After sentence is pronounced, whether to allow the withdrawal of a guilty plea lies within the trial court's sound discretion, and we review the trial court's decision for manifest abuse of that discretion.” (Citation and footnote omitted.) Weeks v. State, 260 Ga.App. 129, 578 S.E.2d 910 (2003). Moreover, “[o]n a motion to withdraw a guilty plea, the trial court is the final arbiter of all factual issues raised by the evidence.” (Citation and punctuation omitted.) Caudell v. State, 262 Ga.App. 44, 45(1), 584 S.E.2d 649 (2003). Because Bailey based his motion on a claim of ineffective assistance of counsel, the trial court was required to apply the two-prong test set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which asks whether counsel's performance was deficient and, if so, whether this deficiency was prejudicial to the defendant. Although the State generally bears the burden of establishing the validity of a plea on a motion to withdraw, Bailey bears the burden in this case of establishing his claim of ineffective assistance of counsel. Brown v. State, 280 Ga.App. 767, 771(1), 634 S.E.2d 875 (2006) (on motion to withdraw based upon ineffective assistance of counsel, “ defendant bears the burden of showing that, had it not been for his attorney's deficient representation, a reasonable probability exists that he would have insisted on a trial.”). “Defendant carries an even heavier burden on appeal because the trial court's finding on [the issue of ineffective assistance of counsel] will not be disturbed absent a showing of clear error.” (Citation omitted.) McCloud v. State, 240 Ga.App. 335(1), 525 S.E.2d 701 (1999).

Bailey was represented by attorney Kevin Schumaker of the public defender's office when he entered his guilty plea. The trial court reviewed the terms of the negotiated plea with Bailey at that time, and the potential sentences for the charges against him if he chose to go to trial. In response, Bailey initially indicated that he wanted to go forward with a jury trial but later stated that he was unhappy with his attorney's pre-trial preparation. Subsequently, Bailey agreed to the negotiated plea. The trial court then reviewed the facts supporting the charges, which Bailey affirmed, and confirmed that Bailey had discussed the charges and his potential defenses with Schumaker. Bailey also signed a statement detailing the rights he was relinquishing by entering his guilty plea, and the trial court confirmed that Schumaker reviewed the form with Bailey and that Bailey understood it. The court invited any questions or comments from Bailey about the form and/or the plea, but Bailey indicated that he had none.

In his pro se motion to withdraw his guilty plea, however, Bailey asserted that he was forced into taking the plea and did not have the opportunity to review his indictment or prepare for trial with Schumaker. Bailey stated that Schumaker was ineffective in failing to make an adequate investigation of the case or to contact him prior to the day of trial. Bailey asserted the same arguments at the motion hearing, but also testified that the State had made a prior plea offer of a ten-year sentence with three years to serve. Bailey said he learned about this offer in May 2010 from Ken Martin, whom Bailey at first described as an investigator for the public defender's office, but whom he later indicated was the lawyer assigned to him for his commitment hearing. Bailey told Martin that he was not ready to accept the State's offer at that time because he wanted to speak with his “appointed lawyer,” but at that time, no lawyer had yet been assigned to represent him at trial.

Schumaker was later assigned to represent Bailey. Bailey said that Schumaker never responded to his repeated attempts to contact him regarding the May 2010 plea offer. Although Bailey said that he did not see Schumaker until he entered his guilty plea on November 30, 2010, he also acknowledged that he spoke with Schumaker on at least one other occasion, at his October 2010 arraignment, where they discussed the State's plea offer. Bailey said Schumaker “misled” him at that point by indicating that the ten-year sentence offer was still available, even though the prosecutor indicated at the arraignment that the State was now offering a longer sentence. Bailey argued at the motion hearing that he should have been allowed to withdraw his guilty plea based upon his trial counsel's lack of contact, preparedness, and availability to discuss the earlier plea, which he asserted was ineffective assistance of counsel.

After hearing Bailey's testimony and the arguments of counsel, the trial court found that Bailey “was properly advised of his constitutional rights and that [he] freely and voluntarily entered his plea of guilty to these charges.” The court further found “that there was no ineffective assistance of counsel, that counsel announced ready for trial, was prepared to go forward with trial” and that Bailey failed to establish the first prong of an ineffective assistance of counsel claim under Strickland v. Washington. The trial court accordingly denied Bailey's motion to withdraw his plea.

On appeal, Bailey cites only Schumaker's unavailability to discuss the May 2010 plea offer as the basis for his claim of ineffective assistance of counsel. In order to establish his claim of ineffective assistance of counsel

[i]n the context of the plea bargain process, the defendant must demonstrate that, but for counsel's deficient performance, there is a reasonable probability that he would have accepted the State's plea offer. The requisite reasonable probability standard demands a showing that there is some indication that the defendant was amenable to the offer made by the state.

(Citations and punctuation omitted.) Johnson v. State, 289 Ga. 532, 535, 712 S.E.2d 811 (2011). See also Brown v. State, 280 Ga.App. at 771(1), 634 S.E.2d 875.

Here, Bailey made no mention of any prior plea offer at the time he accepted the State's November 2010 offer of fourteen years, with eight to serve. Rather, he represented to the trial court that he had discussed the November 2010 plea offer with his attorney, that he fully understood that offer and that he wanted to accept it. Additionally, Bailey failed to mention the earlier offer in his initial motion to withdraw that plea. In fact, the record reflects that the first time Bailey mentioned such an offer was in his testimony at the hearing on his motion to withdraw. The State apparently had no notice of this claim prior to the hearing and presented no evidence in response.¹ Accordingly, Bailey's testimony is the only evidence of the May 2010 offer. Nevertheless, the trial court was not required to accept as true Bailey's claim that he would not have accepted the November 2010 offer if he had discussed the earlier offer with Schumaker. See Norwood v. State 311 Ga.App. 815, 818, 717 S.E.2d 316 (2011) (issues of credibility on a motion to withdraw a guilty plea are for the trial court to resolve); Bielen v. State, 265 Ga.App. 865, 868(1), 595 S.E.2d 543 (2004) (court not required to accept as true defendant's claim that he would not have pled guilty but for attorney's deficiency); McCloud v. State, 240 Ga.App. at 336(2), 525 S.E.2d 701.

We find no clear error in the trial court's finding that Bailey's testimony was insufficient to establish his claim of...