Bielen v. State
| Decision Date | 12 February 2004 |
| Docket Number | No. A03A2551.,A03A2551. |
| Citation | 595 S.E.2d 543,265 Ga. App. 865 |
| Parties | BIELEN v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Morton M. Wiggins III, for appellant.
Kenneth W. Mauldin, District Attorney, Anna W. Davis, Assistant District Attorney, Athens, for appellee.
Robert Bielen was indicted for terroristic threats, family violence battery, aggravated assault, cruelty to children, and six counts of simple battery. Pursuant to a negotiated plea agreement, Bielen pled guilty to terroristic threats and family violence battery, and the state dropped the other charges. The trial court accepted the negotiated sentencing recommendation and ordered Bielen to serve concurrent sentences of twelve months in confinement for the family violence offense and three years in confinement followed by one year on probation for the terroristic threats offense. More than four months after pleading guilty, Bielen moved to withdraw his plea on the ground that his attorney had been ineffective. The trial court denied the motion. Bielen appeals, claiming that the trial court erred in failing to find that he received ineffective assistance of counsel. The claim is without merit, so we affirm the trial court's refusal to allow a withdrawal of the guilty plea.
1. Bielen contends that he should be allowed to withdraw his guilty plea because his trial counsel was ineffective in advising him to plead guilty to terroristic threats after the trial court failed to determine that there was a factual basis for the plea as required by Uniform Superior Court Rule 33.9. Contrary to Bielen's contention, his attorney was not ineffective and the trial court did not err in denying his motion to withdraw his guilty plea.
USCR 33.9 does require a trial court to determine that there is a factual basis for a guilty plea.1 The rule provides: "Notwithstanding the acceptance of a plea of guilty, the judgment should not be entered upon such plea without such inquiry on the record as may satisfy the judge that there is a factual basis for the plea."2 A trial court may glean the factual basis for a plea from facts put on the record at the guilty plea hearing, or the court may learn the factual basis from parts of the record outside the plea hearing so long as the court makes clear on the plea hearing record that it is relying on those other parts of the record and so long as those parts are included in the record for appeal.3
At the plea hearing in the instant case, the trial court made no mention of any part of the record outside the hearing, so we must presume that the court relied only on the facts established at the plea hearing. At the hearing, Bielen admitted to the court that he had threatened to commit bodily harm against the victim. But that admission was the only evidence concerning the terroristic threats charge. There was no statement of exactly what the threats were, nor was there an explanation of the precise circumstances surrounding how, when, where, and why the threats were made.
Given the facts presented at the plea hearing, we agree with the state's concession in its appellate brief that it failed to clearly establish the factual basis for Bielen's guilty plea to terroristic threats. The crime of terroristic threats requires not only that a person threatens to commit a crime of violence, but also that the threat be made for the purpose of terrorizing another person.4 The court here, based on Bielen's admission, was authorized to find as fact that Bielen threatened the victim with bodily harm. But absent some direct or circumstantial evidence as to the purpose of such threats, there is no factual basis from which the court could have satisfied itself that Bielen's purpose was to terrorize the victim.5
Nevertheless, a violation of USCR 33.9 does not necessarily mandate the grant of a motion to withdraw a guilty plea.6 Under USCR 33.12, after sentence is imposed, a guilty plea may be withdrawn only to correct a manifest injustice.7 The Supreme Court of Georgia has held that there is no manifest injustice where, despite a violation of USCR 33.9, there is evidence in the record establishing a factual basis for the crime in question.8 Even though such evidence may not be relied on to conclude that the trial court made a subjective finding as to the factual basis, an appellate court is free to rely on it in concluding that withdrawal of a guilty plea is not necessary to correct a manifest injustice.9
The record in the instant case contains evidence outside the plea hearing which establishes a factual basis for the crime of terroristic threats. That evidence is the victim's testimony given at a bond reduction hearing held several months prior to the plea hearing and held before the same judge who presided over the plea hearing. At that bond hearing the victim, who had been married to Bielen, testified that he accused her of cheating on him, hit her with his fist and with a baseball bat, kicked her, and choked her. He threatened her with a knife and also threatened her life. He pointed a gun at her head and said that before he would let anyone keep his children away from him, he would kill her, kill the children, and then kill himself. Because the victim's testimony provides a factual basis for the crime of terroristic threats, the USCR 33.9 violation does not rise to the level of a manifest injustice requiring a withdrawal of the guilty plea.10
Likewise, Bielen cannot show that his trial counsel was ineffective in failing to object to an error by the trial court that itself was not a manifest injustice. To prevail on a claim of ineffective assistance of counsel, Bielen must show both that his attorney's performance was deficient and that but for the attorney's unprofessional errors there is a reasonable probability the result of the plea hearing would have been different.11 Bielen claims that his attorney was deficient in failing to challenge the USCR 33.9 violation and that the deficiency harmed him because he would not have pled guilty to the charge had he known of the violation. However, even if Bielen's counsel was deficient in not objecting to the lack of a factual basis for terroristic threats, the trial court was authorized to find that such a deficiency did not affect the outcome of the guilty plea hearing.
The question of whether to permit a guilty plea withdrawal rests in the sound discretion of the trial court and will not be disturbed absent a manifest abuse of that discretion, and any questions of credibility are for the trial court's determination.12 At Bielen's plea withdrawal hearing, the trial court, as the finder of facts, was not obligated to accept as true any claim by Bielen that he would not have pled guilty had his lawyer raised the USCR 33.9 violation. Rather, the court could have found that such a claim by Bielen is not credible, and could have instead relied on other evidence to conclude that Bielen knew what he was pleading guilty to and would not have changed his plea based solely on a USCR 33.9 violation.
Bielen himself testified at the plea withdrawal hearing that before his plea he had read the...
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State v. Vincent, 23,832.
...and he presided over Defendant's arraignment, where he had a copy of the affidavit for arrest warrant. See Bielen v. State, 265 Ga.App. 865, 595 S.E.2d 543, 545 (2004) (stating that despite a failure to establish a factual basis for a guilty plea as required by rule, there is no manifest in......
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Bailey v. State
...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 deficien......
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...264 Ga. 53, 56(3), 440 S.E.2d 646 (1994). 10. Burdette v. State, 276 Ga.App. 695, 700(3), 624 S.E.2d 253 (2005). 11. Bielen v. State, 265 Ga.App. 865, 868(1), 595 S.E.2d 543 (2004). 12. Adams v. State, 285 Ga. 744, 747-749(4)(b), 683 S.E.2d 586 (2009). 13. Moore's citation to Collum v. Stat......
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...Ga. 840, 841(2), 684 S.E.2d 594 (2009). 12.Hill v. State, 291 Ga. 160, 164(4), 728 S.E.2d 225 (2012). See also Bielen v. State, 265 Ga.App. 865, 869(2), 595 S.E.2d 543 (2004) (trial court weighs the evidence, judges witness credibility, and makes determinations about conflicts in the ...