Branner v. State
Citation | 843 S.E.2d 26,355 Ga.App. 137 |
Decision Date | 07 May 2020 |
Docket Number | A20A0424 |
Parties | BRANNER v. The STATE. |
Court | United States Court of Appeals (Georgia) |
Charlie Branner Jr., pro se.
Clifford Paul Bowden, District Attorney, Robert Alan Rogers, Assistant District Attorney, for Appellee.
Charlie Branner, Jr., contests the denial of his motion to withdraw his guilty plea. For reasons that follow, we vacate the judgment and remand the case with direction to dismiss Branner's motion.
In November 2018, while represented by counsel, Branner entered in the Superior Court of Tift County a negotiated Alford1 plea to three counts of child molestation.2 At the end of Branner's plea hearing, the trial judge orally pronounced sentence. Three days later, on November 16, Branner filed a pro se motion to withdraw his plea. On November 28, 2018, the trial court entered judgment upon Branner's plea,3 convicting him of the three child molestation counts, and imposing an aggregate sentence of thirty years, to serve fourteen in confinement.
The following year, in July 2019, the trial court conducted a hearing on Branner's motion to withdraw his plea. Thereafter, the trial court denied Branner's motion on the merits, and Branner challenges that ruling in this appeal. As more fully explained below, Branner supplied the trial court no viable basis to rule in his favor – his pro se motion amounted to a nullity, and subsequent efforts undertaken were untimely because the trial court had meanwhile lost jurisdiction over the issue.
It is well settled that "[a] criminal defendant in Georgia does not have the right to represent himself and also be represented by an attorney, and pro se filings by represented parties are therefore unauthorized and without effect." Tolbert v. Toole , 296 Ga. 357, 363 (3), 767 S.E.2d 24 (2014). When Branner filed his pro se motion to withdraw his plea, he was still represented by plea counsel. As the Supreme Court of Georgia has recently reaffirmed, "at a minimum, legal representation continues – unless interrupted by entry of an order allowing counsel to withdraw or compliance with the requirements for substitution of counsel, – through the end of the term at which a trial court enters a judgment of conviction and sentence on a guilty plea." (Citation and punctuation omitted.) Dos Santos v. State , 307 Ga. 151, 153 (2), 834 S.E.2d 733 (2019).
The term of court during which Branner was convicted and sentenced ended on March 11, 2019.4 Prior to that date, no order was entered either for plea counsel to withdraw or for substitution of counsel. Consequently, Branner's pro se motion amounted to a legal nullity, presenting the trial court with nothing to decide. See Ricks v. State , 307 Ga. 168, 169, 835 S.E.2d 179 (2019) (); Dos Santos , 307 Ga. at 154 (3), 834 S.E.2d 733 ().
It is also well settled that "a trial court lacks jurisdiction to permit the withdrawal of a guilty plea once the term of court has expired in which the defendant was sentenced." (Citation and punctuation omitted.) Bankston v. State , 307 Ga. 656, 657 (2), 837 S.E.2d 788 (2020). See Colquitt v. State , 307 Ga. 43, 44, 834 S.E.2d 52 (2019) (same); Humphrey v. State , 299 Ga. 197, 198 (1), 787 S.E.2d 169 (2016) ( ). Here, after the expiration of the term of court during which Branner was sentenced, additional pleadings were filed, orders were entered, and a hearing was conducted on his purported motion to withdraw. In particular, on March 29, 2019, Branner's plea counsel filed a motion to withdraw as counsel; the trial court granted that motion on April 1, 2019; the court also appointed new counsel (hereinafter, "motion-to-withdraw counsel"); and motion-to-withdraw counsel filed a notice of representation on May 13, 2019.
[A]lthough motion-to-withdraw counsel argued at the [July 2019] hearing that [Branner] should be allowed to withdraw [his] guilty plea, that could not breathe life into [Branner's] inoperative pleading[.] The trial court therefore should have dismissed [Branner's November 2018] pro se motion[ ], rather than denied [it].
(Citations and punctuation omitted.) Ricks , 307 Ga. at 169, 835 S.E.2d 179. See Bankston , 307 Ga. at 657 (2), 837 S.E.2d 788 () (citation and punctuation omitted); Dos Santos , 307 Ga. at 155 (3), 834 S.E.2d 733 (); White v. State , 302 Ga. 315, 320 (2), 806 S.E.2d 489 (2017) () ; Brooks v. State , 301 Ga. 748, 752 (2), 804 S.E.2d 1 (2017) (...
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