Clifton v. State

• Decision Date: 30 May 2018
• Docket Number: A18A0746
• Citation: 814 S.E.2d 441,346 Ga.App. 406
• Court: Georgia Court of Appeals
• Parties: CLIFTON v. The STATE.

346 Ga.App. 406

814 S.E.2d 441

CLIFTON

v.The STATE.

A18A0746

Court of Appeals of Georgia.

May 30, 2018

Reconsideration Denied June 20, 2018

William Lee Clifton, Lyons, for Appellant.

Stephen Andrew Bradley, Milledgeville, Daniel Brent Cochran, for Appellee.

Ellington, Presiding Judge.

William Clifton appeals from the order of the Superior Court of Jasper County rejecting his motion to withdraw his guilty plea. For the reasons explained below, we dismiss.

The record in this case shows the following:

(1) At a hearing conducted on February 7, 2017, Clifton entered a non-negotiated guilty plea to sale of a controlled substance (methamphetamine), OCGA § 16-13-30 (b) ; escape, OCGA § 16-10-52 ; and theft by taking, OCGA § 16-8-2. Clifton was represented by appointed legal counsel.

(2) At the conclusion of the hearing, the trial court accepted the State's recommendation as to punishment and orally pronounced sentence, imposing thirty years imprisonment, ten years imprisonment, and five years imprisonment, respectively, all to be served concurrently.

(3) Immediately upon hearing this sentence, Clifton asked the court for permission to withdraw his guilty plea until he could hire a lawyer to assist him. Clifton's appointed counsel refused to move on Clifton's behalf to withdraw the plea, stating, "I just don't do frivolous litigation." The trial court verbally denied the motion and advised Clifton that he could hire an attorney to assist him in an appeal after the entry of judgment.

(4) The oral pronouncement of sentence was reduced to writing, filed with the clerk, and stamped "filed" the same day (February 7, 2017), which was during the November 2016 term of court. See OCGA § 15-6-3 (28) (D) (The terms of court for Jasper County begin on the "Second Monday in February, May, August, and November."). The next term of court began on the second Monday in February, that is, February 13, 2017. Id.

(5) On March 23, 2017, Clifton filed pro se a written motion to withdraw his guilty plea. He supplemented his pro se motion to withdraw on June 15, 2017, adding a motion that all charges be dismissed.

(6) On August 1, 2017, the trial court conducted a hearing on Clifton's motion to withdraw, at which Clifton appeared pro se.

(7) At the outset of the hearing, Clifton asked for new counsel to represent him in post-conviction proceedings. The trial court instructed him that he was "not going to get new counsel appointed," adding, "You can hire anybody you want to. Go ahead [with your motion]." Stating that he needed an attorney and did not know how to argue a motion in court, Clifton relied on his supplemental written motion and brief. The trial court took the motions under advisement.

(8) On August 9, 2017, the trial court denied Clifton's motion to withdraw his guilty plea and motion to dismiss on the merits. On August 11, 2017, the trial court amended its order to correct the style of the case and ordered that "all other provisions" of the August 7, 2017, "dismissing" Clifton's motion to withdraw his guilty plea and motion to dismiss "shall remain in full force and effect."

Clifton appeals, pro se, asserting numerous errors.

It is incumbent upon this Court to inquire into its own jurisdiction, even when not contested by the parties. Hourin v. State , 301 Ga. 835, 836-837, 804 S.E.2d 388 (2017) ; State v. Hill , 321 Ga. App. 679, 680, 742 S.E.2d 497 (2013). "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." (Citations and punctuation omitted.) Tolbert v. Toole , 296 Ga. 357, 363 (3), 767 S.E.2d 24 (2014). See also Williams v. Moody , 287 Ga. 665, 669 (2), 697 S.E.2d 199 (2010). When a criminal defendant files pro se a notice of appeal while still represented by counsel, the notice is a legal nullity, and the appeal will be dismissed by the appellate court. Soberanis v. State , 345 Ga. App. 403, 812 S.E.2d 800 (2018).

In this case, the record is devoid of any order permitting the withdrawal of Clifton's plea counsel, nor does the record show any appearance by new post-judgment counsel to replace plea counsel. Tolbert v. Toole , 296 Ga. at 362 (3), 767 S.E.2d 24 ("A formal withdrawal of counsel cannot be accomplished until after the trial court issues an order permitting the withdrawal. Until such an order properly is made and entered, no formal withdrawal can occur and counsel remains counsel of record.") (citations and punctuation omitted). Unless interrupted by entry of an order allowing counsel to withdraw or compliance with the requirements for substitution of counsel, a defense counsel's duty toward the client extends for at least thirty days after the entry of judgment, when a notice of appeal may be filed, and (if longer) through the end of the term at which the trial court enters a judgment of conviction and sentence on a guilty plea, during which time the trial court retains authority to change its prior orders and judgments either on motion or sua sponte for the purpose of promoting justice. White v. State , 302 Ga. 315, 318-319 (2), 806 S.E.2d 489 (2017) ; Grace v. State , 295 Ga. 657, 658 (2) (a), 763 S.E.2d 461 (2014) ; Stephens v. State , 291 Ga. 837, 837-838 (2), 733 S.E.2d 266 (2012). Because Clifton's notice of appeal was a legal nullity, his appeal must be dismissed. White v. State , 302 Ga. at 315, 806 S.E.2d 489 ; Soberanis v. State , 345 Ga. App. 403, 812 S.E.2d 800 (2018).

Even if we were authorized to consider Clifton's appeal, we would be required to affirm. "[A] motion to withdraw a plea of guilty must be filed in the term of court in which the defendant is sentenced, and after the expiration of that term, the trial court lacks jurisdiction to allow the withdrawal of the plea." (Citation and punctuation omitted.) Spriggs v. State , 296 Ga. 542, 543, 769 S.E.2d 392 (2015). This is so even when the time remaining in the term is shorter than the time that would be allowed for filing a notice of appeal from the judgment (thirty days). Smith v. State , 283 Ga. 376, 659 S.E.2d 380 (2008) ; see OCGA § 5-6-38 (a). As shown above, Clifton did not file his written motion to withdraw until after the conclusion of the term in which he was sentenced—which is unsurprising, given the limited window of opportunity (about one week) and his counsel's refusal to assist, such as by filing a timely, place-holding written motion to allow time for new counsel to be substituted. "As such, [Clifton's] motion to withdraw was an untimely one over which the trial court lacked jurisdiction," and, consequently, affirmance would have been required. (Citations and punctuation omitted.) Spriggs v. State , 296 Ga. at 542, 769 S.E.2d 392.¹

We note that our ruling does not preclude the filing of a petition for a writ of habeas corpus in the jurisdiction in which Clifton is incarcerated. We cannot evaluate whether Clifton can support an argument that his guilty plea was not knowing and voluntary,² but it is troubling that the trial court acquiesced in plea counsel's departure from the duties of legal representation the instant that Clifton's unfettered right to withdraw his guilty plea ended (that is, when punishment was pronounced from the bench³ ), despite Clifton's continuing right to counsel (appointed counsel, if indigent)⁴ and Clifton's immediately expressed desire to move to withdraw his plea. As the Supreme Court of Georgia has explained, a criminal defendant should not be deprived of the "guiding hand of counsel," at a point in the proceeding when important decisions need to be made and actions potentially taken, often with short deadlines, regarding the filing of a post-trial motion (e.g., a motion for new trial), a post-plea motion (e.g., a motion to withdraw a guilty plea), or a notice of appeal. White v. State , 302 Ga. at 318 (2), 806 S.E.2d 489 (not reaching the issue of at what point it is no longer reasonable to treat a convicted defendant as still represented by his trial or plea counsel).⁵ And, pretermitting whether Clifton's motion to withdraw had merit, counsel's lack of participation is the reason this Court must dismiss this appeal.⁶ Under the circumstances, however, Clifton's only available remedy is through a habeas corpus proceeding.⁷

Given that this Court lacks jurisdiction over this appeal, Clifton's various motions pending in this appeal, to wit:

(1) Motion for Release Pending the Disposition of the Appeal, filed December 11, 2017;

(2) Motion to Add Missing Case # 15CR02-033 to Appeal, filed February 22, 2018;

(3) A second Motion to Add Missing Case # 15CR02-033 to Appeal, filed February 26, 2018;

(4) Motion to Expedite Appeals, filed February 26, 2018;

(5) Motion for Permission to File as an Exhibit, filed February 26, 2018;

(6) Motion to Hold State in Contempt, filed March 20, 2018; (7) Motion to Strike Appellee's Out of Time Brief, filed April 3, 2018;

(8) Motion for Order for Court Reporters Recording and Tapes of All Proceedings, filed April 26, 2018; and

(9) Motion for Supersedeas Pending Appeal, filed May 15, 2018

are all hereby DISMISSED for lack of jurisdiction.

Appeal dismissed.

Bethel, J., concurs. Senior Appellate Judge Herbert E. Phipps dissents.*

* THIS OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF APPEALS RULE 33.2 (a).

Phipps, Senior Appellate Judge, dissenting.

I understand that "a formal withdrawal of counsel cannot be accomplished until after [a] trial court issues an order permitting the withdrawal." Tolbert v. Toole , 296 Ga. 357, 362 (3), 767 S.E.2d 24 (2014). I also understand that the record before us contains no such order. That same record, however, strongly suggests that Clifton's counsel had abandoned him well before the hearing on his motion to withdraw his guilty plea, by which time that motion was untimely, and that the trial court repeatedly ignored his pleas for representation. Under these circumstances, we should remand the case to the trial...