Cruz v. State, A12A0476.

• Decision Date: 10 May 2012
• Docket Number: No. A12A0476.,A12A0476.
• Parties: CRUZ v. The STATE.
• Court: Georgia Court of Appeals

315 Ga.App. 843

729 S.E.2d 9

12 FCDR 1674

CRUZ

v.The STATE.

No. A12A0476.

Court of Appeals of Georgia.

May 10, 2012.

Arturo Corso, for Appellant.

Daniel J. Porter, Lawrenceville, Stephen Anthony Fern, Atlanta, for Appellee.

MILLER, Judge.

Sabino Padillo Cruz was granted an out-of-time appeal to challenge the denial of his post-sentencing motion to withdraw his guilty plea to aggravated child molestation (OCGA § 16–6–4(c)), child molestation (OCGA § 16–6–4(a)(1)), and burglary (OCGA § 16–7–1(a)).¹ Cruz contends that the trial court erred in denying his motion to withdraw his guilty plea since his counsel provided ineffective assistance during the plea negotiations and proceedings. We discern no error and affirm.

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. On a motion to withdraw a guilty plea, the trial court is the final arbiter of all factual issues raised by the evidence.

(Citations and punctuation omitted.) Blass v. State, 293 Ga.App. 346, 667 S.E.2d 140 (2008).

Here, the record shows that Cruz was charged with aggravated child molestation, two counts of child molestation, and burglary. Herbert Adams, Esq., (“counsel”) was appointed to represent Cruz during the criminal proceedings. Since Cruz spoke only Spanish, counsel used interpreters to translate the communications that occurred during their meetings at the jail and during the court proceedings.

Subsequent to Cruz's arraignment, the State proposed a plea offer involving the dismissal of the aggravated child molestation charge, entry of a guilty plea to the child molestation and burglary charges, and a sentence of 20 years to serve 10 years in prison and the balance on probation. Counsel testified that he advised Cruz of the plea offer, the terms, and options, and that he communicated through an interpreter to make sure that Cruz understood. Cruz asked counsel to put the offer in writing, so that he could review it more thoroughly. Accordingly, counsel sent Cruz a letter that fully explained the plea offer's terms and his options. Counsel stated that he met with Cruz again, with the assistance of an interpreter, to review the letter and to ensure that Cruz fully understood his rights.

At a hearing held on July 1, 2002, the terms of the plea offer were expressed to Cruz again on the record, and the State advised that the plea offer would expire on July 5, 2002. The State further stated that if Cruz did not accept the plea offer prior to its expiration, it would proceed to trial on all of the charged offenses. The possible sentencing ranges for each offense were also explained. Cruz's counsel stated that he had advised Cruz of the plea offer, but that Cruz wanted to present a counteroffer for less time in prison and otherwise decided that he wanted a jury trial. Since Cruz did not agree to the sentencing terms of the State's plea offer, his counsel raised the option of a non-negotiated plea; counsel explained that the trial court would not be bound by the parties' sentencing recommendations, but that Cruz would have an opportunity to make a persuasive case for the imposition of a lesser sentence. Counsel advised, however, that he could not guarantee any outcome and wanted Cruz to understand the possible sentence that he was facing, so that he could decide whether to accept the State's plea offer before its expiration. Cruz was asked whether he understood the terms and his options, and he replied, “Yes, sir.”

Cruz rejected the State's plea offer. According to counsel, Cruz gave conflicting statements indicating that he did not want to serve 10 years in prison in accordance with the plea offer, and yet that he did not want to proceed to trial.

Subsequently, in September 2002, a non-negotiated plea hearing was conducted. The transcript of the guilty plea hearing reflects that the State then made a sentencing recommendation of 30 years to serve 17 years in prison on the aggravated child molestation charge, and 15 years to serve concurrently on the remaining charges. Cruz's counsel countered by requesting a sentence of 20 years to serve 10 years in prison on all counts concurrently. Cruz was advised that the trial court could impose any sentence allowed by law. Cruz entered a non-negotiated plea of guilty to each of the charged offenses, acknowledging that he had in fact committed the offenses. Cruz testified under oath that he understood the charges of the indictment, the rights that he was waiving by entering the guilty plea, the sentencing ranges for the charged offenses, and the conditions of probation. Cruz further affirmed that no promises or threats had been made in exchange for his guilty plea, that he entered his plea freely and voluntarily, that he was satisfied with his counsel's services, and that he understood all of the questions that he had answered during the plea colloquy. The trial court accepted Cruz's guilty plea, and imposed an aggregate sentence of 30 years to serve 20 years in prison, along with general and special conditions of probation.

Cruz thereafter filed a pro-se motion to withdraw his guilty plea, contending that he did not understand what had transpired at the plea hearing. Following an evidentiary hearing, the trial court denied Cruz's motion.

1. Cruz first contends that he was entitled to withdraw his guilty plea based upon the ineffective assistance provided by his counsel during the plea negotiations and proceedings.

The Sixth Amendment guarantees a defendant the right to have counsel present at all critical stages of the criminal proceedings.... Hill [v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)] established that claims of ineffective assistance of counsel in the plea bargain context are governed by the two-part test set forth in Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)].

(Citations and punctuation omitted.) Missouri v. Frye, ––– U.S. ––––(II)(A), 132 S.Ct. 1399, 1405, 182 L.Ed.2d 379 (2012). To prevail on his claim of ineffective assistance of counsel, Cruz was therefore required to show that his “counsel's representation fell below an objective standard of reasonableness” and that “the outcome of the plea process would have been different with competent advice.” (Citations and punctuation omitted.) Lafler v. Cooper, ––– U.S. ––––(II)(A), (B), 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012). Significantly, a claim of ineffective assistance of counsel is not judged by hindsight. See Cammer v. Walker, 290 Ga. 251, 255(1), 719 S.E.2d 437 (2011).

Here, it is undisputed that counsel reported the State's favorable plea offer to Cruz. Cruz nevertheless contends that counsel was ineffective in failing to adequately explain the plea offer so that he could understand the terms. He also contends that counsel failed to adequately explain the consequences of entering into the subsequent non-negotiated plea. Cruz's contentions, however, are belied by the record evidence.

The evidence shows that counsel sent Cruz a letter that explained in layman's terms the details of the State's plea offer, along with the option and risks of a non-negotiated plea. Counsel testified that he reviewed and discussed the letter, the terms of the plea offer, and the non-negotiated plea option with Cruz, using an interpreter to communicate during their discussions. Moreover, Cruz was again advised of the terms and the expiration date of the plea offer, along with his options, at a hearing that was transcribed to establish as a matter of record that he had received and understood the information. When Cruz was asked whether he understood the terms and his options, Cruz replied, “Yes, sir.”

Before a guilty plea is entered the defendant's understanding of the plea and its consequences can be established on the record. This affords the State substantial protection against later claims that the plea was the result of inadequate advice. At the plea entry proceedings the trial court and all counsel have the opportunity to establish on the record that the defendant understands the process that led to any offer, the advantages and disadvantages of accepting it, and the sentencing consequences or possibilities that will ensue once a conviction is entered based upon the plea.

Frye, supra, 132 S.Ct. at 1406(II)(A). Since these recommended protections were taken in this case, there is record evidence establishing that Cruz was adequately advised regarding the plea offer, his options, and the risks. The evidence also shows that Cruz decided to reject the plea offer since he did not agree to the term proposing a 10–year period of imprisonment. Cruz insisted upon serving no more than 3 years in prison, which was not in accordance with the plea offer.

While Cruz further argues that counsel failed to advise him as to the parole guidelines, which he claims would have resulted in a 34–month term of imprisonment upon his acceptance of the plea offer, there is no record evidence supporting his argument. At the motion hearing, Cruz failed to raise the issue of parole eligibility and failed to present any evidence in support of the factors relevant to calculating the parole guidelines.² Moreover, the operation of the parole guidelines did not establish that Cruz's period of incarceration would have been limited to 39 months, as he alleges. The ultimate decision of whether to grant or deny parole is left to the discretion of the State Board of Pardons and Paroles, and thus, a release on parole is not guaranteed.³ See Ray v. Carthen, 275 Ga. 459, 460(1), 569 S.E.2d 542 (2002); Daker v. Ray, 275...