Fortson v. State

• Decision Date: 12 June 2000
• Docket Number: No. S00A0196.,S00A0196.
• Citation: 272 Ga. 457,532 S.E.2d 102
• Parties: FORTSON v. The STATE.
• Court: Georgia Supreme Court

532 S.E.2d 102

272 Ga. 457

FORTSON v. The STATE.

No. S00A0196.

Supreme Court of Georgia.

June 12, 2000.

James E. Millsaps, Covington, for appellant.

Alan A. Cook, District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, H. Maddox Kilgore, Assistant Attorney General, for appellee.

HUNSTEIN, Justice.

Shedrick Fortson pled guilty to felony murder and firearm possession in January 1998. In February 1998 Fortson filed a motion to withdraw his guilty plea alleging that because his appointed counsel was ineffective his plea was not knowingly and voluntarily entered. Fortson did not have counsel at the time of the hearing on the guilty plea withdrawal. The trial court denied the motion to withdraw. Because Fortson was not informed of his right to be represented by counsel during the plea withdrawal proceedings, we reverse.

Fortson was charged in a 13-count indictment with various crimes arising from the armed robbery and shooting death of Reuben Jackson.¹ With the assistance of appointed counsel, he pled guilty to felony murder and firearm possession and was sentenced to life imprisonment plus a consecutive term of five years to be served on probation. Within 30 days after pleading guilty, and within the same term of court, Fortson filed a pro se motion to withdraw his guilty plea. He asserted ineffectiveness of counsel in the plea proceeding thus claiming that his guilty plea was not knowingly and voluntarily entered. Fortson's motion to withdraw his guilty plea was denied following an evidentiary hearing at which Fortson appeared pro se. Fortson now appeals with the assistance of appointed counsel contending in his sole enumeration of error that the trial court erred in failing to provide counsel to assist in his motion to withdraw the guilty plea, or to conduct an inquiry as to whether he waived the right to counsel.

1. In order to resolve whether the trial court had an obligation to provide counsel or to obtain a constitutionally valid waiver from Fortson, we must first determine whether there is a constitutional right to counsel at a proceeding to withdraw a guilty plea. The United States Supreme Court has held that the Sixth Amendment right to counsel in criminal prosecutions applies to every critical stage in a criminal prosecution. Gerstein v. Pugh, 420 U.S. 103, 121, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); State v. Simmons, 260 Ga. 92, 93, 390 S.E.2d 43 (1990) (Sixth Amendment right to counsel attaches once judicial proceedings have been initiated). See also Michigan v. Jackson, 475 U.S. 625, 629-630, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986); LaFave & Israel, Criminal Procedure, Vol. 2, § 11.2(b), p. 20 (1984). "A critical stage in a criminal prosecution is one in which a defendant's rights may be lost, defenses waived, privileges claimed or waived, or one in which the outcome of the case is substantially affected in some other way." Ballard v. Smith, 225 Ga. 416, 418, 169 S.E.2d 329 (1969). Accord Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961).

In this case, evidence was presented at a hearing in the form of witness testimony and exhibits. Fortson's trial counsel was called as a witness for the State and Fortson was obliged to cross-examine his attorney without the benefit of counsel. The State also cross-examined Fortson and presented arguments opposing the motion to withdraw the guilty plea. The trial court did not inquire whether Fortson intended to waive his right to counsel or whether Fortson desired the assistance of appointed counsel. See State v. Simmons, supra at 92, 390 S.E.2d 43 (Sixth Amendment right to counsel does not depend on a request by the accused); Roper v. State, 258 Ga. 847, 849(1), n. 2, 375 S.E.2d 600 (1989). Cf. Parks v. McClung, 271 Ga. 795, 524 S.E.2d 718 (1999) (defendants' waiver of the right to counsel valid since it was a knowing and intelligent waiver). The hearing which included introduction of evidence, advocacy by the prosecutor, and a determination of whether a guilty plea was valid, clearly affected Fortson's substantial rights and thus satisfied the test for determining whether the proceeding qualified as a critical stage under Ballard v. Smith, supra at 418, 169 S.E.2d 329. Accordingly, because we hold that the plea withdrawal proceeding is a critical stage of the criminal prosecution and that in this particular case there was not a valid waiver of counsel, we conclude Fortson was entitled to counsel to assist him in seeking to withdraw his guilty pleas.

Our holding is supported by Federal and other state courts which have determined that the Sixth Amendment right to assistance of counsel attaches to the preparation and presentation of a motion to withdraw a guilty plea. See United States v. Sanchez-Barreto, 93 F.3d 17, 20 (1st Cir.1996); United States v. Crowley, 529 F.2d 1066, 1069 (3rd Cir. 1976); United States v. Garrett, 90 F.3d 210, 212 (7th Cir.1996); United States v. White, 659 F.2d 231, 233-234 (D.C.Cir.1981); State v. Harell, 80 Wash.App. 802, 911 P.2d 1034, 1035 (1996); Browning v. Commonwealth, 19 Va.App. 295, 452 S.E.2d 360, 362 (1994); Randall v. State, 861 P.2d 314, 316 (Okl.Cr. App.1993); Berry v. State, 630 So.2d 127, 129 (Ala.Cr.App.1993); Martin v. State, 588 N.E.2d 1291, 1293 (Ind.App.1992); Beals v. State, 106 Nev. 729, 802 P.2d 2, 4 (1990); Lewis v. U.S., 446 A.2d 837, 841 (D.C.App. 1982); People v. Holmes, 12 Ill.App.3d 1, 297 N.E.2d 204, 206 (1973); People v. Skelly, 28 A.D.2d 728, 281 N.Y.S.2d 633, 634 (1967); 21A AmJur2d § 1213. But see State v. Perry, 1997 WL 269202 at *5, *6 (Ohio App. 11 Dist.1997), unpublished (holding that counsel is not required at this stage of the proceeding where no evidentiary hearing is conducted); State v. Jackson, 255 Kan. 455, 874 P.2d 1138, 1141-1142 (1994) (defendant had no constitutional right to an attorney where his motion failed to raise sufficient questions of law or fact that would require "an evidentiary hearing, legal arguments, and/or briefs of the parties").

Contrary to the State's assertion, a motion to withdraw a guilty plea is unlike an application for writ of habeas corpus to which the right to counsel does not attach. See Gibson v. Turpin, 270 Ga. 855, 513 S.E.2d 186 (1999) (no right to appointed counsel in a death penalty habeas corpus proceeding). Although the objective for granting relief is to correct a "manifest injustice," the two proceedings are substantively different. A habeas corpus proceeding is a collateral, civil action which may be brought after the right to direct appeal is exhausted and the underlying criminal action, including the critical stage of prosecution, has ended. On the other hand, a hearing on a motion to withdraw a guilty plea involves intricacies of the law and advocacy by the State against the defendant. Seay v. State, 220 Ga.App. 418, 419, 469 S.E.2d 496 (1996). See, e.g., Caine v. State, 266 Ga. 421, 467 S.E.2d 570 (1996), (motion to withdraw plea is an appropriate vehicle for a guilty-plea defendant to assert a claim of ineffectiveness of counsel, from which there is a right of direct appeal). Because these elements differentiate the guilty plea withdrawal proceeding from the habeas corpus proceeding, we accordingly reject the State's argument that a hearing on a motion to withdraw a guilty plea is analogous to a habeas corpus proceeding such that appointment of counsel would not be necessary.² On the contrary, the right to counsel attaches when a defendant seeks to withdraw a guilty plea, thus entitling that defendant to assistance of counsel.

2. Having determined that the trial court had an obligation to inform Fortson of his right to counsel or to obtain a constitutionally valid waiver of counsel in this case, our next inquiry is whether the absence of counsel was prejudicial. The vast majority of courts³ that have addressed the denial of the right to counsel at this critical stage in a criminal proceeding have reversed and remanded to the trial court with instructions to appoint counsel and conduct a new hearing on the accused's motion for plea withdrawal.⁴ Having examined these cases, application of the harmless error doctrine would be inappropriate here because Fortson asserted that his guilty plea was not knowingly and voluntarily entered. Therefore, the absence of counsel in this case would be deemed prejudicial, not harmless. We are instead persuaded by those majority of cases holding that reversal and remand is the appropriate remedy for violations of this constitutional right. Accordingly, we reverse and remand this case to the trial court for a re-hearing on Fortson's motion to withdraw his guilty plea to be conducted in conformity with this opinion.

Judgment reversed and case remanded.

All the Justices concur except THOMPSON, J., who concurs in part and dissents in part, and CARLEY, J., who dissents.

THOMPSON, Justice, concurring in part and dissenting in part.

I fully agree with Division 1 of the majority opinion which holds that a motion to withdraw a plea of guilty brought during the same term of court is a critical stage of the proceedings at which the Sixth Amendment right to counsel attaches. Notwithstanding that ruling, I respectfully dissent to Division 2 because the absence of counsel at the withdrawal proceedings was harmless beyond a reasonable doubt under the circumstances of this case.

This case illustrates the absolute necessity that a trial court conduct a full inquiry on the record at a plea hearing. The fully developed record in this case establishes conclusively that all constitutional protections were afforded the defendant, thus obviating the need for a remand.⁵

"[A]n appellate court, using the appropriate standard, may find in a particular case that error committed by the trial court was constitutionally harmless, without remanding the case for...