Hayes v. State
Decision Date | 17 June 2009 |
Docket Number | No. A09A0198.,A09A0198. |
Citation | 680 S.E.2d 508,298 Ga. App. 419 |
Parties | HAYES v. The STATE. |
Court | Georgia Court of Appeals |
Gary W. Jones, Marietta, for appellant.
Leslie C. Abernathy, Solicitor-General, Cumming, for appellee.
Carl Hayes pled guilty to one count of driving under the influence of alcohol per se, but the trial court later rejected the plea and vacated his sentence after determining that Hayes may have been under the influence of alcohol when he entered the plea. Hayes appeals from the trial court's order vacating the plea and sentence and holding him in contempt.
Hayes, who was represented by counsel, entered his negotiated plea on the morning of August 13, 2008. The trial court imposed a sentence consistent with the State's recommendation. Hayes' counsel left after sentencing, and Hayes went to meet with a probation officer. The trial court later stated on the record that someone in the probation office had reported that alcohol was detected on Hayes' breath and Hayes was asked to submit to an alco-sensor test, which came back positive. Hayes admitted that he had two drinks at a bachelor party the night before, but said he had not had anything to drink that morning before coming to court. The State asked that Hayes be held in contempt. The trial judge, after expressing concern that Hayes' plea may not have been acceptable due to the influence of alcohol, remanded Hayes to the sheriff's custody for an Intoxilyzer test. Hayes was not represented by counsel during this exchange as the court had been unsuccessful in reaching his attorney.
When the parties went back on the record, the assistant solicitor-reported that she had spoken with Hayes' attorney. She said that Hayes' counsel was shocked at the report of alcohol because the attorney had not detected any such odor when he met with Hayes that morning. The assistant solicitor-reported that Hayes' attorney left the matter to the judge's discretion. She also reported that Hayes' Intoxilyzer test, administered at 12:28 p.m. had resulted in a reading of 0.035. The trial judge concluded that Hayes was not under the influence of alcohol at that time, but stated that he "could very well have been at the time he entered [his] plea." Consequently, the judge rejected Hayes' plea, vacated his sentence and ruled his bond insufficient. The judge also ruled that Hayes was in contempt and remanded him into custody. The trial court made a handwritten entry on Hayes' accusation stating,
Although the judge indicated an intention to hold a hearing the next day in order to "be assured that [Hayes was] not under the influence of anything because [he] had been in our custody overnight and had not had the opportunity to consume alcohol," Hayes' attorney was unable to attend a hearing the following day. Instead Hayes remained in custody until the second day when Hayes' attorney could be present. The attorney announced that Hayes had decided not to enter a plea at that time and further that Hayes had already filed this appeal. His counsel asked for Hayes' release under his original bond. The court granted the request but added a number of new conditions and imposed $67.50 in court costs. Hayes' counsel subsequently filed an Emergency Motion for Supersedeas, which this Court granted. This Court also vacated the new bond order and directed the trial court to hold a hearing to determine "whether any previous bond is, in fact, insufficient." Hayes was ordered released instanter pending the bond hearing.
1. Hayes argues on appeal that the trial court erred in vacating his plea and sentence on the grounds that this action contradicted the court's earlier finding that the plea was freely and voluntarily entered; that there was no evidence that he was under the influence of alcohol at the time he made the plea; and that his right to due process was violated when the trial court accepted the results of the Intoxilyzer test, without any showing of a proper foundation for such information.
But in a criminal case, the trial court has the inherent power to modify, suspend, or vacate a judgment through the end of the term in which the judgment is rendered. Brown v. State, 262 Ga.App. 659, 586 S.E.2d 343 (2003). This inherent power is a broad one granting courts plenary power to modify their judgments for meritorious purposes:
Courts of record retain full control over orders and judgments during the term at which they were made, and, in the exercise of a sound discretion, may revise or vacate them. Such discretion will not be controlled unless manifestly abused. During the term of court at which a judgment is rendered the court has power, on its own motion, to vacate the same for irregularity, or because it was improvidently or inadvertently entered.... The power of the court, during the term, is described as plenary, to be used for the purpose of promoting justice, but the court's discretion, although broad, is not unbounded and should be exercised only upon sufficient cause shown. Hence, we have recognized that this inherent power should not be used unless some meritorious reason is given therefor.
(Citations and punctuation omitted.) Buice v. State, 272 Ga. 323, 324-325, 528 S.E.2d 788 (2000). It is left to the trial court's discretion to determine whether a meritorious reason exists for modifying or vacating a judgment, and this Court will not reverse that determination absent an abuse of discretion. Id. at 325, 528 S.E.2d 788.
"Before accepting a plea of guilty, the trial court has a duty to ascertain that the plea is made voluntarily and intelligently." (Citation and punctuation omitted.) Reason v. State, 259 Ga.App. 599(1), 578 S.E.2d 199 (2003). The procedure a trial court must follow in weighing the voluntariness of a plea is set out in Uniform Superior Court Rule 33.7, which requires only that the trial court determine on the record that the plea is voluntary through inquiry of the prosecutor, the defense attorney and the defendant. It does not require proof beyond a reasonable doubt. Cf. King v. Hawkins, 266 Ga. 655, 656, 469 S.E.2d 30 (1996) (Superior Court Rule 33.9) Uniform . This Court has also held that a trial court may also rely upon evidence outside of that presented at the plea hearing in determining whether to accept a plea. See Bowers v. State, 267 Ga.App. 260, 261(1), 599 S.E.2d 249 (2004) ( ); Bess v. State, 235 Ga.App. 372, 374(2), 508 S.E.2d 664 (1998) ( ). We find, therefore, that in revisiting the voluntariness of the plea, the trial court was entitled to rely upon the informal report of the alco-sensor and Intoxilyzer results, without the requirement that a formal foundation be laid.
Here, although the court initially determined that Hayes' plea was voluntary, the court vacated the plea and sentence upon new information that Hayes may have been under the influence of alcohol at the time the plea was entered. The trial court thus vacated the plea and sentence to support the "meritorious purpose" of ensuring that the plea was made voluntarily and intelligently. Cotten v. State, 251 Ga.App. 628, 630, 555 S.E.2d 15 (2001). Based upon these circumstances, we find no abuse of discretion.
2. Hayes also asserts that the trial court erred in holding him in direct contempt. He argues that his actions in drinking the night before his plea hearing did not arise to...
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9 Contempt
...Moody, 131 Ga.App. 355, 358(2), 206 SE2d 79 (1974)]. Judge must be able to perceive the contemnor, need not observe the contempt [Hayes, 298 Ga.App. 419, 680 SE2d 508 (2009) (physical precedent only)(judge could not smell alcohol)]. Case law conflicting over whether non-appearance in court ......
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...Moody, 131 Ga.App. 355, 358(2), 206 SE2d 79 (1974)]. Judge must be able to perceive the contemnor, need not observe the contempt [Hayes, 298 Ga.App. 419, 680 SE2d 508 (2009) (physical precedent only)(judge could not smell alcohol)]. Case law conflicting over whether non-appearance in court ......
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9 Contempt
...Moody, 131 Ga.App. 355, 358(2), 206 SE2d 79 (1974)]. Judge must be able to perceive the contemnor, need not observe the contempt [Hayes, 298 Ga.App. 419, 680 SE2d 508 (2009) (physical precedent only)(judge could not smell alcohol)]. Case law conflicting over whether non-appearance in court ......
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9 Contempt
...Moody, 131 Ga.App. 355, 358(2), 206 SE2d 79 (1974)]. Judge must be able to perceive the contemnor, need not observe the contempt [Hayes, 298 Ga.App. 419, 680 SE2d 508 (2009) (physical precedent only)(judge could not smell alcohol)]. Case law conflicting over whether non-appearance in court ......