Hower v. State

• Decision Date: 06 March 2015
• Docket Number: No. A14A2293.,A14A2293.
• Parties: HOWER v. The STATE.
• Court: Georgia Court of Appeals

331 Ga.App. 567

769 S.E.2d 402

HOWER

v.The STATE.

No. A14A2293.

Court of Appeals of Georgia.

March 6, 2015.

Reconsideration Denied March 26, 2015.

Nathaniel J. Middleton, for Appellant.

Donna Coleman Stribling, Asst. Dist. Atty., Robert D. James, Jr., Dist. Atty., Deborah D. Wellborn, Asst. Dist. Atty., for Appellee.

Opinion

McFADDEN, Judge.

Jontae Hower appeals the denial of his motion to withdraw his guilty plea. He argues that he did not enter his plea freely and voluntarily, but the trial court found otherwise and Hower has not shown error. Hower argues that his right to be present was violated when the state and his attorney engaged in plea negotiations outside of his presence. The plea negotiation here, however, was not a critical phase of the trial at which Hower had the right to be present. We therefore affirm the trial court's denial of Hower's motion.

Hower was charged with aggravated child molestation but entered a guilty plea to the lesser included offense of child molestation. He was sentenced to 20 years, to serve 12 years in custody with the balance on probation. Hower filed a timely motion to withdraw his plea. The trial court denied the motion, and Hower filed this appeal.

1. The record supports the trial court's finding that Hower entered his plea freely and voluntarily.

Hower argues that his plea was not free and voluntary because counsel told him he would be found guilty if he went to trial; he was not told that he would be required to register as a sex offender; and he was not told that he would spend the remainder of his life on probation.

The trial court did not err by rejecting these arguments.

A guilty plea is valid if the record shows that

the defendant understands the plea and the constitutional rights that he is relinquishing. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The [s]tate has the burden on direct review of establishing that the plea was entered intelligently and voluntarily. The [s]tate may meet this burden by showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea, or by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary. After sentencing, the decision on a motion to withdraw a guilty plea is within the trial court's discretion and withdrawal of the plea is allowed only when necessary to correct a manifest injustice.

DeToma v. State, 296 Ga. 90, 91(1), 765 S.E.2d 596 (2014) (citations and punctuation omitted).

Hower argues that his plea was coerced by fear. He testified at the hearing on his motion to withdraw his plea that his trial counsel told him that if he did not take the plea, he would receive 25 years in prison. Trial counsel disputed this, testifying that she did not tell Hower that he would be found guilty, that he would receive 25 years to serve, or that there was nothing that she could do to prove his innocence. Moreover, at the guilty plea hearing, Hower testified that no threats or promises had been made to influence him to plead guilty. The trial court “was authorized to reject [Hower's] version of the facts and credit instead the testimony of his counsel.” Stinson v. State, 286 Ga. 499, 501(2), 689 S.E.2d 323 (2010) (citations and punctuation omitted).

Hower argues that he did not enter his plea knowingly because he was not told that he would have to register as a sex offender or serve the remainder of his life on probation. Contrary to Hower's claims, a review of the guilty plea hearing transcript shows that, before Hower entered his plea, the assistant district attorney expressly notified him that he would be required to register as a sex offender and, after serving 12 years, would spend the balance of his 20–year sentence on probation. (It is not clear what Hower means when he asserts that he was not informed that he would spend “the remainder” of his life on probation.) “We conclude that the record shows the trial court correctly found that [Hower] was fully advised of his rights and freely and voluntarily waived those rights.” Wright v. State, 292 Ga. 825, 827(1), 742 S.E.2d 468 (2013) (citations omitted).

Hower argues that the transcript of the guilty plea hearing demonstrates that the trial court did not have before it a factual basis for accepting the plea as required by Uniform Superior Court Rule 33.9 (“Notwithstanding the acceptance of a plea of guilty, the judgment should not be entered upon such plea without such inquiry on the record as may satisfy the judge that there is a factual basis for the plea.”). A review of the transcript of the plea hearing shows that prior to the plea colloquy, the assistant district attorney reminded the court that it already had conducted a pretrial hearing. The trial court expressly referenced the pretrial hearing at which, as Hower's attorney conceded at the hearing on the motion to withdraw, the facts of the case were discussed. The trial court also expressly found that there was a factual basis for the plea. Under these circumstances, Hower has not shown that there was an inadequate factual basis for his plea. See Adams v. State, 285 Ga. 744, 747(4)(a), 683 S.E.2d 586 (2009) (trial court, who presided over the earlier trial of appellant's co-indictee for the same offenses, was familiar with the facts and the court's acceptance of the plea was deemed a factual finding that there was an adequate factual basis for the plea).

2. Hower's absence from plea negotiations.

Hower argues that he was not present for a critical part of the proceedings,...