Hutchison v. State
Decision Date | 09 January 1998 |
Docket Number | No. A98A0162,A98A0162 |
Citation | 230 Ga.App. 143,495 S.E.2d 618 |
Parties | , 98 FCDR 283 HUTCHISON v. The STATE. |
Court | Georgia Court of Appeals |
Neil Hutchison, pro se.
Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.
Neil Hutchison was sentenced to serve 15 years in confinement after entering a negotiated guilty plea to rape. In this appeal he contends the trial court erred in denying his motion to withdraw his guilty plea based on ineffective assistance of counsel.
" Murray v. State, 216 Ga.App. 593, 595(1), 455 S.E.2d 79 (1995). See Brantley v. State, 268 Ga. 151(1), 486 S.E.2d 169 (1997); Cummings v. State, 225 Ga.App. 239, 483 S.E.2d 605 (1997); Hall v. State, 210 Ga.App. 792, 793(1), 437 S.E.2d 634 (1993).
Hutchison argues that trial counsel never told him that rape is designated a "serious violent felony" which, under OCGA § 17-10-6.1(c)(3), a relatively new statute, would require him to serve his sentence in prison in its entirety. Rather, at the hearing on the motion to withdraw the guilty plea, Hutchison's counsel outlined how he and the prosecutor agreed to put evidence of mitigating factors on the record specifically for the purpose of future consideration by the sentence review panel. At the hearing, counsel as much as admitted that he was unaware that Hutchison would not be eligible for parole because the offense had been designated by the legislature as a "serious violent felony."
In Whitehead v. State, 211 Ga.App. 121, 438 S.E.2d 128 (1993), we concluded that trial counsel's advice to Whitehead that a statutorily mandated life sentence was a possibility but not a certainty in the event of a second conviction for sale of cocaine did not constitute ineffective assistance of counsel. In Whitehead, trial counsel was aware of the mandatory life sentence statute for subsequent offenders and informed Whitehead that imposition of the mandatory life sentence was a possibility. Counsel believed, however, that because Whitehead's first conviction was committed before the mandatory life sentencing provisions were effected by the legislature, its imposition would constitute an ex post facto application of the enhanced sentencing provisions violating Whitehead's constitutional rights. Although a life sentence was imposed, Whitehead had been informed of that possibility during plea negotiations.
Contrary to the state's assertion, this case is also distinguishable from Smith v. State, 174 Ga.App. 238, 329 S.E.2d 507 (1985) (physical precedent only). In Smith, there was no allegation that trial counsel rendered ineffective assistance with respect to the guilty plea. The focus in Smith was whether the trial court complied with the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) in accepting a guilty plea. In her special concurrence in that case, Judge Beasley made that point clear: Id. at 242, 329 S.E.2d 507. See also Brown v. State, 216 Ga.App. 312, 313-314(1), 454 S.E.2d 596 (1995).
Here, it is clear from a review of the transcript in this case that trial counsel was...
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Fleming v. State
...Pardons and Paroles." (Emphasis supplied.) See generally Bryant v. State, 229 Ga.App. 534, 494 S.E.2d 353 (1997); Hutchison v. State, 230 Ga.App. 143, 495 S.E.2d 618 (1998). Subsection (d) of § 17-10-6.1 states: "[f]or purposes of this Code section, a first conviction of any serious violent......
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...client that, as the result of parole ineligibility, he must fully serve whatever sentence the trial court imposed. Hutchison v. State, 230 Ga.App. 143, 495 S.E.2d 618 (1998). Before Ellis' appeal was decided, however, this Court overruled Hutchison and held "that the failure to apprise the ......
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...by Ga. L.1996, p. 1023, § 1.1. 17. 210 Ga.App. at 311, 436 S.E.2d 47. 18. 263 Ga.App. 188, 587 S.E.2d 379 (2003). 19. 230 Ga.App. 143, 495 S.E.2d 618 (1998). 20. 270 Ga. at 580, 513 S.E.2d 212. 21. Id. at 581-582(1), 513 S.E.2d 212. 22. 238 Ga.App. 69, 517 S.E.2d 801 (1999). 23. Id. at 72(3......
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...be ineligible for parole and, thus, would have to serve the entire 15-year sentence while incarcerated. Relying on Hutchison v. State, 230 Ga.App. 143, 495 S.E.2d 618 (1998), the habeas court further concluded, as a matter of constitutional law, that counsel's failure in this regard demonst......
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