McCranie v. State
| Decision Date | 02 February 2016 |
| Docket Number | No. A15A2008.,A15A2008. |
| Citation | 335 Ga.App. 548,782 S.E.2d 453 |
| Parties | McCRANIE v. The STATE. |
| Court | Georgia Court of Appeals |
Christopher Shawn McCranie, pro se.
Lauren Alicia Love, Richard G. Milam, for Appellee.
, Presiding Judge.
Christopher Sean McCranie pled guilty to child molestation (OCGA § 16–6–4(a)(1)
) and statutory rape (OCGA § 16–6–3(a) ).1 Appearing pro se, McCranie appeals from the trial court's denial of his consolidated motion for an out-of-time appeal, to withdraw a guilty plea and to vacate a void sentence. McCranie contends that the trial court erred in denying his motion because (1) his plea was involuntary and (2) his sentence is void. For the reasons that follow, we affirm the denial of McCranie's motion to withdraw his guilty plea, but reverse the denial of his motion for an out-of-time appeal because the trial court did not make the requisite factual inquiry into whether McCranie's failure to timely pursue a direct appeal was attributable to him or his trial counsel. We also vacate McCranie's sentence for statutory rape, and remand the case for proceedings consistent with this opinion.
In 2010, McCranie was charged with several sex crimes after he had sexual intercourse with a developmentally disabled 14–year–old girl. On June 10, 2010, McCranie appeared with counsel at his plea hearing. The State's initial plea offer was twenty years, with ten years to serve for child molestation and sexual battery.
The trial court, however, made clear that it wanted McCranie to have a sentence of at least 30 years. The following exchange then occurred:
Trial counsel then advised McCranie that the maximum possible aggregate sentence he could receive was 50 years.
The trial court then offered a sentence of thirty years, with ten years to serve, but indicated that it would only accept McCranie's plea if the victim's mother agreed to it. The trial court stated, Later, the trial court told McCranie, "I'll be glad for you to go to trial because I promise you I'll be your judge."
Both trial counsel and the prosecutor advised McCranie that by pleading guilty, he was waiving his right to a jury trial, the presumption of innocence, the right to confront witnesses against him, the right to testify and call witnesses, and the right to avoid self-incrimination, and McCranie acknowledged that he was waiving those rights. The prosecutor then advised McCranie that the maximum possible sentence he faced was 45 years. McCranie testified that his plea was freely and voluntarily entered, and trial counsel acknowledged that McCranie had confessed to the crimes.
McCranie testified that he understood the charges against him, he was guilty of those charges, he understood his right to counsel and he was satisfied with his counsel's representation. Trial counsel advised McCranie that he had four years to file a petition for habeas corpus and the trial court advised him of the conditions of probation for sex offenders.
Ultimately, McCranie entered into a negotiated plea to child molestation and statutory rape. The trial court sentenced McCranie to twenty years for child molestation, with fifteen years to be served in confinement, the remaining five years to be served on probation, and ten consecutive years to be served on probation for statutory rape, for a total sentence of thirty years with fifteen years to serve. After sentencing McCranie, the trial court concluded, "I don't know if you've got a mental problem or you're just stupid, but you act like it don't make a rat's ass to you what I just did."
Trial counsel did not thereafter file a motion to withdraw McCranie's guilty plea or a notice of appeal. In April 2015, McCranie filed a consolidated motion to vacate a void sentence, to withdraw his guilty plea, and for an out-of-time appeal. Without conducting an evidentiary hearing, the trial court denied McCranie's consolidated motion, finding that his sentence was not void and he had slept on his appellate rights by failing to file a timely appeal or a habeas corpus petition. This direct appeal ensued.2
1. On appeal, McCranie contends that the trial court erred in denying his motion to withdraw his guilty plea. McCranie's motion to withdraw his guilty plea was clearly untimely because he filed it several years after the trial court lost its authority to allow the withdrawal of the plea. See McGee v. State, 296 Ga. 353(1), 765 S.E.2d 347 (2014)
() (citation and punctuation omitted). Therefore, we affirm the denial of McCranie's motion to withdraw his guilty plea.
2. McCranie also contends that the trial court erred in denying his motion for an out-of-time appeal. We agree.
Out-of-time appeals are designed to address the constitutional concerns that arise when a criminal defendant is denied his first appeal of right because the counsel to which he was constitutionally entitled to assist him in that appeal was professionally deficient in not advising him to file a timely appeal and that deficiency caused prejudice.... However, for an out-of-time appeal to be available on the grounds of ineffective assistance of counsel, the defendant must necessarily have had the right to file a direct appeal. A direct appeal from a judgment of conviction and sentence entered on a guilty plea is only available if the issue on appeal can be resolved by reference to facts on the record. The ability to decide the appeal based on the existing record thus becomes the deciding factor in determining the availability of an out-of-time appeal when the defendant has pled guilty. Issues regarding the effectiveness of counsel are not reached unless the requirement that the appeal be resolved by reference to facts on the record is met.
(Citations omitted.) Stephens v. State, 291 Ga. 837, 837–838(2), 733 S.E.2d 266 (2012)
.
Accordingly, there are several steps that this Court must undertake in analyzing a defendant's motion for an out-of-time appeal.
First, if the issues that a defendant who pled guilty seeks to appeal cannot be resolved using the existing record, he would have had no right to file even a timely appeal and therefore is also not entitled to an out-of-time appeal. Claims that require expansion of the record must instead be pursued in a habeas corpus petition.
(Citation omitted.) Stephens, supra, 291 Ga. at 838(2), 733 S.E.2d 266
. If, however, the defendant raises issues that can be determined as a matter of law or fact on the existing record, then the defendant must show that counsel was ineffective in not filing a timely appeal. Stephens, supra, 291 Ga. at 838(2), 733 S.E.2d 266. "With regard to an out-of-time appeal, the only relevant effectiveness factor is whether the defendant had a possible ground for appeal about which his lawyer failed to inform him." (Citation omitted.) Barlow v. State, 282 Ga. 232, 234, 647 S.E.2d 46 (2007).
(a) McCranie argues that the trial court erred in denying his motion for an out-of-time appeal because his plea was involuntary on the grounds that he was not advised of his right to withdraw his guilty plea or of his right to appeal The record shows, however, that trial counsel advised McCranie of his right to withdraw his guilty plea and go to trial.
(b) In considering McCranie's argument that trial counsel was ineffective for failing to advise him of his right to appeal, the only relevant factor is whether McCranie had a possible ground for appeal about which his lawyer failed to inform him. See Barlow, supra, 282 Ga. at 234, 647 S.E.2d 46
. McCranie argues that he had a ground to challenge his plea as being involuntary because the trial court impermissibly interfered in the plea negotiation. The State concedes, and the record reflects, that the trial court's interference in plea negotiations casts doubt as to whether McCranie's plea was voluntary.3
"Judicial participation in the plea negotiation process is prohibited by court rule" in this state and "is prohibited as a constitutional matter when it is so great as to render a guilty plea involuntary." (Citations omitted.) McDaniel v. State, 271 Ga. 552, 553(2), 522 S.E.2d 648 (1999)
; see also Uniform Superior Court Rule 33.5(A) ().
Due to the force and majesty of the judiciary, a trial court's participation in the plea negotiation may skew the defendant's decision-making and render the plea involuntary because a defendant may disregard proper considerations and waive rights based solely on the trial court's stated inclination as to sentence.
(Citation omitted.) McDaniel, supra, 271 Ga. at 554(2), 522 S.E.2d 648
.
Here, the trial court not only rejected the negotiated plea, but repeatedly indicated that it wished to sentence McCranie to a longer sentence.4 The trial court also stated that it would be happy for McCranie to withdraw his plea so that the trial court could preside over his trial. McCranie ultimately agreed to enter a guilty plea with less favorable terms than those which he had originally negotiated. Thus, the judicial participation in the plea negotiations in this case was so great as to render McCranie's resulting guilty plea involuntary. See Pride v. Kemp, 289 Ga. 353, 354–355, 711 S.E.2d 653 (2011)
()....
To continue reading
Request your trial
-
Collier v. State, S19A0658
..., 338 Ga. App. 463, 465-466, 789 S.E.2d 814 (2016) ; Smith v. State , 335 Ga. App. 639, 781 S.E.2d 400 (2016) ; McCranie v. State , 335 Ga. App. 548, 550 (2), 782 S.E.2d 453 (2016) ; Raheem v. State , 333 Ga. App. 821, 823, 777 S.E.2d 496 (2015) ; Jones v. State , 332 Ga. App. 506, 507-508,......
-
Collier v. State
..., 338 Ga. App. 463, 465-466, 789 S.E.2d 814 (2016) ; Smith v. State , 335 Ga. App. 639, 781 S.E.2d 400 (2016) ; McCranie v. State , 335 Ga. App. 548, 550 (2), 782 S.E.2d 453 (2016) ; Raheem v. State , 333 Ga. App. 821, 823, 777 S.E.2d 496 (2015) ; Jones v. State , 332 Ga. App. 506, 507-508,......
-
Winfrey v. State
...to defendants that they had better accept plea offers because convictions after trial would—not could—result in harsher sentences. In McCranie v. State , for example, when the defendant asked the court what sentence would be imposed if he went to trial, the judge responded, "Why don’t you t......
-
Hughes v. State
...sentence, to be followed by at least one year of probation. OCGA §§ 16-6-3 (b) ; 17-10-6.2 (a) (4), (b); McCranie v. State , 335 Ga. App. 548, 554-556 (4), 782 S.E.2d 453 (2016). A sentence that does not comply with the OCGA § 17-10-6.2 split-sentence requirement is void. See New v. State ,......