McGee v. State, s. S14A1648
| Decision Date | 03 November 2014 |
| Docket Number | Nos. S14A1648,S14A1649.,s. S14A1648 |
| Citation | 296 Ga. 353,765 S.E.2d 347 |
| Court | Georgia Supreme Court |
| Parties | McGEE v. The STATE. McGee v. The State. |
Jeffrey Vincent McGee, Valdosta, pro se.
Peter J. Skandalakis, Dist. Atty., LaGrange, Jeffery W. Hunt, Asst. Dist. Atty., Samuel S. Olens, Atty. Gen., Patricia B. Attaway Burton, Deputy Atty. Gen., Paula K. Smith, Sr. Asst. Atty. Gen., for Appellee.
On January 31, 2001, Jeffrey Vincent McGee pled guilty to malice murder, aggravated battery upon a peace officer, and possession of a firearm by a convicted felon in connection with the January 20, 1999 shooting death of police officer Robbie Bishop. The trial court sentenced McGee, in relevant part, to life without the possibility of parole for malice murder and twenty years for aggravated battery to run concurrent with the malice murder sentence. Over thirteen years later, on February 10, 2014, McGee filed a motion to withdraw his guilty plea, which motion the trial court denied without a hearing on February 11, 2014. McGee then filed a motion for an out-of-time appeal on May 1, 2014, which the trial court denied without a hearing on May 6, 2014. In Case No. S14A1648, McGee appeals pro se from the denial of his motion to withdraw his guilty plea. In Case No. S14A1649, McGee appeals pro se from the denial of his motion for an out-of-time appeal. For the reasons that follow, we affirm in Case No. S14A1648 and we vacate and remand in Case No. S14A1649.
1. “It is well settled that[,] when the term of court has expired in which a defendant was sentenced pursuant to a guilty plea[,] the trial court lacks jurisdiction to allow the withdrawal of the plea.” Henry v. State, 269 Ga. 851, 853(2), 507 S.E.2d 419 (1998). Here, McGee's motion to withdraw his plea was clearly untimely, as it was filed several years after the trial court had already lost its authority to allow the withdrawal of the plea. The trial court therefore properly denied McGee's motion without conducting a hearing. Brown v. State, 280 Ga. 658(1), 631 S.E.2d 687 (2006).1
2. McGee contends that he was improperly sentenced on both the malice murder and aggravated battery counts against him, where the aggravated battery count should have merged as a matter of fact with the malice murder count. See OCGA § 16–1–7. See also Givens v. State, 294 Ga. 264, 269(6), 751 S.E.2d 778 (2013) (). In connection with this argument, McGee also asserts that his trial counsel was ineffective for having failed to recognize this issue and for having failed to properly pursue it through a direct appeal. While McGee has not challenged his actual sentence through the appropriate means (see Nazario v. State, 293 Ga. 480, 746 S.E.2d 109 (2013) (citations omitted)), he is correct in his assertion that the trial court should have conducted a hearing to determine whether McGee's failure to pursue a timely direct appeal was the result of counsel's ineffectiveness. See, e.g., Nesbitt v. State, 295 Ga.App. 394, 671 S.E.2d 877 (2008). Indeed, assuming without deciding that there was an error relating to McGee's sentencing, the record does not reveal whether McGee or his counsel...
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