Poole v. State

Citation326 Ga.App. 243,756 S.E.2d 322
Decision Date14 March 2014
Docket NumberNo. A13A1745.,A13A1745.
CourtUnited States Court of Appeals (Georgia)
PartiesPOOLE v. The STATE.

OPINION TEXT STARTS HERE

Steven Alexander Miller, for Appellant.

Charles Stephen Cox, Asst. Dist. Atty., Leigh Ellen Patterson, Dist. Atty., for Appellee.

BARNES, Presiding Judge.

Mark Winford Poole entered a plea of guilty but mentally ill to three counts of terroristic threats and two counts of stalking pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). During the same term of court, Poole filed a motion to withdraw his guilty plea and a motion in arrest of judgment, both of which the trial court denied. On appeal, Poole contends that the trial court erred in denying his motion to withdraw his guilty plea because the court failed to follow the procedure set forth in OCGA § 17–7–131(b)(2) for acceptance of a plea of guilty but mentally ill. Poole also contends that the trial court erred in denying his motion in arrest of judgment with respect to the terroristic threats counts because the indictment failed to allege with sufficient particularity the “ crime of violence” threatened against the victims and failed to allege any corroboration for the alleged threats. For the reasons discussed below, we affirm.

1. Poole first argues that he was entitled to withdraw his plea to the terroristic threats and stalking charges because the trial court failed to follow the procedures set forth in OCGA § 17–7–131(b)(2) for acceptance of a plea of guilty but mentally ill. We are unpersuaded because Poole has failed to prove that withdrawal of his plea is necessary to correct a manifest injustice.

Mental illness is not an element of the underlying criminal offense, see Spivey v. State, 253 Ga. 187, 189(2), 319 S.E.2d 420 (1984), and the trial court is to sentence a defendant found guilty but mentally ill “in the same manner as a defendant found guilty of the offense,” except in death penalty cases. OCGA § 17–7–131(g)(1), (j). See Snyder v. State, 201 Ga.App. 66, 70(10), 410 S.E.2d 173 (1991). [T]he guilty but mentally ill verdict merely allows for accommodation to the mental health needs of those defendants who are guilty, but have a mental disorder which falls short of insanity and delusional compulsion.” (Citation, punctuation and emphasis omitted.) Dimauro v. State, 185 Ga.App. 524, 526(4), 364 S.E.2d 900 (1988). Specifically, Georgia law provides that a defendant found guilty but mentally ill at the time of the underlying offense “shall be committed to an appropriate penal facility and shall be evaluated then treated, if indicated, within the limits of state funds appropriated therefor, in such manner as is psychiatrically indicated for his or her mental illness.” OCGA § 17–7–131(g)(1). If clinically indicated, a defendant found guilty but mentally ill also can be temporarily transferred from a penal facility to the Department of Behavioral Health and Developmental Disabilities for treatment of his or her mental illness. See OCGA § 17–7–131(g)(2).

OCGA § 17–7–131(b)(2) sets forth the procedures that are to be followed by the trial court when a defendant chooses to enter a plea of guilty but mentally ill. That statutory subsection provides in relevant part:

A plea of guilty but mentally ill at the time of the crime ... shall not be accepted until the defendant has undergone examinationby a licensed psychologist or psychiatrist and the court has examined the psychological or psychiatric reports, held a hearing on the issue of the defendant's mental condition, and is satisfied that there is a factual basis that the defendant was mentally ill at the time of the offense[.]

We have held that the procedural requirements of OCGA § 17–7–131(b)(2) are sufficiently fulfilled if a factual basis for the plea of guilty but mentally ill was established at the plea hearing. See Cullers v. State, 247 Ga.App. 155, 156–157, 543 S.E.2d 763 (2000) (two psychological evaluations were conducted, one at request of trial court and other at request of defendant, and the findings of both reports were read into record at plea hearing); Barber v. State, 240 Ga.App. 156, 157–158(2), 522 S.E.2d 528 (1999) (defense counsel obtained an independent psychiatric report and read the defendant's psychiatric history into the record at plea hearing).

As the State conceded at the hearing on Poole's motion to withdraw his plea, the procedural requirements imposed by OCGA § 17–7–131(b)(2) were not followed at the plea hearing in the present case. At the plea hearing, the State recited the factual basis for the terroristic threats and stalking charges against Poole, but there was no discussion by either party of the factual basis for Poole pleading guilty but mentally ill. Furthermore, Poole and his counsel expressly withdrew at the hearing their previously filed motion for a psychological or psychiatric examination, and thus the trial court was not presented with any psychological or psychiatric reports regarding Poole's mental status at the time he committed the underlying offenses.

Nevertheless, we conclude that even if the State cannot demonstrate that the trial court complied with OCGA § 17–7–131(b)(2), Poole was not automatically entitled to withdraw his plea of guilty but mentally ill. In reaching this conclusion, we look to the analogous context where a trial court fails to comply with the procedural requirements for pleas imposed by the provisions of Uniform Superior Court Rule (“USCR”) 33. In that context, it is well settled that even if the record does not adequately demonstrate compliance with the provisions of USCR 33, a defendant is entitled to withdraw his plea “only to correct a manifest injustice.” (Citation, punctuation and footnote omitted.) Foster v. State, 281 Ga.App. 584(1), 636 S.E.2d 759 (2006). See Smith v. State, 287 Ga. 391, 399(3), 697 S.E.2d 177 (2010).

This high standard is justified for several reasons. First, once sentence is imposed, the defendant is more likely to view the plea bargain as a tactical mistake and therefore wish to have it set aside. Second, at the time the sentence is imposed, other portions of the plea bargain agreement will often be performed by the prosecutor, such as the dismissal of additional charges or the return or destruction of physical evidence, all of which may be difficult to undo if the defendant later attacks his guilty plea. Finally, a higher post-sentence standard for withdrawal is required by the settled policy of giving finality to criminal sentences which result from a voluntary and properly counseled guilty plea.

(Citation omitted.) Smith, 287 Ga. at 400(3), 697 S.E.2d 177.

In the recent Smith case, our Supreme Court held that the reasons for requiring a showing of manifest injustice in the context of a violation of USCR 33's provisions applied with equal force to a motion to withdraw a guilty plea based on a violation of OCGA § 17–7–93(c), which requires a trial court to advise a defendant on the record that his guilty plea may have an impact on his immigration status.1Smith, 287 Ga. at 400(3), 697 S.E.2d 177. The Supreme Court reasoned that the manifest injustice standard should control, particularly since OCGA § 17–7–93(c) did not specify a different remedyfor violations of its terms. Id. Compare OCGA § 17–8–57 (requiring by its express terms reversal of conviction and grant of new trial where trial judge in criminal case expresses or intimates opinion as to what has or has not been proven or as to the guilt of the accused).

By analogy to Smith, we conclude that the reasons for requiring a showing of manifest injustice apply equally to motions to withdraw a guilty plea based on a violation of OCGA § 17–7–131(b)(2). As with the statute at issue in Smith,OCGA § 17–7–131(b)(2) does not specify a different remedy for violations of its terms. Accordingly, we conclude that a defendant who seeks to withdraw a plea of guilty but mentally ill based on an alleged violation of OCGA § 17–7–131(b)(2) must prove that withdrawal is necessary to correct a manifest injustice.

To prove manifest injustice, Poole must “show some real harm or prejudice” resulting from the violation of OCGA § 17–7–131(b)(2). Smith, 287 Ga. at 400(3), 697 S.E.2d 177. See Williams v. State, 287 Ga.App. 754, 755, 652 S.E.2d 637 (2007) (manifest injustice analysis requires that alleged violation “be tested for harm”). Poole, however, has failed to make such a showing. At the hearing on his motion to withdraw his plea, Poole presented no evidence whatsoever that he has been harmed or prejudiced by the entry of his plea of guilty but mentally ill. Moreover, as we explained in Barber, 240 Ga.App. at 158(3), 522 S.E.2d 528,

the “guilty but mentally ill” plea is for the benefit of the defendant, because (1) it provides for mental health treatment during the sentence, and (2) it recognizes a reduced level of culpability. Therefore, if the sentencing court fail[s] to strictly comply with OCGA § 17–7–131(b)(2), such failure inure [s] to [the defendant's] benefit and [is] harmless error.

Consequently, withdrawal of Poole's plea of guilty but mentally ill is not necessary to correct a manifest injustice, and we therefore affirm the trial court's denial of his motion to withdraw his plea.2

2. Poole contends that the trial court erred in denying his motion in arrest of judgment with respect to the terroristic threats charges because the indictment (a) failed to allege with sufficient particularity the “crime of violence” threatened against the victims and (b) failed to allege any corroboration for the alleged threats. We disagree with both contentions.

A person commits the offense of a terroristic threat when he or she threatens to commit any crime of violence with the purpose of terrorizing another. The crime of making terroristic threats focuses solely on the conduct of the accused and is completed when the threat is communicated to the victim with the intent to terrorize.

(Citations and punctuation omitted...

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