Powell v. State

• Decision Date: 10 August 2020
• Docket Number: S20A0852
• Citation: 847 S.E.2d 338,309 Ga. 523
• Parties: POWELL v. The STATE.
• Court: Georgia Supreme Court

309 Ga. 523

847 S.E.2d 338

POWELL

v.The STATE.

S20A0852

Supreme Court of Georgia.

Decided: August 10, 2020

John Walter Kraus, Office of the Public Defender, 146 N. McDonough Street, Jonesboro, Georgia 30236, for Appellant.

Patricia B. Attaway Burton, Paula Khristian Smith, Christopher M. Carr, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Tasha Monique Mosley, Karen Smith Barbour, Clayton County District Attorney's Office, 9151 Tara Boulevard, Jonesboro, Georgia 30236, for Appellee.

Peterson, Justice.

Tyree Khalil Powell appeals the denial of his timely motion to withdraw his guilty plea to malice murder. He argues that his motion was improperly denied because he was not properly advised of the rights listed in Boykin v. Alabama , 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and was forced to proceed with counsel with whom he had a bad relationship and who was not prepared for trial. Powell also argues that he should have been allowed to withdraw his guilty plea because the trial court erred in denying his request for new counsel. But the trial court's determination that Powell entered his guilty plea knowingly, intelligently, and voluntarily is supported by the record, and Powell has not shown that he was prejudiced by any deficient performance by plea counsel. We see no abuse of discretion in the denial of Powell's motion to withdraw his guilty plea, and we affirm.

The record shows that Powell was charged with two counts of malice murder and other crimes related to the August 2016 shooting of Joshua Densley and Ernest Brown. Powell had a poor relationship with his appointed counsel; Powell wrote multiple letters to the trial court complaining about the representation, but court staff informed him that the court could not consider such communications given that he was represented.

At some point, Powell attempted to fire his counsel. The trial court held a hearing on the issue of Powell's representation on October 12, 2018. At the outset of the hearing, the trial court explained to Powell that the hearing had been called "because the Court received some news about you wanting to terminate your attorney, is that correct?" Powell agreed and complained that his lawyer did not have his best interests in mind and was not preparing his case for trial. After confirming that Powell did not want to represent himself, the trial court assured Powell that it could not appoint a better lawyer than he already had, and informed Powell that his appointed counsel was "still his attorney." "All right, sir," Powell responded.

On February 19, 2019, Powell entered a guilty plea to the two counts of malice murder and two aggravated assault charges; those aggravated assault charges merged into the murder counts, and the other charges were nolle prossed. On that same date, Powell was sentenced to two concurrent sentences of life in prison with the possibility of parole for two counts of malice murder.

Through counsel, Powell filed a motion to withdraw his guilty plea on March 4, 2019. The motion argued that Powell should be allowed to withdraw his plea because it "was not knowingly, intelligently, and voluntarily made" and because denial of the motion "would be a manifest injustice." A new lawyer (who continues to represent Powell before this Court) was appointed to pursue Powell's motion to withdraw. At a hearing on the motion to withdraw, the trial court heard testimony from Powell and his plea counsel, as well as a third witness who spoke to Powell's good reputation. Powell argued at the hearing that he should be allowed to withdraw his plea because he was improperly advised of his right to testify, the trial court improperly handled his request for new counsel, and he was deprived of his constitutional right to the effective assistance of counsel. The trial court denied the motion in an order entered on October 2, 2019. Powell timely appealed.

1. Powell first argues that the trial court improperly denied his motion to withdraw because he was not properly advised of the rights listed in Boykin . We disagree.

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. See Walden v. State , 291 Ga. 260, 261 (1), 728 S.E.2d 186 (2012).¹

The test for manifest injustice will by necessity vary from case to case, but it has been said that withdrawal is necessary to correct a manifest injustice if, for instance, a defendant is denied effective assistance of counsel, or the guilty plea was entered involuntarily or without an understanding of the nature of the charges.

Maddox v. State , 278 Ga. 823, 826 (4), 607 S.E.2d 587 (2005) (citation and punctuation omitted). To determine whether a guilty plea is valid, the record must show that the defendant understood the plea, the nature of the charges, and the constitutional rights that he is relinquishing. See DeToma v. State , 296 Ga. 90, 91 (1), 765 S.E.2d 596 (2014) ; Arnold v. State , 292 Ga. 95, 97 (2), 734 S.E.2d 382 (2012). The State has the burden on direct review of establishing that the plea was entered knowingly, intelligently, and voluntarily. See DeToma , 296 Ga. at 91 (1), 765 S.E.2d 596. A trial court does not abuse its discretion in denying a motion to withdraw a guilty plea if the record supports the trial court's determination that a plea was made knowingly, intelligently, voluntarily, and without coercion. See Glover v. State , 300 Ga. 88, 90 (1), 793 S.E.2d 408 (2016). Where the evidence at issue is in conflict, the credibility of witnesses is for the trial court to determine. See id.

The United States Supreme Court stated in Boykin that we cannot presume from a silent record the waiver of three federal rights: (1) the right against compulsory self-incrimination; (2) the right to be tried by a jury; and (3) the right to confront his or her accusers. 395 U.S. at 243, 89 S.Ct. 1709. Powell argues that he should be allowed to withdraw his plea because the prosecutor implied during the plea colloquy that Powell would be allowed to testify only with counsel's approval. Specifically, during the plea colloquy the prosecutor advised Powell, "You understand that had you had the jury trial that [plea counsel] ... would allow you to testify if y'all made the decision strategically to do so, or you have a right to remain silent at your trial?"

Indeed, the prosecutor's question to Powell may have inaccurately suggested that defense counsel decides whether a defendant may testify. See State v. Nejad , 286 Ga. 695, 696 (1) n.2, 690 S.E.2d 846 (2010) (decision whether to testify "is personal to the defendant" and "is made by the defendant after consultation with counsel"). But such a suggestion, inaccurate as it may be, does not run afoul of Boykin . Boykin did not mandate that a defendant be told that defense counsel's consent need not be obtained before testifying in order for a plea to be valid. Instead, it held that the knowing, intelligent, and voluntary waiver of three federal constitutional rights at the time of a guilty plea — including the privilege against compulsory self-incrimination — cannot be presumed from a silent record. See 395 U.S. at 243 & n.5, 89 S.Ct. 1709.

Here, the record supports the trial court's determination that Powell "knowingly and voluntarily entered his plea" and "fully understood the nature of the charges against him, the rights he was relinquishing, and the consequences of his plea." Powell was specifically advised at his plea hearing that, by pleading guilty, he was waiving the right to be tried by a jury, the right to testify in his own defense, the right to call witnesses, and the right to cross-examine the State's witnesses. He was also specifically advised during the hearing that he had a right to remain silent at his trial. Powell orally indicated that he understood those things. By signing the guilty plea acknowledgment and waiver of rights form, Powell also affirmed his understanding that he had the right to testify or not and that by pleading guilty he waived that right.

Powell since has professed some ignorance as to whether he was aware, at least prior to his plea colloquy, that he could testify or not testify at his trial.² But plea counsel testified that she reviewed the plea waiver form with Powell and explained all of the rights that he would be waiving by pleading guilty. Acknowledging that Powell was "emotional" at the time, counsel also testified that he seemed to understand the form and asked no questions. The trial court explicitly credited plea counsel's testimony about her review of the plea form with Powell, discredited Powell's testimony that he did not understand the plea proceedings, and found that Powell "knowingly and voluntarily entered his plea." We cannot say that the trial court abused its discretion in denying the motion to withdraw Powell's guilty plea to the extent that it was based on his claim that Powell was not properly advised of the rights he was waiving in pleading guilty.

2. Powell next argues that he was denied his constitutional right to effective counsel because the attorney-client relationship had broken down and because plea counsel had failed to prepare for trial. We disagree.

Ineffectiveness of counsel can constitute manifest injustice requiring that a defendant be allowed to withdraw his plea. See Graham v. State , 300 Ga. 620, 621, 797 S.E.2d 459 (2017). To establish a claim of ineffective assistance of counsel, the defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the guilty plea context, the defendant must show both that "counsel's representation fell below an objective standard of reasonableness" and that "there is a reasonable probability that, but for counsel's errors, he would...