Rice v. State

• Decision Date: 06 March 2020
• Docket Number: A19A1645
• Parties: RICE v. The STATE.
• Court: Georgia Court of Appeals

354 Ga.App. 103

840 S.E.2d 508

RICE

v.The STATE.

A19A1645

Court of Appeals of Georgia.

March 6, 2020

Lyndsey Alaine Hix, Augusta, for Appellant.

Joshua Bradley Smith, Augusta, Natalie Spires Paine, for Appellee.

Barnes, Presiding Judge.

Patrick Rice appeals the denial of his motion to withdraw his guilty plea. For reasons explained below, we reverse the judgment and remand the case for proceedings not inconsistent with this opinion.

This is the second appearance of this case before this Court. As we summarized in the first appearance,

Rice pled guilty to two counts of child molestation, and the trial court sentenced him to twenty years to serve in confinement on the first count, followed by a consecutive ten years probation on the second count. Rice filed a motion to vacate the sentence, arguing that it was void for failure to meet the split-sentence requirement of OCGA § 17-10-6.2 (b). The trial court denied the motion, and Rice appeal[ed]. The State concede[d] in its brief that Rice must be re-sentenced. Because Rice [was] correct, we vacate[d] the trial court’s order and remand[ed] th[e] case for resentencing.

Rice v. State , 347 Ga. App. XXVIII (July 31, 2018) (unpublished) (hereinafter Rice I ).¹

Prior to any re-sentencing, however, Rice filed in the trial court a motion to withdraw the entirety of his guilty plea, citing Kaiser v. State , 285 Ga. App. 63, 68, 646 S.E.2d 84 (2007). In Kaiser , this Court held: "Where a void sentence has been entered, it is as if no sentence has been entered at all, and the defendant stands in the same position as if he had pled guilty and not yet been sentenced. And pursuant to OCGA § 17-7-93 (b), the defendant may withdraw his plea as of right prior to sentencing." (Emphasis supplied.) Id. at 66 (1), 646 S.E.2d 84. Rice pointed out in his motion that both sentences imposed on the child molestation counts were void for failure to comply with split-sentence mandates of OCGA § 17-10-6.2 (b), and thus argued that he was entitled to withdraw his guilty plea as to each such count. After a hearing, the trial court entered an order denying Rice’s motion and imposing new sentences.²

In this appeal, Rice relies upon the cited holding in Kaiser to maintain that the trial court erred by refusing to allow him to withdraw his guilty plea. This Court has continued to follow Kaiser ’s holding in cases such as Martinez-Chavez v. State , 352 Ga. App. 142, 144-145 (2), 834 S.E.2d 139 (2019) (explaining that the trial court erred in denying the defendant’s motion to withdraw the guilty plea prior to resentencing, where the sentences imposed were held void for failure to comply with "split sentence" mandates of OCGA § 17-10-6.2 (b) ).³ Furthermore, "[the Supreme] Court cited Kaiser with approval in Pierce v. State , 294 Ga. 842 (1), 755 S.E.2d 732 (2014). There, [the Supreme Court] noted that the trial court properly determined that Pierce was entitled to withdraw his guilty pleas to two counts ... after the sentences for those counts were vacated on appeal." State v. Hanna , 305 Ga. 100, 106 (3), 823 S.E.2d 785 (2019). And more recently in Pope v. State , 301 Ga. 528, 801 S.E.2d 830 (2017), the Supreme Court again cited Kaiser with approval. See Pope , 301 Ga. at 532, 801 S.E.2d 830 ; see further Hanna , 305 Ga. at 106, n. 5, 823 S.E.2d 785 (espousing upon the decision in Pope , supra ).

As recognized in Rice I , Rices’s two sentences for child molestation failed to comply with split-sentence mandates of OCGA § 17-10-6.2 (b) ; hence, they were vacated as void.⁴ And the record confirms that prior to re-sentencing, Rice filed a motion to withdraw his guilty plea, relying on Kaiser ’s holding with respect to OCGA § 17-7-93 (b). In denying Rice’s motion, the trial court determined that Kaiser provided no relief for Rice on express findings that

[Rice] waived his right to withdraw his plea or appeal when he entered into it, as evidenced by the change of plea form filed at the time of sentencing. The Court finds that although the judgment in the case was vacated [by Rice I ], the [Court of Appeals’] instructions were to re-sentence the case.

In Blackwell v. State , 299 Ga. 122, 786 S.E.2d 669 (2016), the Supreme Court held that "a criminal defendant’s rights under OCGA § 17-7-93 (b) to withdraw his or her guilty plea at any time prior to sentencing is a right that can be waived." Id. at 123, 786 S.E.2d 669. As the Court explained, "Because no [constitutional, statutory, or public policy] prohibition against waiver exists, a criminal defendant may make a ‘voluntary, knowing, and intelligent waiver’ of the right in question." Id. at 122-123, 786 S.E.2d 669, quoting Thomas v. State , 260 Ga. 262, 264, 392 S.E.2d 520 (1990). Turning to the trial court’s determination that the appellant in that case had waived such right, the Court conducted a review of the record. Id. at 124, 786 S.E.2d 669. The Court identified that one specific exchange at the guilty plea hearing showed that "[the defendant] knew ... [that] he would be subject to any future sentence imposed by the trial court without having the opportunity to withdraw the plea beforehand"; that another specific exchange "underscored the fact that [the defendant] understood and affirmatively agreed that he would not be able to withdraw his guilty plea once he had entered it"; and that during a later colloquy, "[the defendant] directly reaffirm[ed] to the trial court that he knew and agreed that he would not be able to withdraw his plea once he had entered it, and that this was the case despite the fact that he would not be sentenced until a later date." Id. at 125, 786 S.E.2d 669. In light of those exchanges, the Court affirmed the trial court’s denial of the defendant’s motion to withdraw his guilty plea "[b]ecause the right under OCGA § 17-7-93 (b) to withdraw a guilty plea at any time before sentence is pronounced can be waived, and because [the defendant] waived that right in connection with his plea in [that] case." Blackwell , 299 Ga. at 125, 786 S.E.2d 669.

In the instant case, the trial court ruled that Rice had waived his right under OCGA § 17-7-93 (b) to withdraw his guilty plea "as evidenced by the change of plea form filed at the time of sentencing." That form set forth that "the defendant ... changes his/her plea from not guilty to guilty of as set forth [at the bottom of the form] .... Furthermore, the defendant now waives all rights of appeal to the process and procedure in this case; of the entry of his plea of guilty; and of the entry of judgment and the sentence of the court hereon."⁵ Rice maintains that "[t]he form contemplates modification of a sentence and appeal from the entry of the plea, sentence, or judgment, but does not address one’s right to withdraw the plea prior to sentence being pronounced." (Emphasis in source.)

We agree with Rice that the language of the form is too imprecise and too vague to establish that he "ma[d]e a voluntary, knowing, and intelligent waiver of the right in question ." (Citation, punctuation omitted; emphasis supplied.) Blackwell , 299 Ga. at 123, 786 S.E.2d 669. The form did not expressly address the specific right at issue here – the right, pursuant to OCGA § 17-7-93, to withdraw the guilty plea at any time before (a valid) sentence was pronounced. And we will not ascribe thereto a waiver of that statutory right – particularly in view of Blackwell , wherein waiver was established upon a clear, unambiguous, and explicit record that the defendant knew that he would be subject to future sentencing without having the opportunity to withdraw the plea beforehand; and that he understood and affirmatively agreed that he would not be able to withdraw his guilty plea once he had entered it.

Notably, the State makes no assertion in its brief that the change of plea form established waiver of the right at issue here; nor does the State assert that some other portion of the record shows that Rice affirmatively waived that right.⁶

Instead, the State advances the following two arguments for affirming the trial court’s denial of Rice’s motion to withdraw his guilty plea. First, the State posits that Rice’s 2018 motion to withdraw was untimely because it was filed years after the term of court in which Rice entered his 2012 guilty plea. The State relies upon Rubiani v. State , 279 Ga. 299, 612 S.E.2d 798 (2005), for the general principle 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 withdrawal of the plea." (Citation and punctuation omitted.) Id. at 299, 612 S.E.2d 798. But as we have detailed above, Rice I vacated as void the sentences initially imposed upon Rice’s guilty plea, and Rice then moved to withdraw his guilty plea before the trial court entered any new sentence. Because those circumstances render Rubiani inapposite, the State’s reliance on that case is misplaced. And given Kaiser and its progeny, there is no merit to the State’s argument that Rice’s motion to withdraw was untimely filed.⁷ See generally McKiernan v. State , 286 Ga. 756, 758, 692 S.E.2d 340 (2010) (noting that a trial court may have authority over a sentence well beyond the expiration of a single term of court); Franks , 323 Ga. App. at 814, 748 S.E.2d 291 ("Because the court imposed void sentences, [the defendant] stood in the position as if he had pled guilty but not yet been sentenced, and thus had the absolute right to withdraw his plea before resentencing. The trial court’s denial of the motion to withdraw the plea prior to resentencing was therefore erroneous and must be reversed.") (citation omitted).

In its second argument, the State posits that the trial court was precluded from entertaining Rice’s motion by the "law of the case" rule, which provides in pertinent part that "any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in ...