Riggs v. State, A12A1662.

• Decision Date: 31 October 2012
• Docket Number: No. A12A1662.,A12A1662.
• Citation: 733 S.E.2d 832
• Parties: RIGGS v. The STATE.
• Court: Georgia Court of Appeals

733 S.E.2d 832

RIGGS

v.The STATE.

No. A12A1662.

Court of Appeals of Georgia.

Oct. 31, 2012.

Darren David Riggs, for Appellant.

Larry Chisolm, Christine Sieger Barker, for Appellee.

MILLER, Presiding Judge.

Darren David Riggs, proceeding pro se, appeals from the trial court's order denying his motion to withdraw guilty plea. On appeal, Riggs contends that (i) his plea was involuntary. Riggs further contends that the trial court erred in (ii) denying his motion to discharge appointed counsel and to proceed pro se, (iii) denying several pre-trial motions, and (iv) intervening in plea negotiations. In addition, Riggs contends that (v) trial counsel provided ineffective assistance.¹ For the reasons discussed below, we affirm.

After sentencing, “a guilty plea may only be withdrawn if the defendant establishes that such withdrawal is necessary to correct a manifest injustice-ineffective assistance of counsel or an involuntary or unknowingly entered guilty plea.” (Footnote omitted.) Wilson v. State, 302 Ga.App. 433, 434(1), 691 S.E.2d 308 (2010). The trial court is the final arbiter of all factual issues raised by the evidence, and its refusal to allow a withdrawal will not be disturbed absent a manifest abuse of discretion. Lawton v. State, 285 Ga.App. 45, 46, 645 S.E.2d 571 (2007).

The record shows that in September 2008, Riggs was charged with three counts of delivery and distribution of cocaine (OCGA § 16–13–30(b)); one count of criminal attempt to commit child molestation (OCGA §§ 16–4–1, 16–6–4(a)(1)); six counts of child molestation (OCGA § 16–6–4(a)(1)); one count of enticing a child for an indecent purpose (OCGA § 16–6–5(a)); two counts of cruelty to children in the first degree (OCGA § 16–5–70(b)); two counts of false statements (OCGA § 16–10–20); one count of statutory rape (OCGA § 16–6–3(a)); one count of incest (OCGA § 16–6–22(a)(1)); and one count of aggravated child molestation (OCGA § 16–6–4(c)). Riggs was appointed counsel from the public defender's office.

The State subsequently proposed a plea offer involving dismissal of the three counts of distribution of cocaine and the incest charge, a reduction of the aggravated child molestation charge to child molestation, and entry of a guilty plea to the remaining charges. The State's plea offer included a total sentence of 40 years to serve 20 years in prison and the balance on probation. At a hearing to discuss the plea offer, trial counsel testified that he advised Riggs of the plea offer. The trial court explained the total sentencing ranges for each offense, and asked Riggs if he understood the sentencing ranges and the terms of the State's plea offer.² Riggs confirmed that he understood the terms of the plea offer and was aware of the total sentence he faced if he went to trial and was convicted. Riggs stated that, while he did not wish to go to trial, he could not accept the plea offer. The State agreed to keep the offer open for a few more days to allow Riggs to consider his options, but Riggs did not accept the offer before it expired.

On the day of his trial, Riggs stated that he wished to accept the State's prior plea offer. The State refused to renew its prior plea offer, but agreed to allow Riggs to enter a non-negotiated plea. As part of the non-negotiated plea, the State agreed to nolle prosse the incest charge and reduce the aggravated child molestation charge to child molestation. During the ensuing plea colloquy, the State laid out the factual basis for each crime to which Riggs entered a guilty plea. Riggs testified under oath that he understood the charges of the indictment, the rights that he was waiving by entering the guilty plea, the sentencing ranges for the charged offenses, and the conditions of probation. Riggs further affirmed that no promises or threats had been made in exchange for his guilty plea, and that he was satisfied with his counsel's services. The trial court accepted Riggs's guilty plea, and imposed a total sentence of 50 years to serve 30 years in prison, along with general and special conditions of probation.

Following oral pronouncement of the sentence, Riggs filed a motion to withdraw his guilty plea. Following an evidentiary hearing, the trial court denied Riggs's motion.

1. Riggs contends that he was entitled to withdraw his guilty plea because it was not voluntarily entered. We disagree.

[W]hen the validity of a guilty plea is challenged, the State bears the burden of showing that the plea was voluntarily, knowingly, and intelligently made. The State may do this by showing through the record of the guilty plea hearing that (1) the defendant has freely and voluntarily entered the plea with (2) an understanding of the nature of the charges against him and (3) an understanding of the consequences of his plea.

(Citation and punctuation omitted.) Blass v. State, 293 Ga.App. 346, 667 S.E.2d 140 (2008).

In this case, the plea hearing transcript reveals that Riggs confirmed that he understood the charges pending against him, the rights that he was waiving by entering the guilty plea, and the sentencing ranges for the charged offenses. Riggs further stated that no promises or threats had been made in exchange for his guilty plea. Given this evidence, the State met its burden of showing that Riggs freely and voluntarily entered his guilty plea, and the trial court did not err in denying his motion to withdraw the plea on this ground. See id.

2. Riggs also contends that the trial court erred in denying his bond request,

denying the same without conducting a hearing, and denying other unspecified pre-trial motions. We disagree.

“Once a defendant solemnly admits in open court that he is, in fact, guilty of the offense charged, he generally may not thereafter raise independent claims that occurred prior to the entry of his guilty plea.” (Citation omitted.) Greason v. State, 312 Ga.App. 859, 859–860, 720 S.E.2d 311 (2011). “An exception will only be made if the error goes to the very power of the State to bring the defendant into court.” (Citations and punctuation omitted.) Moore v. State, 285 Ga. 855, 858(2), 684 S.E.2d 605 (2009). Having entered a valid plea of guilty, Riggs cannot now raise claims challenging the denial of pre-trial motions. Cf. Moore, supra, 285 Ga. at 858(2), 684 S.E.2d 605 (valid guilty plea barred appeal to challenge arrest warrant); Umbehaum v. State, 251 Ga.App. 471, 472–473(2), 554 S.E.2d 608 (2001) (valid guilty plea precluded challenge on speedy trial grounds).

3. Riggs raises numerous claims that he failed to raise in his written motion to withdraw his plea or at the hearing on said motion. Specifically, Riggs attempted to amend his motion to withdraw his plea by adding claims that the trial court improperly participated in the plea negotiation process; the trial court improperly denied his motion to substitute counsel and allow him to proceed pro se; and the trial court ignored trial counsel's lack of preparation before trial. Riggs, however, failed to raise these claims until after the hearing on his motion to withdraw his plea. To the extent Riggs attempted to amend his motion, we cannot consider such amendment on appeal.

A defendant must file a post-sentencing motion to withdraw a guilty plea in the same term in which he was sentenced. After the expiration of that term, the trial court lacks jurisdiction to allow the withdrawal of the plea. Thus, after the expiration of that term and of the time for filing an appeal from the conviction, the only remedy available to the defendant would be through habeas corpus proceedings.

(Citations and punctuation omitted.) Matthews v. State, 295 Ga.App. 752, 754(1), 673 S.E.2d 113 (2009). The judgment of conviction was entered on October 1, 2010, during the trial court's September 2010 term. OCGA § 15–6–3(17). While Riggs filed his initial motion to withdraw during the same term, it was not until the June 2011 term of court, however, that he attempted to amend his motion to add the above claims. Id. Consequently, “the amended motion[ ], containing new claims, [was] therefore not within the court's jurisdiction and could not form a basis for withdrawal.” (Citation and punctuation omitted.) Matthews, supra, 295 Ga.App. at 754(1), 673 S.E.2d 113; cf. Wilcox v. State, 236 Ga.App. 235, 238–239(4), 511 S.E.2d 597 (1999) (defendant waives a claim when he fails to raise it in motion to withdraw or at hearing on the same).³

4. Riggs contends that he was entitled to withdraw his guilty plea based upon the ineffective assistance provided by his counsel. We disagree.

Where ... the defendant bases his motion to withdraw on an ineffective assistance of counsel claim, he bears the burden of showing that his attorney's performance was deficient and that, but for counsel's errors, a reasonable probability exists that he would have insisted on a trial. A court need not address both the deficient performance and prejudice prongs of this test if the showing on one prong is insufficient. In reviewing a lower court's determination of a claim of ineffective assistance of counsel, we give deference to the trial court's factual findings, which are upheld on appeal unless clearly erroneous; however, we review the lower court's legal conclusions de novo.

(Punctuation and citation omitted.) Williams v. State, 307 Ga.App. 780, 706 S.E.2d 82 (2010).

(a) Riggs asserts that trial counsel was ineffective for failing to file a demurrer to the indictment. We disagree.

(i) Riggs argues the indictment was subject to demurrer because the child molestation counts should have also merged with the rape offense.

An accused may challenge the sufficiency of an indictment by filing a general or special demurrer. A general demurrer challenges the sufficiency of the substance of the indictment, whereas a special demurrer challenges the sufficiency of the form of the indictment. An indictment is sufficient to withstand a general demurrer if an accused would be guilty of the crime...