Sanders v. State, No. S06A0171.

• Decision Date: 12 June 2006
• Docket Number: No. S06A0171.
• Citation: 280 Ga. 780,631 S.E.2d 344
• Parties: SANDERS v. The STATE.
• Court: Georgia Supreme Court

280 Ga. 780

Page 344

631 S.E.2d 344

SANDERS v. The STATE.

No. S06A0171.

Supreme Court of Georgia.

June 12, 2006.

Reconsideration Denied July 17, 2006.

Walter Michael Britt, Chandler, Britt, Jay & Beck, L.L.C., Buford, GA, for Appellant.

Daniel J. Porter, Dist. Atty., Peter Harry Boehm, John Arnold Steakley, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Department of Law, Atlanta, GA, for Appellee.

HINES, Justice.

This is an appeal by defendant Donald Steve Sanders from an order of nolle prosequi entered on one of two indictments returned against him for murder and related crimes arising out of the death of the same victim. Sanders challenges the entry of nolle prosequi and the trial court's refusal to accept his pleas of guilty to the charges in the indictment subject to the nolle prosequi. For the reasons which follow, we affirm.

On December 15, 2004, a Gwinnett County grand jury indicted Sanders for malice murder, felony murder, armed robbery, two counts of aggravated assault, and possession of a knife during the commission of a felony in connection with the death of Doris Joyner (Indictment 04B-4516-3, "first indictment").¹ That same day, the grand jury returned another true bill against Sanders, indicting him for the felony murder and armed robbery of Joyner (Indictment 04B-4517-1, "second indictment").² On March 4, 2005, the State filed a "Notice of Intent to Seek the Death Penalty Based on Aggravating Circumstances" in the first indictment. At arraignment on this first indictment on May 13, 2005, Sanders entered a plea of not guilty.

The second indictment was originally called for arraignment on June 9, 2005, but, with Sanders's agreement, the arraignment was postponed for approximately a month in order for Sanders to secure different counsel. At the call of the reset arraignment on July 18, 2005, Sanders's attorney announced that, the State not having filed a notice of intent to seek the death penalty on the charges in the second indictment, Sanders would "tender a plea of guilty" to it. The attorney then tendered to the trial court a signed indictment and a petition to enter the non-negotiated pleas, and requested the court to "sentence accordingly." The trial court questioned the State's purpose in maintaining the second or "alternative" indictment, and stayed the hearing until later that day in order to examine Sanders's petition and afford the State an opportunity to respond. At the resumption of the proceedings a short while later, the State indicated it wished to have an order of nolle prosequi entered as to the second indictment, and Sanders objected. The trial court continued the hearing until that afternoon in order to further consider the matter. When the hearing resumed, the State presented the trial court with a written motion requesting the entry of an order of nolle prosequi on the second indictment. The State cited as its basis for requesting the nolle prosequi, the fact that the second indictment was merely an alternative to the first indictment, which was pending and on which it was seeking the death penalty. Sanders objected, arguing that, under the circumstances, the trial court had no discretion to refuse his pleas, and that to do so, constituted violations of due process, state statutes, and court rules. The trial court gave the parties additional time to file briefs. On August 18, 2005, the trial court entered an order of nolle prosequi as to the second indictment.

1. The State asserts that this appeal is improperly before this Court because there is no judgment subject to a direct appeal, and even if there were, this Court is not the appropriate appellate body because Sanders has not been convicted of a capital felony. This Court independently will consider the propriety of the appeal because it is the duty of this Court to inquire into its jurisdiction in any case in which there may be a doubt about the existence of such jurisdiction. Fairclough v. State, 276 Ga. 602, 603(1), 581 S.E.2d 3 (2003).

First, inasmuch as this case involves an indictment for murder, this Court, rather than the Court of Appeals has jurisdiction in the matter, irrespective of the fact that the judgment at issue is pre-conviction. See In re Paul, 270 Ga. 680, 683, 513 S.E.2d 219 (1999); State v. Thornton, 253 Ga. 524, 322 S.E2d 711 (1984). So the question is whether Sanders can challenge the entry of the nolle prosequi as to the second indictment, and thereby, the trial court's implicit refusal to accept his pleas of guilt to such indictment.

It is the duty of the district attorney to determine whether it is in the public interest to recommend to the trial court that an order of nolle prosequi be entered in a case, and when there is a recommendation that such an order be entered, it is within the discretion of the trial court whether to follow the recommendation. Broomfield v. State, 264 Ga. 145, 147(2), 442 S.E.2d 242 (1994). Further, an order of nolle prosequi may be entered without the consent of the accused at any time prior to the attachment of jeopardy. OCGA § 17-8-3; McIntyre v. State, 189 Ga. App. 764, 765(1), 377 S.E.2d 532 (1989). However, this does not result in the defendant having no standing to seek an appeal of the nolle prosequi order. A defendant may appeal such an order as final. See Layman v. State, ___ Ga. ___, 631 S.E.2d 107 (Case Nos. S06A0634; S06A0687) (2006); McIntyre v. State supra at 764(1)-765, 377 S.E.2d 532. The issue then is whether the nolle prosequi was entered prior to the attachment of jeopardy. McIntyre v. State supra at 765(1), 377 S.E.2d 532. And in this case, jeopardy clearly had not attached in regard to the second indictment, because the trial court did not even accept a plea to such indictment. See Shaw v. State, 239 Ga. 690, 692(1), 238 S.E.2d 434 (1977). Therefore, without any plea to the indictment, the entry of the nolle prosequi itself, albeit without the defendant's consent, could not be error. McIntyre v. State at 765(1), 377 S.E.2d 532.

2. The remaining question is whether, under the circumstances in this case, the trial court was required to accept Sanders's pleas of guilty to the second indictment. And plainly, the trial court was not required to do so.

As Sanders acknowledges, a defendant has no constitutional right to enter a guilty plea. North Carolina v. Alford, 400 U.S. 25, 38 n.11, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Cornelius v. State, 273 Ga.App. 806, 810(2)(c), 616 S.E.2d 148 (2005); Turley v. State, 265 Ga.App. 385, 387(2), 593 S.E.2d 916 (2004). Nevertheless, a state may by statute or otherwise confer such a right. North Carolina v. Alford, 400 U.S. 25, 38 n.11, 91 S.Ct. 160. Sanders maintains that Georgia has established such a right by statute and the Uniform Superior Court Rules.

Sanders first argues that OCGA § 17-7-93³ confers a right upon a defendant to plead guilty. But that is hardly the case. What it does do is provide the sequence of events in the arraignment process. As this Court stated in regard to Code Ann. § 27-1404, the predecessor to OCGA § 17-7-93,

[a] plea of guilty is but a confession of guilt in open court and a waiver of trial .... it ought to be scanned with care and received with caution. The judge is not bound to receive such a plea at all, and in capital cases frequently declines to do so.

Pass v. State, 227 Ga. 730(2), 182 S.E2d 779 (1971) (Internal quotation marks omitted); See also Head v. State, 262 Ga. 795, 796(2), 426 S.E.2d 547 (1993). The provisions of OCGA § 17-7-93 did not require the trial court to accept Sanders's pleas.

Sanders also points to OCGA § 17-10-32.1⁴ as providing a statutory right to plead guilty. But Sanders misreads this statute too. The statute describes the duties of the judge in sentencing a person who is subject to the death penalty or life without parole upon a plea of guilty. It states that in such cases, a person "may" enter a plea of guilty at any time after indictment, and that the judge "may," in the judge's discretion, sentence the person to life imprisonment or other authorized punishment for the indicted offense. Here again, there is no mandate that the judge accept a guilty plea. McCorquodale v. State, 233 Ga. 369, 374(3), 211 S.E.2d 577 (1974), citing Massey v. State, 220 Ga. 883, 889(1), 142 S.E.2d 832 (1965), which addressed similar language in former Code Ann. § 27-2528.

Finally, there is no merit to Sanders's bare assertion that Uniform Superior Court Rules 30.2⁵, 33.1⁶, and 33.10⁷ create a "legal right" to plead guilty. USCR 30.2 merely provides the procedure for the call for arraignment. As to USCR 33.1 and USCR 33.10, the fact that they do not expressly address pleas of guilty does not create any implicit rights with regard to such pleas.

Judgment affirmed.

All the Justices concur.

1. Kayla Diane Sanders was named as a co-indictee.

2. Kayla Diane...