Thomas v. State, A98A1619.
| Decision Date | 06 October 1998 |
| Docket Number | No. A98A1619.,A98A1619. |
| Citation | 234 Ga. App. 652,507 S.E.2d 523 |
| Parties | THOMAS v. The STATE. |
| Court | Georgia Court of Appeals |
James B. McGinnis, Lawrenceville, Martin C. Jones, Jonesboro, for appellant.
J. Tom Morgan, District Attorney, Stephen D. Sencer, Maria Murcier-Ashley, Sheila A. Connors, Noah H. Pines, Assistant District Attorneys, for appellant.
HAROLD R. BANKE, Senior Appellate Judge.
Charles Alexander Thomas pleaded guilty to aggravated battery, two counts of aggravated assault, two counts of criminal attempt to commit aggravated sexual battery, and false imprisonment. He was sentenced as a recidivist to 30 years incarceration without the possibility of parole. He enumerates three errors on appeal, challenging the trial court's denial of his motion to withdraw the guilty pleas.
The case arose when Thomas assaulted the victim, who was seven months pregnant with his child. After opening statements and a similar transaction hearing, Thomas decided to change his pleas. At the plea hearing, Thomas testified that he was in fact guilty of the charged offenses, he understood the rights he was waiving by his pleas, and he was waiving them freely and voluntarily. Thomas also assured the court he understood that because he was sentenced as a recidivist, he would serve the entire sentence in prison.
Days after the imposition of his sentence, Thomas filed a pro se motion to withdraw his pleas, asserting that when he entered the pleas he was "not himself" due to stress and manic depression. He also proclaimed his innocence; however, in a subsequent letter to the court Thomas admitted that "one night of drugs and alcohol turned me into a monster."
The trial court appointed Thomas new counsel, ordered a psychological examination, and conducted a hearing on the motion to withdraw. At the hearing's end, the trial court denied the motion, concluding that Thomas was mentally competent when he knowingly, intelligently, freely, and voluntarily entered his guilty pleas. Held:
1. Thomas claims that because he would not have entered the guilty pleas but for his counsel's ineffectiveness, the trial court abused its discretion in denying his motion to withdraw the pleas. Thomas maintains he lost hope for a fair trial and decided to plead guilty after his counsel admitted during opening argument that Thomas had assaulted the victim.
At the hearing on the motion to withdraw, the trial court found that trial counsel was "very capable and competent" and provided good advice. Trial counsel testified that he mentioned the assault in opening as a matter of strategy because Thomas had sent inculpatory poems to the victim from jail which the State intended to introduce into evidence. Counsel reasoned that he should admit what could not be denied and deny the rest. Counsel also testified that Thomas' admissions rendered his claim to an alibi defense unethical and ludicrous.
Even tactical errors do not constitute ineffective assistance. Keanum v. State, 212 Ga.App. 662, 664(3), 442 S.E.2d 790 (1994). Here, trial counsel's strategy could not be characterized as deficient considering the circumstances of this case. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Brown v. State, 257 Ga. 277, 278(2), 357 S.E.2d 590 (1987). This fact precludes a finding that the trial court clearly erred in rejecting Thomas' claim of ineffectiveness or abused its discretion in denying the motion to withdraw. Beck v. State, 222 Ga.App. 168, 473 S.E.2d 263 (1996) (); see Jones v. State, 230 Ga. App. 65, 66, 495 S.E.2d 327 (1997). We need not reach Thomas' argument that the trial court erred by failing to ask him if he and his counsel had resolved their disagreement because it was not raised in the enumeration. Guest v. State, 229 Ga.App. 627, 628(1), 494 S.E.2d 523 (1997).
2. Thomas claims that the trial court's failure to determine whether he knew of his ineligibility for parole requires reversal. His argument lacks both legal and factual support. This Court has held that the trial court has no duty to advise defendants of the parole consequences of a sentence agreed to as part of a plea bargain. Smith v. State, 174 Ga.App. 238, 240, 329 S.E.2d 507 (1985) (physical precedent only); Davis v. State, 151 Ga.App. 736, 737, 261 S.E.2d 468 (1979). Eligibility for parole is merely a collateral legislative...
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