Williams v. State, A05A1934.

• Decision Date: 07 March 2006
• Docket Number: No. A05A1934.,A05A1934.
• Citation: 278 Ga. App. 42,628 S.E.2d 128
• Parties: WILLIAMS v. The STATE.
• Court: Georgia Court of Appeals

278 Ga. App. 42

628 S.E.2d 128

WILLIAMS v. The STATE.

No. A05A1934.

Court of Appeals of Georgia.

March 7, 2006.

Edith M. Edwards, Valdosta, for appellant.

J. David Miller, District Attorney, James B. Threlkeld, Assistant District Attorney, for appellee.

BARNES, Judge.

Odell Williams was charged with three counts of violating the Georgia Controlled Substances Act for sale of cocaine, distribution of cocaine within 1,000 feet of a recreation center, and distribution of cocaine within 1,000 feet of a park. He initially pled not guilty, but later entered a guilty plea on the sale of cocaine count with the understanding that the remaining charges would be nolle prossed. Williams was represented at the plea hearing by appointed counsel. Williams filed a motion to file an out-of-time motion for new trial and appeal along with a motion for new trial. Seven months later, he filed a motion to file an out-of-time appeal, which was granted. Williams filed a notice of appeal, and for reasons that are not clear from the record, the case was not transmitted to or docketed in this court. Approximately four months later, following a hearing, the trial court denied Williams' motion for new trial. Williams appealed again, contending that there were various errors committed in the entry of his guilty plea. We do not agree, and affirm.

We note as a preliminary matter that when Williams filed his first notice of appeal, the trial court was divested of any jurisdiction to entertain his motion for new trial. "A notice of appeal divests the trial court of jurisdiction to alter a judgment while [an] appeal of that judgment is pending." (Citation omitted.) Peterson v. State, 274 Ga. 165, 171(6), 549 S.E.2d 387 (2001). Accordingly, the trial court's order on Williams' motion for new trial is a nullity. Moreover, the trial court could not grant Williams a new trial when there was no initial trial. See Crosby v. State, 148 Ga.App. 215(1), 251 S.E.2d 81 (1978). That being so, Williams "has no absolute right to appeal from a judgment of conviction entered on a guilty plea. A direct appeal will lie from a judgment of conviction and sentence entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record." (Citations, punctuation and emphasis omitted.) Thompson v. State, 275 Ga.App. 566, 566-567, 621 S.E.2d 475 (2005).

1. Williams first contends that he did not knowingly or voluntarily enter the plea because he was impaired by medication at the time. We do not agree.

Where 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.) Johnson v. State, 260 Ga.App. 897, 899(1), 581 S.E.2d 407 (2003).

The transcript of the guilty plea proceeding reveals that before accepting Williams' plea, the trial court inquired whether he was under the influence of any drugs, medicine, or intoxicants. Williams said that he was but "I understand what's happening." He said that he took blood pressure pills, heart pills, prednisone, steroids, blood thinners, and another drug that was not transcribed because it was unintelligible. The trial court then asked Williams a series of questions and made a specific finding that Williams "is alert and aware of his surroundings. He is under prescribed medication, but he has made correct and appropriate responses to questions propounded by the court and information given by the court. The court, therefore, finds that he is capable of proceeding with the entry of a plea here today." Williams' trial attorney stated that there was no objection to the trial court's finding.

Williams responded appropriately and cogently to the trial court's inquiries and nothing in the proceeding reflects mental impairment or a lack of comprehension on his part. "[He] offered no indication to the trial court that he suffered from a medication-induced impairment. To the contrary, he represented to the court that the medicine did not affect his ability to understand the proceedings. No further inquiry was required." Brown v. State, 259 Ga.App. 576, 579, 578 S.E.2d 188 (2003).

2. We also find no merit to Williams' contention that there was no factual basis for the guilty plea. He argues that the State's statement of the factual basis was insufficient and that venue was not established.

The State informed the court that Williams violated the Georgia Controlled Substances Act by selling cocaine and that the substance had tested positive as cocaine. When questioned by the judge, Williams affirmed that the statement reflected the circumstances of his case, that he had nothing to add or subtract, and that he was guilty of the charge. Thus, a factual basis for the plea was established, as required by Uniform Superior Court Rule 33.9. The trial court did not err in accepting the plea.

Although...