In the Supreme Court of Georgia



                                           Decided: May 23, 2016


                 S16A0270. BLACKWELL v. THE STATE.


      MELTON, Justice.

      Following the trial court’s denial of his motion to withdraw his guilty plea

prior to sentencing, Prinson Blackwell appeals. Specifically, Blackwell contends

that the trial court erred in its determination that the right under OCGA §

17-7-93 (b) of a criminal defendant to withdraw a guilty plea prior to sentencing

may be waived and that Blackwell made such a waiver. For the reasons set forth

below, we affirm.

      The record reveals that, on August 14, 2012, Blackwell entered a guilty

plea to malice murder and several other offenses in connection with his role in

the shooting death of Keniesha Carr and the aggravated assault of Derrick Carr.

As part of his plea, Blackwell agreed to provide truthful testimony at the trial of

his co-indictees, Kerwin Tate and Xavier Bradford. However, on the eve of his

co-indictees’ trial, Blackwell filed a motion to withdraw his guilty plea pursuant
to OCGA § 17-7-93 (b), because he had not yet been sentenced. See id. (“At any

time before judgment is pronounced, the accused person may withdraw the plea

of ‘guilty’ and plead ‘not guilty’”). The trial court denied the motion.

      While this Court has recognized certain exceptions to the rule under

OCGA § 17-7-93 (b) that a criminal defendant may withdraw his or her guilty

plea as a matter of right at any time before sentence is pronounced,1 we have not

yet decided whether the right to withdraw a guilty plea at any time prior to

sentencing may be waived. In this connection, “[i]f there is no constitutional,

statutory, or public policy prohibition against waiver, an accused may validly

waive any right.” Thomas v. State, 260 Ga. 262, 263 (392 SE2d 520) (1990).


      1
        In this regard, see Fair v. State, 245 Ga. 868, 878 (8) (268 SE2d 316)
(1980) (“[I]n capital cases, the judgment does not rest upon the plea but rather
upon the plea and the proof of an aggravating circumstance except in rare cases
of treason or aircraft hijacking. . . .The decision of the trial court after a
sentencing trial is tantamount to a jury verdict. For this reason and [others], this
court concludes that the provisions of Code Ann. § 27-1404 [now OCGA §
17-7-93 (b)] relating to withdrawal of guilty pleas as a matter of right do not
apply to guilty pleas tendered in capital cases other than treason or aircraft
hijacking in which the State seeks the death penalty”) (footnotes omitted); State
v. Stinson, 278 Ga. 377, 381 (602 SE2d 654) (2004) (“A defendant . . . who has
pled guilty and utilized the benefits of a rehabilitative option [such as alternative
treatment through Drug Court pursuant to OCGA § 16-13-2 (a)] in order to
avoid an adjudication of guilt, may not withdraw the plea as a matter of right
under OCGA § 17-7-93 (b)”).
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See also OCGA § 1-3-7 (“Laws made for the preservation of public order or

good morals may not be dispensed with or abrogated by any agreement.

However, a person may waive or renounce what the law has established in his

favor when he does not thereby injure others or affect the public interest”).

Where no such prohibition against waiver exists, a criminal defendant may make

“a voluntary, knowing, and intelligent waiver” of the right in question. Thomas,

supra, 260 Ga. at 264 (criminal defendants may voluntarily waive right to

appeal). See also Allen v. Thomas, 265 Ga. 518 (2) (458 SE2d 107) (1995)

(defendant voluntarily waived the right to seek post-conviction relief from life

imprisonment as part of his guilty plea deal with the State).

      There is no Federal or State constitutional provision stating that a criminal

defendant may withdraw his or her guilty plea as a matter of right at any time

prior to sentence being pronounced. Nor is there any express language in OCGA

§ 17-7-93 (b) itself indicating that, although the right to withdraw a guilty plea

before sentence is pronounced exists, the right cannot be waived. We also find

no public policy prohibition against the waiver of this right, as the waiver of the

right to withdraw a guilty plea after entering it “foster[s] the interests of the state

and the defendant” (Allen, supra, 265 Ga. at 520 (2)) by allowing the parties to

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avoid the uncertainty of a jury trial. Furthermore, in situations like the instant

case where the defendant has agreed to provide truthful testimony at the trial of

his co-indictees and will not be sentenced under his plea agreement until after

he fulfills his end of the bargain with the State, the ability to waive the right to

withdraw the guilty plea prior to sentencing creates the means to incentivize the

criminal defendant to follow through on his or her plea agreement. If the right

to withdraw a guilty plea under circumstances such as those presented here

could never be waived, an incentive could be created for a criminal defendant

to manipulate the criminal justice system by simply withdrawing his guilty plea

on the eve of his co-indictees’ trial in order to avoid testifying. This type of

manipulation of the system and disruption to the orderly administration of

justice is made less likely by allowing for the waiver of a criminal defendant’s

right to withdraw his or her guilty plea prior to sentencing. We therefore

conclude that a criminal defendant’s right 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. See Thomas, supra; Allen, supra.

      While the Court of Appeals has held that one’s right to withdraw a guilty

plea before sentencing under the terms of OCGA § 17-7-93 (b) can never be

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waived, this Court is not bound by those decisions, and we hereby expressly

overrule them. See Thompson v. State, 218 Ga. App. 444 (462 SE2d 404)

(1995) (“[A]n accused cannot waive the right to withdraw a plea of guilty before

judgment is pronounced”); Ware v. State, 128 Ga. App. 407 (196 SE2d 896)

(1973). See also Ga. Const. of 1983 Art. VI, § V, Para. III (“The decisions of the

Court of Appeals insofar as not in conflict with those of the Supreme Court shall

bind all courts except the Supreme Court as precedents”).

      Now, turning to the question whether Blackwell waived his right under

OCGA § 17-7-93 (b) to withdraw his guilty plea prior to sentence being

pronounced in this case, a review of the record reveals that Blackwell did in fact

knowingly, voluntarily, and intelligently waive this right. As an initial matter,

the following exchange between Blackwell and the prosecutor at Blackwell’s

guilty plea hearing shows that Blackwell understood that he would not be

allowed to withdraw his guilty plea once he had entered it:

      [Prosecutor]:      Do you understand that if the judge does not
      follow either your counsel’s recommendation or my
      recommendation that you will not have an opportunity - given the
      fact that this case is on the trial calendar, you will not have the
      opportunity to withdraw your guilty plea. Do you understand that?

      [Blackwell]:       Yes sir.

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      [Prosecutor]:     Okay. So at some point when you tender a plea,
      the judge is going to have the ultimate say so about what you're
      going to be sentenced to, and you will not have an opportunity to
      withdraw that. Do you understand that?

      [Blackwell]:       Yes sir.

This exchange reveals that Blackwell knew not only that the trial court was

under no obligation to follow the sentencing recommendation of either the

prosecutor or his defense counsel once he entered the plea, but also that, once

he entered the plea, he would be subject to any future sentence imposed by the

trial court without having the opportunity to withdraw the plea beforehand.

      Furthermore, a later exchange with the trial court itself at the guilty plea

hearing underscored the fact that Blackwell understood and affirmatively agreed

that he would not be able to withdraw his guilty plea once he had entered it:

      [The Court]: . . . [A]s a result of this plea, the court is agreeing that
      it will accept the recommendation of the state provided you fulfill
      your obligation to the State and you waive your Fifth Amendment
      privilege to any extent that it exists and any other privilege you
      might have, and you get up here and testify truthfully on the stand
      when called upon by the State to do so. Do you understand that?

      [Blackwell]:       Yes, sir.

      [The Court]: Okay. All right. Then we will withhold entering the
      sentence, but I have accepted his pleas of guilty, and they cannot be
      withdrawn. And I will expect you to do as the State has indicated

                                      6
      you will do and your lawyer's indicated you will do. And the D.A.
      has also agreed to write a letter for you should you complete your
      part of this, okay?

      [Blackwell]: Okay.

(Emphasis supplied). In this colloquy, Blackwell directly reaffirms 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. See, e.g., Hancock v. State, 277 Ga. 835 (5)

(596 SE2d 127) (2004) (party cannot complain of ruling his own conduct aided

in causing).

      Because 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 Blackwell

waived that right in connection with his plea in this case, we conclude that the

trial court properly denied Blackwell’s motion to withdraw his guilty plea.

      Judgment affirmed. All the Justices concur.




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