294 Ga. 842
FINAL COPY

                    S14A0053. PIERCE v. THE STATE.

      THOMPSON, Chief Justice.

      Appellant Jason Pierce appeals from the trial court’s denial of his plea in

bar based on double jeopardy. Finding no error in the denial of his motion, we

affirm.

      Appellant was indicted in 1999 on charges of malice murder (two counts),

felony murder (four counts), aggravated assault (three counts) and possession

of a firearm by a convicted felon. The State filed a notice of intent to seek the

death penalty but withdrew its notice when appellant entered negotiated guilty

pleas to some but not all of the charges filed against him. He subsequently was

sentenced to two terms of life without parole on the malice murder convictions

and consecutive terms of years on his remaining convictions. This Court

vacated appellant’s sentences of life without parole on direct appeal because the

trial court did not specify an aggravating circumstance at the time of sentencing

as required under former OCGA § 17-10-32.1. See Pierce v. State, 289 Ga. 893

(717 SE2d 202) (2011).

      On remand, and while still represented by counsel, appellant moved to
withdraw his guilty pleas as to all charges. The trial court granted the motion

with regard to the two malice murder counts because the malice murder

sentences had been vacated on appeal. See OCGA § 17-7-93 (b). The trial court

denied the motion as to appellant’s remaining convictions, however, because

those convictions and sentences were affirmed on appeal and appellant had no

statutory right to withdraw those pleas. See id.; Murray v. State, 314 Ga. App.

240, 241-242 (723 SE2d 531) (2012). Appellant filed a motion for plea in bar

based on double jeopardy seeking to preclude the State from continuing its

prosecution of the charges for which appellant’s pleas had been withdrawn. The

State again noticed its intent to seek the death penalty, causing appellant to

move to vacate the trial court’s order allowing him to withdraw his guilty pleas.

After a hearing, the trial court denied the motion for plea in bar and granted

appellant’s motion to vacate the order allowing the withdrawal of his guilty

pleas. With the consent of all parties, the trial court then resentenced appellant

on the remanded convictions. Appellant subsequently filed this pro se appeal

challenging only the trial court’s order denying his motion for plea in bar.

      1. Appellant contends the trial court erred by denying his motion for plea

in bar because the grant of his motion to withdraw his guilty pleas as to only

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certain charges created an improper second prosecution in violation of

constitutional and statutory double jeopardy. See U. S. Const. Amend. V; Ga.

Const. of 1983, Art. I, Sec. I, Par. XVIII; OCGA §§ 16-1-7 (a) (1) and 16-1-8

(d) (2).1 We do not agree.

       In reviewing a trial court's ruling on a motion for plea in bar, where the

evidence is uncontroverted and no question is presented regarding the credibility

of witnesses, we review de novo the trial court's application of the law to the

undisputed facts. See State v. Johnson, 274 Ga. 511, 514-515 (555 SE2d 710)

(2001); Surh v. State, 303 Ga. App. 380 (693 SE2d 501) (2010). Here, appellant

entered guilty pleas to the charges against him and based on these pleas,

judgments of conviction were entered. His convictions were not overturned on

appeal, although his sentences as to certain charges were vacated due to trial

court error, and on remand, the trial court properly determined that appellant

was entitled to withdraw his guilty pleas as to those charges. See OCGA § 17-7-



       1
         OCGA §§ 16-1-7 (a) (1) and 16-1-8 (d) (2) govern the effect of a former conviction
upon a subsequent prosecution for the same crime based upon the same material facts and
provide that a prosecution is not barred by a former prosecution if “[s]ubsequent proceedings
resulted in the invalidation, setting aside, reversal, or vacating of the conviction, unless the
accused was thereby adjudged not guilty or unless there was a finding that the evidence did
not authorize the verdict.” See also Keener v. State, 238 Ga. 7 (230 SE2d 846) (1976).

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93 (b); Kaiser v. State, 285 Ga. App. 63, 68 (646 SE2d 84) (2007) (void

sentence is a nullity and defendant maintains his right to withdraw plea until he

is properly sentenced).     The record establishes, however, that the order

authorizing the withdrawal of appellant’s guilty pleas was vacated on

appellant’s own motion, thereby reinstating his original guilty pleas and

convictions. Accordingly, there was not in this case a second prosecution, and

the trial court did not err by denying appellant’s motion for plea in bar.

      2. Appellant contends for the first time on appeal that trial counsel

provided ineffective assistance during the remand proceedings. The claimed

deficiencies are counsel’s failure to present a meritorious double jeopardy

defense and their recommendation that he not withdraw his guilty pleas in order

to avoid a possible death sentence.

      The proper method for raising a claim of ineffective assistance after entry

of a guilty plea is for a defendant to file either a timely motion to withdraw the

guilty plea, a direct appeal challenging the validity of the plea, or an action

seeking relief through habeas corpus. See, e.g., Frazier v. Mathis, 286 Ga. 647

(690 SE2d 840) (2010) (addressing in habeas corpus action claims of ineffective

assistance in connection with guilty plea); McCutchen v. State, 276 Ga. 532

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(579 SE2d 732) (2003) (raising ineffective assistance claims on appeal from

denial of motion to withdraw guilty pleas). An appeal from a guilty plea is

available “only if the issue on appeal can be resolved by facts appearing in the

record.” Morrow v. State, 266 Ga. 3 (463 SE2d 472) (1995). Appellant chose

not to withdraw his guilty pleas and has not filed a direct appeal challenging the

validity of his pleas; and even if he had, his allegations of deficient performance

could not be decided by reference to the record. Accordingly, his claims of

ineffective assistance of counsel must be pursued in an action for habeas corpus.

See Gibson v. State, 290 Ga. 516 (2) (b) (722 SE2d 741) (2012) (allegation of

ineffective assistance requiring post-plea hearing not subject to review

stemming from motion for out-of-time appeal but must be pursued in habeas

action); Kaiser, supra, 285 Ga. App. at 68 (“in cases where there is a void

sentence, but no motion to withdraw prior to resentencing, the rule remains that

further relief must be sought through habeas corpus”).

      Judgment affirmed. All the Justices concur.




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     Decided March 3, 2014 – Reconsideration denied March 28, 2014.

      Murder, etc. Fulton Superior Court. Before Judge Lee.
      Jason Pierce, pro se.
      Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Lenny I.
Krick, Assitant District Attorneys, Samuel S. Olens, Attorney General, Patricia
B. Attaway Burton, Deputy Attorney General, Paula K.Smith, Senior Assistant
Attorney General, Rochelle W. Gordon, Assistant Attorney General, for
appellee.




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