In the Supreme Court of Georgia



                                                       Decided: January 19, 2016


                       S15A1688. McGUYTON v. THE STATE.

       BENHAM, Justice.

       Appellant James Etheridge McGuyton, Jr., faced multiple charges,

including murder, relating to the November 22, 2012, shooting death of Kenneth

Seek, Jr. As a result of the State’s filing of a recidivist notice, appellant was

facing a mandatory sentence of life without parole if convicted. On the eve of

trial, appellant entered negotiated guilty pleas, pursuant to Alford1, to the

separately indicted charges of murder and possession of a firearm by a convicted

felon. He was sentenced to life imprisonment with the possibility of parole.

       According to the proffer of evidence presented at the guilty plea hearing,

appellant was angry with Seek for dating appellant’s former girlfriend. He told

his mother he was going to kill Seek. On the evening of November 21, 2012,

appellant commenced telephoning and texting Seek to arrange a meeting on a

       1
           North Carolina v. Alford, 400 U.S. 25, 37 (91 SCt 160, 27 LEd2d 162) (1970) (“An
individual accused of crime may voluntarily, knowingly, and understandingly consent to the
imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts
constituting the crime.”).
remote rural road in McDuffie County. Appellant, accompanied by his co-

indictee Rondoe Hutson, went to the arranged location and, when Seek did not

arrive, appellant and Hutson returned to Hutson’s house to arm themselves.

Appellant told Hutson he was going to talk to Seek and if things got heated he

was going to shoot him. In the early morning hours of November 22, appellant

and Hutson met Seek and Donnie Joe Wilson, a friend who accompanied Seek,

at the agreed-upon meeting place. Seek and Wilson were unarmed. According

to a recorded statement appellant gave to investigators, he and Seek spoke

briefly and then appellant took out his .45 derringer and shot Seek with a .410

slug just below the chest. Appellant shouted out for Hutson to get Wilson.

When Wilson ran into the woods, Hutson retrieved a 12-gauge shotgun out of

his vehicle and started pursuing the man. Appellant then removed the spent

cartridge from his pistol, loaded it with a new cartridge, and shot Seek, who was

still alive, at close range in the back of his head.

      After calling for Wilson to come out of the woods, appellant threw Seek’s

body into the bed of Seek’s pickup truck and drove it several miles to a place

where he dragged the body into the woods. Appellant then met up with Hutson,

where appellant abandoned Seek’s truck before the two of them drove to

                                         2
Hutson’s house. There, appellant disposed of the spent cartridges in the trash

can. Later in the morning, appellant moved Seek’s body, and his clothes

became covered with Seek’s blood.

      Responding to a 911 call from Wilson, the authorities arrested appellant

and read him his Miranda2 rights, after which appellant agreed to speak with

investigating officers. Ultimately, appellant admitted to killing Seek and, as a

result of his statement, investigators found the spent cartridges in Hutson’s trash

can. The murder weapon was discovered on appellant’s person. Appellant also

told investigators where to find Seek’s cell phone that he had taken. Hutson

also gave a statement, and it was consistent with appellant’s.

      On the Friday before his trial was to commence on Monday, an

investigator employed by the District Attorney’s office sought and received

permission to speak with appellant. The investigator was not involved in this

case, but was friends with appellant’s sister and took the sister to the meeting.

At the meeting, the sister was emotional, and appellant eventually stated that he

wanted to plead guilty if he could be sentenced to life with the possibility of

parole. Appellant also told his plea counsel the same thing, and counsel worked

      2
          Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LEd2d 694) (1966).

                                              3
out a plea agreement with the prosecutor. That afternoon, the trial court

conducted a guilty plea hearing, at which appellant was represented by counsel.

Appellant indicated he wished to enter his plea under Alford because, although

he asserted he was not guilty, he wished to avoid the necessity of having his

mother, who suffered from dementia, and his sister, who was pregnant with a

high-risk pregnancy, testify against him at trial. Upon questioning, he admitted

he believed it was possible that a jury could believe the evidence and convict

him. The trial court accepted appellant’s guilty pleas to murder and to

possession of a firearm by a convicted felon. The State withdrew the recidivist

petition as part of the plea agreement.

      Ten days after the trial court entered conviction on the guilty pleas,

appellant filed a pro se motion to withdraw the pleas. After a hearing on that

motion, at which appellant was represented by new counsel, the motion was

denied. Finding no error in the trial court’s conclusion that the plea was

voluntary, and that appellant’s claim of ineffective assistance of counsel was

meritless, we affirm.

      1. (a) We reject appellant’s assertion that the trial court may accept a

guilty plea pursuant to Alford only if the record reflects the defendant’s plea was

                                          4
premised upon his acknowledgment of the sufficiency of the State’s evidence

to convict him. Here, although defendant claimed he was not guilty and stated

that his main reason for pleading was in order to spare his family from

testifying, he acknowledged more than once at his plea hearing that it was

“possible” a jury could convict him based on the State’s evidence. Even so, a

defendant’s acknowledgment of the sufficiency of the evidence to convict is not

a prerequisite for the trial court to accept a guilty plea. So long as “a defendant

intelligently concludes that his interests require entry of a guilty plea and the

record before the judge contains strong evidence of actual guilt,” the trial court

may accept a guilty plea. Alford, supra, 400 U.S. at 37; see also McKiernan v.

State, 288 Ga. 140, 142-143 (2) (702 SE2d 170) (2010) (affirming the denial of

defendant’s motion to withdraw his guilty plea to felony murder despite the

defendant’s assertion that the shooting with which he was charged was

accidental, where the evidence showed he was motivated to plead guilty out of

fear he might never be released from prison upon conviction, and in order to

avoid putting his family through a trial). Normally, all that is required in order

to meet constitutional muster is for the trial court to find that the record contains

strong evidence of actual guilt, and for the accused to enter the plea voluntarily,

                                          5
knowingly, and understandingly of the rights he was waiving by entering the

plea. Alford, supra.

      After sentencing, a defendant may withdraw a guilty plea “only to correct

a manifest injustice,” such as where the defendant was “denied effective

assistance of counsel, or the plea was entered involuntarily or without an

understanding of the nature of the charges.” (Citation and punctuation omitted.)

Bell v. State, 294 Ga. 5, 6 (1) (749 SE2d 672) (2013). A decision on a motion

to withdraw a guilty plea is a matter for the sound discretion of the trial court

and will not be disturbed absent manifest abuse. Walden v. State, 291 Ga. 260,

261 (1) (728 SE2d 186) (2012). From the record, it is apparent that the trial

judge who accepted the plea properly concluded that the abundant evidence

proffered by the State was sufficient to show appellant’s alleged actions

constituted the crimes for which he pleaded guilty. The record shows appellant

fully understood the facts and circumstances surrounding the plea. It shows that

he made a decision to plead guilty to avoid the possibility of a life sentence

without the possibility of parole upon conviction. See Bell v. State, supra. 294

Ga. at 8 (1) (affirming the denial of appellant’s motion to withdraw his guilty

plea where appellant entered the plea to avoid life without parole). He also

                                        6
made the decision in order to spare members of his family from the burden of

testifying at trial. See McKiernan, supra, 288 Ga. at 143 (2) (where one of the

motivating factors for entering a guilty plea was to avoid putting his family

through a trial). Accordingly, we reject appellant’s assertion that withdrawal of

the pleas was required, in order to avoid a manifest injustice, as a result of

insufficient evidence to support acceptance of his guilty plea. See Stinson v.

State, 286 Ga. 499 (689 SE2d 323) (2010) (once a sentence has been entered,

a guilty plea may only be withdrawn to correct a manifest injustice, such as

denial of effective assistance of counsel or a showing that the plea was entered

involuntarily or without an understanding of the nature of the charges).

      (b) Likewise, we reject appellant’s assertion that the trial court was

required to grant the withdrawal of his guilty plea because he was coerced into

entering the pleas by his sister, who was to be a witness at trial, and a State’s

investigator. Appellant asserts the pleas were entered in response to what he

calls a “surreptitious” conversation he had, outside the presence of counsel, with

the investigator and his sister who came together to visit him in jail. During that

conversation appellant learned that his mother and sister had been subpoenaed

by the State to testify at trial. The record, however, does not support his

                                         7
assertion that the investigator, who was not involved in the investigation of

these crimes but was a friend of appellant’s sister, brought the plea deal to him.

Nor does the evidence show that the jailhouse visit was surreptitious. Instead,

the evidence shows defense counsel knew appellant’s family wanted to speak

with him before trial and that counsel approved the meeting.

      Specifically, the evidence shows the investigator contacted the State’s

attorney prior to the meeting and offered to arrange it if approved. Appellant’s

plea counsel testified at the motion to withdraw hearing that the prosecutor

contacted him prior to the meeting and counsel approved it, stating that he knew

and trusted this investigator not to question appellant about the evidence in the

case but to talk about the possibility of a plea. The investigator’s undisputed

testimony established that after an hour-long conversation between the three

parties at the jail, appellant asked for an hour to think about how he wanted to

proceed. Once appellant told the investigator he had decided to enter a plea if

certain conditions could be worked out, appellant communicated his decision to

his counsel and the plea was negotiated between the prosecutor and plea

counsel. Although appellant testified at the withdrawal hearing that he had been

coerced, and his motion counsel asserted the plea was the result of intimidation

                                        8
and emotion, at the plea hearing he repeatedly told the court he had not been

coerced. Credibility determinations are within the purview of the trial court and

the court’s factual findings will not be disturbed unless clearly erroneous.

Gresham v. State, 300 Ga. App. 158 (684 SE2d 336) (2009) (involving a motion

to withdraw guilty plea); see also Niako v. State, 271 Ga. App. 222, 226 (609

SE2d 154) (2005) (contradiction between the defendant’s testimony at the plea

hearing and his testimony at the motion to withdraw hearing is a matter of

witness credibility for the trial court) . Despite appellant’s stated motivation to

spare members of his family from the burden of testifying at trial, he fails to

demonstrate coercion or that his decision to enter the plea was not voluntarily

made. See DeToma v. State, 296 Ga. 90, 92 (1) (765 SE2d 596) (2014).

      2. Appellant asserts his plea counsel performed deficiently, resulting in

prejudice to him, when counsel permitted a State’s investigator, along with a

State’s witness, to engage in what he claims were plea negotiations with

appellant outside counsel’s presence. The claim that plea negotiations took

place when appellant met with his sister and the investigator is disputed by the

testimony of the investigator, the prosecutor, and appellant’s plea counsel at the

motion to withdraw hearing. Instead, the evidence shows the meeting at the jail

                                         9
resulted in appellant’s later decision, after time for consideration, to enter his

plea if certain conditions were met. The evidence also shows that negotiations

regarding the terms of the plea and the concessions to be made by the prosecutor

in exchange for the plea took place only between appellant’s counsel and the

prosecutor.       No evidence was presented that the investigator improperly

discussed the facts of the case with appellant or improperly questioned appellant

at the meeting. Instead, the evidence shows appellant received the sentence he

bargained for when his counsel negotiated the plea at appellant’s request and

with his consent. Plea counsel’s undisputed testimony at the motion to

withdraw hearing was that appellant “loved the deal” that was reached.

Appellant has failed to demonstrate either that plea counsel’s performance was

deficient with respect to the manner in which the plea was negotiated or that he

was prejudiced by any claimed deficiency.3


       3
           Appellant suggests for the first time on appeal that plea counsel’s performance was
deficient because he should have adequately explained to appellant that eligibility for parole after
thirty years would result in his being eligible only after reaching age seventy-eight. In fact, the
record is devoid of any evidence that plea counsel did not fully explain to appellant that he would
not be eligible for parole until the expiration of thirty years served on good behavior. Instead, the
plea hearing transcript reflects the judge carefully examined appellant about his satisfaction with the
advice and counsel provided by plea counsel, and appellant repeatedly responded that he fully
understood the consequences of his plea and had no remaining questions concerning the plea.
Moreover, this Court will not rule upon issues that were not raised and ruled upon below. Haskell
v. Haskell, 286 Ga. 112 (686 SE2d 102) (2009).

                                                  10
      Appellant also asserts plea counsel rendered deficient performance that

prejudiced him by failing to object during the plea hearing to the prosecutor’s

inaccurate statement concerning the evidence against appellant. During the

State’s proffer of evidence, the prosecutor stated that the bullet taken from the

victim’s body was a “100 percent” match to the gun found on appellant. In fact,

the crime lab report stated the slug fragments removed from the victim’s body

could neither be identified nor eliminated as being fired from appellant’s gun.

Instead, the report concluded that the slug was consistent with being fired from

a .45 caliber pistol like the one found on appellant, and that it was the cartridge

case placed into evidence and submitted to the crime lab that was matched to the

pistol found on appellant. At the motion to withdraw hearing, plea counsel

testified and acknowledged that he committed a mistake by failing to notice and

object to the prosecutor’s inaccurate statement regarding the factual basis for the

charges.

      The evidence, however, supports the trial court’s finding in the order

denying the motion to withdraw that notwithstanding this minor inaccuracy in

the prosecutor’s proffer at the plea hearing, the evidence of defendant’s guilt

was overwhelming, including his own confession, and met the standard of

                                        11
Uniform Superior Court Rule 33.9, requiring the judge accepting the guilty plea

to determine that a factual basis exists for the plea. We conclude that even if the

erroneous testimony about the results of ballistic testing had been stricken from

the record in response to an objection by plea counsel, appellant failed to show

that the plea would not have been accepted or that he would have withdrawn his

plea. The two-pronged standard of the familiar Strickland4 test for establishing

ineffective assistance of counsel is applicable to claims of ineffective assistance

in a guilty plea proceeding. Hill v. Lockhart, 474 U.S. 52 (106 SCt 366,

88LEd2d 203) (1985). Here, appellant has failed to demonstrate prejudice

resulted from plea counsel’s alleged deficient performance in failing to object

to the prosecutor’s erroneous testimony about the bullet, and we reject his claim

of ineffective assistance of counsel in this regard.

      Judgment affirmed. All the Justices concur.




      4
          Strickland v. Washington, 266 U.S. 688 (104 SCt 2052, 80 LEd2d 674) (1984).

                                              12
