                               FIFTH DIVISION
                              MCFADDEN, P. J.,
                           MCMILLIAN and GOSS, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                        May 3, 2019




In the Court of Appeals of Georgia
 A19A0400. LEE v. THE STATE.                                                  GS-012C

      GOSS, Judge.

      On appeal from the denial of his motion to withdraw his guilty plea, Rudy

Cameron Lee argues that he was not properly informed of the consequences of his

plea, which rendered it defective, and that trial counsel was ineffective. We find no

error and affirm.

      “After sentencing, the decision on a motion to withdraw a guilty plea is within

the trial court’s discretion and withdrawal of the plea is allowed only when necessary

to correct a manifest injustice,” such as where “a defendant is denied effective

assistance of counsel.” (Citations and punctuation omitted.) Gay v. State, 342 Ga.

App. 242, 243 (803 SE2d 113) (2017).
      Thus viewed in favor of the judgment, the record shows that while serving a

prison sentence in Tatnall County, Lee was indicted in that county for murder (Count

1), two counts of felony murder (Counts 2 and 3), two counts of aggravated assault

(Counts 4 and 5), street gang participation (Count 6), and riot in a penal institution

(Count 7). On March 15, 2018, and pursuant to a negotiated plea agreement, Lee

entered a plea of guilty to the lesser included offense of voluntary manslaughter as

to Count 1 and to Counts 4, 5, 6 and 7. Lee was sentenced to 20 years to serve.

Represented by new counsel, Lee filed a timely motion to withdraw his plea. After

a hearing, the trial court denied the motion to withdraw. This appeal followed.

      1. Lee first argues that his guilty plea was not knowingly, voluntarily, and

intelligently entered because the trial court’s explanation of the sentence was

confusing. We disagree.

      The parties agree that Lee’s previous sentence, which he was serving at the

time the plea at issue was entered, was 20 years with 10 to serve. The record shows

that after the trial court established on the record that Lee’s plea to the charges at

issue was intelligent and voluntary, the following colloquy took place:

      THE COURT: It is the judgment of this Court, as to Count Number 1,
      Mr. Lee, that you serve 20 years to serve. Counts 4, 5, 6, and 7 are all 20


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years to run concurrent. Count 1 is consecutive to the sentence that
you’re now serving. It starts, my understanding is, today - -


DEFENDANT LEE: It’s consecutive?


THE COURT: - - because you had a lot of - -


[DEFENSE COUNSEL]: No, Judge. It’s supposed to be concurrent to
his existing sentence.


THE COURT: I’m sorry. They’re all concurrent?


[PROSECUTOR]: Yes.


[DEFENSE COUNSEL]: All concurrent and concurrent to the existing
sentence, Judge.


THE COURT: Concurrent to each other and concurrent to the sentence
you are now servicing, which as I understand, will add some 18 years
or…


[PROSECUTOR]: Approximately.

THE COURT: - - approximately 18 years to your sentence. Do you
understand that?


THE DEFENDANT: Yes.


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THE COURT: That’s the Court’s understanding. Now, whatever the law
will allow - - I’ll put that in the order: Whatever the law will allow you
to have credit for, you’ll be given credit for.


[DEFENSE COUNSEL]: Thank you, Judge.


THE COURT: Do you understand that?


DEFENDANT LEE: Yes.

THE COURT: That’s something I don’t - - I don’t decide that. The
Department of Corrections calculates that. Do you understand that?


DEFENDANT LEE: Yes, sir.

THE COURT: All right. So it’s 20 years on all counts to run concurrent
with each other and concurrent to the sentence you’re now serving. Do
you understand that?


DEFENDANT LEE: Yes, sir.

THE COURT: All right. Now that the Court has imposed its sentence,
I’m going to give you a chance to withdraw it and have a trial. Do you
wish to withdraw it, or do you wish for your plea to stand?


DEFENDANT LEE: Stand.

THE COURT: So made the judgment of the Court.



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      [DEFENSE COUNSEL]: Judge, I would like to place on the record - -
      although, I know the Court has already addressed the issue of credit, I
      just want it on the record that he has been continually in the custody of
      the State of Georgia through the Department of Corrections since the
      date of the incident, July 19, 2012, - -


      THE COURT: Okay.


      [DEFENSE COUNSEL]: - - and has at no time posted a bond in Tattnall
      County, to the best of my knowledge.


      THE COURT: Okay. So noted.


      [DEFENSE COUNSEL]: Thank you, Judge.


      THE COURT: That’s the judgment of the Court.


(Emphasis supplied.)

      After the hearing on the motion to withdraw, the trial court entered an order

finding that Lee had been satisfied with his representation at the plea hearing, that

Lee had understood that the court had “no control over what credit [Lee] might get”

for time already served, and that with this understanding Lee had “still wished to

enter a guilty plea.” Concluding that Lee’s plea had been entered “freely and



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voluntarily, knowingly and intelligently,” and that he had suffered “no manifest

injustice,” the trial court denied Lee’s motion to withdraw his plea.

       This record supports the factual conclusion that, after some initial confusion,

the trial court explained and Lee understood that the new sentence would run

concurrently with the previously imposed sentence, and that the Department of

Corrections, not the trial court, would calculate the proper credit for time already

served. It follows that the trial court did not abuse its discretion when it rejected Lee’s

assertion that his plea was not knowingly and voluntarily made. See Covington v.

State, 196 Ga. App. 498, 498 (396 SE2d 298) (1990) (affirming denial of motion to

withdraw guilty plea when a prosecutor had adequately explained a plea agreement,

including a provision that the imposition of a sentence as consecutive or concurrent

would be “left up to the [c]ourt”).

       2. Lee also asserts that his trial counsel was ineffective because counsel did not

explain adequately whether Lee would receive credit for time served. We disagree.

       “[W]hen a criminal defendant seeks to withdraw a guilty plea on the ground of

ineffective assistance of counsel, the ineffective assistance claim must be evaluated

under the two-prong test set forth in Strickland v. Washington, [466 U.S. 668, 104

SCt 2052, 80 LE2d 674 (1984)],” deficient performance and prejudice. Alexander v.

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State, 297 Ga. 59, 64 (772 SE2d 655) (2015). When reviewing a trial court’s ruling

on the effectiveness of trial counsel, “we accept the trial court’s factual findings and

credibility determinations unless clearly erroneous, but we independently apply the

legal principles to the facts.” (Footnote omitted.) Suggs v. State, 272 Ga. 85, 88 (4)

(526 SE2d 347) (2000).

      At the hearing on Lee’s motion to withdraw his plea, trial counsel testified that

he advised Lee before the hearing that because Lee was serving “a sentence for other

charges,” he “[might] not be entitled to credit [for time served] as a matter of law,”

and that he would likely receive such credit only from the date of the plea itself. The

trial court was entitled to believe this testimony and to reject Lee’s testimony to the

contrary as it drew the conclusion that trial counsel had performed effectively, and

we affirm this factual conclusion as not clearly erroneous. See Gower v. State, 313

Ga. App. 635, 637 (722 SE2d 383) (2012) (trial court was entitled to disbelieve

defendant’s self-serving testimony in favor of that by defendant’s trial counsel as it

concluded that counsel was not ineffective, such that there was no abuse of discretion

in denying defendant’s motion to withdraw his plea).

      Judgment affirmed. McFadden, P. J., and McMillian, J., concur.



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