                                  FIFTH DIVISION
                                 MCFADDEN, P. J.,
                               RAY and RICKMAN, 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


                                                                   September 25, 2018




In the Court of Appeals of Georgia
 A18A1077. EVELYN v. THE STATE.

      RICKMAN, Judge.

      After being indicted for kidnapping with bodily injury, Lance Evelyn entered

a negotiated guilty plea to kidnapping. The trial court accepted the plea, and Evelyn

was sentenced to 15 years, with the first 10 years to be served in confinement. Evelyn

subsequently moved to withdraw his guilty plea on the basis of ineffective assistance

of counsel. Following a hearing, the trial court denied Evelyn’s motion. Evelyn

appeals, contending that the trial court erred in denying his motion to withdraw his

plea because his trial counsel was ineffective in failing to inform him that pleading

guilty to kidnapping meant that he would be ineligible for parole. For reasons that

follow, we affirm.
      The indictment charged Evelyn and four other men with kidnapping with

bodily injury, alleging that they abducted a woman “without lawful authority and

h[e]ld [her] against her will” and the woman “receive[d] bodily injury, to-wit:

bruising and swelling to the face and body.” After three of the co-defendants pled

guilty, the trial court conducted a plea hearing for Evelyn and his remaining co-

defendant, his brother. 1 Before Evelyn’s brother decided whether to enter a guilty

plea, his counsel explained to him on the record that the State’s offer meant that he

would be sentenced to ten years in prison for kidnapping “of which you would do

every day, day for day, second for second, with no parole during those ten years,

followed by five years on probation.” At no time during the hearing did Evelyn’s

counsel comment on whether Evelyn would be eligible for parole if he accepted the

State’s offer. The trial court then explained that the charge of kidnapping with bodily

harm “carries with it a mandatory life sentence which would not authorize you to be

considered eligible for parole until after you would have served thirty years in

confinement.” Continuing, the trial court stated, “I see Mr. Evelyn, as I’m speaking,


      1
        The record before us does not reflect Evelyn’s specific role in the crime
because it does not include a factual basis for Evelyn’s plea. The trial court
incorporated by reference the factual basis presented when the three other co-
defendants pled guilty and those pleas are not in the record.

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that I’ve looked at your Change of Plea, and you, too, are offering a plea to

kidna[p]ping, which carries with it a significant[ly] different sentence; that is, it

carries with it a sentence of ten to twenty years, or life, and would, therefore, allow

for consideration for parole at a much, much earlier time.”2 At the conclusion of the

hearing, the trial court sentenced Evelyn to “a fifteen-year term; ten years to be served

in confinement, followed by five years on probation.”

      Approximately two weeks later, Evelyn wrote a letter to the trial court clerk

asking to withdraw his guilty plea, claiming that his “lawyer did not explain to [him]

that kidnapping was a mandatory [minimum] of 10 years without parole,” and that

“[h]e made it seem that I get out on parole.” Shortly thereafter, Evelyn’s trial counsel

filed a motion to withdraw Evelyn’s guilty plea on the basis of ineffective assistance

of counsel. Approximately ten months later, at the hearing on Evelyn’s motion to

withdraw, trial counsel testified that, during plea discussions, he had told Evelyn that

kidnapping would result in a ten-year sentence, but mistakenly told him that he would

      2
         This statement by the trial court was inaccurate. See OCGA § 17-10-6.1 (b)
(1) (“Except as provided in subsection (e) of this Code section, any person convicted
of the serious violent felony of kidnapping involving a victim who is 14 years of age
or older or armed robbery shall be sentenced to a mandatory minimum term of
imprisonment of ten years, and no portion of the mandatory minimum sentence
imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing
court.”).

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be eligible for parole during that ten-year period.3 Evelyn, however, testified that his

trial counsel had not discussed parole eligibility with him prior to his plea.

      In its order denying Evelyn’s motion to withdraw his guilty plea, the trial court

determined that Evelyn did not rely on erroneous advice from his trial counsel in

making his decision to enter a guilty plea because Evelyn testified that he had not

received any advice about parole. The court further determined that, regardless of

whether trial counsel had advised Evelyn about parole eligibility prior to sentencing,

Evelyn had actual knowledge that he would not be eligible for parole during the

period of confinement. The trial court found that Evelyn obtained this knowledge

from his brother’s counsel’s statement to his brother that he would be required to

serve every day of the offered ten-year sentence without parole if he accepted it and

Evelyn’s mother’s statement that she felt like the sentence was wrong because, “I

know ten years, it might go by fast for them, but, as a mother, it’s not going to go by

fast for me.” Based on these findings, the trial court concluded that Evelyn had failed

to show deficient performance because trial counsel was not deficient for failing to

repeat what Evelyn already knew about his parole eligibility. The trial court also


      3
         Counsel testified that he later went back and read the relevant sentencing
statute for serious violent felonies, OCGA § 17-10-6.1 (b) (1).

                                           4
concluded that Evelyn had failed to demonstrate prejudice because he alleged no

special circumstances demonstrating that he placed particular emphasis on his parole

eligibility in deciding whether to plead guilty and that his “informed, expressed

preference” was to plead guilty.

      Evelyn contends that the trial court erred in denying his motion to withdraw his

guilty plea, arguing that withdrawal was necessary to correct a manifest injustice,

ineffective assistance of counsel. He contends that his trial counsel was ineffective

for providing erroneous legal advice about parole eligibility.

      “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.” (Citation and punctuation omitted.) Gay v. State, 342 Ga. App.

242, 243 (803 SE2d 113) (2017). “[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 LEd2d 674) (1984)],” deficient

performance and prejudice. Alexander v. State, 297 Ga. 59, 64 (772 SE2d 655)



                                          5
(2015).4 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.” Suggs

v. State, 272 Ga. 85, 88 (4) (526 SE2d 347) (2000).

      Pretermitting whether trial counsel’s performance was deficient under these

circumstances, Evelyn has failed to show prejudice. See Gomez v. State, 300 Ga. 571,

573 (797 SE2d 478) (2017) (“If a defendant fails to meet his burden on one prong of

the two-prong test, then the other prong need not be reviewed by the Court.”). Where

the alleged error is one that affects the defendant’s understanding of the consequences

of pleading guilty, instead of asking how a hypothetical trial would have played out

absent the error, we consider whether there was an adequate showing that the

defendant, properly advised, would have opted to proceed with trial. See Lee v.

United States, ___ U. S. ___ (II) (A) (137 SCt 1958, 198 LEd2d 476) (2017). “Courts

should not upset a plea solely because of post hoc assertions from a defendant about

how he would have pleaded but for his attorney’s deficiencies. Judges should instead

      4
        This rule applies regardless of whether a guilty plea gives rise to a direct
consequence or a collateral consequence, such as parole ineligibility. Alexander, 297
Ga. at 62, n.5, 64.”[A] direct versus collateral consequence distinction does not
control the scope of reasonable professional assistance required under Strickland.”
Alexander, 297 Ga. at 64.

                                          6
look to contemporaneous evidence to substantiate a defendant’s expressed

preferences.” Lee, ___ U. S. ___ (II) (C) (emphasis in original).

      Here, there was no assertion from Evelyn at the hearing on his motion to

withdraw his guilty plea that he would not have plead guilty if he had known about

his ineligibility for parole. Nor is there contemporaneous evidence to substantiate

Evelyn’s preferences. In Cox v. Howerton, 290 Ga. 693 (723 SE2d 891) (2012), the

defendant entered a guilty plea to a serious violent felony after being misinformed by

trial counsel and the trial court that she would be eligible for parole after serving a

portion of her sentence. After she had been imprisoned for ten years, the defendant

filed an application for a writ of habeas corpus, alleging that trial counsel had

rendered ineffective assistance by misrepresenting her eligibility for parole before she

entered her guilty plea. Id. The Georgia Supreme Court upheld the determination of

the habeas court that the prejudice prong of the Strickland test had not been met

where the defendant’s concern with her parole eligibility was reflected in the guilty

plea transcript, but she “did not place ‘particular emphasis’ on parole concerns and

. . . there was no ‘special circumstance,’ i.e., no fact peculiar to [defendant] or her

case that caused her to place particular emphasis on parole eligibility.” Id. at 694-695.

      Similarly, there is no contemporaneous evidence from which we could

                                           7
conclude that Evelyn placed particular emphasis on parole concerns or that any fact

peculiar to Evelyn or his case caused him to place particular emphasis on parole

eligibility in deciding whether to plead guilty. Because Evelyn has failed to establish

the prejudice prong of the Strickland test for ineffective assistance of counsel, we

affirm the trial court’s denial of Evelyn’s motion to withdraw his plea. See Cox, 290

Ga. at 695; Alexander v. State, 342 Ga. App. 106, 108 (803 SE2d 88) (2017)

(upholding trial court’s conclusion that defendant failed to meet burden of showing

prejudice based on findings that defendant “did not place any ‘particular emphasis’

on his parole eligibility and that there were no ‘special circumstances’ that caused

him to place particular emphasis on parole eligibility”).

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




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