                                SECOND DIVISION
                                 ANDREWS, P. J.,
                              MCFADDEN and RAY, 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/


                                                                     February 2, 2015




In the Court of Appeals of Georgia
 A14A1835. RANGER v. THE STATE.

      RAY, Judge.

      Nathan Ranger entered a non-negotiated plea of guilty to two counts of

robbery, to robbery as a lesser included offense in three counts of armed robbery, and

to one count of criminal attempt to commit robbery (OCGA §§ 16-4-1, 16-8-40, 16-8-

41).1 He appeals from the denial of his motions to withdraw the guilty plea,

contending that his plea was not freely and voluntarily made because he did not know

he would be sentenced as a recidivist. He also argues that his sentence as to the count

of criminal attempt to commit robbery was illegal. We affirm the trial court’s denial

of Ranger’s motion to withdraw his guilty plea; however, because Ranger was




      1
          The State agreed to nolle prosequi one count of aggravated assault.
improperly sentenced on the criminal attempt to commit robbery charge, we vacate

that portion of his sentence and remand for resentencing.

      To determine whether a guilty plea is valid, the record must show that the

defendant understands the plea and the constitutional rights he is relinquishing.

Boykin v. Alabama, 395 U. S. 238, 242 (89 SCt 1709, 23 LE2d 274) (1969). The State

has the burden on review of establishing that the plea was knowingly and voluntarily

entered. Williams v. State, 296 Ga. App. 270, 271 (1) (a) (674 SE2d 115) (2009). The

State may meet its burden “by showing on the record of the guilty plea hearing that

the defendant was cognizant of all the rights he was waiving and the possible

consequences of his plea, or by use of extrinsic evidence that affirmatively shows that

the guilty plea was knowing and voluntary.” (Citation and punctuation omitted.) Loyd

v. State, 288 Ga. 481, 485 (2) (b) (705 SE2d 616) (2011); Uniform Superior Court

Rule 33.8. After sentencing, the decision on a motion to withdraw a guilty plea is

within the trial court’s sound discretion and will not be disturbed absent a manifest

abuse of that discretion. Williams, supra. Further, “[w]e accept the trial court’s

findings on all issues involving the resolution of witness credibility and factual

disputes.” (Citation omitted). Id.



                                          2
      The record shows that the State filed a recidivist notice on December 28, 2010.

The trial court held two pretrial hearings, one on January 4, 2011, and another on

January 6, 2011. Ranger entered his plea of guilty to the charges at issue during this

latter hearing.

      At the hearing on January 4, 2011, at which Ranger was present, the State

mentioned its notice in aggravation of sentencing and presented three certified copies

of Ranger’s prior felony convictions. Ranger’s trial counsel specifically

acknowledged the prior felonies, stating, “What we would ask for, your honor – we

understand the seriousness. We understand the magnitude of these. This would be as

a plea under the recidivist statute, which, as the court knows, he will serve every day,

especially on charges of this.” (Emphasis supplied.) Ranger’s counsel then asked for

a sentence of 20 years to serve 10 with credit for time served. The trial court said it

would sentence Ranger to 20 years to serve, then asked the State, “Would he be

pleading under the recidivist statute?” The State responded, “Yes[.]” (Emphasis

supplied.) Ranger’s counsel added, “Which is why we had asked for less, your

honor.” Ranger’s counsel then asked for time to consider the possible sentence and

noted that Ranger was on the pretrial calendar for January 6, 2011.



                                           3
         When the trial court reconvened on January 6, 2011, Ranger’s attorney stated

that at the previous hearing, “the court had indicated that if Mr. Ranger wanted to

plea, Mr. Ranger would be sentenced to 20 years as a recidivist.” (Emphasis

supplied.) She asked the court to reconsider and mentioned earlier plea negotiations

in the case in which Ranger “had been led to believe the offer was 25 years with 15

to serve, the balance probated as a nonrecidivist. When he accepted that offer, he

found out that that was no longer on the table and it was indicated that that had never

been the intent.” Ranger’s attorney then asked the court to consider sentencing

Ranger to “15 years as a recidivist.” (Emphasis supplied.) The trial court responded

that “in light of Mr. Ranger’s prior record and the number of robberies involved in

this case, as well as the allegations concerning those robberies, I think the sentence

of 20 years to serve is more than appropriate and that would be the sentence the court

would impose on a plea.” Ranger’s lawyer responded, “We will go forward with the

plea.”

         During the plea colloquy, when asked by the court if anyone had made threats

or promises to him in exchange for his plea, Ranger responded, “Yes[.]” He then

explained that he thought the prosecutor had offered him “25 to serve 15

nonrecidivist or you said 20 to serve 15 recidivist.” The State pointed out that this

                                           4
was neither a threat nor a promise, and that, as Ranger’s attorney had earlier

acknowledged, Ranger’s statement did not reflect the intent of the State’s offer. The

trial court then stated that despite any confusion the attorneys may have had about an

earlier negotiated plea offer, “had that even been the offer submitted to this court[,]

this court would not have found it appropriate in this case. Do you understand that?”

(Emphasis supplied.) Ranger responded, “I understand.”

      As the record makes abundantly clear, the possibility of a nonrecidivist

sentence never was presented to or considered by the court. Further, Ranger’s

response shows he understood that a nonrecidivist sentence was not a possibility.

Ranger further indicated during the plea colloquy that, inter alia, his lawyer had

explained the charges against him, that he understood that the maximum penalty he

could receive for the charges to which he was pleading was 110 years, and that he

understood that the court would sentence him to 20 years to serve with no probation.

He then entered his guilty plea and stated that he understood his sentence. The

transcript shows that immediately after Ranger stated that he understood his sentence

and the trial court accepted his plea, the trial court again affirmed that it was

sentencing him “as a recidivist” under OCGA § 17-10-7 (c).



                                          5
      At the hearing on his motion to withdraw his plea, Ranger testified that he had

never heard the word “recidivist” until the day of his plea. He stated that neither the

State nor the trial court explained that he would be sentenced as a recidivist. Ranger’s

trial counsel, by contrast, testified that she and Ranger had discussed what the term

recidivism meant, and that she had explained to him the difference between recidivist

and nonrecidivist sentencing “several times.” She also confirmed, as is indicated in

both pretrial and plea hearing transcripts, that “the nonrecidivist [sentence] was not

on the table” at the time of the plea.

      Given this evidence, the State met its burden of showing that Ranger’s plea was

freely and voluntarily entered, that he understood the nature of the charges against

him, and that he was aware of the consequences of his plea. Further, any credibility

issues were for the trial court. Matthews v. State, 295 Ga. App. 752, 755 (2) (673

SE2d 113) (2009); Weeks v. State, 260 Ga. App. 129, 130-131 (1) (578 SE2d 910)

(2003). The trial court did not err.

      2. Ranger argues that the lower court erred in sentencing him to 20 years to

serve on the criminal attempt to commit robbery count because the maximum




                                           6
sentence he could have received was 10 years.2 The State concedes that this is so, and

we agree.

        OCGA § 16-4-6 (b) provides that

        [a] person convicted of the offense of criminal attempt to commit a
        felony, other than a felony punishable by death or life imprisonment,
        shall be punished by imprisonment for not less than one year nor more
        than one-half the maximum period of time for which he or she could
        have been sentenced if he or she had been convicted of the crime
        attempted, by one-half the maximum fine to which he or she could have
        been subjected if he or she had been convicted of the crime attempted,
        or both.


(Emphasis supplied.) OCGA § 16-8-40 (b) provides that the maximum sentence for

robbery is 20 years; half that time, obviously, is 10 years. Accordingly, we vacate

Ranger’s sentence for criminal attempt to commit robbery and remand the case for

resentencing.

        Judgment affirmed in part; sentence vacated in part and case remanded for

resentencing. Andrews, P. J., and McFadden, J., concur.




        2
            Ranger received 20-year concurrent sentences on all the counts to which he
pled.

                                            7
