                              THIRD DIVISION
                             ELLINGTON, P. J.,
                         ANDREWS 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


                                                                   February 21, 2018




In the Court of Appeals of Georgia
 A17A1846. NGO v. THE STATE.

      ELLINGTON, Presiding Judge.

      Phu Sy Ngo pleaded guilty to one count of burglary in the Superior Court of

Gwinnett County. He then filed, within the same term of court, a pro se motion to

withdraw his guilty plea. During the motion hearing, Ngo asked that counsel be

appointed to assist him with his motion to withdraw. The trial court denied Ngo’s

request for appointment of counsel and then denied his motion to withdraw the guilty

plea. On appeal, Ngo claims that the trial court erred in failing to either provide

counsel to assist in his motion to withdraw his plea or to inquire as to whether he had

waived his right to counsel. We agree and reverse and remand with direction.

      If filed within the same term of court, the Sixth Amendment’s “right to counsel

attaches when a defendant seeks to withdraw a guilty plea, thus entitling that
defendant to assistance of counsel.” Fortson v. State, 272 Ga. 457 (1) (532 SE2d 102)

(2000). See Barnes v. State, 293 Ga. 365 (744 SE2d 795) (2013) (“[T]he Sixth

Amendment right to counsel attaches to the preparation and presentation of a motion

to withdraw a guilty plea filed within the same term of court in which a criminal

conviction is rendered[.]”) (citation omitted). Thus, the trial court has an obligation

to provide counsel or to obtain a constitutionally valid waiver of counsel from a

defendant who seeks to withdraw his guilty plea. See Fortson v. State, 272 Ga. at

458-460 (1). Rather than doing so in this case, the trial court denied Ngo’s express

request for assistance of counsel in pursuing his motion to withdraw.

      The State acknowledges that the trial court erred in denying Ngo’s request for

assistance of counsel, but it argues that the error was constitutionally harmless. The

application of the harmless error doctrine, however, is inappropriate where the

defendant asserts that his guilty plea was not knowingly and voluntarily entered. See

Fortson v. State, 272 Ga. at 460 (2); Platt v. State, 342 Ga. App. 664, 667 (1) (805

SE2d 112) (2017). Here, Ngo asserted in his motion to withdraw that, among other

things, his guilty plea was not knowingly and voluntarily entered, and so the absence

of counsel in this case is deemed prejudicial. See Fortson v. State, 272 Ga. at 460 (2).

Accordingly,

                                           2
      because [Ngo] was not appointed counsel for his motion to withdraw his
      plea, the record does not reveal that the court informed him of his right
      to counsel, and no waiver of counsel appears in the record, we reverse
      and remand this case to the trial court for a re-hearing on [Ngo’s] motion
      to withdraw his guilty plea to be conducted in conformity with this
      opinion.


(Citations and punctuation omitted.) Douglas v. State, 317 Ga. App. 425, 426 (1) (731

SE2d 109) (2012). See Owens v. State, 335 Ga. App. 537, 538 (1) (782 SE2d 321)

(2016); Walker v. State, 332 Ga. App. 256, 257 (1) (771 SE2d 905) (2015).

      Judgment reversed and case remanded with direction. Andrews and Rickman,

JJ., concur.




                                          3
