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                                                                      June 30, 2017




In the Court of Appeals of Georgia
 A17A0060. GAY v. THE STATE.

      MCMILLIAN, Judge.

      During the plea colloquy prior to the entry of this non-negotiated plea, the trial

court misstated, in defendant Jerry L. Gay, Jr.’s favor, the range of possible sentence

for armed robbery, leading trial counsel to speculate later with his client that the trial

court may have been indicating that he was not inclined to impose life imprisonment.

Although the trial court referred to the correct sentencing range before pronouncing

judgment, the trial court should have permitted Gay to withdraw his guilty plea under

the circumstances of this case. Accordingly, we now reverse the trial court’s denial

of Gay’s motion to withdraw his guilty plea.

      The standard for reviewing a denial of a motion to withdraw a guilty plea is

well established. “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.” (Citations omitted) Allen v. State, 333

Ga. App. 853, 855 (3) (777 SE2d 699) (2015). “The test for manifest injustice will by

necessity vary from case to case, but it has been said that withdrawal is necessary to

correct a manifest injustice if, for instance, a defendant is denied effective assistance

of counsel, or the guilty plea was entered involuntarily or without an understanding

of the nature of the charges.” Id. Once a guilty plea is challenged, the State generally

bears the burden of showing affirmatively from the record that the defendant entered

his plea knowingly, intelligently, and voluntarily and with an understanding of the

nature of the charges and the consequences of entering the plea. Maples v. State, 293

Ga. App. 232, 234 (2) (666 SE2d 609) (2008); Zellmer v. State, 273 Ga. App. 609,

611 (2) (615 SE2d 654) (2005).

      Gay was initially charged with malice murder, armed robbery, two counts of

possession of a firearm during the commission of a felony, and possession of a

firearm by a first offender probationer. After plea negotiations, Gay agreed to plea to

voluntary manslaughter and armed robbery with the remainder of the charges to be

dismissed. The State and Gay, however, were not able to agree to a sentence

recommendation to present to the trial court. At the guilty plea hearing, it is

                                           2
undisputed that the trial court asked Gay with respect to the armed robbery charge:

“Do you understand that carries a penalty range of ten to 20 years in prison?” to

which Gay responded in the affirmative.

      After the guilty plea hearing but before sentencing, trial counsel realized that

the trial court had omitted the potential of a life sentence in describing the sentencing

range for armed robbery. Counsel also testified that he told Gay that the omission of

the life sentence may indicate that the trial court was not going to impose a life

sentence.1 To counsel’s credit, he brought the misstatement to the trial court’s

attention prior to the sentencing hearing about a month later. The trial court then

began the sentencing hearing by addressing Gay as follows:

      You’re in court today for sentencing in your case. I have reviewed a
      presentence investigation report in your case, and I’ve reviewed material
      that your attorney has sent to me on your behalf. One thing I do want to
      do before we get started this morning is to make sure I properly advised
      you of the sentencing ranges in your cases when we took your plea of
      guilty. I believe I informed you that the voluntary manslaughter carried
      a penalty term of not more than twenty years in state prison and armed


      1
         Gay testified that he did not recall counsel speaking to him about the trial
court’s misstatement. However, the trial court in denying the motion to withdraw the
guilty plea credited counsel’s testimony that he had extensively discussed the correct
sentencing range with Gay.

                                           3
      robbery carries a minimum mandatory of ten years and not more than
      twenty years or life. I just want to make sure I properly advised you of
      the sentencing range for both offenses.


The trial court then proceeded with the hearing, and after testimony from several

witnesses, sentenced Gay to life imprisonment for the armed robbery and twenty

years for the voluntary manslaughter. Two days later, Gay, through trial counsel, filed

a motion to withdraw the guilty plea, which after amendment, was denied.

      “As a matter of constitutional due process, before a defendant pleads guilty, the

trial court must advise him of the ‘direct’ consequences of entering the plea[.]” Smith

v. State, 287 Ga. 391, 394 (2) (a) (697 SE2d 177) (2010). “Direct consequences may

be described as those within the sentencing authority of the trial court, as opposed to

the many other consequences to a defendant that may result from a criminal

conviction.” Id. Clearly, the sentencing range is within the direct authority of the trial

court and thus must be considered a direct consequence of entering the plea.

      However, our Supreme Court has held that the failure to advise a defendant of

the sentencing range does not invalidate the guilty plea “when [the defendant] makes

no claim that he was disadvantaged by the omission or even that he was in fact

unaware of the possible sentence which could be imposed.” Adams v. State, 285 Ga.


                                            4
744, 746-47 (3) (683 SE2d 586) (2009). See also Hill v. Hopper, 233 Ga. 633, 634

(212 SE2d 810) (1975). The Supreme Court has further held that withdrawal of the

guilty plea was not required to correct a manifest injustice when the trial court

omitted telling the defendant what the mandatory minimum sentence was, but counsel

testified that he correctly advised the defendant about the length of her sentence.

Arnold v. State, 292 Ga. 95, 97 (2) (734 SE2d 382) (2012).

      But none of these cases are controlling here. A key factor in these cases is that

the trial court’s error, if any, was the omission of the sentencing range, instead of an

affirmative misrepresentation, which is what happened here. See Hill, 233 Ga. at 634

(“nor has he alleged that the possible sentence was affirmatively misrepresented”).

Also, in each case, our Supreme Court noted that the sentence was negotiated, and the

defendants were sentenced according to the plea bargain, notwithstanding the failure

of the trial court to describe the sentencing range on the record. Adams, 285 Ga. at

746 (3) (“Appellant entered a negotiated guilty plea and received the sentence for

which he bargained.”); Hill, 233 Ga. at 634 (“[Hill] has at no time claimed that the

state made and breached any sort of plea bargain with him[.]”); see Arnold, 292 Ga.

at 95 (“[p]ursuant to a negotiated plea”).



                                             5
       In contrast, Gay’s sentence was not negotiated, nor is this an “omission” or

failure to inform case. Instead, the trial court misstated Gay’s sentencing range for

armed robbery, which led trial counsel to speculate and raise the hope in Gay that the

trial court would not impose life imprisonment at sentencing. Although the trial court

then referred to the correct sentencing range at the sentencing hearing, it is clear from

the face of the transcript that the trial court did not acknowledge the error and instead

appears to compound the misstatement by asking Gay to confirm that the trial court

stated the correct sentencing range at the guilty plea hearing. Cf. Pike v. State, 245

Ga. App. 518, 519-20 (538 SE2d 172) (2000) (prosecutor drew defendant’s attention

to misstatements made about sentencing range, stated the correct ranges, and

emphasized “I’m correcting it at this time so that you will know.”). And even though

it is true, as the dissent points out, that Gay knew from a previous hearing that he

could withdraw his plea at anytime before he was sentenced, the trial court did not

reiterate that right to Gay at the time the court “corrected” its earlier mistake. Further,

although the dissent and the trial court in its order denying the motion both

specifically rely on the testimony that Gay had been advised accurately by his counsel

about the sentencing range, the issue in this case is not Gay’s knowledge of the

sentencing range. Instead, the misstatement gave Gay the false impression that the

                                            6
trial court, who had the discretion to sentence within that range, may have been

inclined to sentence him to twenty years instead of life.

      For these reasons, Gay should have been allowed to withdraw his guilty plea

to correct a manifest injustice, and the judgment of the trial court must be reversed

and the case remanded for further proceedings consistent with this opinion.

      Judgment reversed. Barnes, P. J., Miller, P. J., Branch, Mercier, Reese, and

Bethel, JJ., concur. Doyle, C. J., and McFadden, P. J., dissent.




                                          7
 A17A0060. GAY v. THE STATE.

      MCFADDEN, Presiding Judge, dissenting.

      I respectfully dissent from the majority opinion reversing the trial court’s denial

of Jerry Gay’s motion to withdraw his guilty plea. The record shows that despite the

trial court’s misstatement regarding the sentencing range for armed robbery, Gay

actually knew the range of possible sentences before, during, and after the entry of

his guilty plea; that prior to sentencing, Gay’s attorney informed the court of its

mistake and suggested that the court correct it on the record; that the trial judge then

corrected the mistake before the start of the sentencing hearing and Gay expressly

acknowledged that he understood the corrected sentencing range; and that Gay then,
despite having been informed of his right to withdraw his guilty plea before

sentencing, did not withdraw his plea and instead proceeded with the sentencing

hearing. Under these circumstances, the trial court did not abuse its discretion in

finding that Gay entered his plea with full knowledge of the possible consequences,

including a life sentence, and yet still chose not to withdraw his plea prior to

sentencing. Accordingly, there was no manifest injustice mandating that Gay be

allowed to withdraw his knowing and voluntary plea after sentence was imposed.

              A ruling on a motion to withdraw a guilty plea lies within the
      sound discretion of the trial court and will not be disturbed absent a
      manifest abuse of such discretion. When the validity of a guilty plea is
      challenged, the [s]tate bears the burden of showing affirmatively from
      the record that the defendant offered his plea knowingly, intelligently,
      and voluntarily. The [s]tate must show that the defendant was cognizant
      of all of the rights he was waiving and the possible consequences of his
      plea. After a defendant’s sentence has been pronounced, his guilty plea
      may be withdrawn only to correct a manifest injustice. The test for
      manifest injustice will by necessity vary from case to case, but it has
      been said that withdrawal is necessary to correct a manifest injustice if,
      for instance, a defendant is denied effective assistance of counsel, or the
      guilty plea was entered involuntarily or without an understanding of the
      nature of the charges.

Jones v. State, 325 Ga. App. 845, 846 (2) (755 SE2d 238) (2014) (citation omitted).

      In this case, the majority finds that the trial court’s failure to inform Gay of the

possibility of a life sentence at the plea hearing constitutes a manifest injustice


                                           2
mandating that he be allowed to withdraw his plea. Indeed, if the court’s mistake had

in fact misled Gay and caused him to enter his guilty plea without actual knowledge

of life as a possible consequence, it very well might have constituted a manifest

injustice. But that is not what happened in this case. On the contrary, the record

plainly shows that the trial court’s mistake had no impact on Gay’s entry of his guilty

plea because in spite of the court’s omission, which was corrected on the record

before sentencing, Gay was fully cognizant of the fact that a life sentence was a

possible consequence of his guilty plea to armed robbery.

      At the hearing on the motion to withdraw the guilty plea, Gay’s plea counsel

testified that he had met with Gay at least 25 times prior to the plea hearing and that

they had discussed the possible outcomes of his case many times, including the

possibility of a life sentence for armed robbery. According to counsel, Gay

“absolutely” knew before his plea that life was a potential sentence for armed

robbery. Gay himself testified that he knew about the possible life sentence,

confirming that prior to the plea hearing counsel had informed him of the possibility

of a life sentence. Moreover, at the plea hearing, Gay submitted a signed waiver of

rights form acknowledging that his attorney had discussed the case with him, that he

understood the charges, and that he understood the maximum penalty the court could

                                          3
impose. Thus, the evidence in the record clearly supports a finding that Gay knew a

life sentence was a possible consequence before and during the entry of his guilty

plea.

        Furthermore, counsel testified that after the plea hearing and before the

sentencing hearing, which was held over a month after the plea, he and Gay discussed

the trial court’s failure to mention the possibility of a life sentence at the plea hearing.

Counsel said that during those discussions he had speculated that the court’s

misstatement might be an indication that it was not going to impose a life sentence,

but that there was never a promise to cap the sentence at 20 years. Gay contradicted

counsel’s testimony, denying that after the plea hearing they had discussed the court’s

failure to mention the possibility of a life sentence. Given such conflicting testimony,

the trial court was authorized to believe counsel’s testimony over Gay’s self-serving

account. See, e.g., Trapp v. State, 309 Ga. App. 436, 438 (1) (710 SE2d 637) (2011)

(Because credibility determinations are for the fact-finder to make, “the trial court

was authorized to disbelieve [the defendant]’s self-serving testimony and to find that

he knowingly, freely, and voluntarily entered the plea.”). Thus, there is evidence

supporting a finding that even after the trial court’s misstatement at the plea hearing

and before sentencing, Gay still knew that he faced a possible life sentence.

                                             4
      In addition to the above-recited evidence of Gay’s knowledge of a possible life

sentence, the record also shows that prior to the start of the sentencing hearing held

weeks after the plea hearing, Gay’s attorney actually brought to the court’s attention

its earlier misstatement at the plea hearing and suggested that the court needed to

correct the omission of a possible life sentence on the record. The trial court did just

that before starting the sentencing hearing, correcting the mistake on the record by

informing Gay that the armed robbery charge carried a possible life sentence. Gay

then acknowledged that he understood the sentencing range. Indeed, Gay later

confirmed at his plea withdrawal hearing that the trial court, at the sentencing

hearing, had corrected its previous error by stating that life was a possible sentence.

      The majority discounts the trial court’s correction of its mistake, finding that

the correction compounded the mistake by asking Gay, before the start of the

sentencing hearing, to confirm that the trial court had state the correct sentencing

range at the guilty plea hearing. But this finding elevates semantics over the

substance of the trial court’s clear statement to Gay that life was a possible sentence

for armed robbery. Contrary to the majority’s finding, this court “do[es] not find error

based on mere semantics.” Rodriguez v. State, 280 Ga. App. 423, 424 (634 SE2d 182)

(2006) (citation omitted) (affirming denial of motion to withdraw guilty plea where

                                           5
plea form incorrectly stated maximum possible sentence and minimum sentence not

properly described to defendant at plea hearing as a mandatory minimum).

      After that correction informing Gay of a possible life sentence, Gay did not

seek to withdraw his guilty plea, which he could have done as a matter of right before

sentence was imposed. See OCGA § 17-7-93 (b). Indeed, at the earlier plea hearing,

the court had expressly informed Gay of his absolute right to withdraw his guilty plea

before sentence was pronounced, and Gay had stated that he understood his right to

withdraw his plea before sentencing. Nevertheless, before the start of the sentencing

hearing, after having clearly been informed by the court of the possibility of a life

sentence for armed robbery, Gay did not attempt to withdraw his guilty plea and

instead opted to proceed with the sentencing hearing. Gay then fully participated in

the sentencing hearing, including the presentation of witnesses on his behalf and his

own statement. Thereafter, the court announced the sentences, including the life

sentence that Gay knew he could receive for the armed robbery.

      Given the evidence in the record, it is clear that Gay was fully aware of the fact

that he faced a possible life sentence for armed robbery before, during, and after entry

of his guilty plea. It is clear that he was informed of his right to withdraw his plea at

any time before sentence was imposed. It is clear that he understood the trial court’s

                                           6
correction of the mistake made at the plea hearing, acknowledging that he knew he

faced a life sentence before the sentencing hearing. It is clear that despite that

knowledge he still chose not to withdraw his guilty plea and instead to proceed with

the sentencing hearing. And it is clear that he only sought to withdraw his plea after

the life sentence, which he had known was a possible consequence of his plea, was

in fact imposed.

      Under these circumstances, the instant case is similar to Pike v. State, 245 Ga.

App. 518 (538 SE2d 172) (2000). In Pike, the prosecutor misstated some of the

possible maximum punishments at the defendant’s guilty plea hearing, but corrected

those mistakes several weeks later at the sentencing hearing. Id. at 519-520 (1). The

defendant made no objection and did not seek to withdraw his plea after the

corrections, and instead called witnesses and testified at the sentencing hearing, after

which the trial court imposed the maximum sentences on each count. Id. at 520 (1).

On appeal, this court affirmed the trial court’s denial of the defendant’s motion to

withdraw his guilty plea, rejecting the argument that his plea was not knowing and

voluntary because the prosecutor had misstated the maximum sentences at the guilty

plea hearing. In so ruling, this court concluded:



                                           7
      The record shows that [the defendant] was aware of the possible severe
      consequences of his plea during the plea hearing, even if he was not
      aware of the exact maximum sentence. Given this fact, in addition to
      [his] plea petition indicating his knowledge of the maximum possible
      sentence, as well as the fact that [he] continued with his sentencing
      hearing after being made fully aware of the exact possible consequences
      of pleading guilty, we cannot say that a manifest injustice exists in this
      case warranting withdrawal of his plea.

Id. at 521 (1) (footnote omitted).

      Likewise, in the instant case, the court’s misstatement about the sentencing

range at the plea hearing does not constitute a manifest injustice requiring that Gay

be allowed to withdraw his guilty plea because the record establishes that Gay

actually knew before and after his plea, and prior to sentencing, that he faced a

possible life sentence. See Arnold v. State, 292 Ga. 95, 97 92) (734 SE2d 382) (2012)

(where counsel testified that he correctly advised defendant concerning the length of

her sentence, defendant “has not demonstrated that she should be permitted to

withdraw her plea to correct a manifest injustice”); Wood v. State, 190 Ga. App. 179,

181 (2) (378 SE2d 520) (1989) (any error in court’s failure to fully inform defendant

of sentencing possibilities was harmless because counsel satisfactorily explained

consequences of plea). Because the trial court did not abuse its discretion in denying

Gay’s motion to withdraw his guilty plea, that ruling should be affirmed.


                                          8
I am authorized to state that Chief Judge Doyle joins in this dissent.




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