McGraw Colby Giddens v. State ( 2019 )

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and REESE, 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
March 12, 2019
In the Court of Appeals of Georgia
A18A2122. GIDDENS v. THE STATE.
MCMILLIAN, Judge.
McGraw Colby Giddens was indicted on one count of aggravated sexual
battery, one count of aggravated child molestation, and four counts of child
molestation. Pursuant to a negotiated plea, he pleaded guilty to one count of sexual
battery and four counts of child molestation.1 Shortly after he was sentenced, Giddens
filed a motion to withdraw his plea, and following an evidentiary hearing, the trial
court denied Giddens’ motion. He appeals, arguing in related enumerations that the
withdrawal of his plea was necessary to correct a manifest injustice; the trial court
erred in finding a factual basis for his plea; and the superior court impermissibly
1
The aggravated sexual battery charge was reduced to felony sexual battery,
the aggravated child molestation count was reduced to child molestation, and one of
the remaining four counts of child molestation was nolle prossed.
participated in the plea negotiations.2 As more fully set forth below, we find these
contentions to be without merit and affirm.
1. In three related enumerations of error, Giddens argues that the trial court
should have allowed the withdrawal of his plea to correct a manifest injustice because
the State failed to meet its burden of proof to show that his plea was knowingly,
voluntarily, and intelligently entered. “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.)
Wright v. State, 292 Ga. 825, 826 (1) (742 SE2d 468) (2013). “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.” (Citation omitted.) Allen v. State, 333
Ga. App. 853, 855 (2) (777 SE2d 699) (2015). “A decision on a motion to withdraw
a guilty plea is a matter for the sound discretion of the trial court and will not be
2
Giddens has filed a motion to strike the State’s brief because it was not timely
filed. The State acknowledges that its brief was not timely filed, but requests that we
exercise our discretion and consider the untimely filed brief. In the exercise of our
discretion, we decline to strike the State’s brief.
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disturbed absent a manifest abuse.” (Citation omitted.) MyGuyton v. State, 298 Ga.
351, 353 (1) (a) (782 SE2d 21) (2016).
(a) Giddens argues that his plea was not knowingly made because he was
“unaware of the charges to which he entered the plea” and because the factual bases
for the crimes to which he was pleading guilty were not sufficiently set out on the
record. However, at the hearing on the motion to withdraw, Giddens’ plea counsel3
testified that he “absolutely” discussed with Giddens the counts he was pleading to,
and the plea hearing transcript shows that Giddens acknowledged that he understood
the charges against him and the charges to which he was pleading guilty, which were
reviewed with him on the record. Further, Giddens’ attorney testified at the plea
withdrawal hearing that he wanted to make sure that Giddens understood the
differences between the charges set out in the indictment and the reduced charges
offered in the plea so he could understand the consequences when making his choice
whether to accept the offer or go to trial. And although he had not signed the
indictment prior to entering his plea, at the plea hearing he acknowledged that he had
3
For ease of reference, we will refer to the attorneys that represented him at the
plea stage of the proceedings as his attorney or attorneys with the understanding that
these lawyers represented him at the plea stage of the hearing not the plea withdrawal
stage.
3
“reviewed and viewed” the indictment with counsel, and he signed both the waiver
of indictment and plea agreement at the time he entered his plea, both of which set out
the charges to which he was pleading guilty. Further, his attorney also testified at the
withdrawal hearing that he had several discussions in different contexts about the
consequences of the charges.
In further support of his argument that he entered the plea without knowing the
facts, Giddens asserts that neither he nor his attorney stated any facts on the record
that would constitute a crime nor did they stipulate to a factual basis for the guilty
plea crimes. But it is not required that the accused or his counsel state a factual basis
for the crime on the record. What is required is that the trial court make itself aware
of the factual basis for the plea. See Uniform Superior Court Rule 33.9.4 Here, the
prosecuting attorney adequately set out the factual bases for the crimes by
summarizing the underlying facts on the record – the victim was under the age of 16
4
Giddens argues in a separate enumeration that the trial court abused its
discretion by finding that he waived the right to argue lack of a factual basis because
he did not raise it in his motion to withdraw and did not otherwise provide the State
with notice of his intent to raise this issue prior to the plea withdrawal hearing.
Although the trial court did state in its order that the issue was waived, it alternatively
found that the State presented, and the trial court was made aware of, the factual basis
for the plea. Since the trial court considered this issue on the merits, we need not
consider whether the trial court improperly found waiver.
4
and working at a business owned by Giddens’ family at the time she said Giddens
engaged in sexual contact with her – and then referring to the indictment for the
details of the sexual contact, which were explicitly set out as to each count and
adequately showed the elements of the charges to which Giddens pleaded guilty,
which were either the same as those set out in the indictment or lesser crimes. After
this recitation, the trial court asked Giddens whether this is what happened as it
related to the reduced charges to which Giddens was pleading and Giddens answered
in the affirmative. Because the record supports that the trial court was made aware of
the factual basis of the plea and that Giddens was aware of the facts underlying the
charges, this contention is without merit. Adams v. State, 285 Ga. 744, 748 (4) (b)
(683 SE2d 586) (2009) (“We have recognized that an indictment alone may contain
enough information to establish that the facts alleged by the State ‘actually satisfied
the elements of the charges to which a defendant was pleading guilty.’”) (citation
omitted); Green v. State, 265 Ga. 263, 265 (2) (454 SE2d 466) (1995) (finding “that
the indictment provided ample information from which the trial court could discern
the facts alleged by the state actually satisfied the elements of the charges to which
[defendant] was pleading guilty”); see also Romano v. State, 272 Ga. 238 (527 SE2d
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184) (2000) (although indictment not read into record, sufficient factual basis where
defendant stated he read the indictment and understood the charges).
Although Giddens also finds it significant that his attorney could not remember
the precise conversation he had with Giddens about the mandatory minimum
sentencing guidelines for each count, the attorney did testify that he talked to Giddens
about the “minimums” and that there was not a doubt in his mind that the maximum
sentences were also discussed with Giddens. Further, the record unequivocally shows
that Giddens had been thoroughly informed of the possible range of sentencing,
including the mandatory minimums, earlier in the day at a plea status hearing, as
reflected by the transcript from that in-chambers proceeding during which the trial
court explained to Giddens that she would not have any discretion to the extent he
was convicted of any offense with a mandatory minimum sentence. Thus, we find no
merit to this assertion.
(b) Giddens next argues that the trial court improperly shifted the burden of
proof to show that his plea was knowingly, voluntarily, and intelligently entered. Our
law is well established that
Where the validity of a guilty plea is challenged, the State bears the
burden of showing that the plea was voluntarily, knowingly, and
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intelligently made. The State may do this by showing through the record
of the guilty plea hearing that (1) the defendant has freely and
voluntarily entered the plea with (2) an understanding of the nature of
the charges against him and (3) an understanding of the consequences
of his plea.
(Citation omitted.) Jones v. State, 268 Ga. App. 723, 724 (1) (603 SE2d 73) (2004).
The trial court specifically cited this standard in its order denying Giddens’ motion
to withdraw and clearly and appropriately applied it in denying the motion to
withdraw. Further, although Giddens points to various factors that he contends cast
doubt or suspicion on his plea, the trial court addressed these contentions and, based
on the record before us, properly rejected them as meritless.
Specifically, as to the issue of whether Giddens and his attorneys were given
sufficient time to consider the plea recommendation before accepting it, Giddens’
attorney testified that although the period of time in which to consider the plea was
“confined,” due to the fact that the plea negotiations were taking place in the middle
of trial after the jury had been selected, he also believed that the court did not
pressure them to reach a decision and that the court gave them an adequate amount
of time to discuss the plea offer. The record also reflects that the final plea offer was
made before lunch, and upon request by Giddens, the trial court permitted Giddens
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to confer with counsel about the offer over the lunch break. Thus, we find Giddens’
contention that his plea was not freely, voluntarily, and knowingly made due to time
pressure to be without merit.
(c) Giddens also argues that the State failed to prove that his plea was not the
product of duress or undue influence. Giddens had previously rejected two plea
offers, and he asserts that his plea resulted from duress by one of his attorneys who
did not testify at the motion hearing and the influence of his father. Although the
record shows that Giddens’ plea withdrawal counsel attempted to elicit testimony that
there was tension between Giddens and the plea attorney who did not testify, the
record reflects at most that the other plea counsel intervened in the discussion about
the plea offer to get everyone back on track. Further, one of his plea attorneys
testified at the hearing on the motion to withdraw that he had no concerns about the
voluntariness of Giddens’ plea and that the pivotal difference between the plea
recommendation that Giddens ultimately accepted and the previous offers was that
the State lowered the amount of incarceration time.5
5
The initial plea offer was for a sentence of 15 years, serve 8 with the
remainder on probation. On the morning of trial, the State made an offer of 15 to
serve 5. Shortly thereafter, the State dropped another year of the time served, and
offered 15 to serve 4. This was the offer that was accepted and upon which sentence
was imposed.
8
As for the contention that Giddens’ father unduly influenced him to take the
plea, our Supreme Court has recognized that entering a guilty plea as a result of
advice of counsel or pressure from family members does not amount to coercion.
DeToma v. State, 296 Ga. 90, 92 (1) (765 SE2d 596) (2014). “[T]he State’s burden
is to show that a guilty plea was entered intelligently and voluntarily, . . . there is not
burden on the State to show that, before entering a plea, a defendant resolved to do
so without wavering or agonizing over the decision, or that after his plea, he had no
second thoughts as to entering it.” (Citation omitted.) Id. at 92-93 (1). Giddens’ father
testified that Giddens was at first adamant he would not take the initial plea offer and
he encouraged his son to take the plea, but the father ultimately acknowledged that
when it came down to it, it was Giddens’ decision to make.6 Based on the foregoing,
the trial court did not manifestly abuse its discretion by denying the motion to
withdraw on this basis. Id.
2. Lastly, citing Winfrey v. State, 304 Ga. 94 (816 SE2d 613) (2018), Giddens
argues for the first time on appeal that the trial court improperly participated in the
plea negotiations in violation of USCR 33.5 (A) when it failed to correct the
6
The record shows that at the time he entered his plea, Giddens was twenty-
two years old, married and lived on his own.
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impression left by the State’s remarks that he would receive a life sentence if he went
to trial and lost, which he contends resulted in an involuntary plea. Pretermitting the
timeliness of this assertion,7 we find it to be without merit.
The record shows that the morning that jury selection was to begin,
proceedings were held in chambers at defense counsel’s request to make a record of
the status of the plea negotiations, specifically, the State’s plea recommendation and
Giddens’ rejection of that offer. At that time, the State set out the charges against
Giddens and stated the minimum and maximum sentences for each offense. The
prosecuting attorney then concluded, “So all in all, the Court could give up to two life
sentences and up to 80 years in prison, all of those to run consecutive to each other.”
(Emphasis supplied.)
Contrary to Giddens’ assertion on appeal, the State did not explicitly or
implicitly inform Giddens that he would receive the maximum sentence if he went to
trial and lost. Instead, this case is akin to State v. Hayes, 301 Ga. 342 (801 SE2d 50)
(2017), where the Supreme Court concluded that “telling a defendant that he could
be sentenced up to [the maximum sentence for the offense] is not the same as telling
7
Although Giddens does not directly acknowledge that this argument was
raised for the first time on appeal, he does point out in his brief on appeal that Winfrey
was not decided until after the trial court denied his motion to withdraw.
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a defendant that he would be sentenced to [the maximum sentence].” Id at 345 (1).
That is what the prosecuting attorney said in this case – that “the Court could give .
. . up to” the maximum sentence, not that it would give such a sentence. We also note
that the trial court explicitly told Giddens:
I don’t get in the middle of plea negotiations. I’m prohibited from doing
that; but what I do like to make sure that defendants understand in a case
like this with those particular type charges, a lot of people say, well
maybe we’ll come back in sentencing and they like to use the phrase
throw myself on the mercy of the court, okay? In these particular cases,
I do not have any discretion. It is a minimum 25 years, okay?
Giddens responded affirmatively. In these circumstances, we reject Giddens’
argument that the trial court impermissibly participated in the plea discussions.
Accordingly, we find this enumeration to be without merit.
Judgment affirmed. Barnes, P. J., and Reese, J., concur.
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