Rafael Perez v. State , 333 Ga. App. 716 ( 2015 )

FIRST DIVISION
DOYLE, C. J.,
PHIPPS, P. J., and BOGGS, J.
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/
August 6, 2015
In the Court of Appeals of Georgia
A15A1330. PEREZ v. THE STATE.
PHIPPS, Presiding Judge.
Pro se, Rafael Perez appeals the denial of his motion to withdraw his guilty
plea. For reasons explained below, we affirm.
Perez was indicted in Cobb County Superior Court on charges of child
molestation and aggravated child molestation. Represented by counsel, Perez entered
a negotiated guilty plea to the child molestation charge. On April 12, 2011, the trial
court sentenced Perez for that crime, and entered an order of nolle prosequi on the
other charge.
On December 6, 2013, representing himself, Perez filed in the sentencing court
a motion to withdraw his guilty plea. He claimed that his plea counsel had rendered
ineffective assistance and that, consequently, his guilty plea had been entered
unknowingly and unintelligently.
In denying the motion, the court noted that the term of court during which
Perez was sentenced had long expired prior to his filing the motion, and thereupon
determined that it was without jurisdiction to entertain the motion.1 Indeed, “[i]t is
well settled that when the term of court has expired in which a defendant was
sentenced pursuant to a guilty plea the trial court lacks jurisdiction to allow the
withdrawal of the plea.”2
1. Although Perez maintains on appeal that his plea counsel rendered
ineffective assistance, Perez has shown no basis to disturb the trial court’s denial of
his motion to withdraw guilty plea.3
1
In 2011, the year Perez was sentenced, the court terms for the Superior Court
of Cobb County began on the second Mondays in January, March, May, July,
September, and November. OCGA § 15-6-3 (11) (2010, 2011).
2
Davis v. State, 274 Ga. 865 (561 SE2d 119) (2002) (citation and punctuation
omitted); see Henderson v. State, 295 Ga. 333, 336-337 (2) (759 SE2d 827) (2014).
3
See Henderson, supra (upholding trial court’s denial of defendant’s motion
to withdraw guilty plea, because – despite defendant’s claim of “manifest injustice
in the form of ineffective assistance of counsel” – the trial court had no jurisdiction
to entertain the motion filed after the term of court during which the defendant had
been sentenced); Dupree v. State, 279 Ga. 613, 614 (619 SE2d 608) (2005) (rejecting
the defendant’s claim that manifest injustice from ineffective assistance of counsel
2
2. We do not reach Perez’s remaining claim of error. Because the issue was not
raised below, it is not properly before this court.4
Judgment affirmed. Doyle, C. J., and Boggs, J., concur.
permitted him to pursue a motion to withdraw his guilty plea, where the motion was
untimely filed); Davis, supra at 865-866 (affirming denial of motion to withdraw
guilty plea because, irrespective of defendant’s claim that he was denied effective
assistance of counsel during the plea proceedings, the trial court lacked jurisdiction
to grant the relief requested, where defendant filed his motion after the expiration of
the term of court during which he was sentenced).
4
See Mann v. State, 259 Ga. App. 553, 554 (2) (578 SE2d 238) (2003)
(“[I]nasmuch as we are a court for the correction of errors, we do not consider issues
which were not raised below and ruled on by the trial court.”) (citation omitted).
3