Most criminal cases are disposed of by a plea bargain. A plea bargain usually begins when a prosecutor makes a plea offer to the defense. Among the factors a prosecutor considers are the nature of the crime alleged, the defendant's criminal history, and any input from the alleged victim. The defense attorney has an obligation to tell the defendant about the plea offer. In the Interest of K.F., 316 Ga. App. 437 (2012); Lloyd v. State, 258 Ga. 645 (1988). Once the prosecution makes a plea offer, the defense can make a counter-offer or simply accept the State's offer. The State may withdraw a plea offer at any time before it is accepted, even if the offer was supposed to be open for a certain period of time. Bailey v. State, 313 Ga. App. 824 (2012). Unless the State has received some consideration to keep the offer open, it is revocable at will. Scott v. State, 302 Ga. App. 111 (2010); Sparks v. State. 232 Ga. App. 179 (1998).
The end result of the discussions between the prosecution and defense is a negotiated plea agreement which is in essence a contract between the State and the defendant. Clue v. State, 273 Ga. App. 672 (2005); Gibson v. State, 257 Ga. App. 134 96(2002). The judge cannot participate in the plea negotiations between the prosecution and the defense. The judge's participation in plea negotiations is prohibited as a constitutional matter when it is so great as to render a guilty plea involuntary. Ealey v. State, 310 Ga. App. 893 (2011); McDaniel v. State, 271 Ga. 552 (1990); Skomer v. State, 183 Ga. App. 308 (1987). However, the prosecution and defense can present a proposed plea agreement to the judge, and the judge is allowed to indicate whether he is likely to accept the plea as presented. Uniform Superior Court Rule 33.5.
A defendant does not have a right to plead guilty, and the judge is not required to accept the guilty plea. Bullard v. State 263 Ga. 682 (1993). If the judge accepts the negotiated plea, the case is over and the defendant receives the sentence he agreed upon. If the judge decides not to accept a negotiated sentence, the defendant can take back the plea of guilty, and the fact that the defendant wanted to plead guilty cannot be used against him at trial. O.C.G.A. § 17-7-93 (b); Shoemake v. State, 213 Ga. App. 528 (1994). Likewise, a defendant may not mention during trial the prosecutor's offer of a negotiated plea. Davis v. State, 255 Ga. 598 (1986).
In addition to a negotiated guilty plea, a defendant may enter a non-negotiated plea. In a non-negotiated plea sometimes called a blind plea, the prosecutor and defense have not reached any agreement as to sentence. Davis v. State, 317 Ga. App. 157 (2012). The defendant pleads guilty without knowing the sentence (thus called a blind plea). The prosecutor tells the judge what he thinks the sentence should be and the defense attorney tells the judge what the defense thinks the sentence should be. The judge then decides the sentence. Whatever the judge decides is final. The defendant cannot take his plea back. Skinner v. State, 297 Ga. App. 828 (2009). The judge can sentence the defendant to anything up to the maximum sentence for the crime. The defendant has essentially thrown himself on the mercy of the court and has to accept the sentence the judge imposes. A defendant can enter a blind plea with a cap. The judge decides the sentence, but the parties agree that the maximum sentence will be capped at a certain figure. For instance, a defendant can enter a blind plea to aggravated assault (which carries a sentence of one to twenty years) with a cap of five years. The judge can sentence the defendant to anything up to five years.
Some judges let the defendant take back a blind plea if they don't like the sentence, however, some judges consider a non-negotiated plea to be binding and won't let the defendant withdraw the plea and enter a plea of not guilty.
Entry of Guilty Plea
The decision whether to plead guilty or not guilty belongs to the defendant, not his attorney. Cammer v. Walker, 290 Ga. 251 (2011). The entry of a guilty plea involves the waiver of three federal constitutional rights: the privilege against compulsory self-incrimination (also called the right to remain silent at trial); the right to trial by jury; and the right to confront one's accusers. Wilson v. Kemp, 288 Ga. 779 (2011). A defendant entering a guilty plea also gives up all defenses the person may have at trial, except that the indictment charged no crime. Carson v. State, 314 Ga. App. 225 (2012) (includes waiver of argument that sentences merge).
A guilty plea is to be treated as an honest confession of guilt. Shuler v. State, 306 Ga. App. 820 (2010). However, sometimes a defendant may enter a guilty plea without admitting that he is in fact guilty of the crime. This plea is called an Alford plea after the case North Carolina v. Alford, 400 U.S. 25 (1970). However, if the plea is a negotiated plea, the State must agree to the Alford plea. Even if the State does not oppose an Alford plea, the judge does not have to accept the defendant's Alford plea. Jackson v. State, 251 Ga. App. 578 (2001). An Alford plea carries with it the same consequences of a regular guilty plea, including use in the future to sentence a defendant as a recidivist. Wynn v. State, 271 Ga. App. 10 (2004).
A defendant must knowingly, intelligently, and voluntarily enter a guilty plea. Making a knowing and voluntary plea requires an understanding of the nature of the charge, the rights being waived, and the consequences of the plea. Pride v. Kemp, 289 Ga. 353 (2011). To ensure the defendant understands what he is doing a defendant who enters a guilty plea will be asked to give certain responses under oath. The defendant is usually asked if he is the same defendant named in the indictment and whether he has had a chance to read the indictment. He will be asked if he understands the charges against him. He will be asked if he is under the influence of any drugs, alcohol, or medication. The defendant will be asked if he has had enough time to discuss the case with his attorney and whether he is satisfied with the services of his attorney. The prosecutor may and most often does ask the questions. Green v. State, 291 Ga. 506 (2012). The defendant will be informed that he has the right to a trial. At the trial he will have the presumption of innocence, the right to confront and question his accusers, the right to subpoena evidence and witnesses to court, the right to remain silent, the right to testify in his own defense, and the right to the assistance of counsel during trial.
The defendant will be informed that if convicted he would have the right to an appeal and the right to an attorney to assist with that appeal. By pleading guilty the defendant waives all of these rights. The defendant also waives all defenses except those that relate to the knowing and voluntary nature of the plea. Greason v. State, 312 Ga. App. 859 (2011); Tyner v. State, 289 Ga. 592 (2011); Moore v. State, 285 Ga. 855 (2009). While the better practice is for the judge to discuss on the record every essential right a defendant is waiving, the judge can accept a preprinted form, signed by the defendant prior to entering his plea, acknowledging that the defendant understands the rights he is waiving. Shuler v. State, 306 Ga. App. 820 (2010).
The judge must also make sure there is a factual basis for the plea. Uniform Superior Court Rule 33.9. This is usually done by the prosecutor stating what the evidence would show at trial. Of course this is from the prosecutor's perspective. The factual basis does not have to be true, only what the prosecutor expects to prove, and if proved would support the charges against the defendant in that jurisdiction. King v. Hawkins, 266 Ga. 655 (1996). The prosecutor will not set out the defendant's defenses. The prosecutor will also inform the defendant that the judge does not have to accept the negotiated sentence, but if the judge rejects the negotiated sentence the defendant can take back a negotiated plea. Uniform Superior Court Rule 33.10. However, the State cannot withdraw a plea because the judge intends to impose a lighter sentence. State v. Harper, 279 Ga. App. 620 (2006). Finally, the prosecutor will make sure the defendant has not been promised anything (other than the plea agreement), threatened, or coerced to enter the guilty plea. The judge must also ensure that the defendant understands that if he is not a U.S. citizen, entering a guilty plea can lead to his deportation. O.C.G.A. § 17-7-93 (c).
After the prosecutor presents the plea, the judge will give the defense attorney an opportunity to speak on the defendant's behalf. The defense attorney will tell the judge about the defendant's background.
Withdrawal of a Guilty Plea
A defendant has an absolute right to withdraw his plea before the sentence is pronounced. Kaiser v. State, 285 Ga. App. 63 (2007); OCGA § 17-7-93 (b). After sentencing, withdraw of a plea is in the discretion of the judge. Gower v. State, 313 Ga. App. 635 (2012); Earley v. State, 310 Ga. App. 110 (2011); Maddox v. State, 278 Ga. 823 (2005).
A defendant who enters a guilty plea and then wants to withdraw that guilty plea must make a request (motion) during the same term of court in which he was sentenced. He does not get 30 days to take back his plea. Smith v. State, 283 Ga. 376 (2008). The terms of court are found in O.C.G.A. § 15-6-3. However, neither the judge nor the prosecutor are required to tell the defendant at the time of the plea that he has to ask to withdraw his plea during the term of court. Bennett v. State, 292 Ga. App. 382 (2008); Ethridge v. State, 283 Ga. App. 289 (2007).
The request to withdraw the guilty plea can be in the form of a letter to the judge filed with the clerk of court. McKiernan v. State, S09A1705. The motion does not have to be served upon the State, but the State must have reasonable notice of the motion. Mahone v. State, A12A1280. A defendant who files a motion to withdraw his guilty plea during the term of court is entitled to have a lawyer appointed to assist him in challenging the guilty plea. Ford v. State, 312 Ga. App. 80 (2011). Fortson v. State, 272 Ga. 457 (2000). The defendant is also entitled to a hearing. Williams v. State, 301 Ga. App. 849 (2010); Banhi v. State, 252 Ga. App. 475 (2001). After the term of court, the judge has no authority to withdraw a guilty plea, and the defendant must challenge the guilty plea by a habeas corpus action. Rhone v. State, 310 Ga. App. 182 (2011); Davis v. State, 274 Ga. 865 (2002).
A defendant will not be allowed to withdraw his guilty plea on the basis that he claims he is really innocent. Shuler v. State, 306 Ga. App. 820 (2010). The standard for withdrawing a guilty plea after sentencing is manifest injustice. Shaheed v. State, 276 Ga. 291 (2003). The definition of manifest injustice depends upon each case. Manifest injustice has been found when: (1) a defendant is denied effective assistance of counsel, or (2) the guilty plea was entered involuntarily or without an understanding of the nature of the charges. Norwood v. State, 311 Ga. App. 815 (2011). Manifest injustice does not exist simply because the defendant was placed into circumstances where he had to make a last-minute drastic decision to enter a plea or was facing family pressure to persuade him to enter a plea. Detoma v. State, S14A0936; Shaheed v. State, 276 Ga. 291 (2003). Nor is manifest injustice to be found because the defendant's lawyer had not spoken with witnesses nor communicated with him while he remained in custody waiting for trial. Wyckoff v. State, 309 Ga. 627 (2011).
When a defendant challenges his guilty plea, the State has the burden of showing that the defendant intelligently and voluntarily entered the plea. The State may meet its burden by using the guilty plea transcript or through other evidence. Norwood v. State, 311 Ga. App. 815 (2011). However, when a defendant seeks to withdraw a guilty plea because of ineffectiveness of counsel, he must show that his lawyer's performance was deficient and that but for his lawyer's ineffectiveness a reasonable probability exists that he would have insisted on a trial. Mahone v. State, A12A1280.
Although there is no constitutional requirement that a defendant be informed of collateral consequences of a plea, such as parole eligibility, a lawyer's misrepresentations about those consequences in response to his client's specific inquiries may form the basis of an ineffective assistance of counsel claim. Agnew v. State, 309 Ga. 104App. 163 (2011); Smith v. Williams, 277 Ga. 778 (2004); Rollins v. State, 277 Ga. 488 (2004).
On a motion to withdraw a guilty plea based on ineffective assistance of counsel, the defendant must show that had it not been for his attorney's deficient representation, a reasonable probability exists that he would have insisted on a trial. Bailey v. State, 313 Ga. App. 824 (2012).
First Offender Guilty Pleas
A defendant can enter a guilty plea under the First Offender Act. O.C.G.A. § 42-8-60. There is no adjudication of guilt. After the defendant successfully completes probation he is discharged automatically Ailara v. State, 311 Ga. App. 862 (2011), without a criminal conviction. O.C.G.A. § 428-62. The first offender is useful in disposing of a criminal case without the adverse effect on job opportunities and voting that a felony conviction might have. The purpose of the first offender law is to allow the first offender an opportunity for rehabilitation without the stigma of a criminal conviction. State v. Wiley, 233 Ga. 316 (1974). A person who completes first offender may still be disqualified from holding certain jobs depending on the charges the person pled guilty to and the type of job. O.C.G.A. § 42-8-63.
Whether to sentence a defendant under the First Offender Act is left to the judge's discretion. Moore v. State, 236 Ga. App. 889 (1999). The judge must at least consider the request before making a decision. Powell v. State, 271 Ga. App. 550 (2005). The judge cannot use a mechanical sentencing formula or policy as to sentences. Graydon v. State, 313 Ga. App. 580 (2012). A person cannot enter a guilty plea under the First Offender Act on more than one occasion. O.C.G.A. § 42-8-60 (b). The “one occasion” language in the law means for one or more offenses in an indictment or accusation or for one or more offenses set forth in multiple indictments or accusations that are consolidated or joined for one trial. Higdon v. State, 311 Ga. App. 387 (2011). If the cases have not been joined for trial prior to entering the guilty plea, the defendant cannot get first offender for two or more cases even though they are disposed of at the same time.
If the defendant violates the terms of his first offender sentence the judge can revoke his first offender status, ender a finding of guilt and resentence the defendant up to the maximum of the crime minus credit for any time served on probation. Bliss v. State, 244 Ga. App. 160 (2000).
Appeal
In seeking to set aside his guilty plea, a defendant can either file a motion to withdraw his guilty plea or appeal the judgment directly to the appeals court by filing a notice of appeal. A defendant who hopes to appeal from a guilty plea is not required to first file a motion to withdraw the guilty plea before filing a notice of appeal. Tyner v. State, 289 Ga. 592 (2011); Smith v. State, 281 Ga. 391 (2010). A motion for new trial is not the proper vehicle for appealing from a guilty plea. Rosenborough v. State, 311 Ga. App. 456 (2011).
A motion to withdraw guilty plea must be made within the term of court. A defendant then has the right to appeal the denial of his motion to withdraw the guilty plea. Cruz v. State, 311 Ga. App. 527 (2011). If the defendant chooses to appeal directly to the appeals court a notice of appeal must be filed in the clerk's office where the plea was made within 30 days. O.C.G.A. § 5-6-38 (a).
There is no absolute right to appeal from a guilty plea. An appeal from a guilty plea is only permitted if the issues the defendant wants to raise can be determined by a review of the transcript of the guilty plea. Clayton v. State, 285 Ga. 404 (2009). If the right to appeal was lost either by the lawyer's negligence or the judge's failure to inform the defendant of his right to appeal, the remedy is an out of time appeal. Cobb v. State, 265 Ga. 74 (2008). However, in order for an out-of-time appeal to be available on the grounds of ineffective assistance of counsel, the defendant must have had the right to file an appeal in the first place. The ability to decide the appeal based on the guilty plea transcript thus becomes the deciding factor in determining the availability of an out-of-time appeal when the defendant has pled guilty. Issues regarding the effectiveness of counsel are not reached unless the requirement that the appeal be resolved by the facts in the transcript is met. Barlow v. State, 282 Ga. 232 (2007). The transcript of the guilty plea hearing is presumed to be the true, complete, and correct record of what transpired during the hearing. O.C.G.A. § 1514-5; Detoma v. State,296 Ga. 290 (2014). If the judge examines the transcript and determines that there is no merit to the defendant's claims, the judge can deny the request for an out of time appeal without conducting a hearing. Childs v. State, 311 Ga. App. 891 (2011); Adams v. State, 285 Ga. 744 (2009). The defendant can then appeal that decision to the appeals court.
Dead Docket & Dismissals
When a case is placed on the dead docket it is not dismissed. The dead docket is a procedural device by which the prosecution is postponed indefinitely but may be brought back up any time on the decision of the judge. A case is still pending which can be called for trial. The case is dead docketed upon motion to the judge and at the discretion of the judge. Placing a criminal case on the dead docket over a defendant's objection is an abuse of the judge's discretion. Newman v. State, 121 Ga. App 692 (1970). The dead docket device may not be used to delay the trial over the defendant's objection. The defendant may still file a demand for a speedy trial on a case that is on the dead docket. Where the case has been placed on the dead docket over the objection of the State, the State may seek review by filing a petition for mandamus. State v. Creel, 216 Ga. App. 394 (1995).
The entry of a nolle prosequi, commonly referred to as a dismissal, does not act as an acquittal or bar future prosecution for the same offense. Phillips v. State, 298 Ga. App. 520 (2009). The State has the authority to re-indict the defendant for the same offense within the applicable statute of limitations, or within six months after the entry of the nolle prosequi if that occurs later. O.C.G.A. § 17-3-3; Hicks v. State, 315 Ga. App. 779 (2012); Sevostiyanova v. State, 313 Ga. App. 729 (2012); Bell v. State, 295 Ga. App. 607 (2009). This is true whether the indictment was quashed or a nolle prosequi was entered.
Furthermore, only the State can dismiss the charges. The victim cannot drop the charges. “The State has both the duty and the right to protect the security of its citizens by prosecuting crime. Because the purpose of criminal law is to serve the public functions of deterrence, rehabilitation, and retribution, it is the State, not the victim that has an interest in criminal prosecutions.” Golden v. State, 109299 Ga. App. 407 (2009). A judge does not have authority to dismiss a case over the State's objection simply because the victim does not want to pursue the case. State v. Colquitt, 147 Ga. App. 627 (1978).