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Alexander v. State

Court of Appeals of Georgia

July 15, 2014

ALEXANDER
v.
THE STATE

Cert. applied for.

Guilty plea; motion to withdraw. Fulton Superior Court. Before Judge Shoob.

Kenneth D. Kondritzer, for appellant.

Paul L. Howard, Jr., District Attorney, Lenny I. Krick, Assistant District Attorney, for appellee.

BRANCH, Judge. Barnes, P. J., and Boggs, J., concur.

OPINION

Page 845

Branch, Judge.

Calvin Alexander brings this appeal from the denial of his timely-filed motion to withdraw his guilty plea. In his sole enumeration of error, Alexander argues that his lawyer's failure to advise him, prior to the entry of his guilty plea, that he would be ineligible for parole constituted ineffective assistance and entitles him to withdraw that plea. Pursuant to the Supreme Court of Georgia's decision in Williams v. Duffy, 270 Ga. 580, 581 (1) (513 S.E.2d 212) (1999), we find that Alexander's counsel was effective, as a matter of law. Accordingly, for reasons explained more fully below, we affirm the order of the trial court.

The record shows that on March 14, 2011, Alexander entered a non-negotiated Alford plea[1] in Fulton County Superior Court under which he pled guilty to three counts of aggravated child molestation,[2] two counts of statutory rape,[3] three counts of child molestation,[4] and two counts of enticing a child for indecent purposes.[5] At the plea hearing, Alexander stated that he was entering the plea because he believed doing so was in his best interest; that he understood he was entering a non-negotiated guilty plea with the sentence to be decided by the judge; that he had been advised of the maximum and minimum sentence he could receive for each charge; and that he understood [328 Ga.App. 301] that the State was asking for a sentence of 30 years, but that the judge did not have to honor that request.

The State had previously filed notice that it was seeking to have Alexander sentenced as a recidivist pursuant to OCGA § 17-10-7 (a), and at the plea hearing the State introduced evidence of Alexander's two prior felony convictions.[6] Following the introduction of this evidence, Alexander's attorney acknowledged that under OCGA § 17-10-7 the trial court had no option but to sentence Alexander to the statutory maximum of thirty years on each count of aggravated child molestation, but asked that the court require only ten years of the sentence be served in incarceration[7] and that sentences on all counts be imposed to run concurrently. The trial court then sentenced Alexander to 30 years on each of the aggravated child molestation charges with 15 years to be served in incarceration and the balance on probation; 15 years to serve on each of the statutory rape charges; and 15 years to serve on each of the child molestation charges, with all sentences to run concurrently.[8]

After being sentenced, Alexander filed a motion to withdraw his guilty plea on the grounds that it had resulted from ineffective

Page 846

assistance of counsel, due to trial counsel's failure to advise him that such a plea would render him ineligible for parole.[9] The motion was heard by the same judge who presided at Alexander's plea hearing and imposed his sentence. As Alexander's lawyer's statements at the plea hearing made clear, he was aware that Alexander was being sentenced under the recidivist statute and that Alexander would therefore be required to serve in incarceration whatever portion of the sentence the trial judge did not suspend or probate. At the motion hearing, however, the lawyer testified he did not have any recollection of having discussed with his client the fact that his client would [328 Ga.App. 302] not be eligible for parole if he pled guilty.[10] Trial counsel also testified that Alexander had rejected an initial plea offer by the State and had elected to proceed to trial. After witnessing general voir dire of the jury panel, however, Alexander told his attorney that he wanted to enter a guilty plea. Trial counsel then discussed with Alexander the fact that they did not know what sentence the judge would impose, but that he suspected it would be a longer sentence than that proposed by the State in its initial plea offer.[11]

Alexander also testified at the motion hearing and stated that he would not have entered a guilty plea had he known that he would be ineligible for parole. Alexander further testified, however, that he decided to plead guilty because he had doubts about whether his lawyer was prepared for trial and because the trial ...


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