Reconsideration denied November 3, 2014.
Murder. DeKalb Superior Court. Before Judge Scott.
Gerard B. Kleinrock, for appellant.
Robert D. James, Jr., District Attorney, Leonora Grant, Anna G. Cross, Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Clint C. Malcolm, Assistant Attorney General, for appellee.
HINES, Presiding Justice. All the Justices concur.
Hines, Presiding Justice.
Gary M. DeToma, Sr. (" DeToma" ), appeals from the denial of his motion to withdraw his plea of guilty to the malice murder of his five-year-old son, Gary, Jr. (" Gary" ). For the reasons that follow, we affirm.
According to the factual basis for the plea that the State presented at the plea hearing, DeToma and his wife were in the midst of divorce proceedings and, in order to prevent her from exercising custody of his two sons, DeToma intended to kill both sons, and then himself. On the morning of July 12, 2012, he succeeded in killing Gary, first putting a pillow over his face and suffocating him, then placing a plastic bag over his head, and securing it with duct tape; either or both of these acts could have caused Gary's death. DeToma began an attack on his other son, four-year-old William, but did not succeed in carrying it out; apparently DeToma had ingested sleeping pills and pain killers in a quantity sufficient for him to become temporarily incapacitated. Because DeToma had not gone to work that morning, a co-worker went to DeToma's home and knocked on the front door. William responded and opened the door to the extent [296 Ga. 91] a chain latch allowed this to be done. The co-worker, realizing something was wrong, cut the chain on the door, entered the home, and found DeToma on a bed with Gary; the co-worker attempted to revive Gary, could not, and fled the home with William. Law enforcement officers arrived at the home, placed DeToma in custody and, some hours later, DeToma admitted to killing Gary.
DeToma was indicted for the malice murder of Gary and for criminal attempt to commit murder in connection with the attack on William. The State filed a notice of its intent to seek the death penalty and, on May 15, 2012, DeToma pled guilty to the malice murder charge and, as recommended by the State, he was sentenced to life without the possibility of parole for that crime; the count for attempt to commit murder was placed on the dead docket. A timely motion to withdraw DeToma's guilty plea was filed by plea counsel; a hearing on the motion was held; the motion was denied; and DeToma filed this appeal.
1. Asserting that he did not wish to plead guilty, DeToma contends the trial court erred in denying his motion to withdraw his plea because it was not freely and voluntarily entered.
To determine whether a guilty plea is valid, the record must show that the defendant understands the plea and the constitutional rights that he is relinquishing. Boykin v. Alabama, 395 U.S. 238 (89 S.Ct. 1709, 23 L.Ed.2d 274) (1969). The State has the burden on direct review of establishing that the plea was entered intelligently and voluntarily. King v. State, 270 Ga. 367 (1) (509 S.E.2d 32) (1998). The State may meet this burden " by showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea, or by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary." (Citation and punctuation omitted.) Loyd v. State, 288 Ga. 481, 485 (2) (b) (705 S.E.2d 616) (2011). 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. Walden v. State, 291 Ga. 260 (1) (728 S.E.2d 186) (2012); Uniform Superior Court Rule (USCR) 33.12.
Wright v. State, 292 Ga. 825, 826 (1) (742 S.E.2d 468) (2013).
At the hearing on his motion to withdraw his plea, DeToma ...