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Phillips v. State

Court of Appeals of Georgia

October 15, 2014

PHILLIPS
v.
THE STATE

Page 880

Guilty plea; motion to withdraw. Floyd Superior Court. Before Judge Matthews.

Jennifer Walker Seifert, for appellant.

Leigh E. Patterson, District Attorney, F. Kevin Salmon, Assistant District Attorney, for appellee.

McFADDEN, Judge. Andrews, P. J., and Ray, J., concur.

OPINION

Page 881

McFadden, Judge.

Billy Phillips appeals from the trial court's denial of his motion to withdraw his guilty pleas. Because the trial court did not abuse its discretion in denying the motion, we affirm.

The record shows that Phillips was indicted for multiple offenses, including aggravated assault, terroristic threats and stalking. On August 29, 2013, the trial court held a calendar call at which Phillips' retained counsel announced that they were ready for trial. The case came on for a jury trial on September 16, 2013. But before the start of jury selection, Phillips informed his attorney that he wanted to enter a guilty plea.

After Phillips had the opportunity to discuss the matter with counsel, a plea hearing was held. The state indicated that it had agreed to drop various counts of the indictment in exchange for Phillips' guilty plea to the remaining counts as a three-time recidivist. The state did not offer a sentence recommendation, although it did inform the court that during earlier plea negotiations its final offer to Phillips had been for a total sentence of 35 years, with 15 years to serve in prison. Phillips acknowledged, among other things, that he had been advised of his rights, the charges against him, the maximum possible punishment and that he was knowingly and [329 Ga.App. 280] voluntarily pleading guilty. The court accepted the pleas to multiple counts of aggravated assault, terroristic threats and family violence, and one count of stalking. The court then entered a total sentence of 45 years, with 25 of those years to be served in confinement. Approximately a week after the sentence had been entered, Phillips filed a pro se motion to withdraw his guilty pleas. Appellate counsel was appointed and later filed an amended motion to withdraw the pleas. The trial court denied the motion, and this appeal followed.

Phillips claims actual and constructive denial of counsel. Because he was represented bye counsel who subjected the state's case to meaningful adversarial testing, his denial of counsel claims are without merit. And because he has failed to show either deficient performance or prejudice, his ineffective assistance of counsel claims are likewise without merit.

1. Denial of counsel at critical stages of criminal process.

Phillips claims that the trial court erred in denying his motion to withdraw his guilty pleas because he was actually and constructively denied the benefit of counsel at the calendar call and at the guilty plea hearing, critical stages of the criminal process, resulting in a manifest injustice. Phillips' claim of actual denial of counsel is specious as the record plainly shows that Phillips hired an attorney who represented him at all stages of the criminal process.

The further claim of constructive denial of counsel at those specific points is likewise without merit. When there exists a complete failure of representation by counsel, prejudice to the defendant may be presumed. Charleston v. State, 292 Ga. 678, 682 (4) (a) (743 S.E.2d 1) ...


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