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Durham v. State

Court of Appeals of Georgia

October 20, 2014

DURHAM
v.
THE STATE

Guilty plea; motion to withdraw. Newton Superior Court. Before Judge Benton.

Travis T. Durham, pro se.

Layla H. Zon, District Attorney, Jillian R. Hall, Assistant District Attorney, for appellee.

DOYLE, Presiding Judge. Miller and Dillard, JJ., concur.

OPINION

Doyle, Presiding Judge.

Travis Tyrone Durham pleaded guilty to trafficking in cocaine and possession of cocaine with intent to distribute. Fifteen days later, [329 Ga.App. 313] Durham, acting pro se, moved to withdraw his guilty plea, arguing that his guilty plea was involuntary and requesting legal representation and a hearing on his motion. Durham later filed two amended motions to withdraw his guilty plea, asserting additional grounds. Thereafter, the trial court denied his motions without a hearing, without appointing Durham counsel, without informing him of his right to counsel, and without obtaining a valid waiver of Durham's right to counsel during the proceeding on the motion to withdraw his guilty plea.

1. Durham now appeals, contending that he was denied his Sixth Amendment right to counsel during the proceedings on his motion to withdraw his guilty plea. As the State concedes, this case is controlled by Fortson v. State,[1] which

held that a proceeding to withdraw a guilty plea is a critical stage of a criminal prosecution, and " the right to counsel attaches when a defendant seeks to withdraw a guilty plea, thus entitling that defendant to assistance of counsel." Thus, the Court reasoned, the trial court must inform the defendant of the right to counsel and ascertain whether that right has been waived. [Absent a valid waiver, the defendant is entitled to legal counsel.] The Court in Fortson also rejected application of the harmless error analysis, being " instead persuaded by those majority of cases holding that reversal and remand is the appropriate remedy for violations of this constitutional right." [2]

In light of Durham's unheeded request for counsel and a hearing, " we reverse and remand

Page 899

this case to the trial court for a [hearing] on [Durham's] motion to withdraw his guilty plea to be conducted in conformity with [ Fortson ]." [3]

2. Durham's remaining enumerations of error are moot in light of our holding in Division 1.[4]

Judgment reversed and case remanded.

Miller and Dillard, JJ., concur.


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