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Williams v. State

Court of Appeals of Georgia

March 6, 2015

WILLIAMS
v.
THE STATE

Armed robbery. Coffee Superior Court. Before Judge Gillis.

Judgments affirmed.

Alfred T. Williams, pro se.

Bradley L. Collins, District Attorney, George E. Barnhill, Richard E. Currie, Assistant District Attorneys, for appellee.

PHIPPS, Chief Judge. Ellington, P. J., and McMillian, J., concur.

OPINION

Page 761

Phipps, Chief Judge.

Alfred Williams pled guilty to armed robbery and was sentenced to 20 years, to serve 15 of those years in confinement. Acting pro se, Williams appeals the orders of the Superior Court of Coffee County denying his joint motion to modify sentence, for out-of-time withdrawal of his guilty plea, and for the appointment of counsel. Finding no error, we affirm the orders.

A review of the record shows that following his indictment on one count of armed robbery, Williams, while represented by an assistant public defender, entered into a negotiated plea agreement in July 2008. At the hearing in which Williams entered his plea, his attorney announced that " [t]he plea offer is twenty, serve fifteen," and that Williams is " fine with the plea offer and he wants to go ahead and plea." After hearing the factual basis for the charge and examining [331 Ga.App. 47] Williams extensively about such matters as his understanding of his rights, the negotiated sentence, and the voluntariness of the plea, the court sentenced Williams to 20 years, to serve 15 years in confinement, with the remainder of the sentence to be served on probation. The court then asked Williams whether, having heard the sentence, he wanted to withdraw the guilty plea. Williams replied that he did not. When the court asked if he was sure, Williams replied that he was " [p]ositive."

On March 26, 2014, Williams, acting pro se, filed a " Motion to Modify Sentence; Motion for Out-Of-Time Withdrawal Of Guilty Plea; [and] Motion For Appointment Of Counsel" to represent him " in this matter." His appeal is from the May 8, 2014 orders denying those motions.

1. Williams contends that the court erred by denying his motion to modify his sentence. He asserts that his trial counsel rendered ineffective assistance because counsel " misled [Williams] to believe that if he entered a plea of guilty to the charge[ ] he would only receive a ten (10) year sentence and would be out of prison soon."

Pursuant to OCGA § 17-10-1 (f),[[1]] a court may correct or reduce a sentence during the year after its imposition, or within 120 days after remittitur following a direct appeal, whichever is later. Once this statutory period expires, a trial court may only modify a void sentence. A sentence is void if the court imposes punishment that the law does not allow. To support a motion for sentence modification filed outside the statutory time period, therefore, a defendant must affirmatively demonstrate that the sentence imposes punishment not allowed by law.[2]

Page 762

When Williams's sentence was imposed in 2008, the Superior Court of Coffee County had two terms of court each year.[3] More than [331 Ga.App. 48] five years passed before Williams filed the motion to withdraw his plea. Thus, Williams filed his motion outside the statutory period.[4]

Williams has not demonstrated that the sentence imposed is void. A sentence is not void if it " falls within the statutory range of punishment." [5] Williams's 20-year sentence falls within the statutory range of punishment for armed robbery,[6] and thus the sentence is not void.[7] Accordingly, the court did not err by denying the motion to modify sentence.

2. Williams contends that the trial court erred by denying his motion for an out-of-time withdrawal of his guilty plea. He asserts that his guilty plea was not knowingly, intelligently or voluntarily made, because his counsel provided ineffective assistance.

" The trial court's authority to grant a motion to withdraw a guilty plea ends after the expiration of the term of court during which the plea was entered." [8] Williams's motion to withdraw his guilty plea, filed more than five years after he entered the plea, was filed too late to give the trial court any authority to allow the withdrawal of the plea.[9] Accordingly, the trial court's denial of Williams's motion to withdraw his guilty plea is affirmed.

3. The trial court did not err by denying Williams's motion for the appointment of counsel to assist him in pursuing his untimely filed motions to modify the sentence and to withdraw his guilty plea.[10]

Judgments affirmed.

Ellington, P. J., and McMillian, J., concur.


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