Guilty plea; motion to withdraw. Whitfield Superior
Court. Before Judge Blevins.
G. Brandon Sparks, for appellant.
Herbert M. Poston, Jr., District Attorney, Susan L. Franklin, Assistant District Attorney, for appellee.
Melvin W. Barnes appeals the denial of his motion to withdraw his guilty plea. In his sole enumeration of error, Barnes asserts that the trial court erred in denying his motion to withdraw his guilty plea, which he contends was only entered due to the ineffective assistance of his trial counsel. Finding no error, we affirm.
[331 Ga.App. 383] " After sentence is pronounced, whether to allow the withdrawal of a guilty plea lies within the trial court's sound discretion, and we review the trial court's decision for manifest abuse of that discretion." (Citation and punctuation omitted.) Bailey v. State, 313 Ga.App. 824, 824-825 (723 S.E.2d 55) (2012). And, " the trial court is the final arbiter of all factual issues raised by the evidence." (Citation and punctuation omitted.) Id. at 825. Where a defendant who pleads guilty seeks to overturn his conviction on the basis of a claim of ineffective assistance of counsel, he must show both that counsel's performance was deficient and that there is a reasonable probability
that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. See, e.g., Johnson v. State, 307 Ga.App. 853, 855 (706 S.E.2d 201) (2011).
The record shows that Barnes was charged with two counts of aggravated child molestation, one count of aggravated sexual battery, one count of statutory rape, three counts of child molestation, and one count of sexual battery arising from Barnes' contact with a thirteen-year-old girl. The evidence against Barnes included two written confessions. The first was written by Barnes, who was 33 years old at the time, and stated, " It started, we were sitting on the couch and we were talking about her girl friend and I just asked her if she wanted to try it and that's when the full intercourse happened. I did not use protection." The second confession, which was written by an investigator but signed by Barnes read:
I was at [D. B.]'s house.[] I would stay there off and on and I had been there about a week and a half this time. I knew [D. B.] from high school when we dated. Thursday night I was sitting on the couch with [D. S. B.] and she was telling me about her girl friend. She had told me she liked the girl but did not say who she was. [D. S. B.] said she had just talked to her on the phone. I asked [D. S. B.] if she had ever wondered what it was like to be with a boy. She said yes. I started to perform oral sex on her because I told her I did not want to go all the way. I asked her if she wanted me to go all the way and she said yes. I was talking about putting my penis in her vagina. I got on top [of] her on the couch in the living room. After just a few seconds I felt guilty about what I was doing so I stopped. Nothing else happened after that. We put our clothes back on and sat on the couch. Some time later her mother got home. Tonight [D. B.] found out what [331 Ga.App. 384] happened and I admitted to her what happened and asked them to call the police because I wanted to try and make up for what I have done. I was wrong and I am sorry for what I have done. I am not under the influence of any drugs or alcohol. This statement is true and correct. I have not been made promises and no threats have been made against me.
On January 24, 2011, Barnes entered a guilty plea to one count of statutory rape and two counts of child molestation, and the State agreed to nolle prosse the remaining charges. On February 22, 2011, Barnes filed, pro se, a motion for plea withdrawal, alleging ineffective assistance of counsel. The trial court held a hearing on March 8, 2011, at which time Barnes announced that he had discharged his trial counsel. Barnes proceeded pro se, calling his trial counsel to testify and taking the stand himself.
At the hearing, both trial counsel and Barnes testified as to Barnes' claim that he had been a " meth cook" for the people he had been staying with in a house. According to Barnes, when he tried to leave, the people beat him up and told him that if he did not say he was guilty of child molestation, they would continue to beat him up. And it was because of this threat that he ran to a neighbor's house to call police and later confessed. Trial counsel testified that she believed both of Barnes' confessions would be admitted at a trial and feared that the jury could find him guilty of aggravated child molestation or aggravated sexual battery, each of which carries a minimum mandatory 25-year sentence. She also explained that although there were some problems with the State's case, she ...