Cert. applied for.
Plea agreement; withdrawal by state. Fulton Superior Court. Before Judge Dempsey.
Franklin & Hubbard, Curtis L. Hubbard, Jr., Barbee Law Firm, Todd E. Barbee, for appellant.
Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.
Terry Kelley appeals following the trial court's grant of the State's " Motion to Set Aside an Illegal Judgment." The court granted the motion on the basis that it was without authority to sentence Kelley to a lesser sentence than that recommended by the State as part of a negotiated plea to a reduced charge. Because the trial court erred in granting the State's motion, we reverse
and remand this case with direction for the trial court to re-enter the original judgment of conviction and sentence.
For the following reasons, we conclude that while a defendant can withdraw a negotiated plea if the trial court decides to impose a longer sentence than that recommended by the State, see Uniform Superior Court Rule 33.10, there is no comparable authority allowing for the State to withdraw its offer if the court indicates it intends to sentence the defendant to less time than recommended, and it is not for this court to judicially create such a right out of whole cloth.
The record reveals that Kelley was indicted along with three others and charged with felony murder and other crimes for his alleged participation in an armed robbery attempt that resulted in the death of a fifth participant. In an October 5, 2012 hearing, the State announced: " this is a plea regarding the defendant." After the trial court questioned Kelley regarding the voluntariness of his plea, the State informed the trial court that " as a condition of the plea ... Kelley must testify truthfully in the trial of [his co-defendants]." Upon providing a proffer for the factual basis of the plea, the prosecutor stated, " Your honor, we ask that you accept this negotiated plea. I know that [Kelley] does not have any felony convictions and so I'm sure [defense counsel] will request first offender but the State would object to that but that's up to the court." The State also agreed to nol pros the remaining charges against Kelley and recommend to the court a 20-year sentence. And, after some discussion concerning the reduced charge the State offered to Kelley as part of the plea [331 Ga.App. 759] agreement, the parties agreed that Kelley was pleading guilty to a reduced charge of voluntary manslaughter.
Following the court's colloquy with Kelley regarding his plea, Kelley presented his father, his grandmother, and the director of the Judicial Service House Arrest Services as character witnesses. The court then ruled:
I'm going to accept this plea as being freely, voluntarily, and knowingly entered with a factual basis therefor[ ].
I'm going to sentence Mr. Kelley ... to the reduced charge to voluntary manslaughter and the factors that the court -- there's a substantial factual basis for mitigation in this particular case.
First being that the defendant has admitted his involvement in this matter and has pled to it without reservation. He appears to be ...