Michael Berrien challenges the trial court's order
denying his motion to withdraw his guilty plea to felony
murder in connection with the shooting death of Marcus
Collins. We affirm.
According to the factual basis presented by the State during
the plea hearing, on January 26, 2012, Appellant had Vanessa
Marrero purchase a .380 caliber handgun for him. On the night
of February 13-14, Appellant was driving around Douglas,
Georgia, with Jacob Cornett and Brandon Williams, looking for
marijuana. Appellant asked Collins, who was riding his
bicycle, about buying some marijuana, and Collins told
Appellant to go to a park and wait. Collins retrieved the
marijuana from his supplier and brought it to the park to
Appellant, who took the drugs and got back into the car with
Cornett and Williams without paying. Appellant then pulled
out the gun and shot at Collins several times from inside the
car. Collins was struck three times and died from his wounds.
was later arrested and made statements that led the police to
Cornett and Williams, who said that they were in the car with
Appellant when he shot Collins. In a monitored telephone call
from jail, Appellant asked his father in coded language to
hide the gun that he used to shoot Collins, and his father
hid the gun in a neighboring county. Appellant's father
later led the police to the gun - a Hi-Point .380 caliber
handgun - which ballistics testing matched to the three
bullets recovered from Collins's body. Marrero, Cornett,
and Williams all agreed to testify for the State against
April 25, 2012, a Coffee County grand jury indicted Appellant
for malice murder, felony murder based on aggravated assault,
use of a firearm by a convicted felon, and possession of a
firearm by a convicted felon. Appellant's trial began on
September 2, 2014, and a jury was selected to try the case.
Appellant was represented by J. Clayton Culp, a very
experienced criminal defense lawyer who had been the Circuit
Public Defender for more than a decade. On the morning of
September 3, Appellant met with his mother and Culp to
discuss the possibility of entering a negotiated guilty plea,
and before the jury was brought out for opening statements,
the parties announced that they had reached an agreement.
the jury still waiting in the jury room, the trial court
conducted a plea hearing, at which Appellant entered a guilty
plea to felony murder pursuant to North Carolina v.
Alford, 400 U.S. 25 (91 S.Ct. 160, 27 L.Ed.2d 162)
(1970), and the State nolle prossed the other charges against
Culp told the court that Appellant was entering the plea to
avoid the risk of receiving a sentence of life in prison
without the possibility of parole. In a colloquy with the
court, Appellant acknowledged the constitutional rights that
he was waiving by entering his plea and said that no one had
made him any promises to cause him to enter his plea and that
he had concluded that it was in his best interest to enter
the plea; Appellant signed a plea form with the same
representations. Appellant also acknowledged in his colloquy
with the court that the State had sufficient evidence to
convict him of murder.
court found that Appellant entered his plea freely and
voluntarily and that there was a factual basis for the plea.
After pronouncing a sentence of life in prison with the
possibility of parole, the court said to Appellant,
"you've heard the sentence of the Court, now having
done so, do you wish to withdraw your plea and go to trial or
do you want to leave it like it is?" Appellant replied,
"Leave it like it is." Later the same day, the
court entered the judgment of conviction and sentence based
on the guilty plea.
days later, on September 9, 2014, Appellant filed a motion to
withdraw his guilty plea, which he amended with new counsel
on September 21, 2015, raising the two claims discussed
below. On October 8, 2015, the trial court held an
evidentiary hearing at which Appellant, his mother, and Culp
testified, and Appellant's plea form and a transcript of
the plea hearing were admitted into evidence. On October 28,
2015, the court entered an order denying Appellant's
motion to withdraw his guilty plea.
December 3, 2015, Appellant filed an untimely notice of
appeal. On December 21, 2015, he filed a motion for
out-of-time appeal to which the State consented. On January
4, 2016, the trial court entered an order granting
Appellant's motion for an out-of-time appeal, and the
trial court clerk then transmitted the record to this
Court. The appeal was docketed to the September
2016 term of this Court and submitted for decision on the
Appellant contends that he received ineffective assistance of
counsel in connection with his guilty plea. To prevail on
this claim, he must show that his counsel's performance
was professionally deficient and that, but for the
deficiency, there is a reasonable probability that he would
not have pled guilty and would have insisted on going to
trial. See Lafler v. Cooper, 566 __U.S.__, (132
S.Ct. 1376, 182 L.Ed.2d 398) (2012); Hill v.
Lockhart, 474 U.S. 52, 58-60 (106 S.Ct. 366, 88 L.Ed.2d
203) (1985). He has not met this burden.
asserts that Culp failed to adequately investigate the case
and prepare for trial and told him to enter a guilty plea to
delay the trial with the false assurance that he could
withdraw the plea a week later, and that he would not have
entered his Alford plea otherwise. However, before
denying Appellant's motion to withdraw his guilty plea,
the trial court held an evidentiary hearing at which
Appellant, his mother, and Culp testified. The court was
entitled to disbelieve the testimony of Appellant and his
mother and to credit instead Culp's testimony regarding
his substantial investigative efforts and readiness for trial
and his flat denial that he told Appellant to enter the
Alford plea for purposes of delay or that Appellant
could withdraw the plea a week later. Culp explained that the
evidence of Appellant's guilt was overwhelming and that
Culp was unable to substantiate Appellant's continually
changing stories about who else supposedly shot the victim,
so no strong defense was available. See Glover v.
State, __Ga.__, __(793 S.E.2d 408, 410) (2016) (holding,
in the context of a motion to withdraw a guilty plea, that
"[t]o the extent the evidence was in conflict at the
motion hearing, the credibility of Appellant's testimony
was for the trial court to determine"); McGuyton v.
State, 298 Ga. 351, 355 (782 S.E.2d 21) (2016)
("Credibility determinations are within the purview of
the trial court . . . ."). Thus, Appellant has failed to
prove ineffective assistance of counsel.
Appellant also contends that he should have been allowed to
withdraw his plea to correct a manifest injustice, because he
has consistently maintained that someone else shot the
victim. See Uniform Superior Court Rule 33.12 (A)
("After sentence is pronounced, the judge should allow
the defendant to withdraw a plea of guilty or nolo contendere
whenever the defendant, upon a timely motion for withdrawal,
proves that withdrawal is necessary to correct a manifest
injustice."). However, a trial court's acceptance of
a knowing and voluntary guilty plea with a sufficient factual
basis from a defendant who is unwilling or unable to admit
his participation in the crime does not amount to a
"'manifest injustice, ' such as where the
defendant was 'denied effective assistance of counsel, or
the guilty plea was entered involuntarily or without an
understanding of the nature of the charges.'"
McGuyton, 298 Ga. at 353 (citations omitted).
contrary, the scenario that Appellant describes is the very
situation that the United States Supreme Court confronted in
Alford, where the defendant had entered a guilty
plea to second-degree murder but "accompanied [his plea]
with the statement that he had not shot the victim."
Alford, 400 U.S. at 32. The Court held that
while most pleas of guilty consist of both a waiver of trial
and an express admission of guilt, the latter element is not
a constitutional requisite to the imposition of criminal
penalty. An individual accused of crime may voluntarily,
knowingly, and understandingly consent to the imposition of a
prison sentence even if he is ...