Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Hayes

Supreme Court of Georgia

June 5, 2017

THE STATE
v.
HAYES.

          BOGGS, Justice.

         We granted this petition for certiorari after the Court of Appeals reversed Marion S. Hayes' convictions and sentences on his Alford plea to burglary and other offenses, holding that the trial court impermissibly participated in plea discussions in violation of Uniform Superior Court Rule 33.5 (A). Hayes v. State, 337 Ga.App. 280 (786 S.E.2d 539) (2016). Because the trial court did not participate in plea negotiations and its colloquy with Hayes was permissible, we reverse.[1]

In February 2010, Hayes was charged with burglary, aggravated assault, possession of tools for commission of a crime, and obstruction of a police officer. The State filed notice of its intention to seek recidivist punishment under OCGA § 17-10-7 (a) and (c), based upon three previous burglary convictions. At a calendar call in December 2011, the trial court noted that Hayes' case was a "backup case" and could be reached the next day or the day following. Hayes then addressed the trial court and insisted that he was only making a "special visitation." He further asked that the court "take judicial notice of my notice in coming, and that you would provide me with a written notification that you have done so as soon as possible." The trial court responded:
Well, I am not going to be able to do that. Right now I just want to talk about what the schedule over the next couple of days is and make sure that you understand what the charges against you are and what the potential sentence is. My recollection is, I don't have a file in front of me, and you've been charged with burglary. And I believe you have been recidivised by the State, which means if you're sentenced - you are found guilty and you are sentenced, you could be facing up to 20 years. And by recidivised, because you have I think three priors, if you were sentenced to 20 years you will serve every day of that in prison.
Last week you were over here, I think, Thursday, and there w[as] some discussion and you wanted some time to think about putting up a non-negotiated plea. And as you know, that would involve the court accepting your guilty plea, and then I could sentence you without going forward with the trial. So that's where we are right now. I don't know if you are still willing to enter a non-negotiated plea, but I believe the D.A. who has this case was here earlier, and she indicated is my recollection, that she would entertain another non-negotiated plea. So that opportunity is still in front of you.
If you don't do that, we are going to have a trial, and you are facing 20 years and you would serve every day of it if you are found guilty. And that was the sentence imposed by the court . . . . I want to be sure you understand what you are looking at.

         Do you have any questions?

         Hayes responded, "I have a lot of questions." The trial court asked, "Do you have any questions that relate to the need to go forward with trial, entering possibly a guilty plea or anything like that? Let me narrow it down to those." Hayes said, "[I]t's just hard for me to just, you know, go with a non-negotiated because I would like to know - I would like to know what it is." The trial court then asked the State for "the history of the plea negotiations in this case."

         The district attorney observed that with three prior burglaries, Hayes' sentence would be a mandatory minimum of 5 years, that the State's recommendation was 20 to serve 15, and "[w]ere you to go to trial, the maximum that you would be looking at would be 26 years in prison without the possibility of parole. 20 years on the burglary, a consecutive 5 years, 5 years for possession of tools during the commission of a felony, and misdemeanor obstruction 1 year." The prosecutor stated that "we would be willing to enter a negotiated plea with you, 20 years serve 15, balance suspended." Hayes responded, "That's a lot of time. I am getting too old for this." The trial court stated, "Well, if you'd like some time to think about it, I can give you 10 minutes before we take you back."

         After "[t]here was a pause in the proceedings" of unspecified length, [2]Hayes, represented by the public defender[3], entered an Alford plea. The State agreed to nol pros the aggravated assault charge, and requested a sentence of 20 years to serve 15, with the balance suspended. The trial court thoroughly examined Hayes on the voluntary nature of his plea and explained his rights and the consequences of entering his plea, and the State presented the factual basis for the plea. Hayes' counsel asked for a sentence of 20 to serve 7 with the balance on probation, and requested that the trial court "order a drug evaluation and any treatment that the probation department prescribes." The trial court sentenced Hayes as requested by his counsel: 20 years to serve 7 on the burglary count, with the remaining counts sentenced concurrently, with a drug evaluation and probation under the Probation Management Act, OCGA §§ 42-8-150, et seq.[4]

         Hayes filed a pro se motion for an out-of-time appeal, which was granted, and he appealed pro se to the Court of Appeals. That court found that the trial court, by telling Hayes, "if you were sentenced to 20 years you will serve every day of that in prison, " and "you are facing 20 years and you would serve every day of it if you are found guilty. And that was the sentence imposed by the court, " failed to inform Hayes that part of his sentence could be probated or suspended. It thus concluded that the trial court "effectively advised Hayes that it had no intention of probating or suspending any portion of his sentence if he proceeded to trial, stating that he would spend 'every day of [the 20-year sentence] in prison.' And this impermissible participation by the trial court in the plea-negotiation process 'rendered the resulting guilty plea involuntary.'" (Citations and footnotes omitted.) 337 Ga.App. at 283. Hayes' conviction was reversed and the case remanded for a new plea or trial. Id. Because the Court of Appeals misinterpreted the trial court's colloquy and the applicable law, we reverse.

         1. Uniform Superior Court Rule 33.5 (A) provides: "The trial judge should not participate in plea discussions." In addition, "[j]udicial participation in plea negotiations is prohibited as a constitutional matter when it is so great as to render a guilty plea involuntary." (Citations and punctuation omitted.) Pride v. Kemp, 289 Ga. 353, 354 (711 S.E.2d 653) (2011). But here, the Court of Appeals erred in concluding that the trial court participated in plea negotiations and "effectively advised Hayes that it had no intention of probating or suspending any portion of his sentence if he proceeded to trial." 337 Ga.App. at 283.

         Two passages of the trial court's colloquy are relevant for our consideration. First, the trial court informed Hayes that if he were found guilty and sentenced, he could be facing up to 20 years, and, because of his recidivist status, if he were sentenced to 20 years he would serve every day. Telling a defendant that he could be sentenced to up to 20 years is not the same as telling a defendant that he would be sentenced to 20 years. Second, the trial court informed Hayes that if he went to trial he would be facing 20 years and would serve every day of it if he were found guilty and sentenced to 20 years. Both statements are clearly conditional, and explain the maximum sentence that Hayes could face upon conviction.[5]

         Contrary to the assertion by the Court of Appeals, disclosure of the possibility of probation or suspension was not required in order to avoid impermissibly indicating an intention to impose a particular sentence. The trial court could permissibly inform Hayes of the maximum sentence he could face. And that distinction is not "hair splitting" as Hayes contends, but an accurate description of the information that the trial court conveyed to Hayes. Uniform Superior Court Rule 33.8 lists in detail the matters as to which a defendant must be informed before the trial court accepts a plea of guilty, and that the trial court must inform a defendant on the record "of the maximum possible sentence on the charge, including that possible from consecutive sentences and enhanced sentences where provided by law." USCR 33.8 (D) (3). However, there is no requirement in recidivist cases ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.