ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.
James Gilmore was tried by a jury and convicted of aggravated
assault, burglary, and aggravated battery. Following the
denial of his motion for new trial, Gilmore appealed
contending that the trial court erred by granting his motion
to withdraw his guilty plea and denying his motion for
directed verdict. Gilmore also contended, in the alternative,
that his plea counsel rendered ineffective assistance by
moving to withdraw his guilty plea. In an unpublished opinion
(Gilmore I), this Court found that the trial court
did not abuse its discretion by granting Gilmore's motion
to withdraw guilty plea or err by denying his motion for
directed verdict. Gilmore v. State, Case No.
A15A2288, p. 3-6 (1) and 9-11 (3) (decided March 8, 2016)
(unpublished opinion). However, this Court vacated the trial
court's judgment that Gilmore's plea counsel was
effective and remanded this case to the trial court for
further proceedings. Gilmore I at 6-9 (2). On
remand, following a hearing, the trial court again denied
Gilmore's motion for new trial. This appeal follows.
pertinent procedural history of this case is as follows:
Prior to trial . . . Gilmore had entered a negotiated guilty
plea to aggravated assault, burglary, and robbery. He was
sentenced as a recidivist under OCGA § 17-10-7 (c) to
serve three concurrent 20-year sentences, with 10 years in
confinement followed by 10 years on probation. After
sentencing, however, he moved to withdraw his plea, arguing
that he "did not knowingly and voluntarily plead guilty
to being sentenced as a "Class 'C'
Recidivist." Finding that Gilmore did not knowingly and
voluntarily plead because he had not been advised on the
record of his recidivist sentencing, its meaning, or its
consequences, the trial court granted his motion to withdraw
his guilty plea and vacated his sentence.
Later, however, Gilmore moved to vacate the trial court's
order allowing withdrawal of his guilty plea. The trial court
denied that motion on the morning of trial, reasoning that it
had allowed Gilmore to withdraw his plea to correct a
manifest injustice because he had not been informed of his
recidivist sentencing and noting that Gilmore
"doesn't want to go back to the sentence that I
entered. He wants to withdraw his guilty plea and go back to
a different sentence without recidivism[.]
At trial, a jury convicted Gilmore of aggravated assault,
burglary, and aggravated battery. He was sentenced to serve
40 years in confinement without parole, followed by 20 years
on probation, upon proper notice and proof of his recidivism.
Gilmore I at 2-3.
Gilmore I, this Court remanded this case to the
trial court for the trial court to determine whether Gilmore
"had actually begun to serve [his sentence pursuant to
the guilty plea] after the oral pronouncement [which made no
reference to recidivist sentencing] and prior to the
sentencing form [which indicated Gilmore was being sentenced
as a "Class 'C' Recidivist"] having been
signed by the judge." Gilmore I at 9 (2).
Following a hearing, the trial court determined that
"there is no evidence that Gilmore began to serve his
sentence between the time the [trial court] pronounced the
oral sentence and minutes later when the written order was
signed." Gilmore concedes this issue on appeal.
conceding the only issue that this case was remanded for,
Gilmore continues to argue that his plea counsel rendered
ineffective assistance of counsel by failing to advise him of
other available options to challenge the recidivist portion
of his sentence other than withdrawing his guilty plea.
Specifically, Gilmore argues that his counsel was ineffective
for neglecting to challenge his recidivist sentence on the
basis that the State failed to meet its burden of proving his
recidivism. To the extent that Gilmore's arguments have
not already been rejected by this Court in Gilmore
I,  for the following reasons we find that his
claim has no merit.
To prevail on an ineffective assistance of counsel claim, a
criminal defendant must show both that his counsel's
performance was deficient and that the deficient performance
so prejudiced him that there is a reasonable likelihood that,
but for counsel's errors, the outcome of the proceedings
would have been different. Hill v. State, 291 Ga.
160, 164 (4) (728 S.E.2d 225) (2012). "The likelihood of
a different result must be substantial, not just
conceivable." (Citation omitted.) Id. In
challenging counsel's strategic decisions, a defendant
"must show that no competent attorney, under similar
circumstances, would have made [the same decision]."
(Citation and punctuation omitted.) Davis v. State,
290 Ga. 584, 585-586 (2) (723 S.E.2d 431) (2012). On appeal
"we accept the trial court's factual findings and
credibility determinations unless clearly erroneous, but we
independently apply the legal principles to the facts."
(Citation omitted.) Hill, supra.
Gilmore I at 6-7 (2).
Gilmore I, this Court noted that, in some instances,
the State's burden of proving a defendant's
recidivism may be waived. Gilmore I at 6 (1), n. 1.
See von Thomas v. State, 293 Ga. 569, 572-573 (2)
(748 S.E.2d 446) (2013) (listing cases). "A plea
agreement is, in essence, a contract between a defendant and
the State." (Citation and punctuation omitted.)
Simmons v. State, 292 Ga. 265, 267 (2) (736 S.E.2d
402) (2013). See Martin v. State, 207 Ga.App. 861,
862-863 (429 S.E.2d 332) (1993). Gilmore's plea counsel
testified at his first motion for new trial that she
negotiated his guilty plea with the District Attorney's
Office and that one of the terms of the negotiated plea
agreement was that he would be sentenced as a recidivist.
Gilmore's plea counsel further testified that Gilmore
would have been sent a copy of the recidivist notice and that
she discussed the recidivist notice with him during
"lengthy back and forth discussions about the plea
offer." In addition, the trial court noted for the
record that prior to taking the plea, counsel for both sides
explained the terms of the proposed plea agreement in a
meeting in the trial court's chambers and "they
asked me to accept this negotiated plea as a recidivist
plea." The trial court explained that he reluctantly,
due to the seriousness of the offense, agreed to accept the
recidivist plea with a relatively light sentence because the
victim was experiencing health problems.
Gilmore's second motion for new trial hearing, his plea
counsel testified that she filed a motion to withdraw his
guilty plea because he requested that she do so and that she
did not speak with him about other possible grounds for
relief because "the [plea] deal originally was under a
recidivist notice." Gilmore's plea counsel also
testified that she did not think it would have been
appropriate to file a motion to correct Gilmore's
sentence because "I'm not going to affirmatively lie
to the Court and say, oh well, this is something that we
didn't bargain for." We recognize that "[t]he
failure to make a meritless motion cannot provide ...