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Gilmore v. State

Court of Appeals of Georgia, Third Division

June 6, 2017

GILMORE
v.
THE STATE.

          ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.

          Rickman, Judge.

         Jermaine 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 In an unpublished opinion (Gilmore I), this Court found that the trial court did not abuse its discretion by granting Gilmore's motion to withdraw guilty plea or err by denying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 Gilmore v. State, Case No. A15A2288, p. 3-6 (1) and 9-11 (3) (decided March 8, 2016) (unpublished opinion).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.

         The 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.

         In 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.

         After 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, [1] 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).

         In 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.

         At 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 ...


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