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Alexander v. State

Court of Appeals of Georgia, Third Division

June 27, 2017

ALEXANDER
v.
THE STATE.

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

          RICKMAN, JUDGE.

         This appeal stems from the denial of a motion to withdraw a guilty plea, and this is the second appearance of this case before this Court. In its first appearance, a direct appeal, Calvin Alexander challenged the lower court's denial of his motion to withdraw his plea of guilty to three counts of aggravated child molestation, three counts of child molestation, two counts of statutory rape, and two counts of enticing a child for indecent purposes.[1] See Alexander v. State, 328 Ga.App. 300 (761 S.E.2d 844) (2014). Alexander claimed that his plea counsel rendered ineffective assistance by failing to advise him that because he was sentenced as a recidivist, he would be ineligible for parole under the plea. Id. Relying upon Williams v. Duffy, [2] this Court affirmed the lower court's denial of Alexander's motion, and held that because parole ineligibility is a collateral consequence of a guilty plea, Alexander could not prove that his plea counsel performed deficiently by failing to discuss that consequence with him. Id. at 307.

         On writ of certiorari, the Supreme Court of Georgia reversed and in doing so, overruled Williams and held that when it came to parole eligibility, "an attorney's failure to inform his or her client that he or she would be ineligible for parole as a recidivist for the entirety of a lengthy prison sentence is constitutionally deficient performance." Alexander v. State, 297 Ga. 59, 65 (772 S.E.2d 655) (2015). The Supreme Court remanded for the lower court to evaluate Alexander's motion under the two-prong test in Strickland v. Washington.[3] Id.

         On remand, the lower court again denied Alexander's motion to withdraw his guilty plea. No hearing was held. The court ruled that Alexander failed to show either deficient performance or harm under the Strickland test. It is from this ruling that Alexander now appeals. We affirm.

         "In reviewing a lower court's determination of a claim of ineffective assistance of counsel, we give deference to the trial court's factual findings, which are upheld on appeal unless clearly erroneous; however, we review the lower court's legal conclusions de novo." (Punctuation and footnote omitted.) Navarrette v. State, 298 Ga.App. 637 (680 S.E.2d 649) (2009).

[A] criminal defendant who seeks to withdraw his guilty plea due to ineffective assistance of counsel must meet the . . . two-part test of Strickland v. Washington - deficient performance and prejudice. Specifically, a defendant who pleads guilty and seeks to overturn his conviction because of counsel's errors must show both that counsel's performance was deficient and that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.

(Punctuation and footnotes omitted.) Hall v. State, 313 Ga.App. 670, 672 (2) (722 S.E.2d 392) (2012).

         "Pretermitting whether trial counsel's performance was deficient, [Alexander] has failed to meet the prejudice prong of the Strickland test, and it is not necessary for us to examine the [deficient] performance prong of the test." (Citation omitted.) Walker v. State, 299 Ga. 250, 251 (787 S.E.2d 718) (2016). To satisfy the prejudice prong, Alexander was required to

set out special circumstances that might support the conclusion that [he] placed particular emphasis on [his] parole eligibility in deciding whether or not to plead guilty. A court making a Strickland/Hill[4] prejudice inquiry must examine what the defendant would have done at the guilty plea hearing had [he] been given the correct information.

(Citations and punctuation omitted.) Cox v. Howerton, 290 Ga. 693, 694 (723 S.E.2d 891) (2012).

         At the pre-remand hearing on Alexander's motion to withdraw his guilty plea, Alexander testified that had he known that he would not have been eligible for parole, he would not have pled guilty. The lower court, however, was entitled, as it did, to discredit Alexander's testimony at the motion to withdraw hearing that he would not have entered a plea if he had known he would not have been eligible for parole. See Gomez v. State, 300 Ga. 571, 573 (797 S.E.2d 478) (2017). The court determined that Alexander did not place any "particular emphasis" on his parole eligibility and that there were no "special circumstances" that caused him to place particular emphasis on parole eligibility.[5] The lower court summarized proffered evidence of Alexander's guilt of the charged crimes;[6] found that Alexander strongly believed that he would be convicted at trial; and found that the maximum sentence[7] Alexander could have received after a trial compared to the "more lenient sentence following a plea" weighed against his claim that he would have gone to trial had he known he would have been ineligible for parole. Notably, by entering a non-negotiated guilty plea, Alexander "assumed the risk of receiving a sentence of extended duration." Cox, 290 Ga. at 695.

         The record supports the lower court's factual findings and determinations, and under the circumstances of this case, we cannot say that the lower court's conclusion that Alexander did not meet his burden of showing prejudice under the Strickland v. Washington test was in error. "Accordingly, the trial court did not err when it denied [Alexander's] motion to withdraw his guilty plea on ...


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