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Platt v. State

Court of Appeals of Georgia, Fourth Division

August 30, 2017

PLATT
v.
THE STATE

          DILLARD, C. J., RAY, P. J., and SELF, J.

          DILLARD, CHIEF JUDGE.

         Bartholomew Platt, proceeding pro se, appeals the trial court's denial of his motion to withdraw his guilty pleas to theft by taking, false swearing, and second-degree cruelty to children, arguing that he is entitled to be represented by counsel on appeal, he was not informed of the correct sentencing range for one of his charges, and there was an insufficient factual basis to support his guilty plea to theft by taking. For the reasons that follow, we remand this case for further proceedings consistent with this opinion.

         The record shows that on February 7, 2014, a convenience-store owner reported to law enforcement that some of his scaffolding, which was worth more than $1, 500, had been stolen. An investigation ensued, and law-enforcement officers ultimately "tracked [the scaffolding] down to SLM Recycling." The officers then determined that Platt had signed the scaffolding over to SLM Recycling, and falsely represented that he had the authority to do so. Based on this information, Platt was indicted in Case Number 14-CR-890 for theft by taking involving property worth more than $1, 500 and false swearing. Then, on February 16, 2015, in a separate and apparently unrelated incident, Platt was caught on videotape outside a convenience store pushing a "young man" to the ground and holding him there.[1] As to that incident, in Case Number 15-CR-611, Platt was indicted for cruelty to children in the first degree.[2]

         Following negotiations with the State on both cases, Platt agreed to plead guilty to theft by taking, false swearing, and second-degree cruelty to children. In exchange, the State agreed, in Case Number 15-CR-611, to reduce the first-degree cruelty-to-children charge (Count 7), a felony, to the lesser-included offense of second-degree cruelty to children, a misdemeanor. The State also agreed to nolle pros the six other charges in that case, which included three counts of child molestation, two counts of aggravated assault, and one count of terroristic threats. After a plea hearing, the trial court approved the negotiated guilty plea, determined that Platt's guilty plea was knowing and voluntary, and imposed the sentence that had been agreed upon by the parties. Specifically, Platt received a five-year sentence for theft by taking, a five-year sentence for false swearing, and a three-year sentence for second-degree cruelty to children, all of which to be served consecutively for a total sentence of 13 years.

         Subsequently, on September 21, 2015, Platt filed a pro se motion to withdraw his guilty plea, summarily asserting that he received ineffective assistance of counsel. The trial court scheduled a hearing on the motion and appointed counsel to represent Platt in the matter. Platt's newly appointed counsel then filed an amended motion to withdraw Platt's guilty plea, abandoning the ineffective-assistance-of-counsel claim and arguing that the plea was involuntary because the State advised Platt that he faced a sentencing range for second-degree cruelty to children that was much higher than the one he actually faced. Nevertheless, following a hearing, the trial court denied Platt's motion. This appeal follows.

         Although a guilty plea may be withdrawn anytime before sentencing, "once a sentence has been entered, a guilty plea may only be withdrawn to correct a manifest injustice, and a trial court's refusal to allow withdrawal will not be disturbed on appeal absent a manifest abuse of discretion."[3] Further, while the test for manifest abuse of discretion will, by necessity, vary from case to case, withdrawal of a guilty plea is necessary to correct a manifest injustice if, for example, "a defendant is denied effective assistance of counsel, or the guilty plea was entered involuntarily or without an understanding of the nature of the charges."[4] With these guiding principles in mind, we turn now to Platt's specific claims of error.

         1. Platt first contends that the trial court erred by failing to appoint him appellate counsel to represent him in this appeal.[5] We agree.

         We begin by noting that the Supreme Court of the United States has held that "the Sixth Amendment right to counsel in criminal prosecutions applies to every critical stage in a criminal prosecution."[6] And the Supreme Court of Georgia has specifically held that "the plea withdrawal proceeding is a critical stage of the criminal prosecution[, ]" and absent a valid waiver of counsel, a defendant is "entitled to counsel to assist him in seeking to withdraw his guilty plea[ ]."[7] Moreover, this Court has further held that "the right to counsel extends through the direct appeal of an order denying [a] defendant's motion [to withdraw his guilty plea]."[8]

         As previously noted, Platt asserts that he is entitled to be represented by counsel in this appeal. Indeed, although the record does not reflect that Platt ever specifically requested the appointment of appellate counsel, "an [indigent] individual desiring an appeal [in a criminal case] need not, once a responsible state authority knows of the desire to appeal and knows of the status of indigency, specifically request appointment of appellate counsel."[9]

         We acknowledge that our Supreme Court has explained-in the context of an indigent defendant's right to counsel in plea-withdrawal proceedings before the trial court-that an appellate court should consider whether the absence of counsel was prejudicial to the defendant.[10] And here, Platt was represented by counsel in his plea-withdrawal proceedings before the trial court, he has not alleged that his counsel below was ineffective, and his appeal addresses the merits of the only claim that his trial counsel preserved for appeal. Indeed, on appeal, Platt is limited to reasserting arguments that were raised before and ruled upon by the trial court.[11] And this is exactly what he has done. Indeed, in his pro se appellate brief, Platt has raised, inter alia, the only argument that was ruled upon by the trial court-i.e., that his guilty plea was unknowing and involuntary because he was given the incorrect sentencing range for one of the three charged offenses.[12] Nevertheless, even if Platt's appellate brief is sufficient to allow this Court to review that claim on the merits, the Supreme Court of Georgia has cautioned that "[t]he vast majority of courts that have addressed the denial of the right to counsel at [a] critical stage in a criminal proceeding have reversed and remanded to the trial court with instructions to appoint counsel . . . ."[13]The Supreme Court has also explained that when a defendant claims his guilty plea was not knowingly and voluntarily entered, a harmless-error analysis in the context of the denial of that defendant's right to counsel is inappropriate.[14] We, like the Supreme Court, "are persuaded by those majority of cases holding that reversal and remand is the appropriate remedy for violations of this constitutional right."[15]

         Thus, even if it is possible for us to consider the merits of Platt's claims now, and even if he would not ultimately be prejudiced by proceeding pro se on appeal, we follow our Supreme Court's direction that remanding the case for appointment of counsel is appropriate for the violation of a constitutional right.

         2. Given our holding in Division 1 that this case must be remanded to the trial court to consider Platt's clam that he is entitled to the appointment of appellate counsel, it is premature for this Court to address any of Platt's claims on the merits.

         For all these reasons, we remand this case with direction that the trial court consider whether Platt satisfies the indigency requirement such that appointment of appellate counsel is warranted, ...


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