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Winfrey v. State

Supreme Court of Georgia

June 29, 2018

WINFREY
v.
THE STATE.

          GRANT, JUSTICE.

         Appellant Jimmy Carlton Winfrey pled guilty to six counts of violating Georgia's Street Gang Terrorism Prevention Act in connection with a drive-by shooting of rapper "Lil Wayne's"[1] tour bus on Interstate 75.[2] Winfrey now appeals, asserting that the trial judge improperly participated in plea negotiations in violation of Uniform Superior Court Rule 33.5 (A) and that his plea was involuntary on the basis of that participation. We agree, and we therefore reverse Winfrey's convictions.

         I.

         Winfrey entered his plea during a pre-trial hearing where the status of his plea negotiations was put into the record. The prosecutor advised that the State had made three offers, each of which Winfrey had rejected, and that no additional offers were anticipated. Defense counsel explained that he had discussed the offers with Winfrey "ad nauseam," but Winfrey was hesitant to enter a plea because of the effect Gang Act or RICO convictions might have on his parole eligibility and therefore, he was ready to proceed with his pending motions. The trial judge then stated, in part:

[T]his opportunity is going away. Go to trial and you get convicted there's not going to be any of me being concerned about when you parole out. I will not be concerned about when you parole out.
I will not be able to impact what count -- only a jury can impact what count you get convicted on or don't get convicted on. So that's for your team to figure out.
Whatever they say you're guilty of I'm going to sentence you, and I'm not going to worry about when you get out of jail because it's not my concern.
My concern is you went to trial, you didn't take any responsibility for what you did or did not do. It was proved if you get convicted of what you did do. I'll take that as truth, because a jury said so.
And I would also take into account that you didn't take responsibility for what a jury says you did, and I won't worry about your parole eligibility.
And if you want to look around and see what happens to people in gangs in Cobb County, Georgia you can look at what happened last week to the guy who went to trial and got convicted and pulled -- was it 50 years?
[Prosecutors]: One hundred to serve fifty, Judge.
The Court: There you go. These guys tried him. So I'm not judging them. That's what she did.
I'm a whole different person. And you're sitting over in jail listening to everybody shoot their mouths off about this judge and that judge and the other judge.
We all have reputations. My reputation is not that I'm an easy judge. I know it, you know it, the whole community knows it. So if that's what you want to go up against be my guest.
You've got an offer, it's about ready to evaporate. You're not coming back to there unless you convince a jury of people from Cobb County, Georgia you didn't do most of this.
There's such a thing as winning a battle and losing a war. If you think you're so smart and you've got it all figured out, you go to trial, let's say you get acquitted on -- how many counts are there, 27?
So let's say you get acquitted on ten and convicted of seventeen. You add it all up it's still a mess of time, and I ...

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