Court granted Markell Rawles' application for a
certificate of probable cause to appeal the denial of his
petition for habeas corpus, posing the question of whether
the habeas court erred in finding that Rawles waived his
right to file the petition in exchange for a reduced
sentence. We conclude that the State has not met its burden
of showing Rawles' waiver, and we therefore reverse the
trial court's ruling and remand this case with direction.
March 2010, a jury found Rawles guilty of 6 counts of armed
robbery, 12 counts of aggravated assault, 6 counts of
kidnapping, 6 counts of false imprisonment, and 6 counts of
possession of a weapon during the commission of a crime. The
trial court merged the 6 counts of aggravated assault into
the armed robbery convictions and sentenced him to serve 25
years followed by a term of probation.
trial counsel filed a motion for new trial on the general
grounds on March 17, 2010. New counsel, Elizabeth Rogan,
amended that motion on November 18, 2010, arguing that the
evidence was insufficient because it did not support the
kidnapping conviction in light of Garza v. State,
284 Ga. 696 (670 S.E.2d 73) (2008) (superseded by OCGA §
16-5-40 for offenses committed on or after July 1, 2009); the
similar transaction evidence was improperly admitted; there
were errors in the trial court's instructions to the jury
and irregularities in the verdict form; and Rawles' trial
counsel was ineffective. In response, the State conceded that
three of the issues raised in Rawles' amended motion
"have arguable merit." As a result, Rawles and the
State discussed Rawles waiving his "right to appeal . .
. and be[ing] re-sentenced by th[e] court to a lesser
February 4, 2011, the trial court held a hearing on the
matter and resentenced Rawles to 15 years to serve followed
by a term of probation in accordance with the agreement
reached between Rawles and the State. During that hearing,
the trial court inquired if Rawles understood that he would
"specifically waive [his] right to appeal as a special
condition of . . . probation." Rawles asked questions
regarding the specific conditions of probation and then
responded that he understood and agreed to the waiver. The
following colloquy then took place:
The Court: As a special condition of your probation, as you
have agreed to do to achieve this sentence, you will waive
any right to appeal the conviction in this case . . . . If
you decide to file a habeas corpus petition it must be filed
within 4 years. Anything further from the State?
[The State]: No, Your Honor.
The Court: Anything further from counsel on his behalf?
Ms. Rogan: No, Your Honor.
The Court: And do you understand all of that, Mr. Rawles?
Mr. Rawles: What was the last little bit you said?
The Court: About habeas corpus petition that you can file it
within 4 years but I believe that would be in violation of
your waiver of your right to appeal.
Mr. Rawles: Yes.
The Court: So I take that back. I did that ...