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McKeever v. State

Court of Appeals of Georgia, Fifth Division

September 20, 2019




         Alfonza McKeever, Jr., acting pro se, brings this timely direct appeal from the trial court's judgment of conviction following McKeever's entry of an Alford plea. See North Carolina v. Alford, 400 U.S. 25 (91 S.Ct. 160, 27 L.Ed.2d 162) (1970). McKeever's appellate briefing is severely deficient, but as best we can discern, pursuant to our obligations under Felix v. State, 271 Ga. 534 (523 S.E.2d 1) (1999), [1]McKeever's claims of error fall into three general categories. His challenge to the voluntariness of his guilty plea cannot be resolved on the record, so we must dismiss that portion of his appeal. His challenge to the trial court's jurisdiction over him has no merit. And he waived appellate review over his various other claims of trial court error by virtue of his guilty plea. So we affirm the judgment in part and dismiss the appeal in part. See LaFette v. State, 285 Ga.App. 516 (646 S.E.2d 725) (2007).

         1. Facts and procedural posture.

         On November 13, 2018, McKeever was indicted for, among other things, violating the Racketeer Influenced and Corrupt Organizations Act ("RICO"), OCGA § 16-14-4 (c), predicated on allegations that he engaged in acts of insurance fraud, theft by deception, and identity fraud that involved making false claims about car accidents. This was a reindictment following the state's dismissal of a 2017 indictment of McKeever for the same offenses under a different case number, and during the course of the proceedings under the earlier indictment the trial court had granted McKeever's request to represent himself.

         The trial court made a number of pre-trial rulings, including denying McKeever's request to continue a January 14, 2019 trial date.[2] On the day of trial, McKeeever again asked for a continuance, arguing that he was not prepared to proceed, and the trial court again denied the request, informing McKeever that he could either proceed to trial or enter a guilty plea. After engaging in a plea colloquy, McKeever entered an Alford plea to the RICO count; the remaining counts of the indictment were nolle prossed.

         Immediately thereafter, McKeever filed a notice of appeal from the trial court's entry of the judgment of conviction. It appears from the record that he did not ask the trial court to withdraw his guilty plea.

         2. Challenges to voluntariness of guilty plea.

         McKeever argues that he felt pressured to enter the guilty plea, which we construe as a challenge to the voluntariness of the plea. He argues that the trial court assumed a prosecutorial role and threatened him, but the transcript of the plea hearing does not support that claim. And we do not discern within McKeever's appellate briefs any other

contention that, in accepting the guilty plea, the trial court erroneously failed to follow the established procedure. . . . Thus, the existing record, including the transcript of the guilty plea hearing, is immaterial to [McKeever's] appeal [as to his claims regarding voluntariness]. The issues which he seeks to raise on appeal [regarding voluntariness] can be developed only in the context of a post-plea hearing. [McKeever] could have filed a motion to withdraw his guilty plea and then his claims [regarding voluntariness] would have been fully aired in a timely manner at the hearing on the motion. If [McKeever] had done so and the trial court had denied the motion, then he could have appealed from that denial. However, in this case there was no such motion or hearing and, thus, no appeal from an order denying the motion. The issues which [McKeever] raises [regarding voluntariness] cannot be resolved only by facts appearing in the existing record.

Caine v. State, 266 Ga. 421, 422 (467 S.E.2d 570) (1996). See Grantham v. State, 267 Ga. 635, 635-636 (481 S.E.2d 219) (1997) (defendant's argument that his guilty plea was involuntary because "he was threatened by the prosecutor and was under duress for having to proceed to trial with an undesirable attorney" involved issues that could be "developed only in the context of a post-plea hearing"). "Accordingly, [the portion of his appeal challenging the voluntariness of his plea] must, therefore, be dismissed." Caine, supra. See LaFette, 285 Ga.App. at 517 (2) (a) (dismissing portion of defendant's direct appeal that challenged voluntariness of guilty plea but deciding other claims on their merits).

         We note that the law requiring dismissal of an appeal from a judgment entered on a guilty plea unless the issue on appeal can be resolved by facts appearing in the record, including Caine v. State, supra, 266 Ga. 421, has been called into question See Ringold v State, 304 Ga. 875, 883-886 (3) (823 S.E.2d 342) (2019) (Nahmias, J, concurring specially). Nevertheless, until our Supreme Court overrules this precedent, we are bound to apply it. See Cooper v. State, 348 Ga.App. 649, 652-653 (4) (824 S.E.2d 571) (2019).

         3.Challenges to jurisdiction.

         McKeever argues that the trial court lacked jurisdiction over him. We may review this claim of error notwithstanding McKeever's guilty plea, because it is "grounded upon the right not to be haled into court at all[.]" Hooten v. State,212 Ga.App. 770, 771 (1) (442 S.E.2d 836) (1994) (citation and punctuation omitted). Accord Davis v. State, 251 Ga.App. 436, 437 (554 S.E.2d 583) (2001). But "[t]here is no merit to this contention, as the trial court clearly had jurisdiction of the person and subject matter." Duncan v. State, 291 Ga.App. 580, 581 (2) (662 S.E.2d ...

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