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Bradshaw v. State

Court of Appeals of Georgia, Fourth Division

October 28, 2019

BRADSHAW
v.
THE STATE.

          DOYLE, P. J., COOMER and MARKLE, JJ.

          Doyle, Presiding Judge.

         Thomas Bradshaw entered a non-negotiated Alford[1] plea to aggravated child molestation and a non-negotiated guilty plea to child molestation and possession of drug-related objects, and he was sentenced to life in prison.[2] Bradshaw later filed a motion to withdraw his plea, which the trial court denied. Bradshaw appeals, arguing that (1) first appellate counsel was ineffective and (2) his plea was not knowingly, voluntarily, or intelligently made. For the reasons that follow, we vacate the trial court order to the extent that it denied his motion to withdraw his guilty plea on the basis of ineffective assistance of counsel and remand for further proceedings consistent with this opinion.[3]

         The record shows that after Bradshaw was indicted, he was denied bond and remained in jail pending trial. The State offered him a plea agreement of 20 years to serve 15, which he declined to accept, proceeding to trial.

         After the jury was impaneled, Bradshaw decided to enter an non-negotiated guilty plea to child molestation and possession of drug-related objects and a non-negotiated Alford plea to aggravated child molestation. During the plea colloquy, among other things, the trial court advised Bradshaw of his right to a jury trial and that he would be giving up that right by entering the Alford plea and guilty plea.

         Bradshaw completed a waiver of rights form, which listed the three charges at the top of the form. He answered questions on the form, including that he was 38 years old; had a tenth grade education; was not mentally disabled or under the influence of alcohol, drugs, or medication; fully understood the charges against him; and had conferred with his attorney about the case and the possible range of sentences he could receive, including the maximum of life in prison. Bradshaw answered affirmatively that he understood he had a right to a trial by jury, to be presumed innocent, to confront and examine witnesses against him, to testify and present his own witnesses, to subpoena witnesses, to be assisted by an attorney at trial, to remain silent and not incriminate himself, to appeal any conviction if he went to trial, and that he was giving up of all those rights by pleading guilty. Bradshaw also answered affirmatively that he understood that any guilty plea could affect his immigration status if he was not a citizen and that he could withdraw his guilty plea at any time prior to pronouncement of a sentence; an "N/A" appeared by the questions asking if he understood that any negotiated plea was not binding on the court or if his attorney had explained any such negotiated agreement with him. Bradshaw denied that he had been promised or threatened in any way to influence him to enter the plea, and he answered affirmatively that he agreed to be bound to the conditions of probation attached to the waiver of rights form.

         At the bottom of the form, Bradshaw's attorney signed a certification acknowledging that she had reviewed all of the questions on the form with Bradshaw; that she had explained to him all of the rights contained in the waiver form; and that she had answered any questions Bradshaw had concerning his rights and any other matters contained in the form.

         Following the attorney's certification was a paragraph labeled "order," stating that the plea court had (1) reviewed the form; and (2) determined from the form and from further questioning of Bradshaw that (a) there was a factual basis for the plea, and (b) the plea was freely, knowingly, and voluntarily entered without duress or promises of leniency. Thereafter, the court sentenced Bradshaw to life imprisonment.

         Bradshaw's attorney filed a motion to withdraw his guilty plea, arguing that he received ineffective assistance of plea counsel, his plea was not knowingly and voluntarily made, and his plea was not supported by a factual basis. Bradshaw also sent to the clerk of the court pro se letters requesting copies of his case files and asking whether he was on the list of people who were "[eaves]dropped on." The clerk responded to Bradshaw about his case file and further that "[u]nfortunately as far as giving you information as being one of the defendants involved in the eavesdropping, we are not entitled to do so nor do we have a list of the defendants involved."

         At the hearing on the motion to withdraw the guilty plea, Bradshaw testified that he had intended to go to trial and proceeded to pick a jury because he was innocent. Bradshaw felt pressured to enter a plea by his attorney, who came to him with information that the victim was going to change her testimony, and he believed that the Alford plea he was entering was actually a bench trial before the judge. Bradshaw did not believe that he was admitting guilt to any of the charges, and he did not recall entering a guilty plea to the charges of child molestation or possession of drug-related objects.

         Plea counsel also testified at the hearing, and she recalled that Bradshaw was unhappy with the plea offers made by the State and wanted a "better deal," not a jury trial. Plea counsel testified that Bradshaw understood that the plea deals offered, especially the offer of 20 years to serve 15, were very good in light of his potential exposure to life in prison. Plea counsel testified that Bradshaw wanted a plea deal of 15 to serve 5, which was what another defendant was offered for child molestation charges, but the State would not consider that for Bradshaw, who was facing an aggravated child molestation charge. Plea counsel eventually found out from the victim that she intended to testify against him because she did not want to return to youth detention; counsel also testified that Bradshaw continued to refuse to take the plea offers, but after a jury was selected he stated that he wanted to enter an Alford plea to aggravated child molestation and would plead guilty to the other charges. Counsel stated that at no time did she tell him an Alford plea was a bench trial, and she advised him that if he wanted to have the judge hear his side of the story, he would have to have a trial.

         After Bradshaw entered his plea and was sentenced, he contacted plea counsel, wishing to withdraw the plea; they argued, and he accused her of being ineffective. Plea counsel testified that Bradshaw accused her of being "involved with all the controversy going on with the sheriff, and that was - just to be fair, that was prior to it coming out about the recordings; and to be fair, Mr. Bradshaw had indicated a lot of concern between October of [2017] and January of [2018] about the sheriff's office being corrupt and about them trying to set him up." First appellate counsel did not investigate the issue of sheriff's office corruption further or add any information about the eavesdropping into the record.

         At the conclusion of the hearing, the court denied Bradshaw's motion to withdraw his guilty plea but modified his original sentence to 25 years imprisonment followed by life on probation. Bradshaw now appeals.

         1. Bradshaw first argues that he received ineffective assistance of first appellate counsel, who failed to make a record regarding the effect, if any, of the local law enforcement eavesdropping and ...


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