Andrews v. State, 328 Ga. App. 344

Andrews pleaded guilty in 2003 to eight counts: rape, aggravated assault, two burglary, theft by taking, and three robbery counts.
The trial court sentenced him to 20 years for burglary, aggravated assault, and robbery counts, 10 years for theft by taking, and life for rape.
Andrews later moved to withdraw his plea claiming misrepresentation and ineffective assistance of counsel; the trial court treated the filing as a withdrawal motion.
The trial court found burglary counts 1 and 2 and robbery counts 5 and 6 merged, but deemed the merger waived due to the guilty plea.
Nazario v. State (2013) prompted review of merger: convictions that merge are void and guilty pleas do not waive merger challenges; appellate panel must address merger and withdrawal issues based on a limited record.
On appeal, the court vacated some convictions for merger and remanded for resentencing while affirming others, and addressed the effectiveness of plea counsel.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether burglary counts merged for sentencing	Andrews argues merger should apply; counts 1 and 2 punished for same entering with theft/rape.	State concedes merger; but argues limited record with plea waives some merger issues.	Burglary counts 1 and 2 must merge; resentencing required for merged count.
Whether robbery counts 5 and 6 merged	Counts 5 and 6 based on taking cash and check card occurred simultaneously.	State contends separate acts may preclude merge; complex factual record.	Counts 5 and 6 must merge; improper to sentence them separately.
Whether robbery count 7 (car keys) merged with prior robbery counts	Car keys taken after assault; potential single act of taking.	Car keys acquisition was a separate act; not merged with earlier robbery counts.	Count 7 did not merge with Counts 5-6; remained separate.
Whether theft by taking (Count 8) merged with robbery conviction for taking car	Theft by taking and robbery were distinct acts.	Two separate taking events at different times/places.	Count 8 did not merge with robbery conviction.
Whether trial counsel was ineffective in pleading preparation affecting merger	Andrews claims counsel failed to prepare him for potential merger consequences.	Record shows counsel advised on options and rights; plea knowingly entered.	No ineffective assistance; record supports knowing, voluntary plea.

Nazario v. State, 293 Ga. 480 ((Ga. 2013)) (conviction that merges is void; guilty plea does not waive merger challenge)
Drinkard v. Walker, 281 Ga. 211 ((Ga. 2006)) (required evidence test for merger—each offense must require proof of a fact the other does not)
Terrell v. State, 274 Ga. App. 539 ((Ga. App. 2005)) (burden to prove guilty plea knowingly, intelligently, voluntarily; effectiveness standard)
Jones v. State, 287 Ga. 270 ((Ga. 2010)) (trial court credibility allowed; counsel testimony can be credited over self-serving statements)
Woods v. State, 209 Ga. App. 604 ((Ga. App. 1993)) (merger when offenses were part of the same continuous act)
Williams v. State, 295 Ga. App. 9 ((Ga. App. 2008)) (affirmed non-merger where separate and distinct acts of force were used)
Jones v. State, 279 Ga. 854 ((Ga. 2005)) (distinct acts of taking; non-merger)