Charles v. the State, 338 Ga. App. 688

Background

Trey Charles was indicted for armed robbery, aggravated assault, and possession of a firearm during the commission of a felony; he pleaded guilty (with counsel) to reduced and remaining counts and sought First Offender treatment.
Court sentenced Charles on December 9, 2014: 15 years, serve 10 (Count 1); 15 years, serve 10 concurrent (Count 2); 5 years probation consecutive (Count 3), with First Offender withholding of adjudication.
Months later Charles (pro se) wrote the clerk seeking to withdraw his guilty plea; after obtaining new counsel he filed motions: to vacate an illegal conviction (merger), an amended motion to withdraw plea (ineffective assistance/ involuntariness), and for an out-of-time appeal.
At an evidentiary hearing both Charles and plea counsel testified with sharply divergent accounts regarding whether Charles was informed of the full plea terms and the meaning/effects of First Offender treatment.
The sentencing court (1) denied withdrawal of the plea as untimely and substantively meritless, (2) vacated the aggravated-assault sentence by merging it into robbery, and (3) denied the out-of-time appeal as moot.
On appeal Charles challenged only the denial of his motion to withdraw the guilty plea; the Court of Appeals affirmed.

Issues

Issue	Plaintiff's Argument (Charles)	Defendant's Argument (State)	Held
Timeliness of post-sentencing motion to withdraw plea	Charles: his January letter to clerk (and later amended motion) preserved a timely motion; merger made original sentence void so withdrawal remains available	State: the amended motion was filed after the term of court in which sentence was imposed; court lacked jurisdiction absent a void sentence	Denied — motion was procedurally untimely, and even if the merger made a sentence void, Charles failed to show substantive entitlement to withdrawal
Void-sentence exception to timeliness (merger)	Charles: vacating aggravated assault rendered earlier sentence void, allowing withdrawal of plea under OCGA § 17-7-93(b) before re-sentencing	State: merger claim challenges conviction (not a sentence void for exceeding statutory range); a sentence within statutory range is not void	Court treated the merger argument but held that merger challenges attack conviction, not the sentence; even accepting arguendo, Charles failed on merits
Voluntariness / knowing plea (ineffective assistance)	Charles: plea counsel misinformed him about First Offender consequences and that he was pleading only to robbery; plea was not knowing/voluntary	State: plea transcript and counsel’s testimony show Charles was informed of charges, recommended sentence, and First Offender effects; trial court credited plea colloquy and counsel	Denied — court found plea knowingly, intelligently, voluntarily entered; trial court credited plea colloquy and counsel over Charles’s later testimony
Remedy and relief after merger	Charles: seeks withdrawal of plea or out-of-time appeal after merger	State: court granted merger (vacated assault sentence) and denied out-of-time appeal as moot; withdrawal still not warranted	Court affirmed: merger granted, but withdrawal of plea denied for lack of merit; judgment otherwise affirmed

Key Cases Cited

Nazario v. State, 293 Ga. 480 (merger claims are challenges to convictions and must be raised in appropriate proceedings)
Kaiser v. State, 285 Ga. App. 63 (post-sentencing motions to withdraw plea must be filed in the term of sentence)
McGee v. State, 296 Ga. 353 (trial court lacks jurisdiction to allow plea withdrawal after the sentencing term expires)
Gholston v. State, 327 Ga. App. 790 (failure to merge challenges convictions, not render sentence void; sentence within statutory range is not void)
von Thomas v. State, 293 Ga. 569 (court’s jurisdiction to modify sentence is generally limited to one year)
Spencer v. State, 309 Ga. App. 630 (failure to merge is a conviction challenge, not a void-sentence claim)
Barron v. State, 297 Ga. 706 (reversal requires both error and harm)