Gilmore v. the State
341 Ga. App. 585
Ga. Ct. App.2017Background
- Jermaine Gilmore pleaded guilty, per a negotiated plea, to aggravated assault, burglary, and robbery and was sentenced as a Class C recidivist to concurrent 20-year terms (10 years confinement, 10 on probation).
- Gilmore moved to withdraw the guilty plea, arguing he had not been advised on the record about recidivist sentencing; the trial court granted the motion and vacated the sentence.
- The State tried Gilmore; a jury convicted him of aggravated assault, burglary, and aggravated battery; he was later resentenced after proper recidivist notice and proof.
- On prior appeal (Gilmore I), this Court affirmed withdrawal and trial rulings but vacated the trial court’s finding that plea counsel was effective and remanded for determination whether Gilmore had begun serving the originally pronounced sentence before a written recidivist order was signed.
- On remand the trial court found (and Gilmore conceded) he had not begun serving the sentence before the written order was signed; Gilmore then argued plea counsel was ineffective for not pursuing alternative challenges to the recidivist enhancement.
- The trial court denied relief after factfinding that counsel negotiated a recidivist plea, advised Gilmore of risks of withdrawing, and that Gilmore insisted on withdrawing the plea despite counsel’s warnings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was plea counsel ineffective for failing to advise or pursue alternatives to withdrawing the plea to challenge recidivist status? | Gilmore: counsel should have challenged recidivism proof instead of moving to withdraw plea. | State/trial court: counsel negotiated a recidivist plea, informed Gilmore, warned against withdrawal; defendant insisted on withdrawal. | Held: No ineffective assistance — defendant proceeded against counsel’s advice and invited the error. |
| Did Gilmore begin serving the orally pronounced sentence before the written recidivist order was signed (the remand issue)? | Gilmore contested prior finding that he had not begun service. | State: evidence showed no service began between oral pronouncement and signing. | Held: On remand trial court found no evidence of service starting; Gilmore concedes this. |
| Could counsel have filed meritless motions to challenge sentence? | Gilmore: alternative motions were available and counsel failed to pursue them. | State: filing a meritless motion cannot establish ineffective assistance; counsel reasonably declined to assert a claim inconsistent with the agreed recidivist plea. | Held: Court declines to decide definitively whether alternate challenge would succeed but notes meritless motions don't support ineffective assistance. |
| Is defendant bound by prior appellate rulings (law of the case)? | Gilmore tried arguments already addressed in Gilmore I. | State: prior appellate rulings bind subsequent proceedings absent changed evidentiary posture. | Held: Law of the case applies; prior decision binding and the evidentiary posture unchanged. |
Key Cases Cited
- Hill v. State, 291 Ga. 160 (establishes deficient performance and prejudice standards for ineffective assistance)
- Davis v. State, 290 Ga. 584 (deference to trial court factual findings; standards for challenging counsel’s strategy)
- von Thomas v. State, 293 Ga. 569 (recidivism proof may be waived in plea agreements)
- Simmons v. State, 292 Ga. 265 (plea agreements treated as contracts between defendant and State)
- Funck v. State, 296 Ga. 371 (failure to file meritless motion cannot show ineffective assistance)
- Brewer v. State, 328 Ga. App. 801 (defendant cannot blame counsel for decisions made over counsel’s objection)
- Sanders v. State, 211 Ga. App. 859 (counsel not ineffective where defendant proceeded against advice and erred)